1 - Kuber Kumar Arya S/o Late Shri Aatma Ram Arya, R/o House No v. 1 - State Of Chhattisgarh Secretary to Hon’ble Governor, Rajbhawan Raipur
Case Details
1 Reserved on : 02/05/2025 Delivered on : 04/09/2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2390 of 2012 1 - Kuber Kumar Arya S/o Late Shri Aatma Ram Arya, R/o House No. G-1, Rajbhawan Colony, Civil Lines Raipur District Raipur C.G. ... Petitioner(s) versus 1 - State Of Chhattisgarh Secretary to Hon’ble Governor, Rajbhawan Raipur (CG) 2 – Joint Secretary to Hon’ble Governor, Rajbhawan Raipur (CG) 3 – Under Secretary to Hon’ble Governor, Rajbhawan Raipur (CG) 4 – Departmental Enquiry Officer & Account Officer, Rajbhawan, Raipur (CG) ... Respondent(s)
Legal Reasoning
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 Hon’ble Supreme Court in Para 25 held as under: "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 6 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." 10. The law laid down in Krushnakant B. Parmar (supra), it is quite vivid that if an enquiry conducted against the delinquent employee for a charge of unauthorized absence, the charge must contained a distinct charge of his willful and deliberate unauthorized absence must be there and after due enquiry the enquiry officer has to record a specific finding that unauthorized absence of the delinquent employee was willful and deliberate. From the records of the departmental enquiry it appears that the petitioner made applications for leave from time to time and certain leaves also ben sanctioned. Thereafter it appears that leave applications of the petitioner has not been granted. Thereafter treating him unauthorized absence from the month of October, 2010 to till the issuance of the charge-sheet. 11. This Court does not find procedural irregularity in conducting the departmental enquiry, however from perusal of the reports of the enquiry officer which has been appended as Annexure R/3 with the return. It does not appear that it has given a categorical finding that the unauthorized absence of the petitioner was willful or deliberate. Though, the enquiry officer found that from the month of October, 2010 till issuance of the charge-sheet, the petitioner was absence in the office and also observed that in the representation submitted by the petitioner he has sought leave on account of som domestic dispute and health reasons. It has also observed that the petitioner on 16.08.2011 made an application and sought permission to take charge in the office. In light of the aforesaid facts, it is concluded that the petitioner was negligence in the discharge of his official duties and he has failed to ensure sincerity and devotion towards his duties. Therefore, it has given a finding that the petitioner has violated Rule 3(1)(ii), Rule 3(1)(iii), and Rule 7 of the Chhattisgarh Civil Services (Conduct) Rules, 1965. On the basis of the enqiry report, the impugned order was passed (Annexure P/1) and appeal against which was also dismissed. 12. In the enquiry report as well as in the order of dismissal Annexure P/1 and order of Appellate authority Annexure P/2 it does not appear that any finding was recorded by these authorities that the absence of the petitioner was deliberate or willful. Thus, this is a case were the punishment of removal from service imposed 7 upon the petitioner is not only highly excessive and disproportionate. Therefore, reliance upon the judgment of the Supreme Court in case of Krushnakant B. Parmar (supra). This Court is inclined to allow this petition and impugned order dated 24.03.2012 (Annexure P/1) & 30.05.2012 (Annexure P/2) passed by the Appellate Authority are hereby set aside and the petitioner is reinstated in the service with continuity in service. So far as backwages, the petitioner may make a representation to the respondents, who may take decision on it within a reasonable period of time. 13.
Arguments
For Petitioner(s) For Respondent/ State : Shri Abhishek Singh, Panel Lawyer For Respondents 2 to 4 : Shri Saurabh Sharma with Ms. Harneet Kaur, Advocates : Shri Atul Kesharwani, Advocate ({Hon’ble Shri Justice Sachin Singh Rajput}) CAV Order This petition has been filed by the petitioner aggrieved by order dated 24/03/2012 passed by the respondent by which the petitioner has been terminated from his services. 2. Following relief has been claimed in this writ petition - “1. That the Hon’ble Court may kindly be pleased to call for entire records pertaining to the petitioner case for kind perusal. 2 2. That this Court may kindly be pleased to issue appropriate writ in favour of the petitioner and quash the impugned termination order dated 24/03/2012 and the order dated 30/05/2012 passed in appeal and respondent be directed to reinstate the petitioner. 3. Any other relief, which may be deemed fit by this Hon’ble Court just and proper in the facts and circumstances of the case may also be provided in favour of the petitioner.” 3. Facts of the case which are emerging from the writ petition is that the petitioner who was working as Assistant Grade II in the Secretariat of Governor’s Raj Bhawan, Raipur (CG) was terminated vide order dated 24/03/2012 on the ground that the petitioner remained absent from his duties since long and after the departmental enquiry, the same reason has been mentioned for his termination. Earlier, the petitioner applied for leave and the leave was sanctioned through the Secretariat of Governor for the period from 02/07/2010 to 15/09/2010 i.e. for 77 days. Thereafter, a short term leave without pay from 16/09/2010 to 15/11/2010 was applied and time to time sent extension of leave which were not sanctioned. After three months, the petitioner was served with a show cause notice regarding absence from duty without sanctioned leave. The respondent meanwhile stopped the salary from 16/09/2010. Respondent No.3 issued a charge sheet and departmental enquiry has been initiated against him. The petitioner appeared in the departmental enquiry and informed about his state of mind in not joining the duty. In the enquiry report, it was found that the petitioner had not followed Rule 3 & 7 of the C.G. Civil Services Conduct Rules, 1965 and his order of termination was passed on 24/03/2012. The petitioner filed an appeal against the termination before respondent No.1 but the same has been dismissed, hence, this petition. 4. Learned counsel for the petitioner submits that the petitioner was working as Assistant Grade–III with respondents 2 to 4. He applied for earned leave (EL) for the period from 02/07/2010 to 15/09/2010 and 77 days’ EL was sanctioned to him. Thereafter, on 16/09/2010 to 15/11/2010, an application was made by the petitioner for medical leave (Annexure P/5) which was neither sanctioned nor communicated to the petitioner. On account of some family dispute, the petitioner again made an application for extension of his leave from 16/11/2010 to 05/01/2011. He was given a show cause notice on 05/01/2011 and thereafter, charge sheet was issued against the 3 petitioner for initiation of departmental enquiry. Reply has been submitted by the petitioner. He submits that without considering the reply, departmental enquiry was carried out whereas the petitioner himself made a request to join on 16/08/2011 but he was not permitted to join rather he was subjected to continuation of departmental enquiry. He submits that no proper opportunity of hearing was afforded during the course of departmental enquiry and the report of the departmental enquiry was supplied to him which was duly replied but his reply was not considered and the impugned order dated 24/03/2012 was passed which was challenged by the petitioner in the statutory appeal before respondent No.1 and by the impugned order, the appeal also stood dismissed. He submits that the allegations against the petitioner in the departmental enquiry is with regard to unauthorised absence. He submits that the earned leave was sanctioned. Thereafter, he applied for medical leave which was not considered despite of sufficient medical evidence being attached with the medical leave application and later on, because of his family disputes and mental state, he further prayed for extension of his leave from time to time but that was not considered by the respondents and proceeded to initiate departmental enquiry by issuance of charge sheet. He further submits that though in the report of the departmental enquiry, the petitioner was found guilty but no finding to the fact that the petitioner’s absence was willful in any manner. He submits that rather the petitioner’s conduct was bonafide and he could have been permitted to join during the pendency of the enquiry when he made an application for joining. He submits that as per Rule 24 of the Leave Rules, 1965, the period of his absence could have been considered as no work no pay i.e. dies non and the petitioner was awarded with major punishment of removal from service. Therefore, punishment imposed upon the petitioner is disproportionate to the allegations leveled against him. To buttress his submission, he placed reliance on the judgment of Hon’ble Supreme Court in the case of Krushnakant B. Parmar v. Union of India and anr., (2012) 3 SCC 178, Dr. S.C. Asthana v. State of U.P. and anr., 2023 SCC Online All 399, Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and ors., (2004) 4 SCC 560, Union of India and anr. v. R.K.Sharma, 2022 SCC Online SC 2010. 5. Per contra, counsel for respective respondents submit that the conduct of the petitioner itself goes to show that he willfully remained absent from the duty. They submitted that earned leave of 77 days were already sanctioned and thereafter, an application was made for grant of medical leave but without any documents. The petitioner did not show any reason as to why he was seeking extension of leave and 4 ultimately, when he did not join the duty, a show cause notice was issued on 05/01/2011 and thereafter, departmental enquiry was initiated. Opportunity was granted to him but he failed to grab the opportunity and he did not voluntarily participate in the departmental enquiry. He further submits that his conduct is very material to ascertain that his absence was willful. There may not be any specific verdict of departmental enquiry but there is a finding of fact in the departmental enquiry that the petitioner remained absent for a considerable period of time without giving any sufficient reasons. They submit that as the petitioner failed to join his duty on 27/09/2010, the salary of the petitioner was withheld and despite this, the petitioner did not join the service. He further submits that when the show cause notice was issued and the reply was submitted, further leave from 16/01/2011 to 16/04/2011 was applied for on account of unavoidable personal reasons. The finding of facts recorded in the departmental enquiry has also been affirmed by the appellate authority and this Court may not substitute its own finding as an appellate Court. For this purpose, he relies upon the decision of the Supreme Court in the case of State of Karnataka v. N. Gangaraj, (2020) 3 SCC 423. They further submit that no leniency should be shown to a habitual absentee as it is going to affect the functioning of the respondents. Therefore, no interference is warranted with the impugned order. 6. There is no quarrel to the proposition that Constitution Court cannot sit as a appellate authority to re appreciate the evidence in a departmental enquiry until and unless the finding recorded by the enquiry officer is absolutely perverse and cannot be given by the prudent man. The scope of judicial review against departmental enquiry is very limited. 7. The case in hand whether this Court can interfere in the findings recorded in the departmental enquiry and the order of appellate authority. In the case of Krushnakant B. Parmar Vs. Union of India & Anr reported in (2012) 3 SCC 178 in Para 17 & 18 Hon’ble Supreme 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 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. 5 In a Departmental proceeding, if allegation of unauthorised 18. 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.” 8. In case of Chhel Singh Vs. MGB Gramin Bank, Pali and others reported in (2014) 13 SCC 166 in paragraph 12 held as under:- “12. From a plain reading of the charges we find that the main allegation is absence from duty from 11.12.89 to 24.10.90 (approximately 10 and ½ months), for which no prior permission was obtained from the competent authority. In his reply, the appellant has taken the plea that he was seriously ill between 11.12.89 and 24.10.90, which was beyond his control; he never intended to contravene any of the provisions of the service regulations. He submitted the copies of medical certificates issued by Doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days. There was no allegation that the appellant’s unauthorized absence from duty was willful and deliberate. The Inquiry Officer has also not held that appellant’s absence from duty was willful and deliberate. It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay.” 9. The question relating to jurisdiction of the Court in judicial review in a
Decision
The petition is allowed in the terms above said. No costs. Sd/- ({Sachin Singh Rajput}) JUDGE Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.09.09 16:32:30 +0530