Allahabad High Court
Gulab Singh Yadav vs Union Of India And 4 Others on 11 December, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 39 Case :- WRIT - A No. - 32307 of 2015 Petitioner :- Gulab Singh Yadav Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Rahul Srivastava Counsel for Respondent :- A.S.G.I.,Ashok Kr.,Ashok Kumar,C.S.C. Hon'ble Ashwani Kumar Mishra,J.
1. This writ petition is directed against an order dated 18.12.2007 passed by the Disciplinary Authority, dismissing the petitioner from service on account of his unauthorised absence from duty w.e.f. 11.1.1995 to 26.9.1995. This order is affirmed in appeal on 27.5.2008 and in revision dated 27.11.2009. A subsequent order of the Director General dated 22.2.2010 rejecting representation is also assailed.
2. Petitioner was employed as a Constable in Central Industrial Security Force (C.I.S.F. in short). It appears that while posted at Allahabad in January,1995, a movement order was issued to petitioner on 9.1.1995, requiring him to appear before the C.B.I. on 10.1.1995. Petitioner's appearance before the C.B.I. was warranted on account of the fact that the petitioner's uncle Sri S.S. Yadav was an accused in a criminal case being investigated by the C.B.I., and he was not traceable. Petitioner asserts that he appeared before the concerned authority of the C.B.I., and he was arrested. According to the petitioner, he was tortured during the investigation to find out the whereabouts of his uncle and, thereafter he was released to search out his uncle and facilitate the concerned investigating officer. The petitioner alleges that he was traumatized, mentally and physically requiring immediate medical attention. According to the petitioner, he remained under medical supervision for long and was also admitted in different hospitals. It is only after eight months that he could join his duties in August, 1995. On account of his alleged unauthorised absence from duty, ex-parte disciplinary proceedings were concluded resulting in passing of an order of dismissal from service on 26.6.1995. This order was challenged in appeal and thereafter in revision. The revision preferred by the petitioner ultimately came to be allowed with categorical finding that proceedings undertaken against the petitioner were ex-parte and that principle of natural justice have not been complied with by the authorities while conducting disciplinary action. The order of punishment was set aside and denovo inquiry was directed to be conducted. The charge-sheet previously prepared was served upon the petitioner and fresh inquiry proceedings commenced. Petitioner submitted his reply and also furnished materials in support of his plea that absence from duty for a period of 8 months was not deliberate, or intentional, and that convincing reasons and circumstances existed which prevented the petitioner from attending his work. Medical reports were also submitted alongwith his defence. Petitioner also submitted various materials to show that information was also sent to the concerned authorities about the petitioner's illness. The inquiry has been concluded, where after, the disciplinary authority has passed the dismissal order again against the petitioner on 18.11.2007, which is the first order impugned in this petition.
3. Learned counsel for the petitioner submits that there is absolutely no consideration of petitioner's reply or defence submitted to the charge levelled against the petitioner, at the level of the disciplinary authority while passing the order impugned. The contention is that the disciplinary authority has merely referred to the finding arrived at in the ex-parte inquiry proceedings to hold the petitioner guilty, which is impermissible.
4. Sri Rahul Srivastava, learned counsel for the petitioner has placed the order of the disciplinary authority, in extenso, to submit that petitioner's defence on merits has not been examined. Affidavits have been exchanged between the parties. I have heard Sri Rahul Srivastava, learned counsel for the petitioner, Sri Ashok Kumar for the respondent C.I.S.F. and have perused the materials on record.
5. In para-7 of the order, the disciplinary authority has observed that the petitioner's explanation for the absence is not justified as he has come up with contradictory version during the course of inquiry. Such contradiction is pointed out by referring to petitioner's submission as per which he was made to board train by CBI authorities for going to Gorakhpur, while he has stated that he fell sick at Allahabad while he was on his way back. The contention of the counsel for the petitioner that Allahabad falls on the way from Gorakhpur to Delhi, does not appear to have been noticed by disciplinary authority appears to have weight. It is also contended that the CBI authorities had directed the petitioner to ensure that the accused S.S. Yadav is traced and is compelled to appear before the authorities. Petitioner's defence that upon return from Delhi, he made frantic effort to locate his uncle and in that context he travelled to different places, apparently is an explanation consistent with the plea of the petitioner taken in his reply to the charge-sheet. The authorities, however, have not examined petitioner's reply on merits and have picked out minor contradictions to disbelieve his defence. The explanation submitted by the petitioner, as also the medical certificates have all been disbelieved on the ground that the petitioner's defence is not reliable. The operative portion of order passed by the disciplinary authority clearly reflects it and is reproduced hereinafter:-
"In view of contradictory statement regarding time of his sickness, it is deduced that 'charged' official is giving false statement regarding his sickness. Further the charged official has stated in his reply to the charge memo that he was w.e.f. 11.1.1995 to 2.8.1995 and remained at Dhorighat. However, in his statement dated 20.8.2007 during course of inquiry he was stated that he went to his home on 5.3.2006 and was engaged wit his wife treatment."
"No. .such initiation/ correspondence was received from the charged official. However the charged official did forward medical certificate as mentioned para 6(iv) above only after the exparte inquiry earlier held in the case was completed i.e. in the month of August, 1995. Now after initiation of denovo inquiry the individual has produced the same medical document which has already been taken into consideration herein this Final Order."
6. It is admitted that the disciplinary proceedings initiated against the petitioner in the year 1995 on account of unauthorised absence were concluded ex-parte. The order of dismissal, as affirmed in appeal, therefore, was set aside by the revisional authority with a direction to proceed afresh in the matter. It is also admitted that denovo proceedings have been conducted after the revision was allowed. In the fresh inquiry proceedings conducted, petitioner submitted his reply and has also furnished materials in his defence. The disciplinary authority, however, has not examined the defence of petitioner on merits. The reply on merits appear to have been ignored on the ground that defence of petitioner was already taken into consideration in the final order , passed earlier. Once the final order is quoted in revision, it could not be relied upon for denying consideration to petitioner's reply on merits.
7. This Court finds substance in the submission of the petitioner that his reply to the charge-sheet and his defence has not been examined independently by the disciplinary authority. The authority concerned appears to have merely relied upon / reiterate the earlier orders which were passed in ex-parte proceedings. The findings returned in the ex-parte proceedings that petitioner's absence was unauthorised could not have been relied upon by the disciplinary authority, particularly when the previous orders had already been quashed and fresh inquiry proceedings had been undertaken. The appellate order as well as revisional order also suffers from the same illegality, inasmuch as petitioner's defence has not been examined in its correct perspective. Once the ex-parte proceedings resulting in passing of the dismissal order had already been quashed in revision, the conclusion arrived at in ex-parte proceedings could not have been relied upon, and the disciplinary authority was expected to examine the material placed on record and return its finding on the charge of unauthorised absence from duty. Since such materials have completely been omitted from consideration, the orders impugned cannot be sustained.
8. Before parting, it would be necessary to refer to the judgment of the Apex Court in Krushnakat B. Parmar Vs. Union of India and another, (2012) 3 SCC 178, wherein the Apex Court while examining the issue of unauthorised absence has laid down the parameters on which the issue needs to be examined. Para Nos.16 to 21 of the judgment is reproduced hereinafter:-
"16. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of 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 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.
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 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 wilful; 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 and others reported in (2006) 5 SCC 88 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 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 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."
9. The judmgent of the Apex Court in Krushnakat B. Parmar (supra) has been followed in a subsequent judgment of this court in Shiv Kumar Yadav Vs. State of U.P. and others, 2014 (1) ALJ 577. Para Nos. 15 to 17 of the judgment is reproduced hereinafter:-
"15. In this connection a reference can be made to a decision of Apex Court rendered in Krushnakant B. Parmar Vs. Union of India and another (2012) 3 SCC 178, wherein Apex Court has held that if the absence is due to compelling circumstances under which it is not possible to report or perform duty, such absence cannot be held to be wilful and employee cannot be held to be guilty of misconduct. In the said case neither Inquiry Officer nor Appellate Authority found absence of appellant wilful. Evidence produced by the appellant to substantiate his claim was ignored by the authorities concerned and on the basis of irrelevant fact and surmises he was held guilty. In the said case the impugned order of dismissal passed by the Disciplinary Authority affirmed by Appellate Authority, C.A.T. and High Court has been set aside considering that the appellant had suffered a lot since 1996 when the proceedings were initiated against him. Matter was not remitted to the Disciplinary Authority instead thereof the appellant was directed to be reinstated in service with 50% back wages. In para 17, 18 and 19 of the said decision the Apex Court observed 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 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, hospitalization, 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.
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 that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty."
16. At this juncture it would also be useful to refer some decisions wherein Apex Court has occasion to examine the relevant service Rule under which the services of Government employees were liable to be terminated automatically on account of absence from duty for a period of more than five years. In Jai Shanker Vs. State of Rajasthan, AIR 1966 S.C. 492 while construing the Regulation 13 of the Jodhpur Service Regulations Apex Court held that Regulation involves a punishment for overstaying one's leave, no matter how the Regulation describes it, therefore opportunity must be given to the person against whom an order under Regulation was proposed and that to give no opportunity was to go against Article 311(2) of the Constitution. Similarly, Rule 76 of Bihar Service Code came to be considered by Apex Court in Deokinandan Prasad Vs. State of Bihar, AIR 1971 S.C. 1409. In said case five Judges of Constitution Bench of Apex Court held that an order of termination of service passed under Rule 76, Bihar Service Code on account of the Government servant's continuous absence for five years without giving an opportunity to the servant under Article 311 (2) would be invalid. Again in State of Assam and others Vs. Akshaya Kumar Deb, AIR 1976 S.C. 37 the Apex Court while interpreting the Fundamental Rule 18 of Assam Fundamental and Subsidiary Rules held that termination of service of Government employee on account of his continuous absence for more than five years is 'removal' from service within the meaning of Article 311 (2) of the Constitution and held that before such termination of service the disciplinary enquiry must be held against such employee as by necessary intendment, the Rule regards such conduct of employee, as a fault or blameworthy behavior which renders him unfit to be continued in service. In para-13 of the said decision it was held that another reason for equating 'cessation' of service under this Rule with 'removal' within the meaning of Article 311 (2) is that it proceeds on a ground personal to the employee involving an imputation which may conceivably be explained by him in the circumstances of a particular case. The cases are not unknown where the absence of a Government servant, even for a prolonged period, has been due to circumstances beyond his control. The case of the Japanese solider who remained cut off and stranded in the jungles of a remote Pacific island for three decades after the termination of World War, II, is a recent instance of this fact.
17. Thus, the legal proposition which can be deduced from the aforesaid decisions of the Apex Court is that it is not the length of period of absence from duty of the Government employee, which is material for consideration rather the material thing is that as to whether there were compelling circumstances beyond the control of Government employee due to which he could not attend his duties during the period of absence from duty. Such compelling circumstances would be due to various reasons such as illness, accident and hospitalization etc. but these circumstances, in my opinion, are only instances and illustration and no exhaustive list of circumstances can be enumerated by the court. There may be cases where the absence of a Government servant even for a prolonged period may be due to circumstances beyond his control. Therefore, In my considered opinion, as held by the Apex Court such absence from duty can be explained by the Government servant in an inquiry to be held against him wherein he should be given adequate opportunity to explain the situation. After such inquiry if it is found that absence from duty was due to under the compelling circumstances which were beyond the control of the government servant, in that event of the matter such unauthorised absence from duty cannot be treated his wilful absence from duty and his misconduct warranting any punishment or penalty. The satisfaction of the authority should be no doubt subjective but must be based on objective materials and it should not be whimsical, fanciful and arbitrary."
10. In the facts of the present case, the petitioner's specific defence in the disciplinary proceedings was that his absence from duty was not willful but was occasioned on account of his serious illness and that the absence was otherwise beyond his control. Material in support of such defence has also been produced in the disciplinary inquiry. Such defence needs to be examined in light of the judgment of the Apex Court in the case of Krushnakat B. Parmar (supra) and also the judgment of this Court in the case of Shiv Kumar Yadav (supra). The disciplinary authority while taking a fresh decision in light of the observations contained in this judgment, shall keep in mind the observations contained in judgments and the decision itself would be taken by way of a reasoned order.
11. Writ petition succeeds and is allowed. Orders impugned dated 18.12.2007, 27.5.2008, 27.11.2009 and 22.2.2010 (Annexures-1,2,3 & 4 to the writ petition) passed by the respondent authorities are quashed. Matter stands remitted to the disciplinary authority for passing a fresh order, in light of the observations made above. The disciplinary authority shall independently consider the petitioner's reply to the charge-sheet as also materials placed by way of defence, and shall not be guided by the previous ex-parte proceedings or the findings returned in such ex-parte proceedings particularly as those ex-parte proceedings have already been quashed. A fresh decision would be taken within a period of three months from the date of presentation of certified copy of this order.
Order Date :- 11.12.2019 n.u.