Om Prakash Java vs The District & Sessions Judge and Others

Sandeep Mehta, J.—By way of the instant writ petition, the petitioner Shri Om Prakash Java has approached this Court assailing the legality and validity of the order dated 06.04.2009 (Annexure-6) passed by the Rajasthan High Court in a departmental appeal affirming the order dated 24.01.2004 (Annexure-5) passed by the petitioner''s disciplinary authority being the District and Sessions Judge, Ajmer, whereby the petitioner was terminated from service.

Facts in brief are that the petitioner was inducted in service as a Class IV Employee at the Ajmer Judgeship and was posted in the Court of learned Civil Judge (JD) and Judicial Magistrate, Vijay Nagar at the relevant point of time. He submitted a leave application dated 02.04.1993 to the Presiding Officer requesting for leave of two days from 04.04.1993 to 05.04.1993 and also sought permission to leave headquarter during this period. The application was accepted. The petitioner did not report back on duty after availing the sanctioned leave period and remained absent from 06.04.1993 to 04.02.1994. During this period, he did not submit any leave application nor did he send any intimation of his absence to the Presiding Officer. Two registered notices dated 05.06.1993 and 07.06.1993 were forwarded to the petitioner''s residential address at Jodhpur intimating him that he should report for duty within a period of 15 days of receiving the notice. The registered envelopes were not accepted by the petitioner employee and were returned back with a note that the addressee was not residing at the given address. On 05.02.1994, the petitioner appeared in the office and sought time to furnish an explanation and relevant documents to justify the period of his absence between 06.04.1993 to 04.02.1994. A notice to show cause was issued to the petitioner employee on 19.03.1994 which he replied on 23.03.1994 stating therein that he had been prevented from appearing for duty on account of his own and his father''s ailments. During this period, he was not residing at his own house and instead, was residing at his father''s house and therefore, he could not receive the registered notices sent to his residence at Jodhpur. A Bed head ticket issued by the Government Hospital regarding the hospitalization of the petitioner''s father was also submitted alongwith the explanation letter. The Presiding Officer, however, did not consider the explanation satisfactory and proposed issuance of a charge-sheet under Rule 16 of the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as ''CCA Rules, 1958'') to the petitioner. Consequently, a departmental inquiry under Rule 16 of the Rules of 1958 was instituted against the petitioner and an inquiry officer was appointed to hold the inquiry. The petitioner was supplied the memorandum and articles of charge. The following charges were framed against the petitioner:--

He sought opportunity of personal hearing which was provided to him. Numerous opportunities of submitting a reply were provided to the petitioner. However, neither he appeared in person before the inquiry officer nor did he submit any reply/explanation to the charge sheet. Registered notices forwarded to the petitioner''s residential address were received back unserved. Thereafter, a notice was also got published in ''Dainik Navjyoti'' newspaper on 04.12.2000 but despite publication of the notice, the petitioner did not appear for contesting the charge sheet. Accordingly, on 18.01.2001, ex-parte proceedings were directed by the inquiry officer. The department examined 4 witnesses and exhibited 23 documents in support of the charges. The inquiry officer, upon conclusion of the inquiry, found the petitioner guilty of willfully remaining absent from duty for the period between 06.04.1993 to 04.02.1994. It was further held that during this period, he deliberately avoided receiving the registered notices sent at his residential address for rejoining duty. The explanation submitted by the petitioner for his unauthorised absence was found unsatisfactory. The bed head ticket, which was filed by the petitioner by way of a justification, reflected that the petitioner''s father was admitted in a Government Hospital at Jodhpur on 16.05.1993 but, no document was placed on record to show the duration for which the petitioner''s father remained hospitalized. The inquiry officer held that numerous opportunities were provided to the petitioner for his defence during the inquiry but, he deliberately avoided participation in the inquiry even despite publication of notice in the newspaper. The inquiry officer concluded by way of his detailed inquiry report (Annex.3) dated 20.03.2001 that all the three charges were proved against the petitioner employee. The copy of the inquiry report was forwarded to the petitioner''s residential address at Jodhpur but despite receiving information thereof, the petitioner failed to appear before the disciplinary authority as well. The disciplinary authority being the District and Sessions Judge, Ajmer, after considering the department''s case and the petitioner''s explanation in detail, passed the order dated 24.01.2004 (Annexure-5) terminating the petitioner from service. The petitioner employee preferred an appeal against the order of termination before the appellate authority being the Rajasthan High Court. The appellate authority issued a notice of hearing to the petitioner employee. However, he failed to appear for contesting the appeal also. Thereupon, the appellate authority heard the arguments of the Presenting Officer and after perusing the record of the case, affirmed the order of termination, by its order dated 06.04.2009 (Annexure-6). The petitioner, thereafter, claims to have filed a review petition and an application dated 18.07.2010 (Annexure-7) praying that one Shri Arun Vyas be appointed as his defence nominee in the appeal. However, as has been noticed above, the appeal preferred by the petitioner employee had already been rejected much before the submission of the said application and as such, the same was filed. Now, the petitioner has approached this Court by way of the instant writ petition assailing the legality of the order of termination dated 24.01.2004 (Annexure-5) passed by the Disciplinary Authority and the order dated 06.04.2009 (Annexure-6), whereby the departmental appeal preferred by the petitioner employee was dismissed.

The learned counsel for the petitioner contented that the petitioner was not provided with an appropriate opportunity of defence either by the enquiry officer, the disciplinary authority as well as the appellate authority and, therefore, the impugned orders suffer from vice on having being passed in gross violation of the principles of natural justice and are thus liable to be quashed and set aside. He also submitted that pursuant to the rejection of the appeal by the appellate authority, the petitioner also submitted a review application but the said review application was filed without being properly considered.

Learned counsel for the petitioner further contented that owing to compelling circumstances and serious ailments in family, the petitioner submitted an application for seeking voluntary retirement on 08.01.2004 to the District and Sessions Judge, Ajmer. However, no order was passed on the application submitted by the petitioner seeking voluntary retirement and thus the impugned orders are vitiated.

I have heard the arguments advanced by the learned counsel for the petitioner and have gone through the material on record.

The facts, as narrated above, are self-explanatory. The petitioner, as per his own case, took leave of two days i.e. 04.04.1993 and 05.04.1993 and did not report back for duty till 04.02.1994. During this period, registered letters were sent to his residential address but he deliberately avoided to accept the same. He submitted a lame explanation to the Presiding Officer of the Court for justifying the period of his prolonged absence. During the course of the departmental inquiry, the petitioner did not submit any reply or explanation at any stage. The petitioner''s defiance and adamancy was of such magnitude that during the departmental proceedings also, he did not respond to the registered notices forwarded to him by the inquiry officer for participating in the inquiry and finally, the inquiry officer was constrained to have the notice published in the newspaper for intimating him. However, the petitioner did not respond even after publication of the notice and thus, the inquiry officer was left with no option but to direct ex-parte proceedings against the petitioner. The department led ample evidence before the inquiry officer whereafter, the inquiry officer submitted an exhaustive inquiry report to the disciplinary authority concluding that all the charges were proved. The disciplinary authority too, afforded opportunity of personal hearing to the petitioner but, he failed to respond to the notice of the personal hearing as well. Ultimately, feeling satisfied with the evidence led by the department in support of the charges, the disciplinary authority passed the order (Annexure-5) dated 24.01.2004 terminating the petitioner employee from service which in the opinion of this Court, was absolutely justified looking to the admitted facts available on record. The petitioner filed an appeal against the order passed by the departmental authority but as per his usual defiant attitude and practice, the petitioner did not appear to contest the appeal before the appellate authority despite notice. The appellate authority, by a detailed order (Annexure-6), rejected the petitioner''s appeal way back in the year 2009. The petitioner has challenged these two orders after a delay of six years. No explanation is forthcoming in this writ petition regarding the delay of more than six years occasioned in challenging the appellate authority''s order, whereby the petitioner''s appeal was dismissed. The petitioner has attempted to castigate the ex-parte proceedings undertaken against him at different stages. However, the justification offered for the petitioner''s failure to participate at every stage of the proceedings is flimsy and far from satisfactory to say the least. The explanation which was attempted to be set up as a defence for the petitioner''s failure to rejoin the duty after expiry of the leave period is also flimsy and far fetched to say the least. The petitioner set up a case that after he went on leave for two days in the month of April, 1993, his father was taken severely ill and therefore, he could not rejoin duty timely. Suffice it to say that the medical documents which the petitioner submitted in order to substantiate his defence speak otherwise. Only an admission card showing the admission of the petitioner''s father in the hospital in the month of May, 1993 was filed by the petitioner during the entire proceedings to claim that he had a reasonable cause in failing to join duty and from participating in the disciplinary proceedings. Suffice it to say and as it is reflected from the enquiry officer''s report, the medical documents only reflect the date of admission of the petitioner''s father. However, neither any illness for which he was admitted nor the duration in the hospital is reflected from the documents. The petitioner could have supported these documents by oral or documentary evidence but he did not chose to do so as is admitted from the record. In this background, this Court is of the firm opinion that the explanation offered by the petitioner for the period of his unauthorised absence was totally fictitious and cooked up.

The petitioner also claims to have preferred a review application seeking review of the appellate authority''s order. The facts regarding the review application were of course pleaded in the writ petition, however, no documents pertaining to the review proceedings have been filed alongwith the paper book and thus, the petitioner cannot be permitted to raise this argument.

So far as the argument regarding non-consideration of petitioner''s application for voluntary retirement is concerned, the same does not impress the Court at all. On the contrary, upon going through the application (Annexure-4) submitted by the petitioner for seeking voluntary retirement, it is evident that the petitioner was adamant on not performing his duty at the Ajmer Judgeship and was bent upon to procure a transfer to Jodhpur at any cost. In this application as well, the petitioner did not take any ground that he was prevented from going on duty owing to his father''s illness. The petitioner claims to have filed the application seeking voluntary retirement on 08.01.2004, but at that time, admittedly the petitioner was facing proceedings under Rule 16 of the CCA Rules and therefore, there was no occasion to pass any order thereupon. On 24.01.2004, the order of termination was passed and therefore, the application for seeking voluntary retirement became otiose.

As an upshot of the aforesaid discussion, this Court is of the firm opinion that the order dated 24.01.2004 (Annexure-5) whereby the disciplinary authority imposed upon the petitioner, the penalty of termination from service and the order dated 06.04.2009 (Annexure-6), whereby the appeal preferred by the petitioner was dismissed by the appellate authority, do not suffer from any illegality, irregularity or perversity so as to call for any interference by this Court in exercise of its extraordinary writ jurisdiction. That apart, the petitioner has approached this Court after an undue and unexplained delay and thus, the writ petition is liable to be dismissed for laches as well.

Accordingly, the writ petition being devoid of any merit is hereby dismissed.

No order as to costs.