The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Nandu Ram W.P.(S). No. 6782 of 2016 ---------- Versus ………. Petitioner 1.The State of Jharkhand through its Secretary, Department of Human Resource Development Department, Govt. of Jharkhand, Dist.-Ranchi 2.The Director, Primary Education, Human Resource Development Department, Govt. of Jharkhand, Dist.-Ranchi 3.The Deputy Commissioner, Palamu, Dist.-Palamu 4.The Regional Deputy Director of Education, Palamu, Dist.-Palamu 5.The District Superintendent of Education, Palamu, Dist.-Palamu ---------- ………. Respondents CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner For the Respondents ----------- : Mr. Vishwanath Moon, Advocate Mr. Prem Pujari Roy, Advocate : Mr. Chandan Kr. Tiwari, AC to GA-I 17/ 16.04.2024 Petitioner has approached this Court for quashing/setting aside the ---------- order contained in Memo No.1514 dated 27.10.2018 (Annexure-21), whereby respondents have dismissed the petitioner from service with retrospective effect i.e. w.e.f. 14.09.2004 i.e. the date from which the petitioner was on authorized/sanctioned medical leave. 2. Petitioner was appointed on the post of Assistant Teacher vide letter contained in Memo No.2775 dated 31.12.1999. After serving for more than three years of satisfactory service, all of a sudden, the petitioner has fallen ill due to some mental diseases. When his health condition deteriorated, he applied for medical leave for treatment at some Mental Hospital which was received in the office of the Principal, Government Middle School, Kandwa on 15.09.2004. Thereafter, the petitioner proceeded on leave and went to Ambedkar Nagar, U.P. where upon investigation, the doctor informed the petitioner that he was suffering from typical depression and accordingly he was advised to get him treated at some private clinic. Since the petitioner was suffering from mental disorder and typical depression, he has send his application for extension of leave through the registered post to the District Superintendent of Education as well as the Principal, Government Middle -1- School, Bishrampur, Palamu. After lapse of nearly seven years, the petitioner has been declared medically fit by the doctors under whom he was being treated and a Certificate to that effect was given on 18.01.2012 by the Mahatma Jotirmaa Phula Joint District, Hospital, Ambedkar Nagar. After receipt of the aforesaid fitness certificate, the petitioner has given his joining before the Principal, Government Middle School, Kadwan, Bishrampur on 19.01.2012. When the application of the petitioner was not being entertained by the Principal, Government Middle School, Kadwan, Bishrampur, he approached the District Superintendent of Education, Palamu vide his representation dated 25.02.2012 for redressal of his grievance but no heed on the same has been given. Representation was also written to the Regional Deputy Director of Education, Palamu on 12.07.2013 praying inter-alia for passing direction to accept his joining but the same was also not taken care of. The petitioner has also approached the Deputy Commissioner, Palamu, vide
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representation dated 10.12.2013. Being aggrieved by the aforesaid inaction on the part of the respondents, the petitioner preferred a writ petition being W.P.(S) No.4225 of 2014 primarily praying therein for a direction upon the respondents to accept his joining. During pendency of the aforesaid writ petition, the request of the petitioner for joining and rendering service in the school in question as an Assistant Teacher has been rejected vide order contained in memo No.1878 dated 14.09.2014, and the said order has also been assailed by the petitioner through a separate Interlocutory application bearing no.2128 of 2016. However, after hearing the parties, this Court has been pleased to quash and set aside the dismissal order dated 14.09.2014, with liberty to the respondents to proceed against the petitioner in terms of Rule 74(b) of the Jharkhand Service Code. Pursuant to the said direction, the petitioner appeared before the respondents and produced all the documents, but the same were never considered and the respondents vide memo no. 5499 dated 05.10.2016 declined to accept the request of the petitioner for joining. A departmental proceeding was also initiated by framing memo of charge dated 10.5.2018, containing altogether three charges, to which the petitioner submitted his reply on 25.05.2018. The enquiry officer duly appreciated the reply of the petitioner and has concluded that two out of the three charges were not proved. However, the charge regarding absenteeism was proved. -2- This enquiry report was submitted on 2.6.2018. The disciplinary authority issued second show cause notice proposing the penalty order and the petitioner also replied the same on 23.7.2018. Once again show cause was asked on 11.98.2018 for putting forth the contention of the petitioner regarding absenteeism, to which the petitioner replied elaborating the reasons which were beyond his control. However, without considering the reply of the petitioner in its right perspective, the disciplinary authority has inflicted the order of dismissal from service with effect from 14.9.2004 vide memo no. 1514 dated 27.10.2018, which is under challenge in the present writ petition. 3. Learned counsel for the petitioner assailing the impugned order submits that though there is an allegation of unauthorized absence for seven years but after order of the Court a regular departmental proceeding was initiated in which Enquiry Officer has clearly returned a finding that charge no.1 and 2 are not proved and thereafter regarding charge no.3, it has been clearly held that same needs consideration because of sympathetic situation of the petitioner. Learned counsel further submits that it was open for the disciplinary authority to differ with the charges but instead of differing with the charges, the disciplinary authority has erroneously held that since charges has been proved and petitioner was unauthorizedly absent continuously for seven years, under Rule 76 of the Service Code, rightly punishment of
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dismissal has been passed. Learned counsel further submits that the finding of the disciplinary authority and inflicting punishment of dismissal is illegal and arbitrary and also disproportionate to the charges in view of the enquiry report. Harsh punishment should be quashed and aside and a direction be given to the respondents to consider the case of the petitioner sympathetically for inflicting lesser punishment other than dismissal, removal or compulsory retirement. 4. Learned counsel for the respondents-State vehemently opposing the contention of the learned counsel for the respondents-State submits that from bare perusal of the enquiry report, it appears that charges against the petitioner have been duly proved and thereafter after differing with the enquiry report, rightly punishment of dismissal has been inflicted. Since petitioner was unauthorizedly absent for seven years continuously, under Rule -3- 76 of the Service Code no other punishment other than dismissal could have been inflicted against the punishment. Learned counsel justifying the impugned order submits that rightly petitioner has been dismissed from service, it is unbecoming of the Government Servant to stay away from the department for seven long years. In view of the Rule 76 of the Service Code, the punishment order is fully justified. 5. Having heard the rival submissions of the parties, across the bar, this Court is of the considered view that case of the petitioner needs consideration for the following facts and reasons; (i) Admittedly Rule 76 of the Jharkhand Service Code provides that any employee absent for more than five years shall be dismissed from services. (ii) The said absenteeism has to be proved in a regular departmental proceeding. In view of order passed by W.P.(S) No.4225 of 2014, the respondents were directed to initiate a regular proceeding. (iii) In the regular proceeding, petitioner was not held guilty of the charges by the enquiry officer, it was clearly held that charge no.1 and 2 are not proved. Regarding charge no.3, it was the opinion of the enquiry officer that it requires consideration in view of the sympathetic situation of the petitioner. Admittedly, petitioner was suffering from mental illness, he was not in a position to get treatment in luxurious hospital. (iv) It has been held in plethora of judgments that all the unauthorized absent cannot be treated to be willful absenteeism. The issue fell for consideration before this Court in case of Samuel Dungdung Vs. the State of Jharkhand & Ors. in W.P.(S) No.6764 of 2013, this Court taking into consideration the law laid down by the Hon’ble Apex Court in the case of Krishnakant B. Parmar Vs. Union of India & Anr. reported in (2012) 3 SCC 178 has held that; 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 wilful, 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 held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty. 20. The question relating to jurisdiction of the court in judicial review in a -4- departmental proceeding fell for consideration before this court in M.V. Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919] wherein this Court held: (SCC p. 95, para 25) “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 lost sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing 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 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 charges with.” Petitioner has been able to satisfy this Court that the absenteeism was due to compelling circumstances. The ailment of the petitioner was also not disputed rather a finding has been returned that petitioner was admittedly suffering from mental illness and only because required certificates were not produced by the petitioner, the mental illness cannot be disbelieved which has duly been proved by other authorities of the village as well the school. Further the Hon’ble Apex Court in the case of Chairman-cum- Managing Director, Coal India Limited Vs. Mukul Kumar Choudhuri & Ors. reported in (2009) 15 SCC 620 has clearly held that “where delinquent upon being charges of the misconduct fairly admitted his guilt and explained the reasons for the absence, punishment or removal was not only unduly harsh but grossly in excess to allegations.” 6. As a sequitur to the aforesaid rules, guidelines and judicial pronouncement, the order contained in Memo No.1514 dated 27.10.2018 (Annexure-21) is hereby quashed and set aside. 7. The respondents are directed to reconsider the case of the petitioner for inflicting punishment other than dismissal, removal, compulsory retirement. -5- 8. Let the entire exercise be completed within a period of twelve weeks from the date of receipt of copy of this Court. 9. Petitioner shall be reinstated into services with all benefits in accordance with law. 10.
Decision
Accordingly, the instant writ petition disposed of. Rohit- (Dr. S.N. Pathak, J.) -6-