High Court
Case Details
WP(C) 4083/2006 BEFORE THE HON’BLE MR. JUSTICE T. VAIPHEI JUDGMENT AND ORDER (ORAL)
Legal Reasoning
On reading the explanation of the petitioner at Annexure-2 and the impug 4. ned order at Annexure-3 in juxtaposition, it is seen that there is no dispute ab out the overstayal of leave by the petitioner. The question to be determined the n, is whether overstay of leave or an unauthorized absence from duty, per se, wi ll warrant imposition of punishment upon the petitioner. The law is now well set tled that to constitute a misconduct entailing punishment on the ground of absen ce from duty, the absence should be wilful or intentional. In this connection th e decision of the Apex Court in Krushnakant B. Parmar Vs. Union of Inida, (2012) 3 SCC 178 can be profitably taken advantage of, and the same is quoted below: - (cid:28)16. In the case of the appellant referring to unauthorised absence the discipli nary authority alleged that he failed to maintain devotion to duty and his behav iour was unbecoming of a government servant. The question whether (cid:28)unauthorised absence from duty (cid:29) amounts to failure of devotion to duty or behaviour unbecomin g of a government servant cannot be decided without deciding the question whethe r 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 un authorised absence, but it does not always mean wilful. There may be different e ventualities due to which an employee may abstain from duty, including compellin g 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 dut y is made, the disciplinary authority is required to prove that the absence is w ilful, 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 h eld that the appellant was unauthorisedly absent from duty but failed to hold th at the absence was wilful; the disciplinary authority as also the appellant auth ority, failed to appreciate the same and wrongly held the appellant guilty. (cid:29) What stands out from the aforesaid decision is that absence from duty wi 5. thout any application or prior permission may amount to unauthorised absence, bu t it cannot always be construed as wilful. An employee may abstain from duty due to circumstances beyond his control, such as illness, accident, hospitalisation , etc. In the instant case, the petitioner does not dispute that he was unauthor isedly absent from duty, but then, he has given explanation for his absence. His explanation is that while he was enjoying his earned leave just before he repor ted for duty, he received a call letter from UPSC for appearing in an interview for the post of Assistant Commandant at New Delhi on 06.09.2004 i.e. 1 day after he has to report for duty. He had also intimated this development to his Sector Commandant over telephone and also made an application to the DIG by speed post for extension of his leave till 08.09.2004. In my opinion, the petitioner had t o overstay his leave for pursuing a better career: every person has an aspiratio n to seek for a better or higher position in his career. There was thus nothing wrong if in the pursuit of a better career, he had to overstay his leave for one or two days. He had intimated his superior authority in advance to this effect. This is not denied by the respondent No. 6 either. All that he said was that su ch prayer for extension of leave till 08.09.2004 could not be considered as the Sector Commandant had neither accepted his leave nor did he assure him for exten sion of leave. Once he has submitted his application and also informed his super ior authority by telephone, there was nothing wrong on his part for proceeding t o New Delhi to appear in the interview. Had he not done so and waited for the pe rmission to come, he would have missed an opportunity to appear in the interview . In my opinion, the overstay of leave by the petitioner on those two occasions can be constituted what is considered to be one of the compelling circumstances under which it was not possible to report or perform duty: such absence cannot, therefore, be held to be wilful or intentional. 6. As for his overstay of leave for 1 day on 31.05.2004, he had stated in h is reply that his train was late by 10 hours to reach Guwahati, which prevented him from getting the connecting train or bus in time to reach his place of posti ng, which necessarily resulted in overstayal of his leave. The genuineness of th is explanation is also not disputed by the respondent No.6. The stand taken by t he respondent No. 6 appears to be this: any unauthorised absence from irrespecti ve of the reasons wilful or intentional absence, would call for imposition of pu nishment to an employee as the employee belongs to a disciplined. In my judgment
Arguments
Both Mr. SM Rahman, learned counsel for the petitioner and Mr. DC Chakra borty, learned Central Government Counsel are extensively heard. The validity of the order dated 15.10.2004, passed by the Assistant Comm 2. andant, CISWF, Sector Commander, Sibsagar (respondent No. 6), awarding a penalty of fine equivalent to his 5 days of pay upon the petitioner is under challenge in this writ petition. The material facts of the case are that the petitioner wa s sanctioned 7 days earned leave w.e.f. 21.08.2004 to 27.08.2004 and was directe d to report for duty on 31.08.2004, but he did not do so and had overstayed for 9 days without taking leave of the competent authority. He reported for duty onl y on 09.09.2004. This promoted the respondent No. 6 to issue the memorandum of c harges accusing him of overstay of his leave by 9 days on 31.08.2004 and 1 day o f overstay of leave on 01.06.2004. The petitioner in response to the memorandum of charges promptly gave his reply on 06.10.2004, wherein he denied the allegati on of intentional absence from duty. While denying the charges, he gave detailed explanation as to under what circumstances he had to over stay his leave. In hi s reply, which is at Annexure-2 to the writ petition, the petitioner explained t hat though he was to resume his duty on 31.08.2004, he received a call letter fr om UPSC for appearing in the interview for the post of Assistant Commandant at N ew Delhi on 06.09.2004. He, accordingly, informed his Sector Commandant over tel ephone and also to the Deputy Inspector General by a letter to extend his leave till 08.09.2004. He, thereafter proceeded to Delhi and after appearing in the in terview, he boarded the first available train and joined his duty on 09.09.2004. As far as his previous absence on 31.05.2004 is concerned, he explained that he had overstayed his leave for 1 day as his train got delayed and he managed to r each Guwahati 10 hours later. As a result, he could not get any connecting train or bus in time: this compelled him to overstay his leave by 1 day. The petition er stated therein that he brought supporting documents to substantiate his case and the same was submitted before the Leave Branch at Nazira. 3. The respondent No. 6, apparently, did not accept the explanation of the petitioner and took the view that his application for extension of leave could n ot be considered as the Sector Commandant neither accepted his leave nor did he assure him for the extension of leave. The respondent No. 6 also took a view tha t the petitioner ought to have stayed at home and only after his application for extension was accepted he should have contacted through telephone to his Unit f or the confirmation. Preliminary inquiry was stated to be held, in which the Enq uiry Officer found him guilty of the charges levelled against him. The responden t No. 6, apparently accepted the findings of the Enquiry Officer in that prelimi nary inquiry and, thereafter, passed the impugned order of penalty.
Decision
, the respondent No. 6, has either ignored or overlooked the legal position as t o under what circumstances, an unauthorised absence from duty can be construed t o be wilful absence or intentional absence from duty. Either way, the approach o f the respondent No. 6 is fallacious and cannot be sustained in law. I am fortif ied in my view by the decisions of the Apex Court in Malkiat Singh Vs. State of Punjab & Ors., (1996) 7 SCC 634 and Union of India & Ors. Vs. Giriraj Sharma, 19 94 Supp. (3) SCC 755. In the view that I have taken, the impugned order is not s ustainable in law and is liable to be quashed. 6A. The result of the foregoing decision is that this writ petition succeeds . The impugned order dated 15.10.2004 passed by the respondent No. 6, Assistant Commandant, CISWF, Sector Commander, Sibsagar stands quashed. Consequently, the fine recovered from the petitioner shall be refunded to him within a period of 1 month from the date of receipt of the certified copy of this order. No costs.