Rajasthan High Court - Jaipur
Kedar Chand Vyas vs State & Ors on 27 September, 2012
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No.5361/1995 Kedar Chand Vyas versus State of Rajasthan & ors 27.9.2012 HON'BLE MR. JUSTICE MN BHANDARI Mr RK Mathur, Sr advocate with Mr Ajay Tantia for petitioner Mr Nikhil Simlote for Mr RB Mathur for respondents BY THE COURT:
This is second round of litigation by the petitioner. The first writ petition was filed to challenge order of punishment and rejection of the departmental appeal by the respondents. The writ petition bearing SB Civil Writ Petition No.893/1982 preferred by the petitioner was decided vide order dated 14.12.1992. The punishment order was set aside with a further direction to the respondents to give proper opportunity of hearing to the petitioner. The petitioner was thereafter called for hearing. The detailed order was passed on 14.10.1994 at Annexure-12 which is impugned herein.
Learned counsel submits that the punishment of dismissal from service is due to absence from duty. The petitioner was never served with the charge sheet containing allegations and even in the enquiry, proper opportunity of hearing was not given. Looking to the aforesaid, impugned order of punishment deserves to be set aside.
It is alternatively submitted that even punishment of dismissal is disproportionate to the delinquency of the petitioner thus by making interference, lesser punishment may be inflicted on the petitioner.
Learned counsel for respondents, on the other hand, submits that charge sheet was sent to the petitioner through registered post and, thereupon, allowed proper opportunity of hearing during the course of enquiry, wherein, charges were found proved against him thus appropriate punishment has been imposed on the petitioner which is not disproportionate to the delinquency i.e. absent from duty for more than a period of two years.
I have considered rival submissions of the parties and perused the record.
It is a case where earlier writ petition preferred by the petitioner was allowed with a direction to give him opportunity of hearing. After the judgment in the earlier writ petition, petitioner was served with the notice for hearing. He appeared before the authority concerned and asked for certain documents during the course of hearing. The competent authority heard the petitioner in person and considered the matter. The main arguments before the competent authority were the same as have been taken herein. I find that the issues aforesaid were considered by the competent authority vide order at Annexure-12. It was found that the charge sheet against the petitioner was sent through registered post, however, some how, petitioner tried to avoid the service.
The allegations against the petitioner are that he proceeded on leave for two days on 6.2.1973. On 8.2.1973, second leave application was moved for a week. On 13.2.1973, a copy of the medical certificate was given. A further application was sent through post wherein a requests was made to allow 15 days leave. Vide order dated 19.2.1973, his application was disallowed for want of medical certificate, which was received by the petitioner on 21.2.1973 as his signature exist in the peon book. The petitioner was asked to report on duty immediately. The petitioner, however, sent an application for extension of his leave till 7.3.1973. The application aforesaid was received by the department on 6.3.1973, however, vide letter dated 7.3.1973, it was rejected. Information about this was received by the petitioner on 8.3.1973 as his signature exist in the peon book. Petitioner thereafter remained absent from duty and even no application for leave or medical certificates were sent by him. All these aspects have been considered by the competent authority inasmuch as petitioner defaulted to join the duty, rather, remained absent unauthorisedly despite rejection of his leave applications. He was asked to join the duties by sending notice in the month of February and March, 1973, no application for leave or medical certificate was sent till 8.10.1975. It is only on 8.10.1975 that petitioner moved an application to join the duty along with three medical certificates starting from 13.2.1973 till 8.10.1975. The first medical certificate was for 10 months and 7 days. The second was for 21 months and 7 days and, lastly, it was till 8.10.1975. All the medical certificates were issued by Ayurvedik Chikitsak. Those documents were considered and it was found that for more than a period of two years neither information for leave nor medical certificate was sent by the petitioner.
In the aforesaid background, petitioner was required to justify his absence from duty. The competent authority also found that charge sheet was sent through registered post. The petitioner was sent notice after initiation of enquiry, where, at least on 7 occasions, the Postman visited the petitioner's residence.
A notice was again sent through registered post but it was received back unserved. In the background aforesaid, it cannot be said that charge sheet was sent to the petitioner. The statements of notice server and other witnesses were recorded to depose that they visited petitioner's residence but charge sheet and notice was not accepted for one or the other reason.
I find that detailed discussion on all the issues exist in the impugned order. The enquiry officer was appointed on 29.7.1974 and during course of the enquiry, statements of as many as 5 witnesses have been recorded. After recording evidence, petitioner was having an opportunity to defend his case. A copy of enquiry report was served upon the petitioner. During the course of hearing, petitioner prayed for inspection of documents. He was allowed inspection thereof. In the background aforesaid, petitioner was given proper opportunity of hearing after judgment in the first writ petition.
Looking to the facts given above, the charge regarding absence was found proved and I do not find any perversity in the finding of fact.
The question now comes as to whether punishment of dismissal from service is disproportionate to the misconduct committed by the petitioner?
I find that petitioner remained wilfully absent. He remained on leave for 2 days and thereafter he moved an application for leave for a week. The applications were rejected with a clear direction to join the services, however, petitioner failed to report on duty nearly for two years without leave application or medical certificate. In between, he was sent the charge sheet and called for the enquiry also. On 8.10.1975, for the first time, he submitted application and medical certificates. In the aforesaid background, petitioner has rightly been held guilty of remaining absent unauthorisedly and so far as quantum of punishment is concerned, a candidate remaining absent for nearly two years is liable to be punished. The punishment of dismissal in these circumstances cannot be said to be disproportionate.
Learned counsel for petitioner has referred the following judgments indicating that dismissal from service on account of absent from duty is not proportionate to the delinquency -
1. Nena Ram versus State of Rajasthan & ors, reported as RLW 2003(4) Rajasthan 2244.
2. Bishavjeet Jat versus State of Rajasthan & ors, reported as 2007(4) RLW 3566
3. Karan Singh through his LRs versus The Collector & anr, reported as 2006(4) RLW 3132
4. Jagdish Singh versus Punjab Engineering College & ors, reported as JT 2009(8) SC 501.
I have gone through the judgments cited above. In the case of Nena Ram (supra), no enquiry or opportunity of hearing was given to the petitioner before order of punishment was passed thus interference was made.
In the case of Bishavjeet Jat (supra), the period of absence was only of few days and medical certificate was submitted in time.
In the case of Karan Singh (supra), the delinquency was for embazzlement, however, there was violation of mandatory provisions of rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 in conducting enquiry thus order of punishment was interfered with.
So far as judgment in the case of Jagdish Singh (supra) is concerned, the court therein interfered in the order of punishment as delinquent remained absent on account of marriage of his daughter thus absence was found justified.
The facts of this case are altogether different than the facts of the cases referred to above. For the aforesaid reasons, I do not find punishment to be disproportionate to the delinquency of the petitioner.
In view of the discussion made above, I do not find any merit in this writ petition. Hence, same is dismissed.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-JW