Rajasthan High Court - Jaipur
Mitrasen vs State Of Raj Andanr on 5 February, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 4143/2002
Mitrasen S/o Shri Phool Chand Jatav B/c, Ward No.7, Khairthal
Distt. Alwar. Since Dismissed Warder Belt No.2587, Sub Jail
Bayana.
----Petitioner
Versus
1. State Of Rajasthan Through Secretary To Government,
Jails Department, Rajasthan, Jaipur.
2. The Director General Cum Inspector General Of Jails,
Rajasthan, Jaipur.
----Respondents
For Petitioner(s) : Mr. Indresh Sharma, Adv.
For Respondent(s) : Dr. AS Khangarot, Addl. G.C. HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order 05/02/2019
1. The petitioner by way of this writ petition assails the order dated 24.9.1998, 18.07.2000 and order dated 08.01.2002 whereby he was punished in departmental proceedings and order of dismissal was passed. Appeal preferred against the dismissal order was also rejected by the appellate authority so also the review petition preferred before the Governor. The petitioner prays for setting aside the orders and to reinstate him in service.
2. Counsel for the petitioner submits that the petitioner had joined as a Warden under the Rajasthan Jails Subordinate Service Rules, 1976 and was posted at Central Jail, Jodhpur on 20.12.1993. After completing probation period, he was confirmed on the post. He was sent for training at Jail Training Centre, Ajmer (2 of 7) [CW-4143/2002] vide order dated 14.02.1996 for which he was relieved on 25.02.1996. He had taken a leave for three days from 27.4.1996 to 29.4.1996 which was sanctioned. However, he did not rejoin the duties immediately thereafter but joined on 12.9.1996. For the overstaying of the leave for the period from 30.04.1996 to 11.9.1996, the petitioner was served with a charge-sheet vide memorandum dated 19.3.1997 for willful absent from duty. Petitioner submitted his reply and pointed out that he had remained unwell and after reporting back on duty had submitted his medical Certificates before the competent Officer vide his reply dated 29.4.1997.
Learned Counsel submits that thereafter enquiry was conducted by appointing an Enquiry Officer. However, during the course of enquiry, a request for appointment of defence assistant was made by the petitioner but the same was not provided to him and enquiry was conducted by the Enquiry Officer which could not be properly defended by the petitioner. On the basis of the enquiry report submitted by the Enquiry Officer holding the petitioner guilty of the charges without taking into consideration the medical Certificates which were placed before it, the disciplinary authority proceeded to pass order of punishment of dismissal.
Learned Counsel submits that both the Enquiry Officer as well as the disciplinary authority have failed to take notice of the fact that the petitioner after rejoining back on duty had also completed the training and thus, it is not a case where the petitioner was avoiding to undergo the training but had been prevented from joining back after leave on account of his illness. The said aspect has been completely ignored by the disciplinary (3 of 7) [CW-4143/2002] authority and the authority has only taken into consideration the fact that the absence was notified even in the newspapers. Learned Counsel submits that the petitioner even in appeal submitted medical documents and pointed out that he was unable to perform his duty on account of his illness. For absence of four months, the petitioner could have been granted leave as available under the Service Rules and petitioner could not be said to have committed misconduct. Learned Counsel relies on the judgments of the Supreme Court reported in JT 2004 (3) SC 384- Shri Bhagwan Lal Arya V. Commissioner of Police Delhi & Ors. & AIR 1994 Supreme Court 215- Union of India & Ors. Vs. Giriraj Sharma and judgment of this Court reported in RLW 1999(2) Raj.- Bhanwar Singh Vs. State of Rajasthan & Ors. to submit that quantum of punishment and dismissal was too harsh.
3. Per contra, learned Counsel appearing for the respondents-State supports the orders passed and submits that as the petitioner did not participate in the enquiry and even did not reply to the show-cause notice served upon him after the enquiry was completed, there was no other option but to pass order of dismissal. So far as medical documents are concerned, the learned Counsel submits that the appellate authority has taken the same into consideration but did not find the same sufficient to set aside the punishment order or to modify the same.
4. I have heard learned Counsels and find that the absence is for the period from 30.4.1996 to 11.9.1996. Petitioner had joined back on 12.9.1996 and also completed his training from the training Centre, Ajmer. The petitioner has thereafter (4 of 7) [CW-4143/2002] been dismissed on 24.9.1998. Only the absence from 30.04.1996 to 11.9.1996 is deliberate and willful. The disciplinary authority appears to have been influenced mainly with the fact that the absence of the petitioner during training resulted in notice being published in the newspaper for rejoining the duties and thus, the willful absence is treated as proved.
The Supreme Court in the case reported in (2012) 3 Supreme Court Cases 178- Krushnakant B.Parmar Vs. Union of India & Anr. has held in paras 17 & 21 as under:-
"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.. 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.
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21. 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. "
Thus, this Court finds that when medical documents were produced before the enquiry officer by the petitioner it was incumbent upon the disciplinary authority as well as the Enquiry (5 of 7) [CW-4143/2002] Officer to have given its findings on that aspect. However, the reasons for overstaying for leave which the petitioner submitted have not been examined or considered by the disciplinary authority. This Court also notices that after having joined back the duties the petitioner has completed his training. Whilst it is true that different yardstick is required to be adopted in cases of indiscipline relating to personnel's working in the disciplined force but at the same time if there is a reasonable excuse pointed out by a delinquent for remaining willful absent, the said aspect requires to be dealt with and if the disciplinary authority reaches to the conclusion that the said excuse is not factually correct, it could have reached to the conclusion of willful absence or otherwise. However in the present case, there is no discussion at all with regard to the same and thus, this Court finds that the order passed by the disciplinary authority is wholly laconic. The order passed in appeal as well as in review also do not take into consideration these aspects.
This Court is also inclined to agree with the submission of the learned Counsel for the petitioner that on account of not providing him defence assistant the petitioner could not defend his case properly. Having noticed above, the order of dismissal deserves to be quashed and set aside.
In Bhagwan Lal Arya (supra) the Apex Court has considered the need for re-examining the punishment of removal from service holding it to be highly excessive for the delinquent of being absent from duty. Similarly in Union of India Vs. Giriraj Sharma (supra) the Apex court found that there was no willful intention to stay away from duty and punishment of dismissal was (6 of 7) [CW-4143/2002] set aside. In the case of Bhawnar Singh (supra) similar view has been expressed by a coordinate Bench of this Court.
The Supreme Court in the case of Union of India Vs. Giriraj Sharma (supra) in para 2 and 3 has observed thus:-
"2. Mr. Jain the learned Counsel for the appellant Union of India contended that the interpretation placed on Section 11(1) of the Central Reserve Police Force Act, 1949 (hereinafter called 'the Act') is not correct and it is on account of this erroneous understanding of the provision that the High Court quashed the order of dismissal. In support of his contention he invited our attention to a decision of the Rajasthan High Court reported in AIR 1965 Raj 140. He also relied on certain other decisions but it is sufficient to state that according to him the learned Judges of the High Court had committed an error in interpreting the said Sub-section. In our opinion it is not necessary for us to construe Sub- section (1) of Section 11 of the Act in the backdrop of the facts of the present case. Assuming Mr. Jain is right, we are of the opinion that so far as the present case is concerned the allegation is in regard to the incumbent having over-stayed the period of leave by 12 days. The incumbent while admitting the fact that he had over- stayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. We are of the opinion that the punishment of dismissal for over-staying the period of 12 days in the said circumstances which have not been contravened in the counter is harsh since the circumstances show that it was not his intention to wilfully flout the order, but the circumstances force him to do so. In that view of the matter the learned Counsel for the respondent has fairly conceded that it was open to the authorities to visit him with a minor penalty. If they so desired, but a major penalty of dismissal from service was not called for We agree with this submission.
3. In the result we see no merit in this appeal but we would modify the order of the High Court by stating that while we affirm the High Court's order quashing the order of dismissal and directing reinstatement in service with monetary benefits, it will be open to the department, if it so desires, to visit the respondent petitioner with a minor punishment. The appeal will stand disposed of accordingly with no order as to costs. If the reinstatement has not taken place thus far the department should reinstate him latest within two weeks from today."
(7 of 7) [CW-4143/2002]
5. Taking into consideration the aforesaid judgments, the writ petition is allowed. The order of dismissal dated 24.9.1998, appellate order dated 18.07.2000 and the review order dated 8.1.2002 are quashed and set aside. The petitioner would be entitled to reinstatement with all monetary service benefits.
However, so far as the overstaying of the leave on account of medical ailment is concerned, the matter is remanded back to the disciplinary authority to visit the petitioner with a minor punishment, as held by the Supreme Court in the case of Union of India Vs. Giriraj Sharma (supra). Compliance of the order shall be made within three months from the date of submission of certified copy of this order.
6. No costs.
(SANJEEV PRAKASH SHARMA),J N.Gandhi/4 Powered by TCPDF (www.tcpdf.org)