High Court
Case Details
WP(C) 4291/2006 BEFORE HON’BLE MR. JUSTICE T. VAIPHEI
Legal Reasoning
r shocking nor disproportionate to the misconduct of about 2 (two) months of una uthorized absence proved against him. She, therefore, submits that no case is ma de out by the petitioner for the interference of this Court in the impugned orde r, which deserves to be upheld. 5. The admitted position of the parties is that the petitioner was found ab sent without leave from 3.2.2005 to 3.4.2005 as this is not denied by the petiti oner. He did not file any application for leave/earned leave before absenting hi mself from duties. His case is that he was suffering from acute rheumatoid arthr itis with peptic ulcer syndrome which forced him to skip his attendance in offic e. In support of his case, he also submitted a medical certificate. On going thr ough the findings of the Departmental proceeding drawn up against him, it may be noted that no finding in respect of the case of the petitioner that he was ill, was recorded by the Enquiry Officer. The explanation of the petitioner is that he was unable to attend during the period due to his sickness. It would appear t hat as the explanation of the petitioner was supported by the medical certificat e issued by the Consultant in Health & Nutrition Cum General Medical Practitione r, the correctness of the explanation offered by the petitioner was apparently n ot questioned by the respondent authorities. The law is now well settled that un authorized absence from duty per se does not tantamount to willful absence so as to warrant the conclusion that an employee failed to maintain devotion to duty or that his behaviour was unbecoming of a government servant. If any authority i s needed to this effect, I may conveniently cite the decision of the Apex Court in Krushnakant B. Parmar Vs. Union of India and Another reported in (2012) 3 SCC 178, the relevant portions whereof are reproduced below: (cid:28)16. In the case of the appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion to duty and h is behaviour was unbecoming of a government servant. The question whether (cid:28)unaut horized absence from duty (cid:29) amount to failure of devotion to duty or behaviour un becoming 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 circumstance under which it was n ot 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 un authorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelli ng 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 unauthorized absence from dut y is made, the disciplinary authority is required to prove that the absence is w illful, in the absence of such finding, the absence will not amount to misconduc t. 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 willful; the disciplinary authority as also the appel late authority, failed to appreciate the same and wrongly held the appellant gui lty. (cid:29) 6. As the absence of the petitioner from duty was due to compelling circums tances beyond his control i.e. illness, he cannot be held to be guilty of failur e of devotion to duty or behaviour unbecoming of a government servant. In this v iew of the matter, the punishment imposed upon the petitioner certainly shocks t he conscience of this Court, is otherwise excessive and highly disproportionate to the charge proved against him. This calls for limited the interference of thi s Court.
Arguments
Having heard Mr. N Dhar, the learned counsel for the petitioner and Ms. B Das, t he learned State counsel appearing for the State of Assam, it becomes clear that the only question which falls for consideration in this writ petition has now b een reduced to the quantum of punishment to be awarded upon the petitioner. Before proceeding further, it may be apposite to briefly refer to the ca 2. se of the petitioner as pleaded by him. He was appointed to the post of Grade-II I post of Stenographer (English) on 20.9.1993 in the office of the Deputy Inspec tor General of Police (Border), I/C, River Police Organization, Assam, which he immediately joined. While he was posted in the office of Superintendent of Polic e (Border), Assam, Guwahati, he felt seriously ill due to peptic ulcer syndromes and other complicated diseases from 3.2.2005 to 3.4.2005. On his recovery, he s ubmitted an application to the Superintendent of Police (Border), Assam on 12.4. 2005 along with a medical certificate for grant of earned leave to him for the a foresaid period of his absence. However, to his surprise, he received the notice dated 8.6.2005 issued by the respondent No. 4 requiring him to show-cause as to why any of the penalties prescribed under Rule 7 of the Assam Services (Discipl ine and Appeal) Rules, 1964, should not be inflicted upon him for his absence fr om duty without leave or without proper permission from the authority concerned. The petitioner promptly replied the show-cause by stating that he was unable to attend office during that period as he was suffering from acute rheumatoid arth ritis with peptic ulcer syndrome. He also submitted a medical certificate along with an application for grant earned leave for the said period to the same autho rity. The respondent No. 4, on receipt of the reply of the petitioner was not sa tisfied with the reply of the petitioner. Therefore, under instruction of the au thority concerned, he submitted a detailed reply to the show-cause notice issued to him as per his representation dated 16.8.2005 submitted before the responden t No. 4. 3. The respondent No. 4 thereafter, issued another show-cause notice to the petitioner stating inter alia, that the disciplinary authority on the basis of the representation made by the petitioner, had provisionally come to the conclus ion that he should be penalized with the punishment of censure/reduction in rank or withholding of promotion as per Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964. Apparently, not satisfied with the reply of the petitioner , a departmental enquiry was thereafter drawn up against him for his absence fro m duty with effect from 3.2.2005 to 3.4.2005 without leave or without permission of the competent authority. The Enquiry Officer by his report dated 18.11.2005 found the allegation made against the petitioner to be proved. On the basis of t he findings of the Enquiry Officer, the respondent No. 4 issued another show-cau se notice to the petitioner stating, inter alia, that the disciplinary authority had provisionally come to the conclusion that he would be penalized as per Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964. The petitioner, ac cordingly, submitted his reply dated 9.12.2005 and challenged the findings of th e authority and prayed for exonerating him from the allegation charge/ alleged a gainst him. The respondent No. 4, on receipt of the reply of the petitioner, iss ued order dated 28.12.05, dismissing the petitioner from service. Aggrieved by t his, the petitioner is approaching this Court by way of this writ petition. 4. The contention of the learned counsel for the petitioner is that the pun ishment of dismissal imposed upon the petitioner is grossly disproportionate to the misconduct proved against him and the impugned order is, therefore, liable t o interfere by this Court. The learned State counsel, however, supports the impu gned order and submits that the punishment imposed upon the petitioner is neithe
Decision
7. The writ petition is, therefore, allowed. The impugned order dated 28.12 .2005 (Annexure-9 to the writ petition) is accordingly quashed. The case is remi tted to respondent No. 4 to impose any punishment other than the penalty of dism issal, removal or termination from service. The exercise shall be carried out wi thin a period of 2 (two) months from the date of receipt of the judgment.