Laxman Singh vs State Of Jharkhand

Dr. S.N.Pathak, J

Heard the parties.

Prayers made

By way of present writ petition, petitioner has prayed for converting the order of dismissal from service into compulsory retirement, as contained in memo No. 967-68/13 Sahibganj dated 24.05.2013 (Annexure-10) which has been affirmed in Appeal vide order contained in memo No. 1199 Sahibganj dated 31.07.2015 (Annexure-15) considering the long period of devoted service of 21 years.

Factual Matrix

Brief facts of the case is that initially petitioner was appointed to the post of Process Server on 06.07.1992 in Ranchi Civil Court and subsequently, he had been transferred to Lohardaga. It is the case of petitioner that while working at Lohardaga Civil Court he was promoted to the post of Assistant and was discharging the duties of Nazir. Again the petitioner was transferred to Sahibganj on 07.05.2006 and since then, he has been working there sincerely, diligently and to the full satisfaction of the respondent-authorities and no complain whatsoever was ever made save and except the present one. It is the further case of petitioner that while posted at Civil Court, Sahibganj, the petitioner applied for leave from 01.05.2010 and while on leave, he fell ill and as such, could not join the duties on time. Accordingly, he intimated the said fact to the District and Sessions Judge, Civil Court, Sahibganj vide application dated 07.05.2010. After recovering from illness when petitioner was to join his duties all of a sudden his son met with an accident on 10.06.2010 and for better treatment he shifted to Ranchi and hence, he could not join his duty again. However, the whole incidence was duly informed to the Judge-in-Charge vide his application dated 25.06.2010 praying therein for extension of leave.

It is the further case of petitioner after recovery of his son, the petitioner tried to join his duty but unfortunately since he was a cardiac patient and had undergone Angioplastic Surgery at CMC, Vellor, he again fell ill and as such, he could not join his duty. Again the said fact has been intimated to the Judge-in-Charge, Civil Court, Sahebganj vide letter dated 16.09.2010. Hence, the petitioner joined his duty on 13.12.2010 and since then he had been working continuously.

It is the further case of petitioner that for the aforesaid absence from duty i.e. from 03.05.2010 to 13.12.2010, a show-cause notice was issued to the petitioner on 13.12.2010 to which the petitioner replied on 14.12.2010 narrating the entire story for his absence. Petitioner vide his application dated 07.01.2011 has further requested to compute the aforesaid period into half pay leave but nothing has been done to his said request.

In the year 2011, the petitioner applied for 1 day’s casual leave on 23.05.2011 but could not join duty on account of the fact that he had met with an accident and hence, he joined his duty on 11.07.2011 and thereby remained absent from 24.05.2011 to 10.07.2011. For the aforesaid absence, a show-cause notice dated 22.07.2011 was issued to the petitioner to which he replied on 26.07.2011 and requested to compute the said absence as Earned Leave.

However, the respondents being not satisfied with the reply of the petitioner initiated Departmental Proceeding being Departmental Enquiry No. 1/11 and also Departmental Enquiry Proceeding Nos. 1/12 and 2/12 and all the aforesaid proceedings were clubbed together. In the said proceedings the petitioner submitted his reply denying the charges levelled against him stating therein that the absence was not willful rather it happened due to compelling circumstances. However, the Disciplinary Authority without considering the reply of the petitioner has come to the conclusion that petitioner is found guilty of unauthorized absence for the period from 03.05.10 to 13.12.10 in D.P. No. 1/11; from 24.05.11 to 10.07.11 in D.P. No. 1/12; and from 19.04.12 to 30.04.12, 06.06.12 to 19.06.12 and 20.07.12 to 10.09.12 in D.P. No. 2/12 and hence, imposed punishment of dismissal from service with immediate effect vide order dated 24.05.2013.

Being aggrieved by the order of punishment, the petitioner preferred an Appeal before the learned Registrar General, High Court of Jharkhand, Ranchi. It is the further case of petitioner that one letter vide memo No. 1199 dated 31.07.2015 has been issued by the Judge-in-Charge, Civil Court, Sahibganj wherein it was informed that the appeal preferred by the petitioner stood dismissed.

Hence, he has been constrained to knock the door of this Court.

Submissions of learned counsel for the petitioner

Learned counsel for the petitioner argues that from bare perusal of impugned order it would transpire that none of the submissions made by the petitioner has ever been appreciated by the Disciplinary Authority and in utter biasness and mechanical manner has come to a conclusion that the petitioner had remained absent unauthorizedly during the period in question. Learned counsel further argues that even assuming that the charges levelled against the petitioner are true, the punishment imposed is highly disproportionate to the charges levelled against him as absence from duty for certain period in different years can under no circumstances be culminated together and based on such culmination, the Disciplinary Authority cannot impose harsh punishment of dismissal from service. Learned counsel further argues that in long tenure of service there can be occasion where an employee can be absent for certain period due to some personal reasons, as in the instant case. Learned counsel further argues that before inflicting the punishment the petitioner was not served the copy of enquiry report along with 2nd show-cause notice and on this ground also, the impugned order may be modified and order of compulsory retirement be passed in that place. Learned counsel further argues that though the petitioner was put under suspension but even the suspension allowance was not paid to him.

Learned counsel further argues that petitioner has preferred a writ petition being W.P.(S). No. 4443 of 2013 challenging the order of punishment and the said the writ petition was dismissed as withdrawn with a liberty to the petitioner to file an appeal before the Appellate Authority. Thereafter, though the petitioner preferred Appeal before the Hon’ble Jharkhand High Court but the same also stood dismissed. Learned counsel further argues that honesty and integrity of the petitioner has never been questioned prior to the present charges and during the long period of service of 21 years no departmental proceeding was ever initiated against him and as such, the quantum of punishment may be converted into compulsory retirement in the interest of justice. Learned counsel further argues that this Hon’ble Court has already decided the said issue in case of similarly situated person in W.P.(S). No. 5352 of 2005 and the case of present petitioner is fully covered with the order passed in the said case. Learned counsel accordingly submits that for the aforesaid facts and reasons, the impugned order may be quashed and aside by converting the order of dismissal into compulsory retirement.

Submissions of learned counsel for the Respondents

Per contra, counter-affidavit has been filed. Learned counsel appearing for the respondent No. 2 justifying the impugned order submits that initially departmental proceeding bearing No. 7/ 1996 dated 21.11.1996 was initiated against the petitioner for unauthorized absence from duty without information and his one annual increment was stopped as punishment and he was transferred to Lohardaga. Learned counsel further argues that while dismissing the petitioner, the disciplinary authority has taken note that the service book of petitioner shows that his conduct was not good. Thereafter, the Appellate Authority has affirmed the order of punishment which warrants no interference. Learned counsel submits that from perusal of the service book of Shri Laxman Singh it appears that his conduct was not good inasmuch as he was appointed in the judgeship of Ranchi. Thereafter, upon creating problems, he was transferred to Lohardaga Judgeship and was put under suspension. Again, on the basis of some allegations, the petitioner was further transferred to Civil Court, Sahibganj from Lohardaga Judgeship. Learned counsel further argues that from perusal of service book it also suggests that on 15.09.2012, when the petitioner was asked to participate in the Departmental Proceedings, he refused to participate in the same and further went to say that he is going to be dismissed by the High Court, therefore, he is waiting for the dismissal order. Learned counsel submits that from the facts stated above it is crystal clear that petitioner was transferred on several occasions, once from Ranchi to Lohardaga and thereafter from Lohardaga to Sahibganj as he was creating problems. Learned counsel further argues that for the aforesaid acts of petitioner, a regular departmental proceeding was initiated against the petitioner in which the petitioner was found guilty of unauthorized absence. Thereafter, the disciplinary authority seeing the past conduct of the petitioner and the enquiry report, awarded the order of dismissal from service which has been affirmed by the appellate authority. Learned counsel submits that from the above facts it is clear that petitioner was in habit of remaining absent from duty unauthorizedly and after several enquiry and providing him chance, he was reinstated in his service with minor punishment. But inspite of the same, the behavior of the petitioner has not changed and hence, lastly the disciplinary authority dismissed the petitioner from service.

Findings of the Court

Having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons:-

(i) Unauthorized absence of the petitioner coupled with his past services wherein he was imposed two minor punishments for unauthorized absenteeism led to initiation of a departmental proceeding which finally culminated into his dismissal, based on the findings returned by the enquiry officer.

(ii) The petitioner has duly described the entire episode of his absenteeism with supportive medical reports as to what prevented him from joining the duty. The petitioner has duly explained that due to sudden medical problems and due to accident of his son, he could not join the duty on time. Hence, it cannot be ruled out that there is no biasness in the enquiry report, which is the basis of issuance of dismissal order.

(iii) The reply of the petitioner has not been considered in its right perspective by the authority concerned including the appellate authority, though the Department had full knowledge about the compelling situations of the petitioner. Indeed, in the facts of this case, it can be said that the petitioner was on leave without sanction.

(iv) Law is well settled that if an employee is absent from duty without leave, the same shall be treated as misconduct and after obtaining the explanation from the concerned employee, proceedings shall be drawn up and punishment can be inflicted. After explanation, if it is found that the concerned employee had remained absent from duty due to any sufficient reason, he/she shall be granted leave admissible for that period.

(v) In the present case, the compelling circumstances have already been intimated to the authority concerned by the petitioner and on enquiry, the petitioner explained the detailed episode as to what prevented him from joining the duty on time. As such, the Department was well known with the compelling situation but ignoring the same, the petitioner has been dismissed from services.

(vi) The petitioner has also been charge-sheeted taking support from the past misconduct for absenteeism, just to make easy for the respondents to oust the petitioner from service. When the petitioner was already punished for his past misconduct, there was no occasion to connect  his past conduct  along with the present departmental proceeding.

(vii) Dismissal amounts to forfeiture of the entire amount which has to be earned by an employee in his/her remaining tenure of service. The Constitution provides right to livelihood and such right cannot be snatched away by order of dismissal in cases where absenteeism is not willful and intentional. The Hon’ble Apex Court in para-17 in case of Krushnakant B. Parmar Vs. Union of India Vs. Anr., reported in (2012) 3 SCC 178 has held as under:-

“17. if the absence is the result of compelling 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.

(viii) With regard to quantum of punishment, the Hon'ble Supreme Court in the case of S.R. Tiwari Vs. Union of India, reported in (2013) 6 SCC 602 held that the question of interference on the quantum of punishment has already been answered in a catena of judgments whereunder it has been held that if the punishment awarded is disproportionate to the gravity of misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution of India.

(ix) The aforesaid judgments are squarely applicable in the present case in view of the fact that the impugned order of dismissal does not indicate any evidence whatsoever against the petitioner which was looked into in the enquiry proceeding. Even the medical certificates and reply submitted by the petitioner have been completely ignored. Disproportionality of the punishment vis-à-vis the charges imputed against the petitioner can also be seen by application of the judgment of Hon'ble Supreme Court in Krushnakant B. Parmar (supra) in which Hon'ble Supreme Court has specifically held that the question of unauthorised absence from duty amounting to misconduct can be decided only after the decision on the question as to whether the absence is wilful or because of compelling circumstances. It has been further held that if the absence is the result of some compelling circumstances under which it was not possible to report for duty, such absence cannot be said to be wilful and, therefore, would not amount to misconduct whereunder dismissal from services would be effected.

(x) In view of the material on record, it can be safely assumed that the petitioner under compelling circumstances could not report for duty resulting in his unauthorised absence. Unauthorised absence of the petitioner was not wilful and deliberated. However, the fact remains that this Court sitting under Article 226 of the Constitution cannot substitute its own conclusion on the quantum of punishment to that of the disciplinary authority. Hence, it would be appropriate to remit back the matter to the disciplinary authority on the quantum of punishment. In this context, the Hon’ble Supreme Court in the case of Naresh Chandra Bhardwaj Vs. Bank of India & ors., reported in (2019) 4 Supreme 614, has held as under:-

“There is really no difference in the proposition, which is sought to be propounded except that in the latter judgment the principles have been succinctly summarised in the last paragraph of the judgment, which read as under: 19. The principles discussed above can be summed up and summarized as follows: 19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. 19.2. The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority. 8 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court. 19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case.

(emphasis supplied)

As a cumulative effect of the aforesaid rules, observations, guidelines, the impugned order of dismissal as contained in memo No. 967-68/13 Sahibganj dated 24.05.2013 (Annexure-10) and the Appellate order as contained in memo No. 1199 Sahibganj dated 31.07.2015 (Annexure-15) affirming the order of dismissal, are hereby quashed and set aside. The matter is remitted back to the disciplinary authority to consider the case of the petitioner for grant of lesser punishment other than the dismissal/ removal and preferably that of compulsory retirement, in accordance with law, considering the fact that petitioner has rendered 21 long years of service and also in view of the fact that livelihood of an employee cannot be snatched away by passing the order of dismissal in cases where absenteeism is not willful or intentional, rather, it happened due to compelling circumstances. Let the entire exercise be undertaken by the respondents within a period of twelve weeks from the date of receipt of a copy of this order.

With the aforesaid observations and directions, the writ petition stands disposed of.

Pending I.As., if any, stand closed.