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2021 DIGILAW 753 (JHR)

Sanjay Kumar v. State of Jharkhand

2021-09-14

DEEPAK ROSHAN

body2021
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant writ application has been preferred for following reliefs: a. For issuance of appropriate writ(s)/order(s)/,direction(s) for quashing the order dated 03.11.2010, whereby and whereunder the petitioner has been suspended from the service; b. For issuance of appropriate writ(s)/order(s), direction(s) for quashing the order dated 6.1.2012, passed in departmental proceeding No. 2/2011; c. For issuance of appropriate writ(s)/order(s)/, direction(s) for quashing the order dated 6.6.2012; d. For issuance of appropriate writ(s)/order(s)/, direction(s)s for quashing Appeal Memorial dated 5.5.2014; 3. Brief fact of the case is that while the petitioner was posted at Dhanbad, he was unable to attend the duty due to a minor injury in his finger and pursuant to that a letter dated 28.10.2010 was issued alleging about the absence of this petitioner from duty. Subsequently, vide letter dated 31.10.2010 it was further informed that the petitioner was not found during counting and was found absent. Thereafter, the petitioner was suspended from service vide order dated 31.11.2010 for inappropriate behavior, irresponsibility and misconduct. A charge-sheet was issued to the petitioner for the alleged act of irresponsibility of absence from duty on 27.10.2010 and on 30.10.2010. The petitioner was given 10 days time to represent himself before the concerned authorities for explaining and showing the reason of absence from duty. The specific case of the petitioner is that since he was severely ill and was facing hardship so he was not in a condition to attend the duty or proceeding. Thereafter, a departmental proceeding, being Departmental Proceeding No. 2 of 2011 was initiated against this petitioner vide letter dated 07.12.2011 and thereafter, the petitioner participated after sometime and finally the enquiry officer found the charge to be proved with regard to absence from duty on 27.10.2010 and 30.10.2010. The Enquiry Officer submitted his report and the Disciplinary authority passed the impugned order whereby the petitioner has been terminated from service. 4. Mr. A.K. Das, learned counsel for the petitioner assailed the impugned order of termination on two grounds: (i) The charge of absence relates to only two days, i.e. 27.10.2010 and 31.10.2010; as such the finding of the Disciplinary Authority that the petitioner remained absent for one year and the punishment of termination imposed on that basis is beyond the charge. Mr. A.K. Das, learned counsel for the petitioner assailed the impugned order of termination on two grounds: (i) The charge of absence relates to only two days, i.e. 27.10.2010 and 31.10.2010; as such the finding of the Disciplinary Authority that the petitioner remained absent for one year and the punishment of termination imposed on that basis is beyond the charge. He contended that had the charge-sheet been issued for absence of one year then certainly the petitioner would have explained the reasons that why he was absent during the course of disciplinary proceeding; however, when there is no charge for absence from duty for one year; the finding of the Enquiry officer and/or Disciplinary Authority with regard to absence for one year is non-est in the eye of law. (ii) For holding any delinquent guilty for the allegation of unauthorized absence from duty; the disciplinary authority is required to prove that the absence was willful and in absence of such finding, the absence will not amount to misconduct. He further submits that in the instant case the respondents have failed to give any finding that the absence was willful; as such the order of termination is not sustainable in the eye of law. In this regard he referred to the decision rendered in the case of Krushnakant B. Parmar v. Union of India and Another reported in (2012) 3 SCC 178 wherein at Paragraph 16, 17 and 18 the Hon’ble Apex Court has held as under : “16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. 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 cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. 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. 18. 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 the absence of such finding, the absence will not amount to misconduct. 5. Learned counsel fairly submits that the petitioner did not take part in the departmental proceeding for about one year due to several reasons; however, since in the charge-sheet the allegation was only with respect to absence for 2 days; he could not get opportunity to defend himself for absence for one year. Even otherwise, for the absence from duty for one year, termination from service is highly excessive and not commensurate with the charge. He concluded his argument by submitting that in the counter affidavit the respondents have admitted that there was an accident and further have recognized the prescription; as such in any view of the matter, termination of service is highly excessive. 6. Mr. Navneet Toppo, learned counsel for the respondents supports the impugned order and submits that the medical certificates submitted by the petitioner did not justify his absence on 27.10.2010 and 30.10.2010 nor his prolonged one year of absence during the departmental proceedings. He further submits that the certificate is regarding fracture of the petitioner’s finger on 27.9.2010 which is one month earlier from the date of absence from duty. It is not logical justification for the petitioner’s absence on 27.10.2010 and 30.10.2010 and thus; one year prolonged absence cannot be justified in any view of the matter and therefore, the impugned order does not requires any interference because it is a disciplined force and absence from duty without informing and without permission from competent authority cannot be tolerated. 7. It is not logical justification for the petitioner’s absence on 27.10.2010 and 30.10.2010 and thus; one year prolonged absence cannot be justified in any view of the matter and therefore, the impugned order does not requires any interference because it is a disciplined force and absence from duty without informing and without permission from competent authority cannot be tolerated. 7. Having heard learned counsel for the parties and after going through the relevant documents annexed with the respective affidavits and the averments made therein it appears that admittedly; the charge-sheet was issued for the act of irresponsibility, for absence from duty on 27.10.2010 and further on 30.10.2010 and there was no reference with regard to absence from duty for one year, as such the finding given by the Enquiry Officer for proving the charge and the finding given by the Disciplinary Authority for imposing punishment of termination on the basis of one year absence is beyond the charge and the law is now no more res integra, inasmuch as, the punishment cannot be imposed beyond the charge-sheet issued against the delinquent; as such on this score alone the impugned order is fit to be quashed and set aside. 8. Even otherwise, after going through the impugned order, it appears that there is no finding with regard to the fact that the absence of this petitioner is willful. In this regard also the law is well settled that in a departmental proceeding if the allegation of unauthorized absence from duty is made; the disciplinary authority is required to prove that the absence is willful and in absence of such finding, the absence will not amount to misconduct. In the case of Krushnakant B. Parmar v. Union of India (Supra) the law has been laid down by the Hon’ble Apex Court as such; on this score also the impugned orders suffers from infirmity. 9. Before parting, it is necessary to mention here that termination of service of any delinquent is the harshest punishment which also affects the entire family of the delinquent; as such, the Disciplinary authority while passing the order of punishment of termination should always keep this fact in mind and the punishment should always be proportionate with the charge proved. 10. Before parting, it is necessary to mention here that termination of service of any delinquent is the harshest punishment which also affects the entire family of the delinquent; as such, the Disciplinary authority while passing the order of punishment of termination should always keep this fact in mind and the punishment should always be proportionate with the charge proved. 10. At the cost of repetition, in the instant case since the finding of continuous absence from duty for one year while the departmental proceeding was going on was not in the charge-sheet; as such the petitioner was not able to give reasons for his long absence. It is pertinent to mention here that the respondents were at liberty at that stage to issue a separate charge-sheet against this petitioner for the period of absence of one year in a separate proceeding. Even otherwise, when the absence from duty is not willful; the same cannot be considered as misconduct and punishment of termination for just two days of absence cannot be said to be reasonable and commensurate and it is held to be highly excessive. 11. In view of the aforesaid discussions the impugned orders (Order of Suspension dated 03.11.2010, Order of termination dated 06.01.2012 passed in Departmental Proceeding No. 2/2011, Order dated 06.06.2012 passed by the appellate authority and also Memorial dated 05.05.2014), are hereby, quashed and set aside. The petitioner shall be reinstated in service forthwith; however, the respondents would be at liberty to initiate a separate proceeding, if so advised. Needless to say that for consequential benefits regarding salary and back wages, the respondents would take a decision and pass an appropriate order within a period of 12 weeks from the date of receipt/production of a copy of this order. 12. With the aforesaid terms, the instant writ application stands allowed.