D.N. Talati vs District Development Officer

V.M. Sahai, J.—We have heard Mr I.S. Supehia, learned Counsel appearing for the Appellant. The facts of the case in brief are that the Appellant was serving as an Epidemeologist-cum-Sanitary Supervisor (ECSS) in the Health Department of District Panchayat, Junagadh. He had applied for permission to go abroad and for leave. He was given ''No Objection Certificate'' to leave the country for six months and had been sanctioned leave for six months from 1.3.1998 till 26.8.1998. On expiry of the period of leave, the Appellant applied for further leave from 27.8.1998 to 21.2.1999. The leave was granted upto 21st February, 1999. After expiry of the extended period of leave, the Appellant did not report for duty. Instead, he went on applying for further leave on the ground of sickness of his wife who was taking medical treatment in USA and he was required to attend to her. Neither of the applications was granted and further leave was refused. The Appellant was intimated the decision of the competent authority and informed him to report for duty. In spite of the intimations, the Appellant did not care to return to India and report for duty. Thus, he remained absent from service for about three years and four months and also overstayed in foreign country in violation of above referred ''No Objection Certificate'' granted to him.

Disciplinary action was initiated against the Appellant by issuing charge sheet on 16.7.2002. The Inquiry officer, after holding due inquiry, submitted his report. The Inquiry Officer was of the opinion that the Appellant had sent medical reports of his wife and thus he had a valid reason to remain absent from duty. The disciplinary authority disagreed with the opinion of the Inquiry Officer. The Appellant was, therefore, on 8.10.2002, given a notice to show cause why the charges levelled against him shall not be held to be proved and why he should not be dismissed from service. The disciplinary authority, not agreeing with the reply submitted by the Appellant, held that the charges levelled against him were proved and ordered removal of the Appellant from service. The Appellant challenged the removal order by filing Special Civil Application before the learned Single Judge. The learned Single Judge, by order dated 22.11.2002 passed in Special Civil Application No. 11376 of 2002 dismissed the writ petition. The Appellant is challenging the order of the learned Single Judge in this Letters Patent Appeal.

Mr I.S. Supehia, learned Counsel for the Appellant has urged that two charges were not found proved against the Appellant. So far as the third charge is concerned, it is partly proved though the finding recorded by the Inquiry Officer was that the Appellant was not deliberately absent. He has submitted that the order of removal from service made by the disciplinary authority is contrary to the opinion of the Inquiry Officer. Learned Counsel has further urged that while disagreeing with the report of the Inquiry Officer, the disciplinary authority ought to have given reasons and in absence of reasons, the show cause notice as well as the termination order becomes illegal being in violation of principles of natural justice. Further he has submitted that the disciplinary authority had made up its mind to dismiss the Appellant from service irrespective of the opinion of the Inquiry Officer.

We have gone through the show cause notice dated 8.10.2002 issued by the disciplinary authority. The disciplinary authority disagreed with the report of the Inquiry Officer that wife of the Appellant was sick and, therefore the Appellant overstayed for three years and four months in USA. Therefore, he issued show cause notice to the Appellant as to why major punishment of dismissal should not be awarded to him. The Appellant has submitted his reply on 21.10.2002. It is not supported by any material that the disciplinary authority had already made up its mind for imposing major penalty. In the show cause notice the Appellant was asked to show cause why major penalty of dismissal should not be awarded. We do not find any illegality in the show cause notice issued by the disciplinary authority.

The learned Single Judge has considered the arguments of the learned Counsel for the Appellant and has dismissed the petition by recording the following findings:

In the present case, it is indisputable that the Petitioner did remain absent from service for around three years and four months as alleged. It is also not disputed that the Petitioner was given two intimations to report for duty, which were duly received by the Petitioner. It is also not disputed that the Petitioner overstayed his leave. The leave applied for by the Petitioner was refused and such refusal was intimated to the Petitioner. The only defence put-forth by the Petitioner was that his wife was ailing and was required to take treatment in U.S.A. and the Petitioner was required to attend to her. It is true that the medical reports produced by the Petitioner have been accepted by the disciplinary authority. The genuineness of such reports is also not doubted. However, the question would be whether the ailment of the wife of the Petitioner was such that she could not have taken treatment in India or that the Petitioner could not have returned to India upon expiry of his leave. Admittedly, the treatment that the Petitioner''s wife was receiving in U.S.A. was Physiotherapy. It is not established by the Petitioner that such treatment was not available in India. The Inquiry Officer was of the opinion that the Petitioner had valid reason to remain in U.S.A. However, the disciplinary authority has stated that the ailment of the Petitioner''s wife was not such for which the Petitioner ought to have remained in U.S.A. Thus, in my view, the disciplinary authority has given reasons for its disagreeing with the finding of the Inquiry Officer and has also given opportunity of representation and hearing to the Petitioner. The principle of natural justice and fair play has been complied with. No other infirmity in conducting the disciplinary inquiry is alleged by Mr. Supehia.

Besides, the disciplinary authority has also given reasons why presence of the Petitioner was necessary. The Petitioner was an Epidemeologist-cum-Sanitary Supervisor in the Health Department of the District Panchayat, Junagadh. the duties of the Petitioner, being related to the maintenance of health and hygiene, his long absence would certainly affect the administration and health projects of the Panchayat adversely. It is more than evident that the Petitioner had deliberately remained absent from service for the reasons not disclosed by him. The order of punishment, therefore, in my view, cannot be said to be disproportionate to the guilt established against the Petitioner.

We are in full agreement with the view taken by the learned Single Judge that the Appellant had deliberately remained absent from duty and the explanation given by him that his wife was sick for three years and four months cannot be accepted in absence of any medical prescriptions and payment bills etc. produced either before the disciplinary authority or before this Court. Learned Counsel for the Appellant has placed reliance on the decision in Yoginath D. Bagde Vs. State of Maharashtra and Another, The Apex Court in para 33 has held that once the disciplinary authority forms a tentative opinion disagreeing with the findings recorded by the Inquiry Officer, then an opportunity of hearing is required to be given to the delinquent employee. In the instant case, the disciplinary authority has given show cause notice to the Appellant on 8.10.2002. Once the notice was given to the Appellant giving reasons for disagreement from the report of the Inquiry Officer, substantial compliance was made and tentative opinion of the disciplinary authority was communicated to the Appellant. Thereafter the Appellant was dismissed from service as his explanation was found not satisfactory.

Mr Supehia, learned Counsel for the Appellant further urged that the punishing authority while passing the order of removal from service has travelled beyond the charges. We find that the disciplinary authority has considered the reply given by the Appellant to the show cause notice and he has not recorded any finding beyond the charges. We do not find that the disciplinary authority has travelled beyond the charges. Therefore, the argument of Mr Supehia, learned Counsel cannot be accepted and is liable to be rejected.

We do not find any illegality in the impugned order passed by the learned Single Judge or by the Respondents. This appeal fails and is accordingly dismissed.