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Judgment
Petitioner has preferred this writ petition making the
following prayers:-
"(i) By issuing an appropriate writ, order or direction in the nature thereof and thereby to declare that the absence from duty on medical ground or otherwise for which leave has been sanctioned does not come under the purview of willful absence. This cannot be made subject matter of initiation of departmental enquiry under the Rajasthan Civil Services (Classification, control and Appeal) Rules, 1958;
(ii) By issuing an appropriate writ, order or direction in the nature thereof and thereby to declare that initiating a departmental enquiry on the charges of which a person is facing trial in in criminal court amounts to misuse of provisions of
the Rules of 1958, hence, the impugned orders passed vide (Annexure-2) may kindly be quashed and set-aside.
(iii) By issuing an appropriate writ, order or direction in the nature thereof and thereby to declare that violation of mandatory sub-rule 5 and sub-rule 6 of the Rules of 1950 amounts to denial of affording a reasonable opportunity to defend the petitioner, hence, the departmental enquiry proceedings may kindly be declared illegal and the same may kindly be quashed and set-aside;
(iv) By issuing an appropriate writ, order or direction in the nature thereof and thereby to declare that the order of appellate authority (Annexure-4) dated 23.5.97 is unreasoned, biased and has passed mechanically without applying his mind, therefore, void-ab-initio hence, the same may also be quashed and set- aside and the petitioner be reinstated in service deeming that no impugned orders Anx.3 and 4 were passed;
(v) The cost of this petition may kindly be awarded in favour of the humble petitioner;
(vi) Any other order, or direction which this Hon''ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the humble petitioner."
The facts as noticed by this Court are that the
petitioner was recruited and appointed as a Class IV
employee (Cook) on 21/07/1979 and performed his duties
in the Rajasthan Police Academy, Jaipur. The petitioner,
while on leave since 01/11/1991, was arrested on
23/12/1991 and remained in custody from 23/12/1991 to
01/01/1992. There were in all three cases registered
against the petitioner for the offence under Section 379
IPC, bearing FIR No.426/1991 & 429/1991 at Police
Station, Jhotwara, Jaipur and FIR No.516/1991 at Police
Station Shastri Nagar, Jaipur. The proceedings under Rule
16 of the Rajasthan Civil Services (Classification, Control &
Appeal) Rules, 1958 (for short, ''CCA Rules, 1958'') were
also initiated against the petitioner on 24/03/1992 in which
a final order was passed on 30/04/1994 whereby services
of the petitioner were terminated. However, the competent
authority sanctioned the privilege leave from 01/11/1991
to 22/12/1991. The leave during suspension period of
about 14 days was also granted as extraordinary leave.
Thus, regularizing 52 days as PL and 14 days as UL. The
petitioner preferred a departmental appeal against order of
termination which was rejected by the appellate authority
vide order dt.23/05/1997.
It was stated in the reply that the petitioner had
checkered career as previously also, vide order dated
17/04/1990 a punishment was imposed after conducting
the proceedings under Rule 16 of the CCA Rules, 1958. The
present absence of 339 days because of the custody period
as well as afterwards reflects upon the demeanor of the
petitioner.
Counsel for the petitioner relied upon the judgment
rendered by the Apex Court in the case of Chennai
Metropolitan Water Supply and Sewerage Board and others
Vs. T.T. Murali Babu (Civil Appeal No.1941 of 2014),
decided on 10/02/2014 whereby the Apex Court has taken
a view that the employees in any organization should
adhere to discipline for not only achieving personal
excellence but for collective good of an organization. The
relevant paras no.22, 23, 24, 25, 31 and 32 of which are
as follows:-
22.We have quoted in extenso as we are disposed to think that the Court has, while dealing with the charge of failure of devotion to duty or behavior unbecoming of a Government servant, expressed the aforestated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is willful. On an apposite understanding of the judgment we are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record during the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorized absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is willful even if the employee fails to show the compelling circumstances to remain absent.
In this context, it is seemly to refer to certain other authorities relating to unauthorized absence and the view expressed by this Court. In State of Punjab v. Dr. P.L. Singla11 the Court, dealing with unauthorized absence, has stated thus: - "Unauthorised absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorized absence by an employee, two courses are open to the employer. The first is to
condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which event the misconduct stood condoned. The second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct."
Again, while dealing with the concept of punishment the Court ruled as follows: - "Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorized absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence."
In Tushar D. Bhatt v. State of Gujarat and another12, the appellant therein had remained unauthorisedly absent for a period of six months and further had also written threatening letters and conducted some other acts of misconduct. Eventually, the employee was visited with order of dismissal and the High Court had given the stamp of approval to the same. Commenting on the conduct of the appellant the Court stated that he was not justified in remaining unauthorisedly absent from official duty for more than six months because in the interest of discipline of any institution or organization such an approach and attitude of the employee cannot be countenanced.
Another aspect needs to be noted. The respondent was a Junior Engineer. Regard being had to his official position, it was expected of him to maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. This kind of conduct cannot be countenanced as it creates a concavity in the work culture and ushers in indiscipline in
an organization. In this context, we may fruitfully quote a passage from Government of India and another v. George Philip18 : - "In a case involving overstay of leave and absence from duty, granting six months'' time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the work culture in the organization. Article 51-A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution have the tendency to negate or destroy the same."
We respectfully reiterate the said feeling and restate with the hope that employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development."
Counsel for the petitioner relied upon a judgment of
this Court rendered in the case of Mishri Lal Vs. State of
Rajasthan & ors., reported in 2015(3) WLC (Raj.) 310, para
31 of which provides as follows:-
In view of the aforesaid authoritative pronouncements of the Hon''ble Supreme Court and the conclusion derived by this Court that the facts, circumstances and evidence as available on the record of the departmental inquiry and the criminal case are exactly identical to the hilt
and since the petitioner has been given an Honourable Acquittal by the learned trial court vide judgment (Annex.5), the finding of guilt recorded against the petitioner in the disciplinary proceedings to the extent of the charges No. 1, 2 and 4 cannot be sustained as being unjust and oppressive. As a result, the writ petition deserves to be and is hereby allowed. The impugned order (Annex.2) dated 14.1.2002 passed by the Superintendent of Police, Bhilwara being the petitioner''s disciplinary authority and the order (Annex.4) dated 15.10.2004 passed by the IG Range, Ajmer, the appellate authority are both quashed and set aside to the extent of the charges no. 1, 2 and 4. As regards, the charge no. 3, whilst setting aside the department authority''s findings holding the petitioner guilty of unauthorized absence for a period of 507 days, he is held guilty of unauthorized absence for 164 days which shall be treated as leave without pay.
The petitioner shall be reinstated in service forthwith with continuity in service.
As this Court has quashed the order imposing penalty, the next question which arises for consideration is regarding consequential benefits.
The Hon''ble Apex Court considered a similar controversy in the case of Gurpal Singh (supra) and granted the benefits of arrears of salary to the delinquent in similar sets of facts from the date on which the appeal against acquittal was rejected by the High Court. In the case at hand, it is not claimed by the respondents that the judgment of acquittal recorded in favour of the petitioner was challenged by way of an appeal against acquittal. Thus, applying the ratio as laid down by Hon''ble Suprme Court in the case of Gurpal Singh (Supra), this Court is of the opinion that the petitioner is entitled to receive full salary from the date of his acquittal by the criminal court i.e. 1.2.2005 onwards. The amount accrued to the petitioner shall carry interest @ 6% per annum from 1.2.2005 till actual payment. For the
remaining period, he shall be granted notional benefits.
The respondents shall make payment of the arrears accrued to the petitioner within a period of three months from of receipt of copy of this order failing which the interest shall stand enhanced to 9% per annum.
No orders as to costs."
The respondents, while considering case of the
petitioner in the departmental proceedings, were ceased of
the fact that the record of three criminal cases, all
registered under Section 379 IPC, was a serious fact. The
unauthorized absence of the petitioner from 01/11/1991 to
22/11/1991 without approved leave was also indicative of
the indiscipline attributed to the delinquent. The Enquiry
Officer in his enquiry report observed that in case
No.426/1991 challan was filed against the petitioner under
Section 379 IPC. It was also noticed that in case
No.429/1991 under Section 379 IPC also, the challan was
filed. Furthermore, in case No.516/1991 under Section 379
IPC also, challan was filed. In all the three cases, the
petitioner remained in custody for a long period. The
petitioner''s total absence was of 339 days which has been
proved by the witnesses and is accepted. The question of
absence not being voluntary is of no consequence in the
present circumstances as the custody of the petitioner was
due to his unlawful act and in case of such miss-demenour,
the respondents were left with no other option but to be
harh upon the petitioner. The petitioner did not choose to
reply to the notice given to him for imposition of the
penalty and all the charges levelled completely proved.
Therefore, the order of punishment was in accordance with
law.
This Court is of the opinion that the petitioner was
facing serious charges in the three FIRs that were lodged
against him and challan was filed in all the three cases.
The absence for 339 days is a considerable long period and
the same then converted into leave only on administrative
and procedural grounds and the same has not been in-fact
condoned. This Court is of the opinion that the appellate
authority also applied its mind independently and held that
the cases of serious nature pertaining to morale turpitude
were pending against the petitioner. The petitioner was
given ample opportunity as notices were published in the
local newspapers informing him about re-joining of his
services. In the overall circumstances, it was a fit case for
termination of the petitioner and this Court does not find
any reason to grant any indulgence to the petitioner.
Consequently, the writ petition, being devoid of merit,
is accordingly dismissed.