Dismissed¶91

Ganpat v. South Eastern Coal Field Ltd. and Ors.

Service law – removal from service for habitual/unauthorized absenteeism

Chhattisgarh HC4 Aug 2024WPS/518/2011

Download

Case brief

AI extract

What is this about?

Willful absence; habitual absenteeism; unauthorized absence; removal from service; departmental enquiry; service of article of charge; Clause-28 standing orders; natural justice/opportunity of hearing; medical unfitness plea; judicial custody; SECL workman; reinstatement and back wages; certiorari/mandamus; Chhel Singh distinguished; Krushnakant B. Parmar applied; P.L. Singla applied.

What did the court decide?

The petitioner's absence was not on account of compelling circumstances: he worked only 62 days in 2000, 28 days in 2001 and not at all in 2002; though declared fit by the treating doctor on 19.08.2002 he did not report to the employer, and he was in judicial custody from 17.05.2003 to 27.07.2003. ¶78

Ganpat Vs South Eastern Coal Field Ltd. and Ors. — Chhattisgarh HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶91

Issue for consideration

Whether the petitioner's unauthorized absence from duty during 2000-2002 was willful or on account of compelling circumstances (claimed medical unfitness and judicial custody). +1 more

¶77

Court's answer

¶78

Ratio / Principle

The absence of the petitioner was willful; the department produced ample evidence that from 1997 to 2002 the petitioner worked a total of only 515 days (66+194+165+62+28), showing absence from duty without sufficient reason.

¶79

Key takeaways

It is not necessary for the disciplinary authority to record a specific finding of willful absence; 'willful absence' is not defined in service jurisprudence or the standing orders and can be gathered from the conduct and attitude of the employee.ratio¶80
Chhel Singh (supra), relied on by the petitioner, has no application to the facts of this case because here the enquiry officer, the disciplinary authority and the appellate authority had already concluded that the unauthorized absence was willful and not for bonafide reasons.ratio¶83

Detailed headnote1 paragraphs

Service law — removal from service for habitual/unauthorized absenteeism — writ petition by ex-workman of SECL seeking certiorari/mandamus to quash appellate order dated 08.09.2010 confirming removal and to direct reinstatement with consequential benefits and back wages — HELD: absence in 2000-2002 (only 62, 28 and nil working days) was willful, not due to compelling circumstances; though declared medically fit on 19.08.2002 the petitioner did not report for duty, and his judicial custody from 17.05.2003 to 27.07.2003 was not communicated to the employer; a disciplinary authority need not record a specific finding of 'willful absence', which may be gathered from the employee's conduct, distinguishing Chhel Singh (2014) 13 SCC 166; applying Krushnakant B. Parmar (2012) 3 SCC 178 and State of Punjab v. Dr. P. L. Singla (2008) 8 SCC 469; show cause notice with article of charge was dispatched to the petitioner's residential address on 16.03.2003 and he participated in the enquiry on 13.08.2003, so no violation of Clause-28 of the standing orders or denial of natural justice — Petition dismissed, no order as to costs.

¶1

¶2

Digitally signed by NADIM MOHLE

¶3

2024:CGHC:29014

¶4

NAFR

¶5

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶6

WPS No. 518 of 2011

¶7

Ganpat, s/o. Late Ramdhani, aged about 45 years, Caste Panika, Occupation Ex-Service-man, R/o. Vishrampur, Tehsil Surajpur, District Surguja, Chhattisgarh. ... Petitioner

¶8

versus

¶9

1. South Eastern Coalfields Limited, Through the Chairman-cumManaging Director, Vasant Vihar, Seepat Road, Bilaspur, District Bilaspur, Chhattisgarh.

¶10

2. General Manager (P/A), SECL, Bilaspur, District Bilaspur, Chhattisgarh.

¶11

3. Chief General Manager, Area Vishrampur, Vishrampur, District Surguja, Chhattisgarh.

¶12

4. Deputy General Manager, Sub Area Kumda, SECL, Viashrampur, District Surguja, Chhattisgarh.

¶13

5. Inquiry Officer/Section Officer, Balrampur, Inclines, SECL, Vishrampur, District Surguja, Chhattisgarh. ... Respondents

¶14

For Petitioner : Mr. Ashok Kumar Shukla, Advocate along with Ms. Mamta Gendle, Advocate For Respondents : Mr. Vivek Ranjan Tiwari, Senior Advocate, along with Dr. Sudeep Agrawal, Advocate, Mr. Atul Kesharwani, Advocate

¶15

Hon'ble Shri Justice Rakesh Mohan Pandey

¶16

Order on Board

¶17

05.08.2024

¶18

The petitioner has filed this petition seeking the following relief(s):-

¶19

“ 10.1. This Hon'ble Court may graciously be pleased to issue a writ of certiorari/ mandamus or of like nature to quash the impugned order dated 08-09-2010 and reinstated the service of the petitioner with the w.e.f. date of communication providing all the consequential benefits and amenities whatsoever.

¶20

¶21

10.2. That, a command/ direction may kindly be issued to call for the entire records of the case and the service of the petitioner may kindly be reinstated with full back wages,

¶22

10.3. That, any other relief, may kindly be granted, which is deemed fit and proper in the case with the cost of the petition. ”

¶23

1. Brief facts of the present case are as under:-

¶24

a. The petitioner was appointed to the post of Loader (PR) vide appointment order dated 16.11.1988. On account of certain unavoidable circumstances, the petitioner worked for 66 days in the year 1997, 194 days in the year 1998, 165 days in the year 1999; 62 days in the year 2000; 28 days in the year 2001 and in year 2000, he did not work for a single day.

¶25

b. The article of charge was issued to the petitioner according to Clause-28 of the standing orders applicable to all workmen employed with the respondents on 16.03.2003 making allegations that the petitioner worked for 66 days in the year 1997, 194 days in the year 1998, 165 days in the year 1999; 62 days in the year 2000; 28 days in the year 2001 and in the year 2000 he did not work for a single day.

¶26

c. The Article of charge was dispatched by the department at the residential/registered address of the petitioner on 16.03.2003. No reply was filed by the petitioner as according to him, the article of charge was never served upon him.

¶27

d. The department appointed the enquiry officer and presenting officer.

¶28

e. The petitioner appeared before the enquiry officer on 13.08.2003, 18.08.2003 and 20.08.2003. When the petitioner appeared before the enquiry officer on 13.08.2003, he was read over the allegations against him.

¶29

f. On 20.08.2003, the enquiry was completed and the enquiry report was prepared. A second show cause was issued to the petitioner on 15.05.2004, thereafter, on 16.07.2004, the punishment of removal from service was passed on the ground of habitual absenteeism.

¶30

g. The petitioner preferred an appeal which was dismissed by the appellate authority on 08.09.2010.

¶31

h. In the punishment order, it is averred that on 19.08.2002, the petitioner was declared fit by the treating doctor, but he

¶32

¶33

did not join the services. It is also observed that the petitioner remained in the judicial custody from 17.05.2003 to 27.07.2003 and this fact was not communicated to the department.

¶34

i. The disciplinary authority taking into consideration the period of absence inflicted punishment of removal which was affirmed by the appellate authority.

¶35

j. The petitioner has challenged both the orders by filling the present petition.

¶36

1. Learned counsel appearing for the petitioner submitted as under:-

¶37

a. The petitioner was not medically fit, therefore, he could not join the services in the years 2000, 2001 and 2002. The medical documents were duly produced before the department, but the department did not consider the same and departmental inquiry was proceeded with.

¶38

b. The article of charge was never communicated/served upon the petitioner and without affording any opportunity of hearing, the departmental enquiry was conducted by the enquiry officer, thus, the opportunity of hearing was denied. The disciplinary authority has not proved the fact that the absence of the petitioner was willful. Though the petitioner was declared medically fit by the treating doctor on 19.08.2002, he was not in a position to join the services on account of weakness.

¶39

c. The petitioner remained in judicial custody from 17.05.2003 to 27.07.2003, therefore also he could not join the services and that period could have not been counted by the employer with regard to the absence from the services. It is not a case where the petitioner willfully disobeyed the direction/order issued by the employer.

¶40

d. It is also argued that according to clause 28 of the standing orders, the article of charges ought to have been served upon the petitioner either in person or through other modes as provided in that clause. Further, the simple formality was done by the employer with regard to the service of notice, therefore, the entire departmental enquiry got vitiated.

¶41

e. He has submitted that a legal notice was also served to the respondents on 14.03.2005.

¶42

f. He placed reliance on the judgments passed by the Hon’ble Supreme Court in the matters of Bhagwan Lal Arya v. Commissioner of Police, Delhi and another reported in 2004 AIR SCW 2288; para – 10, 11 & 14; Chhel Singh v.

¶43

¶44

MGB Gramin Bank, Pali and others reported in (2014) 13 SCC 166; and Krushnakant B. Parmar v. Union of India and another [(2012) 3 SCC 178].

¶45

1. On the other hand, the learned Senior counsel appearing for the respondents would oppose the submissions made by learned counsel

¶46

for the petitioner and submit as under:-

¶47

a. The petitioner remained absent for a considerable period without intimating the department. From 2000 to 2002, the petitioner never made any application for the grant of leave or intimated the department with regard to his medical condition. The article of charge was issued and the same was dispatched to the petitioner’s residential address on 16.03.2003 and in this regard, a document is placed along with the return. The petitioner participated in the departmental enquiry on 13.08.2003. On that date, the allegations made against the petitioner were read over and he denied the same. It is not a case where no opportunity for hearing was afforded.

¶48

b. It is argued that the petitioner participated in the Departmental Enquiry on 18.08.2003, and 20.08.2003 and on the last date of enquiry, the proceedings were terminated and the enquiry report was prepared. He further argued that a second show cause notice was also issued to the petitioner on 15.05.2004 at his residential address. On 16.07.2004, the punishment was imposed. He also argued that the disciplinary authority has taken care of the absence of the petitioner from duty from the years 2000 to 2002. Though the petitioner was declared fit on 19.08.2002, he did not report to the department, and no application was moved.

¶49

c. He submitted that there is a finding with regard to the willful absence from the duties. It is argued that from the conduct of the petitioner, it can be accumulated that the petitioner was negligent in performing his duties which would amount to willful absence from the duties.

¶50

d. He placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of State of Punjab v. Dr. P. L. Singla reported in (2008) 8 SCC 469, para-14.

¶51

1. I have heard learned counsel appearing for the parties and perused the documents available on the record with utmost circumspection.

¶52

1. The Hon’ble Supreme Court in the matter of Chhel Singh (supra), in paras 10, 12, & 13 held as under:-

¶53

¶54

“ 10. After giving our careful consideration to the facts and circumstances of the case and the submission made by the learned counsel for the parties, we are of the view that the Division Bench was wrong in setting aside the order of reinstatement. The Division Bench has accepted that the inquiry stood vitiated by disallowing the request of the appellant to summon the rest of the five witnesses. For the said reason, the Division Bench has not interfered with such part of the finding and order passed by the learned Single Judge whereby the impugned order of termination dated 17th October, 1994 and the Appellate Authority order dated 26th December, 1994 were quashed. The order of termination being quashed by the High Court, in absence of any observation and grounds to refuse the reinstatement, the appellant automatically stood reinstated. Without reinstatement in service, the question of further inquiry does not arise. There was no occasion for the Division Bench of the High Court to direct further inquiry, without reinstatement of appellant.

¶55

12. From the plain reading of the charges we find that the main allegation is absence from duty from 11.12.89 to 24.10.90 (approximately 10 and ½ months), for which no prior permission was obtained from the competent authority. In his reply, the appellant has taken the plea that he was seriously ill between 11.12.89 and 24.10.90, which was beyond his control; he never intended to contravene any of the provisions of the service regulations. He submitted the copies of medical certificates issued by Doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days. There was no allegation that the appellant’s unauthorized absence from duty was willful and deliberate. The Inquiry Officer has also not held that appellant’s absence from duty was willful and deliberate. It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay.

¶56

13. In view of the observation made above, the order passed by the Division Bench of the High Court cannot be upheld. We, accordingly, set aside the impugned judgment and order dated 10th May, 2012 passed by the Division Bench of the High Court in D.B. Civil Special Appeal (Writ) No. 850 of 2009 and upheld the order passed by the learned Single Judge dated 31st March, 2009 in S.B. Civil Appeal Writ Petition No. 1702 of 1995. The respondents are directed to implement the direction and order dated 31st March, 2009 issued by the learned Single Judge within four weeks from the date of receipt of copy of this judgment. ”

¶57

1. The Hon’ble Supreme Court in the matter of Krushnakant B. Parmar (supra) held that the question of whether unauthorized absence from duty amounts to a failure of devotion to duty or behavior unbecoming of

¶58

¶59

a Government servant cannot be decided without deciding the question

¶60

whether absence is willful or because of compelling circumstances. The relevant paras No. 15 to 24 are reproduced as under:-

¶61

“15. . Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a Government servant and reads as follows:

¶62

"Rule 3 - General.

¶63

(1) Every Government servant shall at all times-(i) maintain absolute integrity; (ii) maintain devotion to duty; and

¶64

(iii) do nothing which is unbecoming of a Government servant."

¶65

16. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

¶66

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.

¶67

18. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.

¶68

19. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.

¶69

20. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held:

¶70

"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer

¶71

¶72

performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

¶73

1. In the matter of Dr. P. L. Singla (supra), while dealing with a similar issue of unauthorized absenteeism, the Hon’ble Supreme Court held that the onus is on the employee to prove that he had actually sent a leave application. The extent of the penalty would depend upon the explanation offered by an employee. The relevant Para-14 reads thus:-

¶74

“14. Where the employee who is unauthorizedly 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 unauthorised 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. Where the punishment is either dismissal or removal, it may not be necessary to pass any consequential orders relating to the period of unauthorized absence (unless the rules require otherwise). Where the punishment awarded for the unauthorized absence, does not result in severance of employment and the employee continues in service, it will be necessary to pass some consequential order as to how the period of absence should be accounted for and dealt with in the service record. If the unauthorized absence remains unaccounted, it will result in break in service, thereby affecting the seniority, pension, pay etc., of the employee. Any consequential order directing how the period of absence should be accounted, is an accounting and administrative procedure, which does not affect or supersede the order imposing punishment. ”

¶75

1. The issue with regard to the unauthorized absence from duty cannot be decided without deciding the question of whether the absence is willful and under compelling circumstances. This Court has to consider

¶76

¶77

whether the absence of the petitioner was willful or it was on account of certain compelling circumstances.

¶78

10) In the year, 2000, the petitioner worked only for 62 days, in the year 2001, he worked for only 28 days, and in 2002 he did not work for a single day; though medical documents were produced and those documents were considered by the disciplinary authority. According to the medical documents submitted by the petitioner, he was declared fit by the treating doctor on 19.08.2002, but from a perusal of the order passed by the disciplinary authority, it is apparent that the petitioner did not report to the employer immediately thereafter. Then, the petitioner got involved in the criminal case and he remained in judicial custody from 17.05.2003 to 27.07.2003, therefore, it cannot be held that the petitioner could not join services on account of compelling circumstances.

¶79

11) The absence of the petitioner was willful, in this regard, the department has produced ample evidence that from 1997 to 2002, the petitioner worked for a total (66+194+165+62+28=515) of 515 days, which shows that the petitioner remained absent without sufficient reason from his duty.

¶80

12) It is not necessary for the disciplinary authority to record a specific finding with regard to the willful absence. The willful absence is not defined anywhere either in the service jurisprudence or in the standing order. The act of an employee/government servant with regard to willful absence can be gathered from the conduct and attitude of the employee.

¶81

13) With regard to the unauthorized absence of the petitioner, as far as the judgment relied upon by the petitioner in the matter of Chhel Singh ( supra ) is concerned, it has no application to the facts of the present case as the enquiry officer, as well as disciplinary authority and the

¶82

¶83

appellate Authority, have already come to a conclusion that the unauthorized absence of petitioner for the aforesaid period was willful and was not because of any bonafide reasons.

¶84

14) In the present case, the petitioner did not join the services for a single day in the year 2002 without intimating to the employer and no satisfactory reply was given while the petitioner was in service or thereafter. The disciplinary authority has recorded findings that the petitioner performed his duties for 62 days in the year 2000; 28 days in the year 2001 and in the year 2000 he did not work for a single day. The disciplinary authority has further taken into consideration the fact that though the petitioner was declared medically fit on 19.08.2002, he did not report to the department, therefore, it cannot held that the absence of the petitioner was not willful.

¶85

15) Now coming to the issue of non-service of the enquiry report according to clause 28 of the standing orders, from a perusal of Annexure R/1, a notice dated 16.03.2003, would reveal that a show cause notice along with the article of charge was dispatched at the residential address of the petitioner. If the petitioner was not informed with regard to the initiation of the departmental enquiry, it cannot be presumed that without any notice and intimation, he participated in the departmental enquiry on 13.08.2003, where the allegations were read over to him. The findings recorded by the disciplinary authority would show that the petitioner denied the allegations; thus, the contention raised by the counsel for the petitioner cannot be accepted. When a notice was served upon the petitioner; he was afforded due opportunity of hearing, in such a situation, on the procedural part, the order passed by the disciplinary authority cannot be interfered with.

¶86

16) Further, a legal notice was sent by the petitioner on 14.03.2005 since he was not permitted to join services; the legal notice was sent after

¶87

¶88

imposition of the punishment as punishment was imposed on 16.07.2004, which shows that the petitioner had knowledge of the punishment imposed upon him and an appeal was also preferred by him before the appellate authority.

¶89

17) Now coming to the law as discussed above, the petitioner willfully did not join the services for a considerable period, and no sufficient explanation was given by the petitioner; though he was declared medically fit in the year 19.08.2002, he did not join the services.

¶90

18) With regard to the willful absence, the disciplinary authority has recorded a specific finding that the petitioner remained absent without intimating to the department, and even though, he was declared medically fit by the medical officer; further from 17.05.2003 to 27.07.2003, he remained absent, and this fact was also not communicated to the department; the burden rested upon the petitioner/employee to offer an explanation with regard to the absence; the medical documents submitted by the petitioner were duly considered by the disciplinary authority, and in appeal by the appellate authority.

¶91

19) Taking into consideration the above-stated facts and the law as discussed above, the present petition fails and is hereby dismissed . No order as to cost(s).

¶92

Sd/-

¶93

(Rakesh Mohan Pandey)

¶94

Judge

¶95

Nadim

Ganpat v. South Eastern Coal Field Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

Ganpat v. South Eastern Coal Field Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Ku.nishu Shriwas Vs State Of Chhattisgarh And Ors.

Hari Prasad Gupta Vs State Of Chhattisgarh

Rituraj Sahu Vs State Of Chhattisgarh and Ors.

Prabhudayal Shukla Vs South Eastern Coalfields Limited And Ors.

Rajesh Kumar Shrivastava Vs State Of Chhattisgarh and Ors.

Smt. Seema Kosariya and Anr. Vs State Of Chhattisgarh and Ors.