Jharkhand High Court
Niwas Sharma @ Ashok Sharma vs The State Of Jharkhand Through The ... on 20 November, 2025
Author: Deepak Roshan
Bench: Deepak Roshan
2025:JHHC:34771
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (S). No. 6932 of 2017
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Niwas Sharma @ Ashok Sharma, son of late Kameshwar Sharma, resident of Jarina Villa, Near S.P. Kothi, P.O. Hazaribag, P.S. Hazaribag Town, District Hazaribag.
...........Petitioner Versus
1. The State of Jharkhand through the Principal Secretary, Home, Jail and Disaster Management Department, Govt. of Jharkhand, Project Bhawan, P.O. & P.S. Dhurwa, Dist. Ranchi.
2. The Principal Secretary, Department of Home, Jail and Disaster Management, Govt. of Jharkhand, Project Bhawan, P.O. & P.S. Dhurwa, Dist. Ranchi.
3. The Inspector General of Prison, Govt. of Jharkhand, Project Bhawan, P.O. & P.S. Dhurwa, Dist. Ranchi.
4. The Assistant Inspector General of Prison, Govt. of Jharkhand, Project Bhawan, P.O. & P.S. Dhurwa, Dist. Ranchi.
5. The Deputy Secretary, Department of Home, Jail and Disaster Management, Govt. of Jharkhand, Project Bhawan, P.O. & P.S. Dhurwa, Dist. Ranchi.
........... Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
For the Petitioner : Mr. Rahul Kumar, Advocate
For the Respondent: Mr. Rahul Saboo, GP-II
Mr. Kunal Chandra Suman, AC to GP-II
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11/ 20.11.2025 The instant application has been preferred for the following
prayers:
"A. For quashing the order contained in Memo No. (Ann-8) 5666 dated 17.10.2017 issued under the signature of the Respondent Principal Secretary, Department of Home, Jail and Disaster Management, Govt. of Jharkhand whereby and whereunder, the Statutory Appeal preferred by the Petitioner as against the order of penalty dated 08.10.2015 has been rejected mechanically without considering and addressing the issues raised by the Petitioner in his Appeal.
B. For quashing the notification as contained in (Annex-6) Memo No. 2539 dated 08.10.2015 whereby and whereunder the Petitioner in a most arbitrary manner and in violation of Principle of Natural Justice has been imposed the punishment of dismissal from service.
C. For quashing of the entire departmental proceeding contemplated against the Petitioner for non est cause of action and 1 2025:JHHC:34771 Articles of Charge imputed against him dated 11.11.2014 issued under the signature of the Inspector General, Prison.
D. For a direction upon the respondent authorities to consequently reinstate the petitioner with full back wages and continuity in service for the interregnum period."
2. Briefly stated, the petitioner was appointed as Kakshpal under the respondent-Department on 13.07.1983. During the period of his service, a memo of charge was issued against him for unauthorized absence and after a detailed enquiry, the petitioner has been punished by the order of dismissal. Subsequently, the petitioner also preferred an Appeal which was decided against him and thereafter, he also preferred Review and even the Reviewing Authority has sustained the order of dismissal.
3. Learned counsel for the petitioner amongst other grounds on perversity of the order, has made two submissions:
i) No oral evidence has been adduced in order to prove the charge;
ii) There is no finding of wilful absence.
4. In support of 1st submission, learned counsel relied upon the judgment passed in the case of Satyendra Singh Vs. State of U.P. & Anr.1 Similarly, in support of 2nd submission, learned counsel relied upon the judgment passed in the case Raghubir Singh v. General Manager, Haryana Roadways, Hissar2 and Krushnakant B. Parmar Vs. Union of India & Anr.3 .
5. Learned counsel contended that the law is now no more res- integra that even in an ex-parte enquiry, oral evidence has to be adduced and the Inquiry Officer cannot act as an Agent and Representative of the Department. He further submits that it is also a well settled law in departmental proceeding; where allegation of unauthorized absence is made out then the Disciplinary Authority must prove that the absence was wilful. Relying upon the aforesaid admitted fact, he submits that the order of punishment may be 1 2024 SCC OnLine SC 3325 2 (2014) 10 SCC 301 3 (2012) 3 SCC 178 2 2025:JHHC:34771 quashed and set aside. He further submits that now since the petitioner has crossed the age of superannuation, therefore, the order of punishment of removal may be converted into compulsory retirement and other monetary benefits be extended to him.
6. Mr. Rahul Saboo, learned counsel of the respondents strenuously opposed the prayer of the petitioner and submits that from the impugned order itself it is evidently clear that the petitioner was in habit of leaving without permission. In other words, he was a habitual absentee. He further submits that the petitioner could have easily informed the Department that he was in custody but he failed to do so and merely oral evidence has not been adduced, it does not mean that the charge has not been proved because the Inquiry Officer has given ample opportunity to the petitioner to put-forth his case and oppose the charges; and based upon the charges, the Disciplinary Authority has rightly issued the order of removal.
Learned counsel further submits that there is concurrent finding, as such, the Writ Court should not interfere in the order of punishment.
7. Having heard learned counsel for the parties and after going through the documents available on record including the impugned order, it appears that the case of the petitioner is that for the entire period of absence, he was in custody and it was the petitioner who informed the Department that he could not attend his duties because he was under custody and came out on bail.
8. It further transpires from the charge-sheet itself wherein charge No. 1 and corresponding documents to charge No. 1 which deals with unauthorized absence, indicates that the petitioner himself on 19.05.2014 has made an application before the respondent- Department to join the duties and mentioned the reason for his absence.
9. It further transpires from the record that in the reply to the 2 nd show-cause notice, the petitioner has also taken a plea that from Beur Jail, Patna itself he tried to send information to the Department that he 3 2025:JHHC:34771 is not able to join his duties because of his custody but the same could not be done.
10. So far as the legal question raised by the petitioner is concerned for unauthorized absence, the Hon'ble Apex Court in the case of Krushnakant B. Parmar (supra) has held in paras-16 to 18 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. 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."
11. Further, in the case of Raghubir Singh (Supra), the Hon'ble Apex Court in almost similar line has held in paras- 31 and 32 as under:
"31. With respect to the case on hand, the appellant was on unauthorised absence only due to the fact that he had genuine constraints which prevented him from joining back his duties. The unauthorised absence of the appellant which lead to his termination was due to the fact that he was falsely implicated in the criminal case filed at the instance of the respondent and that he must have had reasonable apprehension of arrest and was later in judicial custody. It is to be noted that out of the total period of the alleged unauthorised absence, the appellant was under judicial custody for two months due to the criminal case filed against him at the instance of the respondent.4
2025:JHHC:34771
32. Further, assuming for the sake of argument that the unauthorised absence of the appellant is a fact, the employer is empowered to grant of leave without wages or extraordinary leave. This aspect of the case has not been taken into consideration by the employer at the time of passing the order of termination. Therefore, having regard to the period of unauthorised absence and facts and circumstances of the case, we deem it proper to treat the unauthorised absence period as leave without wages. In our view, the termination order is vitiated since it is disproportionate to the gravity of misconduct alleged against him. The employment of the appellant workman with the respondent is the source of income for himself and his family members' livelihood, thereby their liberty and livelihood guaranteed under Article 21 of the Constitution of India is denied as per the view of this Court in its Constitution Bench decision in Olga Tellis v. Bombay Municipal Corpn. [(1985) 3 SCC 545] wherein it was held as under : (SCC p. 572, para
32) "32. ... The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life"."
12. After going through the aforesaid judgments, it is evidently clear that the Disciplinary Authority has to give a clear-cut finding that the absence is wilful. In crux, the aforesaid judgment dictates that the Department has to show as to whether the absence is in 5 2025:JHHC:34771 compelling circumstances or it was wilful and further, the Disciplinary Authority has to deal that aspect of the matter.
13. Even otherwise, right from the judgment passed by the Hon'ble Apex Court in Case Roop Singh Negi Vs. Punjab National Bank & Ors.4 and thereafter, several judgments have been passed by the Hon'ble Apex Court and recently in the case of Satyendra Singh (supra), the Hon'ble Apex Court in unequivocal term has held that even in an ex-parte enquiry, it is sine qua non to record the evidence of the witness for proving the charges. Admittedly, in the instant case, no oral evidence has been adduced. For brevity para-17 and 18 of the judgment passed in the case of Satyendra Singh (supra) is extracted herein below:
"17. Thus, even in an ex-parte inquiry, it is sine qua non to record the evidence of the witnesses for proving the charges. Having tested the facts of the case at hand on the touchstone of the Rules of 1999, and the law as expounded by this Court in the cases of Roop Singh Negi15 and Nirmala J. Jhala16, we are of the firm view that the inquiry proceedings conducted against the appellant pertaining to charges punishable with major penalty, were totally vitiated and non-est in the eyes of law since no oral evidence whatsoever was recorded by the department in support of the charges.
18. As a consequence, thereof, the High Court fell into grave error of law while interfering in the well-reasoned judgment rendered by the Tribunal whereby, the Tribunal had quashed the order imposing penalty upon the appellant."
14. Having regard to the aforesaid discussions and the judgments cited hereinabove, this Court is having no hesitation in holding that the order of termination by the Disciplinary Authority is non est in the eyes of law and has no leg to stand and accordingly, the same is quashed and set aside.
15. Unfortunately, the Appellate Authority and the Revisional Authority also has not taken into consideration the settled law, accordingly, both the orders are also quashed and set aside.
16. One of the arguments was adduced on behalf of the respondents that the petitioner was a wilful absentee; however, since 4 [(2009) 2 SCC 570] 6 2025:JHHC:34771 there is no specific charge of habitual absenteeism; as such, the State- respondent cannot take benefit of that argument.
17. It has been informed that the petitioner has already retired. Accordingly, no order of reinstatement could be passed but he will be deemed to be reinstated from the date of termination and all consequential benefits will accrue to him as the order of punishment is quashed.
18. The Respondents are directed to extend all consequential monetary/retiral benefits to the petitioner within a period of 12 weeks from the date of receipt/ production of a copy of this order.
19. Accordingly, the instant writ application stands allowed. Pending I.A.(s), if any, stand closed.
(Deepak Roshan, J.) th 20 November, 2025 Kunal AFR Uploaded on 01/12/2025 7