Jharkhand High Court
Justin Tirkey vs The Union Of India And Ors on 16 March, 2016
Author: D.N. Patel
Bench: D. N. Patel, Amitav K. Gupta
1 L.P.A. No.208 of 2013
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 208 of 2013
Justin Tirkey, son of late Ignas Tirkey, resident of Village - Tetra, P.O. &
P.S. - Basia, District - Gumla.
... ... ... ... ... ... Appellant
Versus
1. The Union of India
2. The Deputy Inspector General, Central Reserve Police Force,
Patna
3. The Additional Deputy Inspector General, Central Reserve Police
Force, Muzaffarpur
4. The Commandant, 135 Bn. Central Reserve Police Force, Patna
... ... ... ... ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE D. N. PATEL
HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant: M/s. Baleshwar Yadav
For the Respondents: None
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21/Dated: 16th March, 2016
Per D.N. Patel, J.
1) This Letters Patent Appeal has been preferred against the judgment and order passed by learned Single Judge in W.P. (S) No.5960 of 2003 dated 22nd March, 2013, whereby the petition preferred by this appellant was dismissed and the departmental proceedings initiated by the respondents and the punishment imposed by the respondents have been confirmed.
2) Counsel for the appellant submitted that the punishment imposed upon this appellant is shockingly disproportionate to the charges, as, for the absentism of few days, his services have been terminated. Moreover, the enquiry report has also not been given to the delinquent-petitioner. Mainly on these two grounds, this Letters Patent Appeal has been preferred stating that these grounds were not properly appreciated by the learned Single Judge.
3) Nobody appears on behalf of the respondents.
4) Having heard learned counsel for the appellant and looking to the facts and circumstances of the case, it appears that this appellant is the original petitioner, who was working as a Constable in Central Reserve Police Force and he was granted leave for a day to meet his family members on 18th March, 2001. It further appears from the facts that instead of returning to his duties on 19th March, 2001, this appellant 2 L.P.A. No.208 of 2013 (original petitioner) did not report for his duties and continuously remained on absentism for 236 days. Thereafter, enquiry was initiated for long absentism and ultimately, the charges levelled against him were proved and the disciplinary authority has imposed the punishment of dismissal of this appellant. Against this order, departmental appeal was preferred by this petitioner which was also dismissed vide order dated 7th October, 2002, whereby the order of removal from the service passed against this appellant dated 5th January, 2002 was confirmed.
5) Thus, it appears from the facts that there is no procedural illegality in conducting the enquiry by the respondents. Even this appellant has preferred departmental appeal and, hence, no prejudice has been caused to this appellant, even if the enquiry report is not served upon him. Moreover, looking to the nature of misconduct and looking to the fact that this appellant is working with a disciplined force, the punishment imposed upon him of removal from service cannot be labelled as 'shockingly disproportionate punishment', nor, it is 'unreasonably excessive punishment'. The aforesaid reasons have been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant.
6) It has been held by Hon'ble Supreme Court in the case of Bank of Baroda Vs. Anita Nandrajog reported in (2009) 9 SCC 462 as under: -
"9. It may be noted that the management had been extremely lenient to the respondent by condoning her absence on the first occasion from 481986 to 2931987, that is, for a period of over seven months when she was absent without leave, and then again from 2071987 to 1041988, that is, for a period of about seven months. Thus the respondent was absent for a very long period without leave. The Bank taking a lenient view condoned the absence without leave. However, it seems that the respondent thought that she could do whatever she liked and remain absent whenever she liked for whatever period she liked. She again sent an application dated 2281988 for leave for 60 days, which was not sanctioned. However, she remained absent without leave and she kept sending letters for extension of leave although she was on unauthorised absence.
10. In the Bank's letter dated 2661989 copy of which is as Annexure P1 to the appeal, it is clearly mentioned in Clause 4 3 L.P.A. No.208 of 2013 that the respondent did not have any leave remaining to her credit and she had remained on unauthorised leave for a period of more than 150 days continuously and it appeared that she has no intention of joining duty. She was asked to report for duty within 30 days, failing which it would be deemed that she has taken voluntary retirement from service. In reply she wrote a letter dated 2771989 that she will be joining duty by the last week of August 1989, but again she wrote another letter dated 2281989 for extension of leave till April 1990 on account of domestic problems. In our opinion such a behaviour on the part of an employee is clearly unfortunate and highly improper.
13. The behaviour of the respondent remaining absent without leave for such long periods was clearly regrettable and unfortunate. We are fortified by the view we are taking by the decision of this Court in Syndicate Bank v. Staff Assn. as well as the decision in Punjab & Sind Bank v. Sakattar Singh. No establishment can function if it allows its employees to behave in such a manner. We, therefore, uphold the order of the appellant Bank dated 2581989 terminating the service of the respondent as a voluntary cessation of her job, and we set aside the award of the Tribunal dated 561996 and the impugned judgment of the High Court dated 2292003. Appeal allowed. No order as to costs."
(Emphasis supplied)
7) It has further been held by Hon'ble Supreme Court in the case of Om Prakash Vs. State of Punjab reported in (2011) 14 SCC 682 as under: -
"7. The first contention that is raised by the counsel appearing for the appellant is regarding nonfurnishing of the absence report. The submission is that it was not furnished to the appellant at all during the proceeding and, therefore, the enquiry proceeding was vitiated. The aforesaid submission is untenable. The appellant himself was fully conscious and aware that he was absent from duties for 39 days. The said fact was mentioned in the chargesheet and he had full opportunity to defend himself against the said allegation of unauthorised absence for 39 days. Therefore, no prejudice was caused to the 4 L.P.A. No.208 of 2013 appellant even assuming that such a report was not furnished by the departmental authorities.
13. There is yet one more factor which stands against the appellant herein. It is indicated from the counteraffidavit filed by Respondents 1 to 4 that the appellant had also been punished earlier to the aforesaid incident with a punishment for leave without pay for a total of 527 days on different occasions in service as per details below:
13111965 to 511966 54 days
2571973 to 2871973 4 days
4101977 to 1211978 120 days
1311978 to 951978 118 days
25101979 to 31101979 6 days
1021981 to 1481981 185 days
13101984 to 22111984 40 days
14. Therefore, it is established that the appellant was a habitual absentee without leave and, therefore, he does not deserve any sympathy from this Court. In terms of the aforesaid order, we hold that there is no merit in this appeal which is dismissed but leaving the parties to bear their own costs."
(Emphasis supplied)
8) It has further been held by the Hon'ble Supreme Court in the case of Chennai Metropolitan Water Supply & Sewerage Board Vs. T.T. Murali Babu reported in (2014) 4 SCC 108 as under: -
"23. We have quoted in extenso as we are disposed to think that the Court in Krushnakant B. Parmar case has, while dealing with the charge of failure of devotion to duty or behaviour unbecoming of a government servant, expressed the aforestated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is wilful. On an apposite understanding of the judgment Krushnakant B. Parmar case we 5 L.P.A. No.208 of 2013 are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record during the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorised absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is wilful even if the employee fails to show the compelling circumstances to remain absent.
24. In this context, it is seemly to refer to certain other authorities relating to unauthorised absence and the view expressed by this Court. In State of Punjab v. P .L. Singla the Court, dealing with unauthorised absence, has stated thus:
"11. Unauthorised absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorised absence by accepting the explanation and sanctioning leave for the period of the unauthorised absence in which event the misconduct stood condoned. The second is to treat the unauthorised absence as a misconduct, hold an enquiry and impose a punishment for the misconduct."
25. Again, while dealing with the concept of punishment the Court ruled as follows: (P.L. Singla case, SCC pp. 47374, para
14) "14. Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of 6 L.P.A. No.208 of 2013 service, the position held by the employee, the period of absence and the cause/explanation for the absence."
26. In Tushar D. Bhatt v.
State of Gujarat , the appellant therein had remained unauthorisedly absent for a period of six months and further had also written threatening letters and conducted some other acts of misconduct. Eventually, the employee was visited with order of dismissal and the High Court had given the stamp of approval to the same. Commenting on the conduct of the appellant the Court stated that he was not justified in remaining unauthorisedly absent from official duty for more than six months because in the interest of discipline of any institution or organisation such an approach and attitude of the employee cannot be countenanced.
27. Thus, the unauthorised absence by an employee, as a misconduct, cannot be put into a straitjacket formula for imposition of punishment. It will depend upon many a factor as .L. Singla .
has been laid down in P
31. It is apt to note here that in the said Mukul Kumar Choudhuri case the respondent had remained unauthorisedly absent from duty for six months and admitted his guilt and explained the reasons for his absence by stating that he neither had any intention nor desire to disobey the order of superior authority or violate any of the rules or regulations but the reason was purely personal and beyond his control. Regard being had to the obtaining factual matrix, the Court interfered with the punishment on the ground of proportionality. The facts in the present case are quite different. As has been seen from the analysis made by the High Court, it has given emphasis on past misconduct of absence and first time desertion and thereafter proceeded to apply the doctrine of proportionality. The aforesaid approach is obviously incorrect. It is telltale that the respondent had remained absent for a considerable length of time. He had exhibited adamantine attitude in not responding to the communications from the employer while he was unauthorisedly absent. As it appears, he has chosen his way, possibly nurturing the idea that he can remain absent for any length of time, apply for grant of leave at any time and also 7 L.P.A. No.208 of 2013 knock at the doors of the Court at his own will.
32. The learned counsel for the respondent has endeavoured hard to impress upon us that the respondent had not been a habitual absentee. We really fail to fathom the said submission when the respondent had remained absent for almost one year and seven months. The plea of absence of "habitual absenteeism" is absolutely unacceptable and, under the obtaining circumstances, does not commend acceptation. We are disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate.
33. Another aspect needs to be noted. The respondent was a Junior Engineer. Regard being had to his official position, it was expected of him to maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. This kind of conduct cannot be countenanced as it creates a concavity in the work culture and ushers in indiscipline in an organisation. In this context, we may fruitfully quote a passage from Govt. of India v. George Philip: (SCC p. 14, para 18) "18. ... In a case involving overstay of leave and absence from duty, granting six months' time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the work culture in the organisation. Article 51A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and 8 L.P.A. No.208 of 2013 devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IVA of the Constitution have the tendency to negate or destroy the same."
We respectfully reiterate the said feeling and restate with the hope that the employees in any organisation should adhere to discipline for not only achieving personal excellence but for collective good of an organisation. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organisation develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development."
(Emphasis supplied)
9) In view of the aforesaid facts, reasons and judicial pronouncements, no error has been committed by the learned Single Judge while dismissing the writ petition preferred by this appellant and we see no reason to take any other view than what is taken by the learned Single Judge. Hence, there is no substance in this Letters Patent Appeal, hence, the same is, hereby, dismissed.
(D. N. Patel, J)
Manoj/ (Amitav K. Gupta, J)