Dr. Amrapali Sinha vs State Of Rajasthan And Ors

The petitioner by way of this writ petition is assailing the order dated 06.02.2020 whereby the petitioner has been punished with stopping of her annual

grade increments with cumulative effect and the order dated 23.06.2020 whereby the period of her absence from duties from 07.05.2011 to

03.06.2014 has been treated as a Dies-Non.

Learned counsel for the petitioner submits that the Inquiry Officer as well as Disciplinary Authority have failed to appreciate the submission made by

the petitioner and the documents put- forth in defence by the petitioner.

Learned counsel submits that the petitioner was forced to remain absent from her duty on account of her family circumstances. She was attending to

her mother-in-law who underwent several surgeries and the petitioner kept on informing about her mother-in-law's illness to the department. It is

submitted by the petitioner that she also had applied for being granted extra-ordinary leave for her future leaves. It was further submitted that apart

from her mother-in-law, the petitioner's unmarried sister-in-law was also suffering as there was no other member to take care. She had to stay back

and stay away from the duty.

Learned counsel for the petitioner submits that the documents relating to illness of her mother-in-law and sister-in- law as well as her husband, were

placed before the Investigating Officer who had taken a view that as the Doctor has not been produced for evidence and the contentions cannot be

accepted.

Learned counsel submits that the Disciplinary Authority has also failed to take notice of the aforesaid aspect. Learned counsel submits that the period

of service could not be treated as Dies- Non and the same ought to have been included in service. It is further stated that the petitioner has been

punished more than twice for the same offence. It is submitted that further the petitioner was denied promotion during the pendency of enquiry and

now the period has been declared as Dies-Non and further, the petitioner has been punished with stopping of her three years grade increments

cumulatively.

Learned counsel further submits that the inquiry continued for a long time as the charge-sheet was issued on 05.02.2013 while the inquiry same was

concluded by impugned order dated 06.02.2020 and the petitioner has thus suffered immensely on account of the long pendency of the departmental

inquiry.

I have considered the submissions.

The petitioner was served with a charge-sheet on 05.02.2013 relating to her continuous absence from duties. The allegation against the petitioner was

that she had proceeded on leave for a period from 25.04.2011 to 06.05.2011 after sanction of 12 days privilege leave, however, on completion of the

said period, the petitioner did not return back to duty and remained continuously absent from duty. After the charge-sheet had been served on the

petitioner, she sent notice on 03.04.2013 stating that she has already sent a leave application and applications for extension of leave and her legal

representative may be allowed to take nspection of the original and she continued to remain absent from duty. It is also noticed by the petitioner that

the charge- sheet was published in the newspapers.

As per the observations made in the inquiry by the Inquiry Officer, it is seen that the petitioner has continuously remained on leave for a long period of

almost five years i.e. from 07.05.2009 to 03.06.2014 and she joined on 04.06.2014 and submitted her reply on 06.09.2014. Thereafter, Enquiry Officer

was appointed and then the Enquiry Officer held that the petitioner was continuously absent from duty and even remained absent from duty despite

the charge-sheet issued to her on 05.02.2013 and only joined in June, 2014.

The Enquiry Officer and the Disciplinary Authority had noticed that there were information received from the petitioner relating to ill-health of her

mother-in-law and other relatives but the leave was neither extended nor the extended leave was granted.

In view thereof, the petitioner has been found to have committed the delinquency resulting in the order of punishment awarded to her and stopping of

her three years increment with cumulative effect by another order. The period of absence from duty has been treated as Dies-Non. The said period

would not be included for the purpose of services.

The scope of interference in departmental inquiry has been dealt at length by the Apex Court in CISF Vs. Abrar Ali (2017) 4 SCC 507 and the

judgment passed earlier by the Supreme Court in UOI vs. P. Gunasekaran (2015) 2 SCC 610 was retreated for the purpose. It would thus be

appropriate to quote the observation made by the Supreme Court in UOI Vs. P. Gunasekaran (2015) 2 SCC 610 as under:-

12.Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary

proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and

was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first

appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the

evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so

wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted

inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience.

Thus, this Court cannot be re-appreciate the evidence nor can interfere with the conclusions in the inquiry.

Suffice it to state that in the present case, the petitioner was given due opportunity to defend herself and her documents have also been examined. The

question regarding adequacy of evidence and reliability of evidence cannot be gone into. Keeping in view, the principles laid down by the Supreme

Court, this Court would not even correct errors of facts.

In the present case. I do not find any such discrepancy. It is also not a case whereby the findings of this Court are perverse nor there is any

misreading of any evidence. On the other hand, this Court finds that despite the charge-sheet having been served by publication through the

newspapers, the petitioner did not chose to return back to duty and sent a letter on 03.04.2013 refusing to join and has joined duty after a period of

almost one year after issuance of the charge-sheet. She has thus remained further absent from duty for a period of one year. In the circumstances,

the findings and conclusions arrived at by the Enquiry Officer and the Disciplinary Authority do not warrant any interference from this Court. An

employee is required to perform his duties within the framework of the rules. A person cannot choose to stay away from duty on the ground of illness

of relatives. There is no concept of granting leave on account of illness of relatives.

In view thereof, the contention of the petitioner that she should not be considered to have commit any delinquency, is found to be without basis. The

punishment awarded does not therefore warrant interference.

The writ petition devoid of any merit and accordingly, the same is dismissed.