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2018 DIGILAW 1265 (RAJ)

Shambhoo Singh v. State of Rajasthan

2018-05-14

PUSHPENDRA SINGH BHATI

body2018
ORDER : Dr. Pushpendra Singh Bhati, J. This writ petition has been preferred with the following prayers: "1. By an appropriate writ order or direction, the respondents may kindly be quashed & set aside the order dated 31.08.2004, order dated 07.12.2005 and order dated 10.07.2009. 2. By an appropriate writ order or direction, the respondents may kindly be directed to reinstate the petitioner. 3. By an appropriate writ order or direction, the respondents may kindly be directed to grant the gratuity, pension as well as retiral benefits. 4. Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner." 2. Brief facts of this case, as noticed by this Court, are that the petitioner joined his services on the post of Constable on 01.03.1977 and was promoted on the post of Head Constable in the year 1999. The petitioner continued in service upto 31.08.2004 when he was terminated by the respondent-department on account of willful absence. The petitioner has rendered 27 years of service and the charge against him is of willful absence for 84 days. 3. Learned counsel for the petitioner has pointed out that any previous absence of the petitioner cannot be taken into account for passing the impugned order, as it has already been condoned by the respondent and the only consideration is the 84 days absence and the reasons therefore was that the petitioner's mother and wife were critically ill, and therefore, he could not join the duties and remained absent. 4. Learned counsel for the petitioner has relied upon the judgment passed by Hon'ble Apex Court in the matter of Krushnakant B. Parmar v. Union of India, reported in (2012) 3 Supreme Court Cases 178. The relevant portion of this judgment reads as under :- "14. Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a Government servant and reads as follows: "Rule 3 - General. (1) Every Government servant shall at all times-- (i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a Government servant." 15. (1) Every Government servant shall at all times-- (i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a Government servant." 15. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. 16. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. 18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. 19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct. 20. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty. 21. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani v. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held: "It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with." 22. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty. 23. Mr. P. Venkateswarlu, DCIO, Palanpur, who was the complainant and against whom appellant alleged bias refused to appear before the Inquiry Officer in spite of service of summons. Two other witnesses, Shri Jivrani and Shri L.N. Thakkar made no statement against the appellant, and one of them stated that he had no knowledge about absence of the appellant. Ignoring the aforesaid evidence, on the basis of surmises and conjectures, the Inquiry Officer held the charge proved. 24. Two other witnesses, Shri Jivrani and Shri L.N. Thakkar made no statement against the appellant, and one of them stated that he had no knowledge about absence of the appellant. Ignoring the aforesaid evidence, on the basis of surmises and conjectures, the Inquiry Officer held the charge proved. 24. Though the aforesaid facts noticed by the Appellate Authority but ignoring such facts giving reference of extraneous allegations which were not the part of the charge, dismissed the appeal with following uncalled for observation: "The appellant even avoided the basic training required for the job and asked JAD Ahmedabad to send all the training papers for his training at IB Training School, Shivpuri (Madhya Pradesh) to his residence at Ahmedabad. `An untrained officer is of no worth to the department'." 25. In the result, the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority, affirmed by the Appellate Authority; Central Administrative Tribunal and High Court are set aside. The appellant stands reinstated." 5. Learned counsel for the petitioner has relied upon the judgment passed by Division Bench of this Hon'ble Court (Jaipur Bench) in the matter of Siya Ram Sharma v. Union of India (D.B. Civil Writ Petition No. 6184/2003, decided on 22.03.2011) The relevant portion of this judgment reads as under :- "In our view, disciplinary authority could not have mechanically removed the petitioner from service without deciding all the aforenoted questions, notwithstanding the provisions contained in Rule 7 of the Rules of 2001, which itself provides that the Sevaks shall be entitled to such leave, as may be determined by the Government, from time to time provided that (a) where a Sevak fails to resume duty on the expiry of the maximum period of leave admissible and granted to him, or (b) where such a Sevak who is granted leave for a period less than the maximum period admissible to him under these rules, remains absent from duty for any period which together with the leave granted exceeds the limit up to which he could have been granted such leave, he shall, unless the Government, in view of the exceptional circumstances of the case, otherwise decides, be removed from service after following the procedure laid down in Rule 10 (emphasis ours). The petitioner applied for extension of leave for the cited reason namely, his two brothers died in quick succession and further that the petitioner fell ill, which fact he supported by two medical certificates. These circumstances ought to have received consideration of the Government because in exceptional circumstances rigour of Rule 7 of the Rules of 2001 has been relaxed. Intention of the Government in this behalf is further evident from the letters dated 8/5/1996 and 25/11/1993 issued by the Director General (Post) New Delhi whereby, power to condone breaks in service caused due to leave in excess of 180 days by the EDAs was delegated to the Head of Circles. These letters thus clearly indicate that in appropriate cases, the Head of Circles can condone the period of absence even beyond 180 days. In the present case, even if total period of absence including the period of sanctioned leave is counted comes to 258 days and if initial period of three months i.e. 10/9/1992 to 12/12/1992 (sanctioned leave) is excluded, total period of absence comes to only 164 days, which cannot be said to have so enormously exceeded the outer limit of 180 days. If period of absence is independently observed, his absence was not willful in nature and also not so excessive as to justify the order of removal from service. (9) In the result, writ petition is partly allowed. The order of removal dated 31/1/1995 (Ann.1) and order dated 5/6/1996 (Ann.3) dismissing appeal of the petitioner are quashed and set-aside and the impugned order dated 14/5/2002 passed by the Central Administrative Tribunal dismissing original application of the petitioner is set-aside. Petitioner is held entitled to reinstatement in service. Although, the petitioner shall be entitled to continuity of service but he shall not be entitled to any monetary benefits for the intervening period on the principle of 'no work no pay'." 6. Learned counsel for the petitioner has submitted that the petitioner was also having compelling circumstances and with 27 years of service, since his absence was not willful, therefore, punishment imposed is too harsh. 7. Learned counsel for the petitioner has submitted that the petitioner was also having compelling circumstances and with 27 years of service, since his absence was not willful, therefore, punishment imposed is too harsh. 7. Learned counsel for the respondent has refuted the submissions made on behalf of the petitioner on the ground that petitioner was habitual absentee and had remained absent for 1139 days and in the past service, the department itself had been taking a lenient view but while the earlier absence was condoned, the petitioner again went absent for 84 days without any explanation. 8. Learned counsel for the respondent has stated that the petitioner has not made out any case whereby it could be shown that the circumstances were so compelling that he could not come to join the duties. Learned counsel for the respondent has further pointed out from the order dated 07.12.2015 that the petitioner was given the recall notices on three different dates and even after giving such recall notices on three occasions, the petitioner did not report to the respondents, and since it is a disciplined service, therefore, the delay of 84 days cannot be condoned on account of willful absence. 9. After hearing counsel for the parties and perusing the record of the case, this Court is of the opinion that as per the documents, the impugned orders are well reasoned and despite the petitioner being an employee of a disciplined force, has not been able to prove to the department that the 84 days delay was under compelling circumstances. The repeated pleading of illness of mother and wife are not substantiated with requisite proof and hence, these facts cannot be considered at this stage in the writ jurisdiction. This Court also finds that the precedent law cited at Bar by counsel for the petitioner does not help, as there was the absence seems to be willful and the compelling circumstances have not been brought on record by the petitioner himself before the learned authorities. 10. This Court also finds that even after giving three notices of recalling the petitioner did not join back and thus, seems to be a habitual absentee, as his past record also shows that in totality, he remained absent for 1139 days. 10. This Court also finds that even after giving three notices of recalling the petitioner did not join back and thus, seems to be a habitual absentee, as his past record also shows that in totality, he remained absent for 1139 days. However, this Court considered only the fact of 84 days absence which clearly, as per the record, is reflected to be a willful absence and therefore, the impugned order are well justified. Hence, no interference is called for in the present writ petition and the same is accordingly dismissed.