Shiv Kumar @APPELLANT@Hash State of Rajasthan

Petitioner has preferred this writ petition with the following prayer :-

“1. By an appropriate writ, order or direction, the impugned orders dated 26.11.2005, 28.11.2005, 22.05.2007 and 13.01.2009 may kindly be

quashed and set aside. The petitioner may kindly be exonerated from the charges levelled in the memo of charges dated 04.03.2005, the findings of

enquiry officer contained in the enquiry report dated 28.04.2005 may kindly be quashed and set aside.

By an appropriate writ, order or direction, therespondents may kindly be directed to reinstate the petitioner back in service with all consequential

benefits.

Any other appropriate order, which deemed fit in thefacts and circumstances of the case may kindly be passed in favour of the petitioner.â€​

Learned counsel for the petitioner states that the petitioner joined the post of LDC vide order dated 12.12.1984. The petitioner’s record except

for the absence remained clean. On 11.08.2004, the petitioner fell ill and therefore, sent a telegram seeking leave. The respondents issued a notice to

the petitioner under Rule 86(2) of the Rajasthan Service Rules, 1951 for remaining on unauthorize leave without any application from 23.08.2004 to

04.09.2004. The petitioner replied that on account of sudden illness, the petitioner remained absent for such period but he had not willfully neglected

the duty. The memo of charges were issued under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 whereby

the charge No.1 was to the effect that the petitioner remained absent from his duties from 23.08.2004 to 04.09.2004 and charge No.2 was to the

effect that the petitioner remained absent from duties from 28.08.2004 to 04.09.2004. The enquiry was undertaken and enquiry officer found the

charges to be proved. The notice of under Rule 14 of the Rules 1958 was given and finally the orders of dismissal were passed on 28.11.2005.

Learned counsel for the petitioner does not oppose the impugned order on merits but at the outside makes a limited argument that the petitioner has

rendered services from 12.12.1984 to 28.11.2005 and the charge made out against the petitioner is only for a period of 13 days absence, therefore, the

lenient view may be taken and therefore, the counsel for the petitioner has addressed this Court only on the issue of quantum of punishment.

Learned counsel for the petitioner has relied upon the judgment of Jaipur Bench of this Hon’ble Court in Ramesh Chandra Soni Vs. State of

Rajasthan & Ors., 2015(1) WLC (Raj.) 522. The judgment reads as under :-

“1. This writ petition has been preferred by petitioner Ramesh Chandra Soni challenging the order of his removal dated 13.01.1999 and the order

dated 25.05.1999 thereby dismissing his appeal there against.

Petitioner was appointed as Constable with therespondent Police Department on 02.05.1975, he was confirmed on the said post on 02.05.1977. A

chargesheet was issued to him under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 on allegation of willful

absence for 179 days on different periods from February, 1994 to August, 1994. Petitioner replied to the charge-sheet contending that it was not a

case of willful absence. One Additional Superintendent of Police Shri G.S. Srivastava, was appointed as inquiry officer. He, in his report, found the

charges against the petitioner proved. The disciplinary authority i.e. the respondent No. 3 proposed to award a major penalty vide notice dated

05.02.1998. The petitioner submitted a representation against the enquiry report and proposed penalty. The disciplinary authority on being satisfied that

the disciplinary enquiry has not been conducted as per the provisions contained in CCA Rules inasmuch as neither any witness has been examined nor

any documents exhibited, did not accept the enquiry report and directed conducting de-novo enquiry.

Earlier this writ petition was decided by a SingleBench of this Court vide judgment dated 09.12.2002, whereunder the penalty of removal from

service of the petitioner was held to be shockingly disproportionate, and substituted the same by the penalty of withholding of six grade increments

with future effect. The petitioner was directed to be reinstated with 50% of the back salary by calculating the same as if he was throughout in service

during the interregnum and was held entitled to all benefits which he would have earned had he been in service. In appeal being D.B. Special Appeal

(Writ) No. 101/2003 preferred by the respondents-department, the Division Bench has remanded the matter again to the Single Bench by holding that

settled legal position has not been considered by the learned Single Judge in correct perspective, while making interference with the quantum of

punishment, with direction that matter needs reconsideration by the learned Single Judge on the quantum of punishment in the light of judgment

referred to above.

Shri Deepak Sharma, learned counsel for petitioner,submitted that the disciplinary authority has committed serious illegality in rejecting the

application of the petitioner for changing of the Enquiry Officer as Shri G.N. Srivastava had already submitted report against the petitioner showing all

the charges proved. So he was bound to arrive at the same conclusion again. The Enquiry Officer was thus biased against the petitioner and on that

basis the penalty order passed by the disciplinary authority deserves to be set aside. In support of the argument, learned counsel for petitioner has

relied on judgment of the Supreme Court in Ranjit Thakur vs. Union of India & Ors., MANU/SC/0691/1987: AIR 1987 SC 2386. Since the Enquiry

Officer Shri G.S. Srivastava had already given his mind in the earlier report by not conducting and had acted illegally by not examining any of the

witnesses or receiving any document. He was biased in his petitioner therefore submitted an application dated 14.05.1998 to the disciplinary authority

for change of the Enquiry Officer. The disciplinary authority however by order dated 29.05.1998 rejected his application. The petitioner submitted

written argument before the Enquiry Officer. The Enquiry Officer did not afford reasonable opportunity of hearing to the petitioner and concluded the

proceedings. He again found the petitioner guilty of the charges. The disciplinary authority concurred with the findings of the Enquiry. Officer and

issued a notice dated 25.08.1998 alongwith the enquiry report dated 14.08.1998. Thereafter vide order dated 13.01.1999 the disciplinary authority

imposed penalty of removal of petitioner from service. The petitioner filed an appeal. The appellant authority rejected by same vide order dated

25.05.1999.

It is argued that the alleged absence of the petitionerin different spells, was not willful but owing to bona-fide reasons beyond his control. He

remained absent for 179 days on different spells from 07.02.1994 to 27.08.1994. Petitioner had for each of the period submitted application for grant

of leaves on the ground of death of his parents, snake bite to his wife, his own accident. The application was submitted not only for this period, but also

for the period of absence of 71 days from 05.09.1994 to 14.11.1994. While the leave was sanctioned for this period of 71 days, for grant of leave for

the period in question, was not processed because of his personal file was found misplaced. Since the petitioner had submitted valid reasons for his

absence, the disciplinary authority was required to apply his mind to such application and pass appropriate order. The absence cannot be held to be

willful. In support of his argument, learned counsel for the petitioner has relied on judgment of the Supreme Court in Krushnkant B. Parmar vs. Union

of India, MANU/SC/0118/2012 : (2012) 3 SCC 178.

Learned counsel for the petitioner further submittedthat the Enquiry Officer has not followed the provisions contained in Rule 16 of the CCA Rules,

while conducting enquiry. Proper opportunity has not been granted to the petitioner to defend himself and produce his witnesses. The enquiry report

has not been prepared with proper application of mind. Nether the enquiry officer nor the disciplinary authority has recorded charge-wise finding. No

discussion whatsoever has been made against the petitioner. Not only the evidence produced by the petitioner has not been discussed and the reply

filed by the Department has also not been deliberated upon. The enquiry officer has straightway recorded his finding. 7. Shri Deepak Sharma, learned

counsel for the petitioner, lastly submitted that the penalty of removal is disproportionate to the gravity of the charges. The learned counsel for the

petitioner submitted that while imposing the penalty of removal the enquiry officer did not correctly analyzed the evidence and other material on

record. Learned counsel, reiterating the argument, argued that the penalty of dismissal for absence of 179 days was excessive. In support of his

argument, learned counsel for petitioner has relied on judgment of the Supreme Court in Chairman-cum-Managing Director, Coat India Limited vs.

Mukul Kumar Choudhari, MANU/SC/1498/2009 : (2009) 15 SCC 620, wherein it has been held that no reasonable employer would have imposed

such penalty of removal when explanation for absence has been furnished by the delinquent.

Dr. A.S. Khangarot, learned Additional GovernmentCounsel appearing on behalf of the respondents, opposed the writ petition and submitted that

the remand of the matter by the Division Bench to the Single Bench has been made on limited ground that it needs reconsideration on the quantum of

punishment, therefore, other arguments are not open for reconsideration and the matter has to be decided only in that limited sphere.

Learned Additional, Government Counsel submittedthat the departmental enquiry has been conducted in a proper manner by following the

procedure contained in Rule 16 of the CCA Rules. There was no illegality in appointment of Shri G.N. Srivastava as Enquiry Officer. The very fact

that the disciplinary authority has acceded to request of the petitioner in regard to earlier enquiry report by directing de novo enquiry, clearly shows

that there was no biasness on his part. The Enquiry Officer in his report has thoroughly discussed the evidence and then found the charges proved. He

has discussed the statements of each and every witness and thereafter recorded the finding. It cannot therefore be said that the findings have been

recorded by him in a cursory manner without going into the evidence and other material available on record. Since the disciplinary authority has

concurred with the opinion of the enquiry officer, he was not required to discuss the evidence in detail to concur with the findings recorded by the

enquiry officer. It is denied that the petitioner has given satisfactory or reasonable explanation for his willful absence. The petitioner was habitual

absentee and merely because for earlier period of 71 days he was granted leaves, does not extend him any right to claim regularization or grant of

leave even for subsequent period. He did not support his application by medical evidence nor produce any proof therewith to show snake bite to his

wife or to prove his own accident. The assertion that for some time he had to remain absent for his treatment, was also not supported by any

evidence. It is therefore prayed that writ petition be dismissed.

Having heard learned counsel for the parties andperused the material on record in the light of material on record, it is evident that this writ petition

was earlier decided vide judgment dated 09.12.2002. The only argument advanced on behalf of the petitioner before the learned Single Judge was that

looking to the nature and magnitude of charge, award of extreme penalty of removal is highly disproportionate and deserves to be modified. The Single

Bench was of the view that the penalty imposed was excessive and disproportionate to the gravity of the charges. While setting aside the penalty of

removal, the Single Bench itself substituted the penalty by that of stoppage of six grade increments and directed petitioner's reinstatement with 50%

back salary. The Division Bench after considering the arguments of the parties in the light of various judgments cited before it, remanded the matter

by observing that only grievance made was ""that the penalty inflicted upon the petitioner respondent was disproportionate to the guilt for which he was

charged."" The Division Bench has thus made the remand only to reconsider the quantum of punishment in the light of the judgments cited before the

Division Bench. Despite all other arguments made on behalf of the petitioner, therefore the matter needs to be decided within limited scope.

In Regional Manager & Disciplinary Authority, StateBank of India, Hyderabad and Another vs. S. Mohammed Gaffar, MANU/SC/0683/2002 :

2002 (2) UJ 1240 (SC), it was held by the Supreme Court that in departmental proceedings, in so far as imposition of penalty or punishment is

concerned, unless the punishment or penalty imposed by the disciplinary or appellate authority is either impermissible or such that it shocks the

conscience of the High Court, it should not normally interfere with the same or substitute its own opinion and either impose some other punishment or

penalty or direct the authority to impose a particular nature or category or punishment of its choice. 12. In State of U.P. vs. Ashok Kumar Singh,

MANU/SC/0197/1996 : AIR 1996 SC 736, which too was a case of willful absence, the Supreme Court held that the High Court exceeded its

jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts that the reasons for absence of 251 days was not

proved and therefore the penalty was not commensurate with the gravity of the charge, was not upheld.

In Apparel Export Promotion Council vs. A.K. Chopra, MANU/SC/0014/1999 : (1999) 1 SCC 759, it was held by the Supreme Court that the High

Court should not have substituted its own discretion for that of the authority.

What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of

the competent authority and did not warrant any interference by the High Court.

In State of Rajasthan vs. Sujata Malhotra,MANU/SC/0349/2002 : 2002 (II) LLJ 775 (SC), it was held by the Supreme Court that the High Court

was not within its power to interfere with the order of punishment in the disciplinary proceedings unless any lacuna noticed or found.

Learned counsel for the petitioner cited a judgmentof the Supreme Court in Chairman-cum-Managing Director, Coal India Limited and Another

vs. Mukul Kumar Choudhari & Ors., 2009 (6) Supreme 349, which too was a case of unauthorized absence from duties for six months but upon being

charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor

desired to disobey the order of higher authority or violate any of the company's rules and regulations. He stated that the reason was purely personal

and beyond his control and as a matter of fact he sent his resignation which was not accepted. The Supreme Court held that on facts no reasonable

employer would have imposed extreme penalty of removal in like circumstances. A reasonable employer is expected to take into consideration

measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. 13. A

Division Bench of this Court in Rajasthan State Road Transport Corporation & Ors. vs. Shri Ram Yadav, MANU/RH/0367/1995 : 1995 (3) WLC

(Raj.) 16, held that it was duty of disciplinary authority to apply mind to various alternative penalties to be imposed on delinquent. He was required to

indicate 'good and sufficient reasons' for choosing any particular penalty. While imposing penalty, the nature and magnitude of charge, desirability or

undesirability of retaining delinquent in service and adequacy of penalty lesser than dismissal or removal and other aspect constitute vital

considerations. Even the appellate authority has been charged with the duty to see whether the procedure laid down in these rules have been complied

with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;

whether the findings of the disciplinary authority are warranted by the evidence on the record; and whether the penalty or the enhanced penalty

imposed is adequate, inadequate or severe.

Besides, in the present case, the petitioner has beenable to show prima facie bias on the part of the enquiry officer in that, the enquiry officer had

recorded the finding of guilt against the petitioner in whose enquiry report was not accepted by the disciplinary authority who ordered for de novo

enquiry. The judgment of the Supreme Court in Ranjit Thakur vs. Union of India & Ors., MANU/SC/0691/1987 : AIR 1987 SC 2386 has been cited in

support of this contention.

While therefore this Court may not accept thatargument for holding the enquiry report itself bad but it can certainly be considered mitigating

circumstances in favour of the delinquent on the question of quantum of penalty. This Court itself may not be justified in substituting the penalty of

removal by stoppage of six annual grade increments. The disciplinary authority in passing the order of penalty has not at all examined any of those

parameters. Besides, it has not given any reason as to why it has chosen to award extreme nature of penalty of removal out of many penalties

provided under Rule 14 of the CCA Rules. The disciplinary authority when it chooses one kind of penalty from amongst many alternatives, it has to

inform itself of all the relevant considerations and then decide as to what nature of penalty would be the requirement of the situation. In doing so, the

disciplinary authority is required to consider the overall service career of the delinquent vis-a-vis gravity of the charge, nature of its consequence and

circumstances in which the misconduct was committed. Even the appellate authority has under Rule 38 of the CCA Rules been charged with the duty

to see whether the procedure laid down in these rules have been complied with and if not, whether such noncompliance has resulted in the violation of

any provisions of the Constitution of India or in the failure of justice; whether the findings of the disciplinary authority are warranted by the evidence

on the record; and whether the penalty penalty imposed is adequate, inadequate or severe.

In the present case, the absence of the petitionerwas for 179 days and it can hardly justify so grave and harsh penalty as the order of dismissal is.

The Supreme Court in Bhagwan Lal Arya vs. Commissioner of Police Delhi & Anr., MANU/SC/0232/2004 : 2004 (2) WLC (SC) Civil 226, noted

that it was not the case of respondents that appellant therein was habitual absentee. Their Lordships therefore observed that punishment of

dismissal/removal from service should be awarded only for acts of such grave nature, which has cumulative effect of continued misconduct proving

incorrigibility or complete unfitness from police service. Mere one incident of absence and that too because of bad health on valid and justified

grounds/reasons, cannot become basis for awarding such a harsh punishment. It was observed that appellant in that case did not have any other

source of income and will not get any other job at this age and with the stigma attached to him on account of the impugned punishment, as a result of

which, not only he but also his entire family, which totally depended on him, will be forced to starve. Thus, the Supreme Court observed that according

to the mitigating circumstances, it was warranted that punishment order of the disciplinary authority be setaside. At the same time, Supreme Court

directed that intervening period from the date of dismissal till the delinquent reported back to duty, would not be counted as a period spent on duty. In

my considered view, the ratio of the aforesaid case where delinquent was Constable in police force and was dismissed from service on charges for

absence from duty for 2 months and 7 days, is fully applicable to the facts situation of the present case where the petitioner was dismissed from

services of the police force on charges of having remained absent for 113 days. This Court is of the opinion that the extreme penalty of removal, for

absence of 179 days looking to the fact that when such penalty was imposed the petitioner had already completed more than 20 years of service with

the respondent Department and that the petitioner has now already reached the age of 58 years and is about to attain the age of superannuation, is

found to be shockingly disproportionate to the gravity of the charge. While, therefore, setting aside the aforesaid penalty, the matter is remanded back

to the disciplinary authority for awarding any other penalty except the penalty of dismissal, removal or compulsory retirement. Petitioner shall,

however, be deemed to be under suspension from the date of penalty of removal dated 13.01.1999 till reinstatement now pursuant to this order. He

shall only be paid 50% subsistence allowance for the intervening period. The disciplinary authority is directed to make compliance of the judgment

within a period of three months from the date its copy is produced before the respondents.

Writ petition accordingly stands disposed of.â€​

Learned counsel for the respondent has refuted the submission.

After hearing counsel for the parties and perusing the record of the case, this Court finds that there is a limited argument made by the counsel for

the petitioner regarding quantum of punishment on account of the penalty of removal for absence of 13 days which seems to be a little harsh upon an

employee who has already rendered service from 12.12.1984 to 28.11.2005. The quantum of punishment is only zone where the counsel for the

petitioner seeks adjudication. This Court views the delay of 13 days absence as a serious issue particularly in light of the earlier absence but since

the absence was on account of illness and also looking into the length of the service rendered by the petitioner, this Court deems it appropriate to

modify the impugned orders 26.11.2005, 28.11.2005, 22.05.2007 and 13.01.2009 only to the extent of the punishment of dismissal. This Court further

deems it appropriate to substitute the penalty of dismissal with a penalty of compulsory retirement. The petitioner, therefore, stands compulsory retired

on 28.11.2005 which is a major punishment but however the petitioner shall be entitled for all consequential benefits arising out of the compulsory

retirement. The suspension period shall be treated notionally in favour of the petitioner. The necessary benefits shall be granted within a period of

three months from today.