Suresh Lal vs State of Jharkhand

Mr. Pramath Patnaik, J. (C.A.V.) - In the accompanied writ application, the petitioner has inter alia prayed for quashing order dated 27.08.2013 passed by the Director, Handloom, Sericulture and Handicraft, whereby services of the petitioner has been dismissed and for direction upon the respondents to allow the petitioner to give joining with continuation in service and further direction upon the respondents to make payment of the salary to the petitioner for the period January, 2012 onwards.

Bereft of unnecessary details, the facts as delineated in the writ application, is that initially the petitioner joined on the post of Rarer (Kit Palak). By passage of time, while the petitioner was discharging his duties at Pilot Project Centre, Simdega, the wife of the petitioner fell seriously ill in December, 2011, hence, the petitioner moved for treatment of his wife by submitting application for Casual Leave from 21.12.2011 to 31.12.2011. But due to prolonged treatment of his wife, the petitioner could not return on time, however, he made request for sanction of medical leave annexing medical prescriptions in support thereof and for its extension from time to time and finally after return, he submitted joining report before the Pilot Project Officer, Simdega but the same was not accepted. Hence, the petitioner submitted a representation dated 23.03.2012 before the Director Handloom, Sericulture and Handicraft. Thereafter, the Pilot Project Officer, Simdega relieved the petitioner to join Pilot Project Centre at Etkhori, Chatra in the light of transfer order dated 17.12.2011 vide relieving letter dated 09.04.2012. It has been submitted that the petitioner had no knowledge of transfer order dated 17.12.2011 and only after issuance of relieving letter dated 09.04.2012, he could know about his transfer. Thereafter, the petitioner explained his position vide letter dated 19.06.2012 that he could not join at the transferred place because of serious ailment of his wife and further marriage of his daughter is also to be solemnized from Simdega, hence, he requested the authorities concerned to allow him to remain posted at Simdega for the time being. It has further been averred that due of personal grudge, the Pilot Project Officer, Simdega even made a complaint before learned C.J.M., Simdega giving rise to Simdega P.S. Case No. 86 of 2012 under Sections 353, 504, 506 and 387, however, in the said case, the petitioner has been acquitted. It has been averred that after lapse of six months'' time of submitting his explanation, the petitioner was served with a memo dated 17.12.2012 with memo dated 08.08.2012 asking him to plead his stand and further by another letter dated 23.02.2013 of the Deputy Industry Director-cum-conducting officer, the petitioner was asked to appear before him on 08.03.2013. Accordingly, the petitioner appeared before Deputy Industry Director-cum-conducting officer and made representation stating therein that he never received memo of charge dated 08.08.2012 and only thereafter, the petitioner received copy of memo dated 08.08.2012 on 08.03.2013. It has further been averred that petitioner received letter dated 08.07.2013 to submit reply to second show cause notice annexing inquiry report dated 11.06.2013, to which, he replied vide order dated 20.07.2013, but, without considering the grounds taken in the reply, the impugned order 27.08.2013 has been passed whereby services of the petitioner has been dismissed.

Learned counsel for the petitioner submitted that the impugned order of dismissal from services has been passed by the disciplinary authority without taking into account the medical reports and disbelieving the same without any valid reason. It has further been submitted that the petitioner could not join the transferred place because of prolonged illness of his wife and even the transfer order was not given to him on time. Learned counsel for the petitioner further submitted that if the allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence to be wilful, in absence of such finding the absence will not amount to misconduct and in the case at hand, the petitioner proceeded on leave for treatment of his ailing wife. It has further been submitted that so far charge no. 3 regarding deterrence in government work is concerned, one criminal case was also lodged, which resulted in acquittal of the petitioner, hence, the same has no leg to stand.

In support of his case, learned counsel for the petitioner referred to the case rendered in the case of Shamsad Khan v. Union of India & Ors as reported in [2014 (2) JCR 212 (Jhr)], wherein the Hon''ble Court quashed the impugned order and remitted the matter back to disciplinary authority holding that the disciplinary authority without verifying the factum of hospitalization of petitioner proceeded against the petitioner.

Controvering the averments made in the writ application, the respondents have filed counter affidavit. Learned counsel for the respondents submitted that despite transfer order dated 17.12.2011 to join the petitioner at Itkhori, Chatra, the petitioner did not join at his new place of posting, hence, the technical work at that centre was hampered and further the petitioner put pressure upon the Project Officer, Pilot Project Centre, Simdega not to give effect to the transfer order. It has further been submitted that even press communique was issued to the petitioner to join the transferred place but in spite of that the petitioner did not join at his new place of posting at Chatra and only thereafter, the petitioner was put under suspension to report at the headquarter at Chatra and departmental proceeding was initiated against him, which culminated to imposition of impugned punishment. Learned counsel for the respondents submitted that in the departmental proceeding neither there is violation of principles of natural justice nor the punishment awarded to the petitioner is disproportionate to the proved charges, hence, the same needs no interference by this Hon''ble Court.

In support of his case, learned counsel for the petitioner referred to the decision rendered in the case of Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani as reported in AIR 1989 SC 1433, in particular, paragraph 4, which is quoted herein below:

"..... ........... Whenever, a public servant is transferred he must comply with the order but if there by any genuine difficultly in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or canceled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the Relevant Rules..........."

After having heard learned counsel for the respective parties at length and on perusal of the documents on record, I am of the opinion that the petitioner has been able to demonstrate a case for interference by this Court, due to following facts, reasons and judicial pronouncement:

(I). Admittedly, in the present case, the petitioner proceeded on Casual Leave from 21.12.2011 to 31.12.2011 for treatment of his wife and in continuation of this from time to time submitted application for extension of the medical leave. Hence, it is not a case where the delinquent proceeded on leave without any information besides the documents/medical prescriptions submitted by the petitioner has never been falsified by the authority. Hence, the case at hand does not come in the circumvent of wilful absence. So far the allegation of deter the public servant to discharge his duties, that goes in view of the judgment passed in Criminal Case by competent Court of law.

(iii). However, from perusal of records, it is quite evident that since the inception of departmental proceeding till its culmination there is no procedural irregularity as sufficient opportunity has been given to the petitioner to defend his case. Furthermore, it is also an admitted fact that on the representation of the petitioner not to give effect the transfer, neither any stay order was passed nor it was annulled, hence, that order was staring at the petitioner, which was vulnerable to disciplinary action under the Relevant Rules. But, with due respect to the order passed in the case of Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani (Supra) in view of the discussions made herein above, the case of the petitioner falls for consideration for leniency as it appears that extreme punishment has been awarded, which is grossly disproportionate to the charges, hence, the matter required to be reconsidered by the disciplinary authority on the quantum of punishment.

In view of the aforesaid facts, reasons and judicial pronouncements, as discussed in the foregoing paragraphs, the impugned order of dismissal from services is hereby quashed and set aside and the matter is remitted back to the disciplinary authority to consider the matter afresh on the question of quantum of punishment taking into account the observations made in the foregoing paragraphs.

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