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2018 DIGILAW 2163 (RAJ)

Surendra Kumar Chamar v. State of Rajasthan

2018-10-30

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT : SANJEEV PRAKASH SHARMA, J. 1. Petitioner has preferred this writ petition challenging the order dated 21/05/1999 by which he has dismissed from service in the departmental proceedings initiated under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. 2. Three charges were levelled vide memorandum dated 20/12/1996 against the petitioner who was holding the post of Constable. The charge levelled was that while holding the post of Constable in the year 1996, he had been absent from duty for the period from 30/01/1996 to 26/03/1996. The second allegation is with regard to remaining absent from Quarter Guard Duty on 02/07/1996 and came back on duty on 17/07/1996 and thus remained absent without leave and the third charge levelled against the petitioner is of remaining absent from duty for the period from 21/07/1996 to 27/07/1996. 3. The enquiry officer was appointed and the enquiry officer held the petitioner guilty of all the three charges. Based on the said enquiry report, the disciplinary authority has proceeded to punish the petitioner by passing the order of dismissal. While passing the order of dismissal, the disciplinary authority has stated that he has examined the service book of the petitioner and has found that he has remained absent for 52 days and taking into consideration that he was member of disciplined force and the action amounted to gross indiscipline, has proceeded to dismiss him from service. 4. Learned counsel for the petitioner submits that absence of the petitioner cannot be said to be willful or deliberate. For the period from 30/01/1996 to 26/03/1996 the petitioner had remained absent from duty on account of having suffered injuries and fracture for which he had submitted certificate of Doctor in order to show that he had suffered injuries but the enquiry officer and the disciplinary authority have ignored the said medical certificate on the ground that the medical certificate mentions of treatment given to the petitioner from 14/02/1996 to 26/03/1996 and the period from 30/01/1006 to 14/02/1996 is unaccounted for. Learned counsel submits that for the said period, the petitioner had got the treatment done from a local Doctor but the said certificate had not been submitted by him erroneously before the enquiry officer. However, the said certificate was produced before the appellate authority. Learned counsel submits that for the said period, the petitioner had got the treatment done from a local Doctor but the said certificate had not been submitted by him erroneously before the enquiry officer. However, the said certificate was produced before the appellate authority. Learned counsel also points out that for the period from 02/07/1996 to 17/07/1996, the petitioner has been prevented from coming on duty on account of illness of his wife. The medical certificate in this regard was not asped by the enquiry officer. However, to prove the contention, the petitioner had placed on record the medical certificate of his wife before the appellate authority. As regards the period of six days absence from 21/07/1996 to 27/07/1996, learned counsel submits that the petitioner had pointed out that on account of wall of his house having fell down, he had to rush to his house and a certificate of the Sarpanch of his village was placed. However, the appellate authority did not examine the said certificates and punishment of dismissal which is too harsh has been passed. The petitioner also submits that the enquiry officer has held the petitioner guilty for the entire period of absence from 30/01/1996 to 26/03/1996 although the medical certificate produced before him shows that the petitioner was under treatment from 14/02/1996 to 26/03/1996 and the charge, therefore, could not be said to be fully proved of remaining willfully absent. It is also submitted that the disciplinary authority while passing the order of punishment, has wrongfully relied on the service book to allege that the petitioner has remained absent from duty 52 times earlier, although it is his submission that the petitioner had put in 10 years of service prior to passing of the order and there had never been any memorandum issued to him earlier during the service period. In support of his submission, learned counsel has relied on the judgment rendered by the Apex Court in the case of Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 to submit that willful absence would not include the absence on account of illness and it was for the disciplinary authority to prove that the absence is willful and deliberate. In absence of such finding, the absence of the petitioner would not amount to misconduct. In absence of such finding, the absence of the petitioner would not amount to misconduct. Learned counsel has also relied on the judgment rendered by the Apex Court in the case of Cheel Singh v. MGB Gramin Bank, Pali, (2014) 13 SCC 166 to submit that the medical report submitted by the petitioner was not found to be forged or fabricated and in these circumstances, the Apex Court has held the enquiry to be vitiated. 5. Per-contra, learned counsel for the respondents submits that the certificates were not filed before the enquiry officer. Counsel further submits that the documents, which were produced before the enquiry officer, who had given liberty to the petitioner to place evidence and defence documents, cannot be said in any manner to be unjustified and illegal. Since the medical certificates were not produced nor copy of the alleged letters sent for granting leave was produced by the petitioner, the charges were rightly held to be proved. The previous record of service can be looked into as held by the Apex Court in the case of Om Prakash v. State of Punjab, 2011 (10) SCALE 258 . Learned counsel submits that in a recent judgment rendered by the Apex Court in the case of Central Industrial Security Force v. Abrar Ali: AIR 2017 (SC) 400, the Apex Court has laid down the criteria where under this Court would exercise its powers under Article 226 & 227 of the Constitution in relation to the disciplinary proceedings. In the circumstances, the orders passed by the disciplinary authority and the appellate authority do not call for interference. 6. After hearing learned counsel for the parties and going through the material available on record, this Court finds that the disciplinary authority while passing the order of punishment of dismissal from service has failed to take notice of the medical certificates which were on record before the enquiry officer namely; for the period from 14/02/1996 to 26/03/1996 which is the major period during which the petitioner delinquent had suffered injuries and fracture on account of which he was unable to attend his duties. Such absence from duty was there due to the circumstances as noted above and therefore, it cannot be said that the delinquent was willfully absent from duty. 7. Such absence from duty was there due to the circumstances as noted above and therefore, it cannot be said that the delinquent was willfully absent from duty. 7. In the judgment cited by learned counsel for the petitioner in the case of Krushnakant B. Parmar v. Union of India (supra), the Supreme Court was dealing with a case of an officer who was from Intelligence Bureau and it was noted that the absence from duty was on account of the reasons given by the delinquent before the enquiw officer which were not taken into consideration by the disciplinary authority. The absence which is on account of injury, though may be unauthorized, cannot be said to be willful and deliberate. The Apex Court in the circumstances held as under:— “19. 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 willful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the Appellant guilty. 20. 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 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. 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 analyzing 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.” 21. 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.” 21. In the present case, the disciplinary authority failed to prove that the absence from duty was willful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the Appellant had taken a specific defense 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 defense exhibits in support of his defense 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 defense and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the Appellant guilty.” 8. In the case of Cheel Singh v. MGB Gramin Bank, Pali (supra), the judgment passed by the Supreme Court was arising out of the judgment passed by the High Court of Rajasthan and the Apex Court set aside the judgment passed by the Division Bench overturning the order passed by the Single Bench holding the absence for a period of ten and half months as not on account of willful absence. The enquiry officer in the present case has also failed to take notice of nature of illness during to which the petitioner had been prevented and the enquiry officer has presumed that the absence is willful since the certificate from 30/01/1996 to 14/02/1996 had not been placed before him. Admittedly, the certificate from 14/02/1996 to 26/03/1996 was available before the enquiry officer and therefore, he could not have held the petitioner delinquent guilty of remaining willful absent from 13/01/1996 to 26/03/1996. The submission made by the petitioner of having given leave application for remaining absent on account of his wife's illness was also doubted by the enquiry officer without there being any document on the side of the prosecution. The owns for disproving the charges was placed on the petitioner delinquent. The submission made by the petitioner of having given leave application for remaining absent on account of his wife's illness was also doubted by the enquiry officer without there being any document on the side of the prosecution. The owns for disproving the charges was placed on the petitioner delinquent. Thus, this Court is satisfied that there has been a violation of the principles of natural justice in conducting enquiry and the disciplinary authority ought to have taken into consideration the facts in their correct perspective. 9. It is also noticed that before the appellate authority, the petitioner has produced all the documents but the appellate authority has passed an order without adverting to the said submissions and without giving any findings thereto. 10. As regards the previous record of service is concerned, the petitioner has submitted that the absence for 52 times as alleged is not made out since the petitioner had clean record of service for last 10 years and there was no punishment ever given to him. The said submission has been made by the petitioner in his appeal. However, the appellate authority has failed to take into consideration the said aspect. This Court also finds that even under the Rajasthan Service Rules, under Rule 86 where a person is found to be un-authorizedly absent from duty for a period of one year or more, there is provision of removal from service and not dismissal from service. In the present case, the absence, as alleged, is only of 79 days but for the same medical certificates are there on record. 11. Taking into consideration the aforesaid aspects and also taking into consideration the law as laid down in the aforesaid two judgments, this Court deems it appropriate to call set aside the order of dismissal dated 21/05/1999 as well as the order of appellate authority dated 07/04/2000 with further direction to the disciplinary authority to reinstate the petitioner in service and thereafter re-examine the case of absence in the light of the observations made herein above and pass an appropriate order of punishment if so required after hearing the petitioner. The exercise shall be conducted by the respondents within a period of three months hereinafter. 12. The writ petition is accordingly allowed.