Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.2152 of 2022 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Sri Chinmaya Nayak, Aged about 34 years, Son of Sri Ghanashyam Nayak, At/Village: Gholadani, P.S.: Nuagaon, District: Jagatsinghpur. … -VERSUS- 1. Director General of Police, Odisha At: Buxi Bazar, Cuttack-1. 2. Commissioner of Police, Bhubaneswar and Cuttack At: Unit-V, Bidyut Marg Bhuabneswar-1. 3. Deputy Commissioner of Police (Security) Special Security Battalion Police Commissionerate Bhubaneswar. 4. Additional Commissioner of Police, Bhubaneswar-Cuttack Commissionerate Police, SSB Bhubaneswar. … Counsel appeared for the parties: Petitioner. Opposite Parties. For the Petitioner : Ms. Sujata Jena Advocate W.P.(C) No.2152 of 2022 Page 1 of 23 For the Opposite parties : Ms. Saswata Patnaik, Additional Government Advocate P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 29.07.2024 :: Date of Order : 05.08.2024 ORDER Assailing Order dated 10.01.2022 passed by the Director General of Police, Odisha (Annexure-4), whereby rejecting the representation of the petitioner for release of salary and RCM claim, the petitioner has approached this Court by way of filing this writ petition invoking provisions under Article 226 and 227 of the Constitution of India with the following prayer(s): “In the circumstances the petitioner prays that the Hon’ble Court may graciously be pleased to admit this case, issue notice to the opp. Parties to show cause as to why the order dated 10.01.2022 under Annexure-4 shall not be quashed and if the opp. parties fail to show cause or show insufficient case the Hon’ble Court upon hearing the parties may be further pleased to allow this writ petition by quashing the order dated 10.01.2022 by issuing a writ in the nature of mandamus or any other appropriate order directing the opp. Parties to release the salary of the petition from the month of July, 2018 within a stipulated period and may be further pleased to pass such other order/orders, direction/directions as may be deemed fit and proper in the interest of justice and for this act of kindness as the petitioner is duty bound shall ever pray.” W.P.(C) No.2152 of 2022 Page 2 of 23 2. The Petitioner was appointed as a Sepoy in Special Security Battalion (SSB) on 01.07.2010 temporarily in the scale of pay of Rs.5,200/- to Rs.20,200/- with Grade Pay of Rs.2000/- and he was regularized on 09.02.2011 after being declared successful in the final examination of basic course. He was allotted Brash No.196 by the opposite party no.4-Additional Commissioner of Police, Bhubaneswar-Cuttack Commisionerate of Police. 2.1. The petitioner was posted in quarter duty at the residence of the Chief Minister, Odisha vide CC No.0082044 dated 20.06.2016. While he was on duty, he fell down at the urinal on 07.08.2016 at 3.00 AM. He sustained serious head injury on the left side of his head. Immediately, he was taken to the Apollo Hospital, Bhubaneswar for treatment in an unconscious state. During his three months’ treatment, the Hospital claimed Rs.16 lakhs towards the treatment. On the recommendation of the DMET, Odisha, Bhubaneswar a sum of Rs.9,11,000/- was reimbursed from the said amount claimed by the Hospital. 2.2. During the treatment of the petitioner, his eye sight was affected. Therefore, he had to undergone operation in the L.V. Prasad Eye Hospital, Bhubaneswar. After treatment of the same, the physician though certified him fit, he was advised to do only sedentary work. So, the petitioner joined in the Office on 07.01.2017. W.P.(C) No.2152 of 2022 Page 3 of 23 2.3. Again on 10.07.2018, his eye sight again got defective
Facts
and he was visually challenged. As a result of this, he could not attend his work on 11.07.2018. Such fact was intimated to the Office of Deputy Commissioner of Police (Security), Special Security Battalion Police Commisisonerate, Bhubaneswar-opposite party no.3. 2.4. The opposite party no.3 written a letter to the Chief District Medical Officer (CDMO), Khordha after receipt of such intimation to examine the petitioner to ascertain whether he could be able to perform his official duty as a Sepoy. Accordingly, the petitioner was directed to appear before the Medical Board. The Medical Board declared the petitioner temporarily unfit. 2.5. Since the opposite parties did not respond to the approaches made by the petitioner for release of salary from July, 2018 till date, the petitioner filed a writ petition, being W.P.(C) No.34137 of 2021 before this Court, which came to be disposed of on 08.11.2021 directing the opposite parties to consider his representation. 2.6. The Director General of Police, Odisha vide Order dated 10.01.2022 disposed of the said representation in compliance of the Order dated 08.11.2021 passed by this Court with the following observation: “Perused the Orders No.01, dated 08.11.2021 of Hon’ble High Court in W.P.(C) No.34137 of 2021 filed by S/196 W.P.(C) No.2152 of 2022 Page 4 of 23 Chinmaya Nayak of SS Bn., Bhubaneswar Vs. State of Odisha and others along with connected document carefully. The applicant had filed W.P.(C) No.34137 of 2021 before the Hon’ble High Court of Orissa with a prayer to release the salary of the petitioner as early as possible within a period of 1 month. its Order No.01, The Hon’ble High Court vide dtd.08.11.2021 directed opposite party no.1 (Director General of Police, Odisha) to consider the representation the petitioner vide Annexure-3 and pass filed by appropriate order in accordance with law taking into consideration Annexure-1 within a period of three weeks from the date of production of certified copy of this order.
Legal Reasoning
‘The is not a case of habitual absenteeism. The appellant seems to have a good track record from the date he joined service as a sweeper. In his long career of service, he remained absent for fifteen days on four occasions in the months of February and March 2004. This was primarily to sort out the problem of his daughter with A her in-laws. The filial bondage and the emotional attachment might have come in his way to apply and obtain leave from the employer. The misconduct that is alleged, in our view, would definitely amount to violation of discipline that is expected of an employee to maintain in the establishment, but may not fit into the category of gross violation of discipline. We hasten to add, if it were to be habitual absenteeism, we would not have ventured to entertain this appeal.’ 20. If both the decisions are appositely understood, two aspects clearly emerge. In Shri Bhagwan Lal Arya (supra), the Court took note of the fact, that is, Page 13 of 23 W.P.(C) No.2152 of 2022 production of proper medical certificate from a Government medical doctor and opined about the nature of misconduct and in Jagdish Singh (supra) the period of absence, status of the employee and his track record and the explanation offered by him. *** some 25. In Tushar D. Bhatt Vrs. State of Gujarat, (2009) 11 SCC 678, the appellant therein had remained unauthorisedly absent for a period of six months and further had also written threatening letters and of misconduct. other acts conducted Eventually, the employee was visited with order of dismissal and the High Court had given the stamp of approval to the same. Commenting on the conduct of the appellant the Court stated that he was not justified in remaining unauthorisedly absent from official duty for more than six months because in the interest of discipline of any institution or organization such an approach and attitude of the employee cannot be countenanced. 26. Thus, the unauthorized absence by an employee, as a misconduct, cannot be put into a straight-jacket formula for imposition of punishment. It will depend upon many a factor as has been laid down in Dr. P.L. Singla (supra).” 6.3. The impugned Order dated 10.01.2022 shows that the petitioner submitted an application for drawal of his salary as admissible as “he was undergoing treatment after receiving the recall notice on 21.07.2018, on which CDMO, Khordha was requested vide Letter No.2514, dated 19.11.2018, S196 Chinmaya Nayak is in a W.P.(C) No.2152 of 2022 Page 14 of 23 condition of loss memory with abnormal behaviour and he is temporarily unfit to perform official duty.” It is also revealed that for his medical treatment, a sum of Rs.1,01,533/- has been paid as against his claim for Rs.1,02,044/-. Besides, as against his ‘RCM claim of Rs.17,30,503/-, he has been paid Rs.9,11,424/- following all Govt. procedure regarding drawal of RCM bills. 6.4. The Order of refusal to disburse salary would, thus, indicate the reason that the applicant has remained absent since 11.07.2018 unauthorisedly, and therefore, his pay has been held over. 6.5. When the facts of instant case is examined in the light of legal perspective as set out hitherto fore with reference to the facts on record, this Court finds that there was unavoidable circumstance beyond control of the petitioner which restricted him to attend to the duties. The result of aforesaid analysis would entail overturning the impugned order. 6.6. Perusal of Medical Report submitted by the District Medical Board, Khordha, Odisha being appraised by the Specialist in Orthopedics, D.H.H., Khordha, Specialist in Ophthalmology, D.H.H., Khordha and Specialist in Medicine, D.H.H., Khordha (Annexure-2), it is transpired that the petitioner has suffered “complete loss of vision” and “loss of memory with abnormal behaviour”. Such W.P.(C) No.2152 of 2022 Page 15 of 23 report is of the year 2018, which shows that the petitioner was “temporarily unfit to perform his official duty”. 6.7. Learned Additional Government Advocate submitted that had the petitioner or his representative approached the authorities to apprise the physical condition, the same would have been considered with compassion. 6.8. It is brought to the notice that in view of Rule 780 of the Odisha Police Rules, the leave is regulated by the Fundamental Rules and the Supplementary Rules and also by the Odisha Service Code. 6.9. Rule 803 of the said Odisha Police Rules as under: “803.(a) Absence after expiry of leave.— A police officer who remains absent from duty after the expiry of his leave is entitled to no leave salary for the period of such absence, and unless the leave is extended, that period will be debited against his leave account as though it were leave on half average pay. (Fundamental Rule 73 and Service Code, Rule 144) (b) If the leave is extended, leave without pay is cannot be granted. If admissible, except with the special sanction of Government (Service Code, Rule 159).” leave with pay 6.10. Rule 843 of the Odisha Police Rules stands thus: W.P.(C) No.2152 of 2022 Page 16 of 23 “843.Absence without leave.— Wilful overstayal of leave, absence from duty without leave or absence from the Station, except on duty or permission, shall be treated misconduct and proceedings shall invariably be drawn up and departmental punishment inflicted in addition to the forfeiture of pay provided for by Rule 803. Police officers who absent themselves without leave are liable also to prosecution under Section 29 of the Act V of 1861, as amended by Section 9 of Act VIII of 1895. Prosecutions, however, should only be instituted in exceptional circumstances. As a rule when an officer does not return within one week of the expiry of his leave, enquiries shall be made from the Superintendent of his native district and should there be good ground for his absence, he shall be punished departmentally.” 6.11. For grant of extraordinary leave, Rule 159 of the Odisha Service Code envisages following provisions: “(1) Extraordinary leave may be granted in special circumstances: (i) when no other kind of leave is admissible; or (ii) when any other kind of leave being admissible, the Government servant concerned applies in writing for the grant of extraordinary leave. (2) The authority which has the power to sanction leave may: (a) grant extraordinary leave under sub-rule (1) in combination with, or in continuation of, any kind of leave that is admissible; and W.P.(C) No.2152 of 2022 Page 17 of 23 (b) retrospectively convert periods of absence without leave into extraordinary leave. (3) Extraordinary leave is not debited against leave account and no salary is admissible during such leave.” 6.12. At this stage it may be of benefit to have reference of the Odisha Civil Services (Pension) Rules, 1992, relevant provisions of which conferring power on the competent authority to regularise the period of absence are reproduced hereunder: “35. Effect of interruption in service.— (1) An interruption in the service of a Government servant entails forfeiture of his past service, except in the following cases: (a) Authorised leave of absence; (b) Unauthorised absence in continuation of authorised leave of absence; (c) Suspension, where it is followed by reinstatement, whether in the same or a different post or where the Government servant dies or is permitted to retire or retired on attaining the age of compulsory retirement while under suspension; (d) Transfer to non-qualifying service in an the establishment under Government if such transfer has been ordered by a competent authority in the public interest; the control of (e) Joining time while on transfer from one post to another. W.P.(C) No.2152 of 2022 Page 18 of 23 (2) Notwithstanding anything contained in sub- rule (1), the appointing authority may by order, the periods of regularise by application absence without sanctioning extraordinary leave. retrospectively leave 36. Condonation of interruption in service.— (a) Upon such conditions as it may think fit in each case impose, the authority competent to fill the to appointment held by a Government servant at the time condonation is applied for, may condone all interruptions in his service. (b) In the absence of a specific indication to the contrary in the service book, an interruption between two spells of civil service rendered by a Government servant under Government shall be treated as automatically condoned and the pre-interruption service treated as qualifying service. The period of interruptions itself shall not count as qualifying service. (c) Nothing in clause (b) shall apply to (a) and interruption caused by resignation, dismissal or removal from service. Explanation (1)— Counting of military service towards pension carries with it condonation of break, but the period of break itself does not count for pension. Explanation (2)— In the case of ex-State employees absorbed under Government after the merger of the ex-State in the entire period of ex-State service Odisha, W.P.(C) No.2152 of 2022 Page 19 of 23 rendered prior to the date of merger although interrupted by breaks due resignation or otherwise shall count for pension subject to the conditions prescribed in rule 16 but the period of interruption will not count.” to 6.13. A non-obstante clause is usually used in a provision to indicate that the provision should prevail despite anything to the contrary in the provision mentioned in such non-obstante clause. In case there is any inconsistency or a departure between the non-obstante clause and another provision, one of the objects of such a clause is to indicate that it is the non-obstante clause which would prevail over the other clause. The endeavour of the Court would, however, always be to adopt a rule of harmonious construction. Conflict between the non-obstante clause as far as possible must be resolved by way of harmonious construction of two conflicting non-obstante clauses. The policy underlying the provisions has to be considered. [Jay Engineering Works Limited Vrs. Industry Facilitation Council, (2006) 8 SCC 677]. 6.14. In Maharajadhiraja Madhav Rao Sivaji Rao Scindia Bahadur Vrs. Union of India, AIR 1971 SC 530 = (1971) 1 SCC 85 it has been observed that non-obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but for that reason alone the Court must determine the scope of that provision Page 20 of 23 W.P.(C) No.2152 of 2022 strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. A search has, therefore, to be made with a view to determining which provision answers the description and which does not. In A.G. Varadarajulu Vrs. State of Tamil Nadu, AIR 1998 SC 1388 it has been laid down thus: “It is well-settled that while dealing with a non-obstante clause under which the Legislature wants to give overriding effect to a section, the Court must try to find out the extent to which the Legislature had intended to give one provision overriding effect over another provision. Such intention of the Legislature in this behalf is to be gathered from the enacting part of the section. The enacting part of a statute must, where it is clear, be taken to control the non-obstante clause where both cannot be read harmoniously.” 6.15. In the above perspective, when something is required to be done so as to bring the non-obstante clause into play, till that thing has been done, non-obstante clause would not come into play. Non-obstante clause employed in sub-rule (2) of Rule 35 read with provisions of Rule 36 of the Odisha Civil Services (Pension) Rules, 1992 does enable the competent authority to consider the difficulties faced by the Government servant and ample power has been conferred on the authority to condone W.P.(C) No.2152 of 2022 Page 21 of 23 the period of absence (be it unauthorised or otherwise). It is also perceived from the provisions as referred to above also confer power on the competent authority to allow extraordinary leave in consideration of special circumstances. 6.16. While taking decision on the representation of the petitioner, as is apparent the authority concerned has not considered the provisions as also the legal position as set forth by Courts. Considering submissions of counsel for the respective parties and taking into account aforesaid provisions coupled with the discussions made in the foregoing paragraphs, this Court finds it difficult to sustain the Order dated 10.01.2022 and therefore, said the Order passed by the Director General of Police, Odisha is liable to be set aside, which it does so. 6.17. This Court further directs the petitioner as well as the opposite parties as follows: i. The opposite parties shall reconsider the plight of the petitioner, for which he shall approach the authority concerned with proper application within a period of one week. Such application shall be considered by the competent authority within one week from the date of receipt of said application. W.P.(C) No.2152 of 2022 Page 22 of 23 ii. Considering the health issues, the concerned authority shall facilitate the petitioner to appear before the District Medical Board, Khordha within a period of one month from today; iii. After receipt of medical report, in the event the petitioner is found unfit or otherwise, considering the health condition of the petitioner, the concerned authority shall be at liberty to take a decision to condone the period of absence from duty within a period of fifteen days from the date of receipt of such medical certificate keeping in view the manner of treatment of unauthorised leave as analysed by the Courts; In case it is found that the condition of ill-health persists, it is open for the authorities to take appropriate steps to disburse the withheld amount. This Court hopes that entire exercise be completed within a period of three months from today. iv. v. 7. With the aforesaid observation and direction, the writ
Arguments
Annexure-2 of the writ petition relates to the series of representation dtd.17.12.2018, 11.03.2019 & 17.12.2020 submitted by Ghanashyam Nayak, father of the applicant for drawal of salary of the petitioner regularly and drawal of his RCM claims. Annexure-1 of the W.P.(C) relates to Home Deptt. Letter No.1146/D & A, dtd.21.03.2001, in which the Hon’ble Chief Minister declared on the floor of the Orissa Legislative Assembly on 21st March, 2001 in his Budget Speech to bear all costs of treatment of injured Police Personnel and treat the period of treatment as duty. Records indicate that, the applicant Sepoy/196 Chinmaya Nayak of SS Bn., Bhubaneswar, while performing duty in the residence of the Hon’ble C.M., Odisha sustained serious injury in his head in left side on 07.08.2016 at 3.00 AM. After a prolonged treatment in Apollo Hospital and subsequently in L.V. Prasad, Eye Institute, he reported his joining on 07.01.2017, after being declared W.P.(C) No.2152 of 2022 Page 5 of 23 remained absent without any fit by his treating physician with an advice to do only sedentary work. Since then, his salary was regularly drawn and he was engaged in watch and ward duty to guard the barrack. But on 11.07.2018 at night Roll Call, he intimation and accordingly his pay has been held over. He submitted an application for drawal of his salary as admissible as he was undergoing treatment after receiving the recall notice on 21.07.2018, on which CDMO, Khordha was requested vide (RO), dtd.18.10.2018 to intimate the current health condition of the applicant. As intimated by CDMO, Khordha vide his letter No.2514, dtd.19.11.2018, S/196 Chinmaya Nayak is in a condition of loss of memory with abnormal behaviour and he is temporarily unfit to perform official duty. letter No.1462/CP-SSB For his medical treatment, a sum of Rs.1,01,533/- has been paid as against his claim for Rs.1,02,044/-. Besides, as against his RCM claim of Rs.17,30,503/-, he has been paid Rs.9,11,424/- following all Govt. procedure regarding drawal of RCM bills. Remaining amount has not been paid to him as it is not admissible under RCM Rules and the duly prescribed procedure has not been followed. As the applicant has been absent from 11.07.2018 till date unauthorisedly, his pay has been held over which cannot be drawn. In view of the above, the claim of the applicant in the representation for drawal of his salary and drawal of RCM claim for the remaining amount does not have any merit and hence rejected. (TY-32-2013) Sd/- Director General of Police, Odisha” W.P.(C) No.2152 of 2022 Page 6 of 23 3. Pleadings, being completed, on the consent of counsel for both the sides, heard Ms. Sujata Jena, learned counsel for the petitioner and Ms. Saswata Pattnaik, learned Additional Government Advocate appearing for the State-opposite parties on 29.07.2024 finally and matter stood reserved for passing orders. 4. Ms. Sujata Jena, learned counsel for the petitioner submitted that the petitioner was under treatment and continues to be under treatment. He is in a condition of loss of memory with abnormality. He depends on his father, who resides in his village. Therefore, the opposite parties should not have treated his absence as “unauthorised”. 4.1. She further submitted that instead of ascertaining the fact, the opposite parties should not have rejected the claim of the petitioner, who is badly in need of money for his treatment. In this respect, she has placed reliance on report of the Doctor, which is at Annexure-2. The said report as has been communicated by the District Medical Officer to the DCP (Security), Special Security Battalion, Police Commissionerate, Bhubaneswar is reproduced hereunder:- “Office of the Chief District Medical & Public Health Officer, Khordha, Odisha Letter No:2514 Date:19.11.18 (Medical Board) W.P.(C) No.2152 of 2022 Page 7 of 23 To Sub:- The DCP (Security), Spl. Security Battalion, Police Commissionerate, Bhubaneswar. Medical examination of Sepoy/196 Chinmaya Nayak. Ref. No: Lt. No.1462/CP-SSB (RO) Dt.18.10.2018 of Spl. Security Battalion, Police Commissionerate, Bhubaneswar. Sir, In inviting reference to the subject cited above, I am submitting herewith District Medical Board Khordha (Odisha) report in favour of Sepoy/196 Chinmaya Nayak of Spl. Security Battalion, Police Commissionerate, Bhubaneswar who was attended the said Board on 05.11.2018 for your information & necessary action. Enclosed Original Medical Board Report of Sepoy/196 Chinmaya Nayak Yours faithfully, Sd/- District Medical Officer(MS) -cum-Superintendent DHH, Khordha *** of Special DISTRICT MEDICAL BOARD, KHORDHA (Odisha) Medical Board Examination of SEPOY/196 Chinmaya Nayak Police Commissionerate, Bhubaneswar on Dated 05.11.2018 as per CDMO, Khordha Lt. No.11166 Dt.22.10.2018. On clinical examination & verification of old treatment paper, he had craniotomy and Evacuation of Hematoma, Subdural duroplasty and cranioplasty. As per opinion of ophthalmologist he has complete loss of vision due to optic Battalion, Security W.P.(C) No.2152 of 2022 Page 8 of 23 atropy. Beside he has loss of memory with abnormal behaviour. So, he is temporarily unfit to perform official duty. Sd/- Member Specialist in Orthopedics Sd/- Member Specialist in Ophthalmology Sd/- Member D.H.H., Khordha D.H.H., Khordha Specialist in Medicine D.H.H., Khordha” 4.2. Ms. Sujata Jena, learned Advocate for the petitioner vehemently urged that the petitioner is unable to attend the Office on account of his disturbed state of mental condition and loss of vision due to “optic atropy with loss of memory and abnormal behaviour”. She submitted on instruction that the petitioner is gradually recovering from such illness. 5. Ms. Saswata Pattnaik, learned Additional Government Advocate appearing for the State-opposite parties at the first instance supported the order under challenge and conceded that there is no dispute with regard to suffering of the petitioner (physical and mental). However, she submitted that though the opposite parties have intimated the petitioner to appropriately explain, there was no response from the petitioner, which led to the authority to take a decision that the petitioner has been absent from duty unauthorisedly. 5.1. In this respect, she has placed reliance on the decision of the Hon’ble Supreme Court in State of Punjab Vrs. Dr. P.L. Singla, (2008) 11 SCR 600. She pressed into service W.P.(C) No.2152 of 2022 Page 9 of 23 paragraphs 8 and 9 of the said decision, which are reproduced hereunder:- there “8. Unauthorized absence (or overstaying leave), is an act of is an indiscipline. Whenever unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorized absence by accepting the explanation the and sanctioning unauthorized absence in which event the misconduct stood condoned. The second the unauthorized absence as a misconduct, hold an enquiry and the misconduct. impose a punishment the period of leave treat for for to is that reporting back 9. An employee who remains unauthorisedly absent for some period (or who overstays the period of leave), on for to duty, may apply condonation of the absence by offering an explanation for such unauthorized absence and seek grant of leave for that period. If the employer is satisfied there was sufficient cause or justification for the unauthorized absence (or the overstay after expiry of leave), the employer may condone the act of indiscipline and sanction leave post facto. If leave is so sanctioned and the unauthorized absence is condoned, it will not be initiate open disciplinary proceeding the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline. We may note here that a request for condoning the absence may be favourably considered where the unauthorized absence is of a few days or a few months and the reason for absence is stated to be the sudden, the employer in regard thereafter to to to W.P.(C) No.2152 of 2022 Page 10 of 23 serious illness or unexpected bereavement in the family. But long unauthorized absences are not usually condoned. In fact in Security services where discipline is of utmost importance, even a few of days overstay is viewed very seriously. Be that as it may.” 5.2. The learned Additional Government Advocate submitted that though the petitioner remained absent from duty unauthorisedly, and did not report to duty to offer explanation, he had not been subjected to disciplinary action yet. However, considering the situation faced by the petitioner as narrated above, the authorities being well aware of the same, do not contemplate disciplinary action for the time being. 6. Considered the submissions made by the learned counsel for respective parties. It remains undisputed that no disciplinary action has yet been initiated against the petitioner in terms of Rule 72 of the Odisha Service Code read with Rule 13 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 and he has not been completely recovered from his illness. 6.1. As is apparent from the submissions made by the Additional Government Advocate and the circumstances prevailing upon the petitioner, the authorities may consider not to treat the absence as “unauthorised” in view of what has been propounded in Krushnakant B. W.P.(C) No.2152 of 2022 Page 11 of 23 Parmar Vrs. Union of India, (2012) 3 SCC 178 wherein it has been observed as follows: to maintain devotion “16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he to duty and his failed behaviour was unbecoming of a Government servant. The question whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 17. is the absence result of compelling the If 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 unauthorised absence, but it does not always mean wilful. 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.” 6.2. In Chennai Metropolitan Water Supply and a Sewerage Board Vrs. T.T. Murali Babu, (2014) 1 SCR 987, it has been observed as follows: “18. In Shri Bhagwan Lal Arya Vrs. Commissioner of Police, Delhi 2004 (3) SCR 1 = (2004) 4 SCC 560 this Court opined that the unauthorized absence was W.P.(C) No.2152 of 2022 Page 12 of 23 not a grave misconduct inasmuch as the employee had proceeded on leave under compulsion because of his grave condition of health. Be it noted, in the said case, it has also been observed that no reasonable disciplinary authority would term absence on medical grounds with proper medical certificate from Government doctors as a grave misconduct. 19. In Jagdish Singh v. Punjab Engineering College 2009 (9) SCR 379 = (2009) 7 SCC 301 the Court took note of the fact that the appellant therein was a sweeper and had remained absent on four spells totaling to fifteen days in all in two months. In that context, the Court observed thus: instant case
Decision
petition stands disposed of. Signature Not Verified Digitally Signed Signed by: SUCHITRA BEHERA Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Aug-2024 18:20:23 High Court of Orissa, Cuttack The 5th August, 2024//ASWINI/SUCHITRA (MURAHARI SRI RAMAN) JUDGE W.P.(C) No.2152 of 2022 Page 23 of 23