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2022 DIGILAW 1168 (JHR)

Suresh Paswan v. State of Jharkhand

2022-09-15

ANANDA SEN

body2022
JUDGMENT : Heard the learned counsel for the petitioner and the State. 2. Petitioner has challenged the Memo No. 1455 dated 3.6.2016 by which after conclusion of the departmental proceeding the petitioner was punished with withholding of six months increments from the salary which would not have any effect in the future increment and further salary for the period which he was absent will be treated as “no work no pay” and the same will be adjusted against his leave. 3. Counsel for the petitioner submits that the petitioner took leave for marriage of his daughter, but thereafter overstayed for 27 days as he was suffering from Jaundice and other liver ailments. He submits that on the ground that he overstayed, he was punished vide Order No. 1683 dated 11.6.2015. The said punishment was only of censor and of “no work no pay” for the period of absence. It is his contention that the said punishment was inflicted without following the due procedure of law, thus the authorities set aside the said findings and directed for a fresh inquiry. Fresh inquiry was conducted and after submission of the report, the petitioner was punished by the impugned order dated 3.6.2016 contained in Memo No. 1455. It is his contention that the quantum of punishment has been increased and there is no finding of the authority that the petitioner had wilfully overstayed. He submits that even the inquiry officer has not doubted the version of the defence that the petitioner was suffering from liver aliments and Jaundice. According to him the punishment of withholding of six months increments from the salary is absolutely bad and should be quashed. 4. Standing Counsel –VII submits that the petitioner was proceeded against in terms of Rule 843 of the Police Manual which provides for punishment in case of wilful overstaying during leave or absence from duty without leave. He argues that on the facts of the case the petitioner wilfully overstayed for 27 days beyond the sanctioned period of leave, thus he was proceeded against in terms of Rule 843 Police Manual and punishment of stoppage of increments was imposed. According to him the earlier punishment order dated 11.6.2015 has got no relevance as the same was passed without following the due process of law. According to him the earlier punishment order dated 11.6.2015 has got no relevance as the same was passed without following the due process of law. It is his contention that the quantum of punishment is the sole prerogative of the employer which should not interfered with by this Court in exercising jurisdiction under Article 226 of the Constitution by way of judicial review. 5. After hearing the counsel for the parties, I find that the facts are admitted. The petitioner’s daughter was to be married for which petitioner was granted leave. He was supposed to join on 22.3.2015 but he overstayed for 27 days and joined on 17.4.2015. Due to the overstay the petitioner was punished vide order dated 11.6.2015 as contained in Memo No. 1683. The said punishment was of censor and of “no work no pay” for the period of absence. As proper procedure was not followed before inflicting the aforesaid punishment, the punishment order was set aside and decision was taken to initiate a fresh departmental proceeding. A departmental proceeding was initiated and the inquiry report was furnished. After perusing the inquiry report, vide impugned order dated 3.6.2016 punishment of stoppage of increments for six months was imposed. Further it was held that period which he overstayed would be treated as “no work no pay” and will be adjusted from the leave available to the petitioner. 6. It is the case of the respondent that the petitioner was proceeded against in terms of Rule 843 of the Police Manual. Rule 843 provides for initiating a proceeding against the person who wilfully overstayed after leave or remains absent from duty without leave. It is an admitted case that the case of the petitioner falls within the category of wilful overstaying during leave, as leave was already granted to the petitioner but he overstayed. The petitioner had explained the reasons for overstaying, which is health ground, as he was suffering from Jaundice and other liver ailments. The inquiry report has also been brought on record by the respondents. The inquiry officer took note of the medical certificates and doctor’s opinion but surprisingly I find that there is nothing in the inquiry report to suggest that those documents are unreliable. The inquiry report has also been brought on record by the respondents. The inquiry officer took note of the medical certificates and doctor’s opinion but surprisingly I find that there is nothing in the inquiry report to suggest that those documents are unreliable. There is nothing in the inquiry report also which could suggest that the petitioner was not ill and was not suffering from any disease or he had merely given an excuse by filing these documents. The enquiry officer also did not doubted the same. 7. Rule 843 provides that there should be “wilful overstaying”. The word wilful overstaying means that it will not include a situation where a person was forced to overstay because of his health hazards, which has happened in the instant case. If there is health hazard which prevented the delinquent from joining his service, this period of overstaying cannot be said to be “wilful” and will not come within ambit of Rule 843. To bring an overstay within the ambit of Rule 843 of the Police Manual, there should be a clear finding that the said overstay was “wilful” and the intention of the delinquent was to overstay for no reasons whatsoever. If a reason has been provided, it was a duty of the inquiry officer to assess the reason and come to conclusion as to whether the same is reliable, acceptance or not before coming to conclusion that overstay is wilful. 8. In this case I find that there is nothing on record to suggest that overstay period i.e 27 days was wilful. However from the inquiry report, I find that it is an admitted case that the petitioner did not inform the respondents immediately on expiry of his leave that he was ill and he is overstaying. Thus, I find that the respondents have heavily weighed the action of the petitioner of non-informing the employer about his illness rather than the act of overstay. 9. It is true that the quantum of punishment is prerogative of the employer and the Court in rarest cases should interfere with it, but there is scope of interference. The Hon’ble Supreme Court in the case of Lucknow Kshetriya Gramin Bank Vrs. Rajendra Singh reported in (2013) 12 SCC 372 has laid down the conditions where quantum of punishment can be interfered with. The Hon’ble Supreme Court in the case of Lucknow Kshetriya Gramin Bank Vrs. Rajendra Singh reported in (2013) 12 SCC 372 has laid down the conditions where quantum of punishment can be interfered with. One of such condition is the excessive punishment which is shockingly disproportionate to the proved misconduct. In this case the petitioner has explained the period of overstaying which is his health ground, which in fact has not been disbelieved by the Inquiry Officer and the Disciplinary Authority. Thus it cannot be said that the petitioner has committed any misconduct. 10. In view of what has been held above impugned order No. 1455 dated 03.06.2016 being bad in law and hereby set aside and quashed. 11. Be it noted that the period of overstaying should be adjusted against the applicable leave of the petitioner. 12. Accordingly, the instant application stands allowed.