Rajinder Singh vs State of H.P. and Others

Sanjay Karol, J.—Petitioner has prayed mainly for the following reliefs:

i) That the writ in the nature of certiorari may kindly issued for quashing the order dated 01.11.2013 passed by the respondent No. 1 to the extent, whereby the penalty of withholding of one annual increment with cumulative effect imposed by the respondent No. 2 has been enhanced to withholding of future increments of pay for a period of five years with cumulative effect and further the penalty of withholding of even one annual increment with cumulative effect as imposed by the respondent No. 2 may kindly be quashed and set-aside and justice be done.

ii) That the writ in the nature of mandamus may kindly be issued directing the respondents to revise the salary of the petitioner counting the period of absence as extra-ordinary leave which penalty has been quashed and set aside by the respondent No. 1 and release all the consequential benefits to he petitioner including increments, counting of period for the purpose of pension and further release the arrears for which he humbly prays.

Petitioner was appointed as a Lecturer in Chemistry (School Cadre) on 17.11.1999. He applied for undertaking a foreign assignment in Libya, w.e.f. 1.10.2008 to 30.9.2009. Application to undertake assignment of an Assistant Professor in Libya was processed by the Director of Higher Education, Himachal Pradesh, vide Office Order dated 27.8.2008 (Annexure P-3).

Undisputedly, petitioner remained on leave till the year 2012. For absence from duty with effect from 7.11.2008 upto 18.1.2012, disciplinary proceedings were initiated against him. Show cause notice was also issued to him; Enquiry Officer was appointed; Article of Charges was served; and after affording due opportunity, Enquiry Officer held the petitioner guilty of remaining absent from duty without prior permission for the period 7.1.2008 to 18.1.2012.

Noticeably, Enquiry Officer held that despite communication dated 5.3.2009, calling him to resume duty, petitioner failed to do so.

It is not in dispute that petitioner applied for grant of ex post facto sanction of leave for absence from duty, which request did not find favour with the authorities.

Eventually and subsequent to rejection of his request, disciplinary proceedings culminated with the passing of order by the Disciplinary Authority on 7.3.2013 (Annexure P-15). His willful absence from duty was directed to be treated as dies non, for all intents and purposes, and also next one annual increment was directed to be withheld with cumulative effect.

Petitioner preferred an appeal before the Principal Secretary (Education), Government of Himachal Pradesh, being the Appellate Authority. The Appellate Authority also served a show cause notice dated 3.9.2013 (Annexure P-17), proposing to enhance the penalty of withholding future increments of pay for five years, with cumulative effect, apart from treating the period of his unauthorized absence as dies non. Appellate Authority, in terms of impugned order dated 1.11.2013 (Annexure P-19), has enhanced the penalty of withholding future increments of pay for a period of five years, as against one increment, so held by the Disciplinary Authority.

We do not find any illegality, irregularity in the impugned order. Also, it cannot be said that the same is in any manner perverse, arbitrary or whimsical or disproportionately higher or harsh.

Principles of natural justice stand fully complied with at all levels. In our considered view, petitioner has been let off lightly. He willfully remained absent from duty, w.e.f. 7.11.2008 upto 18.1.2012. He remained posted in Libya, without prior permission and sanction of the competent authority. In Libya, he was gainfully employed. He failed to join despite communications to this effect. He had no explanation to furnish for his willful absence either before the Enquiry Officer; the Disciplinary Authority; or the Appellate Authority. Public interest as also interest of the State suffered at a time when he was gainfully employed in a foreign country. In our considered view, it was a fit case where petitioner''s services ought to have been terminated. However, the authorities have let him off lightly by only stopping his five increments and treating the period of absence as dies non. The authority was empowered to enhance the penalty in accordance with law. As such, present petition, devoid of any merit, is dismissed.

With the aforesaid observations, writ petition stands disposed of, so also pending application(s), if any.