Karnataka High Court
The Secretary Department Of Primary And ... vs Smt Sharada Basavagouda Patil on 7 March, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7th DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
W.P. No. 100798/2022 (S-KAT)
BETWEEN:
1. THE SECRETARY,
DEPARTMENT OF PRIMARY AND SECONDARY
EDUCATION DEPT., M.S. BUILDING,
BENGALURU-560001.
2. THE DIRECTOR (ADDI),
DIRECTORATE OF JOB ORIENTAL EDUCATION,
BENGALURU-560001.
3. THE DEPUTY DIRECTOR OF
PRE-UNIVERSITY OF JOB ORIENTED EDUCATION,
HAVERI-560001.
...PETITIONERS
(BY SRI. PRASHANTH V. MOGALI, HCGP)
AND:
1. SMT SHARADA BASAVAGOUDA PATIL,
AGE: 45 YEARS,
D/O. SRI. BASAVANGOUDA PATIL,
R/AT MADAR TALUK, HIRLKERE,
HAVERI DISTRICT,
WORKING AT RANGANATHASWAMY COMPOSITE PU
COLLEGE, J.O. DIVISION, HALLUR,
HIREKERURU TALUK,
HAVERI DISTRICT-587115.
2. THE PRINCIPAL,
SRI.RANGANATHSWAMY PU COLLAGE
2
HALLUR, HIREKERURU TALUK,
HAVERI DISTRICT-587115.
....RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE HON'BLE KARNATAKA
STATE ADMINISTRATIVE TRIBUNAL AT BELAGAVI IN
APPLICATION No.353/2019 BY ORDER DATED ON 07.01.2020
VIDE ANNEXURE-A & ETC
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, K.S. HEMALEKHA J., PASSED THE
FOLLOWING:
ORDER
The respondent/State in Application No.353/2019 is assailing the order dated 07/01/2020, passed by the Karnataka State Administrative Tribunal at Belgaum ("the Tribunal" for short) whereby the endorsement issued by respondent No.2 declining to absolve the applicant as per the Rules was set aside.
2. Parties are referred to as per their ranking before the Tribunal for the sake of convenience.
3. The applicant was appointed on 01/07/1995 as "Shramik Shikshaki" in respondent 3 No.4/college and while in service, she had pre maternity problem and hence, she applied for leave from 01/09/2009 to 30/09/2009 and the said leave application was submitted on 01/09/2009 along with the authorised medical certificate. Respondent No.2 by an endorsement dated 17/08/2017 held that the applicant has remained absent unauthorisedly from 01/09/2009 to 30/09/2009 and held that the applicant is not entitled for absorption under Rules as there was no continuation of service. Aggrieved by the endorsement dated 17/08/2017, the applicant filed an application before the Tribunal. The Tribunal, vide order dated 07/01/2020, held that the endorsement issued by respondent No.2 is erroneous and set aside the endorsement and directed the respondent to treat the absence from the period 01/09/2009 to 30/09/2009 as leave and considered the case of the 4 applicant for absorption under the Rules. It is the said order challenged by the State.
4. Heard learned High Court Government Pleader and perused the material on record including the impugned order passed by the Tribunal.
5. The issue in this petition is, whether the applicant being absent from 01/09/2009 to 30/09/2009 could be treated as unauthorized absence during the said period and as such, she is not entitled for absorption as per the Rule.
6. It is relevant to note here that due to pre- maternity problem, the applicant had suffered abortion/miscarriage and as such, had filed the application seeking leave for the said period, but the authority has treated the same as unauthorized absence, which is against the settled principle of law as the pre-maternity problem was beyond control of 5 an employee and though she had applied for leave, the same should not have been treated as absence or a break in service for the purpose of considering her case for absorption. The Hon'ble Apex Court in the case of Krushnakant B. Parmar vs. Union Of India & Another [(2012)3 SCC 178] held in paragraph Nos.15 to 22 as under:
"15. Rule 3(1)(ii) and Rule 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a government servant and reads as follows:
"3. General.-(1)Every Government servant shall at all times -
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant."
16. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of 6 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 willful 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 can not be held to be willful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. 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 7 the absence is willful, in the absence of such finding, the absence will not amount to misconduct.
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.V.Bijlani vs. Union of India wherein this Court held:
'25. 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 8 performs a quasi-judicial function, who upon analysing 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. 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 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 9 includes his letter dated 3-10-1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29-9-1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty.
22. Mr. P. Venkateswarlu, DCIO, Palanpur, who was the complainant and against whom appellant alleged bias refused to appear before the inquiry officer in spite of service of summons. Two other witnesses, Shri Jivrani and Shri L.N. Thakkar made no statement against the appellant, and one of them stated that he had no knowledge about absence of the appellant. Ignoring the aforesaid evidence, on the basis of surmises and conjectures, the inquiry officer held the charge proved." Wherein it is held that absence from duty without any application or prior permission would amount to unauthorized absence, but it does not always mean willful. Admittedly, in the instant case, the applicant had filed an application seeking leave from 01/09/2009 to 30/09/2009 and her absence in service for the said period cannot be 10 termed as an act of willful unauthorized absence as held by the Apex Court. A female employee, at the time of advance pregnancy or pre-maternity abortion would be entitled for leave pre and after delivery and under the circumstances, as the applicant had sought for leave for the reasons beyond her control, the same cannot be treated as an unauthorized absence as held by the authorities. For the reasons stated supra and on perusal of the order of the Tribunal, as this Court in a judicial review and not sitting in an appeal would not substitute its reasoning with that of the Tribunal. The conclusion of the Tribunal that the leave application was submitted on 01/09/2019 itself and if granted, it could not have been treated as an unauthorized absence and that the cause was beyond her control is the finding that is legally justified in the facts and circumstances of the case. Accordingly, setting aside the endorsement issued by the authority as being violative of law is justified and the order passed by the Tribunal is just and proper and the same does not call for any interference.
11
7. In the result, we pass the following:
ORDER
(i) Petition is devoid of merit and is hereby dismissed.
(ii) Pending application, if any, does not survive for consideration and shall stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE AC