Gujarat High Court
State Of Gujarat vs Ravjibhai Chhaganbhai Sidhpara on 13 July, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1542 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 6873 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
RAVJIBHAI CHHAGANBHAI SIDHPARA
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Appearance:
MR.SOAHAM JOSHI, AGP for the Petitioner(s) No. 1,2
MR. HJ KARATHIYA(7012) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 13/07/2022
COMMON ORAL JUDGMENT
1. For the purposes of this judgment, facts of Special Civil Application No.1542 of 2019 will be considered.
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2. State of Gujarat is in appeal against the order of the Gujarat Civil Services Tribunal, Gandhinagar, dated 13.03.2018, by which, the Tribunal has modified the order of compulsory retirement inflicted on the respondent on 01.06.2015 to that of three increments with future effect.
3. Facts in brief would indicate that the respondent no.1 was working as a clerk in the office of the Mamlatdar on being declared surplus, he was reappointed as a clerk with the Government Polytechnic at Porbandar. He was thereafter promoted as a senior clerk on 21.11.1995. On 23.07.2002, the petitioner was transferred to the Government Engineering College, Bhuj. For having remained absent for a period of 528 days without permission, for the period from 01.09.2003 to 10.02.2005, the petitioner was inflicted with the penalty of stoppage of two increments with future effect by an order dated Page 2 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 10.09.2007. It appears that thereafter, for leave for the period from 22.05.2009 to 08.06.2010, departmental proceedings were initiated against the petitioner by issuing a notice on 21.05.2010. A departmental proceedings were held and by an order dated 01.06.2015, the order of compulsory retirement was passed. That was a subject matter of challenge in appeal before the Tribunal which by the impugned order reduced the penalty as aforesaid.
4. Mr.Soaham Joshi learned AGP would assail the order of the Tribunal and make the following submissions:
4.1 He would submit that the respondent no.1 was a habitual absentee. In the earlier part of his service tenure, when he had remained absent from 01.09.2003 to 10.02.2005, he was visited with the penalty of stoppage of two increments Page 3 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 with future effect.
4.2 He would therefore submit that for the period in question from 22.05.2009 to 08.06.2010, when the respondent no.1 remained absent for a period of 383 days. He remained absent without making any application for leave.
Therefore, it was rightly treated as leave unauthorized, for which, charge-sheet was issued, the respondent did not contest the proceedings before the departmental authorities and looking to his past misconduct, the punishment of compulsory retirement was imposed on 01.06.2015.
4.3 Mr.Joshi would further submit that the Tribunal clearly fell in error when it was a specific case of the department that he had not made any application or had informed the department of his absence and the Tribunal Page 4 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 therefore could not have sought support from Rule 11 of the Gujarat Civil Services (Leave) Rules and Rule 60 thereof to hold that the respondent in fact, though later in point of time, had informed the department of his ailing mother, the penalty was just and proper. Even in the earlier round, penalty of absence was proved, for which, he was penalized and on the ground of proportionality, the Tribunal should not have reduced the rigors of penalty and modified it to penalty of stoppage of three increments with future effect.
4.4 In support of his submissions, Mr.Joshi would also rely on the further affidavit filed by the State wherein departmental proceedings' papers are produced viz. the charge-sheet and certain other documents showing that for the period from February 2008, the petitioner had been consistently absent in the earlier part of Page 5 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 time and for the period of 383 days in question looking to his consistent habitual absence, the punishment of compulsory retirement was appropriate.
5. Mr.Karathiya learned counsel appearing for the respondent would submit that the order of the Tribunal need not be interfered with as for the absence of 383 days, even according to the case of the department, the petitioner had on 09.06.2009 made an application invoking Rule 60 of the leave Rules 2002, the department itself on 29.03.2011, addressed a letter to the Commissioner of Technical Education informing him of such an application being made by the respondent and pointing out that since it was the Commissioner of Technical Education who was competent to sanction the leave as it exceeded, a request was made to take an appropriate decision. In light of these facts, Mr.Karathiya Page 6 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 would submit that the conduct of the petitioner cannot be said to be one of willful absence. Documents on record, 56 in number were produced with the application suggesting that the mother of the petitioner was ailing, she needed to be taken care of. Supporting medical papers were produced the ones produced in the reply, which is one of the certificates suggesting that the mother required care and therefore it cannot be termed as willful/unauthorized absence.
5.1 In support of his submissions, Mr.Karathiya would rely on the decisions of the Supreme Court in case of Krushnakant B. Parmar v. Union of India and Another reported in (2012) 3 SCC 178, and in case of Harilal Hirjibhai Vaselia v. State of Gujarat reported in 2016 JX (Guj) 1366 and also a judgment in case of Mansukhlal Govindbhai Tank v. State of Page 7 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 Gujarat and Anr. reported in 2013 SCC OnLine Guj 8816. In his submission, he would say that the Supreme Court and the coordinate benches of this Court have held that misconduct of the nature of absence is not willful, it is open for the Courts to interfere with the orders on the ground of proportionality of penalty.
6. At this stage, Mr.Soaham Joshi learned AGP would rely on the decision of the Division Bench of this Court rendered in Special Civil Application No.6531 of 2017. Para 4 of the judgment was pressed into service to indicate that in a case where also the petitioner therein had overstayed for 89 days of leave, the Court did not interfere with the order of penalty of compulsory retirement on the ground that it was unauthorized absence treating it as absence without leave. Here is a case where the respondent was on leave for 383 days and Page 8 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 therefore order of Tribunal ought to be set aside.
7. Facts narrated herein above would indicate that the petitioner of Special Civil Application No.6873 of 2022 was working as a clerk. For having been on unauthorized leave for a period of 520 days from 01.09.2003 to 10.02.2005, he was inflicted with the penalty of stoppage of two increments with future effect. In the second spell of his service post this penalty for the period from 22.05.2009 to 08.06.2010, the respondent again went on leave for a period of 383 days. The charge-sheet was issued which indicates that the petitioner had remained on leave unauthorizedly and therefore it was thought fit to hold a departmental inquiry. Before the departmental proceedings, it appears that the respondent did not appear and therefore an ex-parte proceedings was held where the inquiry officer based on the documents produced by the Page 9 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 Presenting Officer held the charge of unauthorized absence as proved. Together with the copy of the petition, at Annexure:N (page 85) is a communication dated 12.12.2014 addressed by the petitioner to the Joint Director of Technical Education. Reading the communication indicates that the respondent's mother was ailing and therefore she was in a hospital undergoing medical care. He therefore sought time to produce documents and medical certificates to substantiate the genuineness of his absence. On 09.06.2009 i.e. after the period of absence was over, he had informed the authorities that the leave in question be treated as extraordinary leave by virtue of Rule 60 of the Leave Rules. In this context, the department on 30.03.2011 had addressed a letter to the Commissioner of Technical Education for taking a decision on this leave application as a result of the fact that since the leave exceeded 300 days, Page 10 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 it was 383 days of leave and since the competent authority was the Government, the issue whether the leave should be treated as such as leave without pay was sent for the approval of the Government. The nature of absence therefore in case of the respondent has to be viewed in this context and also in that light, the order of the Tribunal which is under challenge by the State. The Tribunal in its final direction has observed that the respondent had remained absent for 383 days that he had made an application subsequently for treating the leave as leave without pay on account of his mother's illness. Normally an application has to be made before proceeding on leave and unless and until it is sanctioned, the employee cannot so proceed on leave. Reports have to be sent for leave which the respondent did not. The Tribunal therefore observed that the conduct of the respondent was one which showed negligence and did warrant a Page 11 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 penalty, however, the penalty of compulsory retirement was harsh and therefore substituted the same by the penalty of stoppage of three increments with future effect.
8. The Tribunal therefore did accept the stand of the respondent that his leave application was made albeit subsequently on account of the respondent's mother's hospitalization. In the case of Krushnakant B. Parmar (supra), the Supreme Court while considering the question of absenteeism / unauthorized absenteeism in the context of it being willful, in paragraph nos.16 to 19 has observed as under:
"16. 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.Page 12 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022
C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022
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.
18. 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 behavior unbecoming of a Government servant.
19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is willful., in absence of such finding, the absence will not amount to misconduct."
9. The Supreme Court has found that the absence is Page 13 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 a result of compelling circumstances, it cannot be said to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always be willful. A Coordinate bench of this Court in case of Harilal Hirjibhai Vaselia (supra) after viewing the case law on the question of absence and the judgments on the question of proportionality of penalty in such cases in paragraphs nos.21 to 24 observed as under:
"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 includes his letter Page 14 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29 th 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.
"22. Learned counsel for the respondent has commended us to the decision in Krushnakant B. Parmar v. Union of India and another to highlight that in the absence of a finding returned by the Inquiry Officer or determination by the disciplinary authority that the unauthorized absence was willful., the charge could not be treated to have been proved. To appreciate the said submission we have carefully perused the said authority. In the said case, the question arose whether "unauthorized absence from duty" did tantamount to "failure of devotion to duty" or "behavior unbecoming of a Government servant" inasmuch as the appellant therein was chargesheeted for failure to maintain devotion to duty and his behaviour was unbecoming of a Government Page 15 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 servant. After adverting to the rule position the twoJudge Bench expressed thus:
"16. In the case of the appellant referring to unauthorized 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 "unauthorized 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 cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized 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 Page 16 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 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 unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful., in the absence of such finding, the absence will not amount to misconduct."
23. We have quoted in extenso as we are disposed to think that the Court 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 Page 17 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is willful. On an apposite understanding of the judgment we 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 unauthorized absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is willful. 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 unauthorized absence and the view expressed by this Court. In State of Punjab v. Dr. P. L. Singla the Court, dealing with unauthorized absence, has stated thus:
"Unauthorised absence (or overstaying Page 18 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 leave), is an act of indiscipline. Whenever there is an unauthorized absence by an employee, two courses are open to the employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which event the misconduct stood condoned. The second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct."
10.The Court held that in the departmental proceedings if an allegation of unauthorized absence of duty is made, the disciplinary authority is required to prove that the absence was willful.
11.In the context of the facts of the present case the charge against the petitioner was that he was absent unauthorisedly inasmuch as no leave applications were made for the period in question. It had come on record that post the Page 19 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 leave, application was made to treat the leave as leave without pay under Rule 60 of the Leave Rules 2002. That was a matter which was pending consideration before the State as is evident from the communication dated 30.03.2013. The question then before the Tribunal was can this be treated as absence which could be termed as willful. In light of this therefore, the Tribunal though having found that the petitioner has committed misconduct, interfered with the penalty on the ground of quantum and reduced it to that of three increments with future effect.
12.Mr.Karathiya learned counsel for the respondent has submitted that the respondent is willing to accept his penalty enhanced and to stoppage of six increments with future effect and also to have his superannuation be treated from the date of penalty of compulsory retirement i.e. 01.06.2015. Page 20 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 In light of the decisions of the Supreme Court, especially in the case of Krushnakant B. Parmar (supra), misconduct yes it was on the part of the respondent on having remained absent, but in absence of any record to show except one omission of such similar nature, the Tribunal, in the perception of this Court rightly interfered with the quantum of punishment. The order of the Tribunal is modified and the penalty of stoppage of three increments is enhanced to six increments with future effect.
13.As is evident from the prayers of Special Civil Application No.6873 of 2020, the petitioner but for the order of compulsory retirement on 01.06.2015 would have superannuated with effect from 31.12.2021, the petitioner of Special Civil Application No.6873 of 2022 and the respondent of Special Civil Application No.1542 of 2019 shall be treated to have retired on Page 21 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022 C/SCA/1542/2019 JUDGMENT DATED: 13/07/2022 superannuation with effect from 01.06.2015. Terminal benefits be paid taking that as a relevant date of superannuation in addition to the penalty of six increments with future effect being imposed upon him.
14.Both the petitions are partly allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.
(BIREN VAISHNAV, J) ANKIT SHAH Page 22 of 22 Downloaded on : Fri Jul 15 21:22:13 IST 2022