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2014 DIGILAW 502 (ORI)

Bhakta Bandhu Ghadei v. District Judge, Cuttack

2014-08-19

AMITAVA ROY, B.R.SARANGI

body2014
Judgment AMITAVA ROY, C.J. The petitioner, who was appointed as Lower Division Clerk in the office of the Sub-Divisional Judicial Magistrate, Jajpur under the judgeship of Cuttack has put to challenge his removal from service by way of disciplinary measure. 2. We have heard Mr. Das, learned counsel for the petitioner and also Mr. Patnaik, learned counsel for the opposite party. 3. The skeletal facts are that the petitioner, while was serving in the above capacity, having joined in the said post on 30.6.1981, had proceeded on leave on 13.2.1992 on the ground of illness and got extended the term of his absence. According to him, he suffered from peptic ulcer leading to malignancy and was advised by the doctor to take rest from 14.2.1992 to 10.9.1993. Though he tried to attend his duties in between, because of his frail health, he could not do so and had to keep on taking leave. Disciplinary Proceeding for his absence was initiated by the concerned authority on 5.9.1992 and five charges herein below were leveled against him. (a) Whereas you left headquarters on 13.2.92 after office hours placing an application for C.L. for 14.2.92 in the office of the Addl. C.J.M.(Spl.), Cuttack, then in-charge of the Court, before grant of C.L. for 14.2.92. Another application was received on 15.2.92 from you extending leave for 3 days more. Thereafter another application was received for E.L. from 14.2.92 to 25.2.92 on the ground of your own treatment. (b) Whereas you did not join to your duty on 26.2,92 and sent a telegram for extension of leave till 10.3.92 seeking for leave till 31.3.92. (c) Whereas you did not also report to duty on 1.4.92 and have been continuing to remain absent from duties till date without any intimation and permission. (d) Whereas, a registered letter from Addl. C.J.M., Cuttack was issued to you directing you to resume your duties immediately. Although you received the notice on 14.7.92, you did not join your duties and thereby disobeyed the orders of your authority. (e) Whereas, your unauthorized absence from duty amounts to negligence and dereliction of duty and grave misconduct. One additional charge was also framed on 24.4.93 as hereunder. Although you received the notice on 14.7.92, you did not join your duties and thereby disobeyed the orders of your authority. (e) Whereas, your unauthorized absence from duty amounts to negligence and dereliction of duty and grave misconduct. One additional charge was also framed on 24.4.93 as hereunder. (a) Whereas, on making an application for leaving headquarters after office hour on 28.11.92 you left headquarters without obtaining permission from your authority and since then you did not attend to your duties and continued to send applications dt. 30.11.92, 2.12.92 and 15.12.92 for granting C.D. for 30.11.92, 2.12.92, 4.12.92 and 5.12.92 and from 14.12.92 to 15.12.92. (b) Whereas, after 15.12.92 till 8.1.93 you further absented yourself from duties without any intimation or application and have thereby unauthorisedly absented from duty from 15.12.92 to 8.1.93. 4. The charges were communicated to the petitioner and he was asked to submit his written statement in defence but he failed to do so. 5. The petitioner has averred that on receipt of charge memos, he represented before the authorities to grant some time as he was then ill, but no such opportunity was granted and the Disciplinary Proceeding was conducted ex parte. Eventually by order dated 4.9.93 he was discharged from service. His appeal was turned down by the Appeal Committee by the High Court vide order dated 2.4.1997 and he was removed from service. Consequently he approached this Court for redress. 6. Opposite party no. 1 and 2 in their counter averred that the petitioner while working as Junior Clerk in the office of the Addl. Chief Judicial Magistrate, Cuttack left the headquarters on 13.2.1992 by applying for C.L. on 14.2.92 without the same being sanctioned. He applied for extension of leave by three days on 15.2.92. On 20.2.92, he applied for earned leave from 14.2.92 to 25.2.92. He further did not join on 26.2.92 and sent a telegram seeking extension of leave till 10.3.92 and thereafter till 31.3.92. On 1.4.92, he did not report for duty and continued to remain absent without any intimation. He even did not respond to the letter asking him to resume his duties though he received the same. Disciplinary Proceeding was therefore drawn up against him for being absent from duty for six months on the charge of misconduct and dereliction in the performance of duties. He even did not respond to the letter asking him to resume his duties though he received the same. Disciplinary Proceeding was therefore drawn up against him for being absent from duty for six months on the charge of misconduct and dereliction in the performance of duties. On receipt of the charge memos, he continued to apply for time for filing written statement, but eventually he did not do so. According to the opposite party, in these circumstances the Disciplinary Proceeding was disposed of ex parte and vide order dated 4.9.93, he was discharged from service. The Departmental Appeal was rejected on the administrative side by the High Court declining to accept the medical certificates. The opposite party have insisted that the petitioner had been afforded sufficient and reasonable opportunity to participate in the Departmental Proceeding., but deliberately, failed to avail the same. 7. In his rejoinder, the petitioner reiterated that all through he was seriously ill for which he was advised to take rest from 14.2.92 to 10.9.1993. He relied on medical documents in support of this assertion. He further stated that though he was unwell and was not in a position to attend duty, on some occasion, he tried to do so, but could not continue for his failing health. 8. Mr. S.S.Das, has assiduously argued that the impugned order of dismissal is patently illegal and unsustainable in law, the departmental proceeding having been conducted ex parte against the petitioner in violation of the principles of natural justice. He has further argued that the petitioner was unwell between 14.2.92 to 10.9.193, a fact supported by medical documents. He urged that the charge of wilful absence from duty is wholly unfounded rendering the decision to remove him from service patently arbitrary, unfair and unjust. Mr Das has urged without prejudice to the above, that having regard to the charges assumed to be proved, the penalty of removal from service is shocking and disproportionate, which needs to be interfered with by this Court. No further plea has been raised by the learned counsel for the petitioner. 9. Mr. Patnaik, learned Addl. Government Advocate in reply has maintained that the petitioner has failed repeatedly although time was granted to participate in the Departmental Proceeding, and thus, the plea of unfairness is wholly untenable. No further plea has been raised by the learned counsel for the petitioner. 9. Mr. Patnaik, learned Addl. Government Advocate in reply has maintained that the petitioner has failed repeatedly although time was granted to participate in the Departmental Proceeding, and thus, the plea of unfairness is wholly untenable. Considering the period of his absence as enumerated in the charges, the imputation of negligence and dereliction of duty, being proved he has been rightly removed from service. He also argued that that the appeal committee of the High Court having dismissed the appeal amongst others rejecting the medical documents, this Court in the exercise of power of judicial review would not re-scrutinize the probative value thereof. Learned counsel insisted that having regard to the facts and circumstances of the case and misconduct, the penalty of removal from service can by no means be criticized as shocking and disproportionate. 10. We have considered the facts and materials on record. We have also perused the original records pertaining to the Disciplinary proceeding. The records reveal that charge memos referred to herein above had been duly served on the petitioner and that though he initially took time to file written statement on a few occasions and was by order dated 24.7.93 granted the request for the last time, he ultimately failed to do so and remained absent without any step. The Disciplinary Authority, therefore had to proceed with the matter ex parte and by order dated 4.9.93 on an analysis of all relevant facts discharged the petitioner from service. A perusal of the proceeding of the appeal committee would also reveal that it had examined all relevant facts. It on a scrutiny of the medical certificates observed that the same could not be relied upon. It was noted that though the attending doctor had advised him rest from 14.2.92 to 10.9.93, he had attended his duty on 15.12.92 to 8.1.93. That in spite of adequate opportunity given to the petitioner, he did not participate in the proceeding was also noted. The Appeal Committee therefore ordered for petitioner’s removal from service. 11. On an analysis of the recorded facts and the documents available, we find ourselves in agreement with the conclusion that the petitioner had remained absent from duty from 14.2.92 to 10.9.93, a period spanning over one and half year with a short break in between 15.12.92 to 8.1.93. The Appeal Committee therefore ordered for petitioner’s removal from service. 11. On an analysis of the recorded facts and the documents available, we find ourselves in agreement with the conclusion that the petitioner had remained absent from duty from 14.2.92 to 10.9.93, a period spanning over one and half year with a short break in between 15.12.92 to 8.1.93. There is no overwhelming reason to differ from the finding of the Appeal Committee that the medical documents furnished by him are unreliable to explain the absence for over one and half year. The records of the Disciplinary proceeding would demonstrate that he did not participate in the proceedings in spite of repeated opportunity being granted to him. Admittedly, he did not file any written statement of defence nor adduce any evidence rebutting the charge. Undisputedly, the petitioner’s version was considered on its merit by the Appeal Committee and rejected. 12. On a cumulative consideration of all above, we are thus, of the view that the action taken cannot be nullified on the ground of violation of principle of natural justice. We notice that in the facts and circumstances of the case, the petitioner did not make any sincere effort to attend his duty for the period over one and half year. He did not make any devoted attempt to participate in the Departmental Proceedings. The period involved is quite substantial to be overlooked by any institution committed to public service. The petitioner’s acts of omission and commission do constitute gross misconduct having an adverse bearing on institutional discipline. The penalty of removal from service therefore, cannot be repudiated to be shockingly disproportionate. We find no cogent and convincing reason to intervene. The writ petition is accordingly rejected. DR.B.R.SARANGI, J. I agree.