Partly allowed

Prahlad Singh v. UOI and Ors.

Rajasthan HC7 Jan 2019CW/1128/2001

Case brief

AI extract

What is this about?

An RPF constable challenged two disciplinary punishments. The court upheld the pay-reduction penalty but quashed removal for absence during suspension, finding no wilful misconduct and non-speaking disciplinary orders. It partly allowed the petition and directed reinstatement with all consequential benefits.

What did the court decide?

Removal and appellate orders quashed; reinstatement with all consequential benefits, to be implemented within one month of submission of a certified copy.

Prahlad Singh Vs UOI and Ors. — Service and Employment | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Writs No. 1128/2001

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Prahlad Singh S/o Shrqi Bijendra Singh, aged about 30 years, R/o Village Sihora, District Mathura (U.P.)

¶4

----Petitioner

¶5

Versus

¶6

The Union of India through the Ministry of Railways, Western Railways, Church Gate, Mumbai-20.

¶7

The Chief Security Commissioner, Railway Protection Force, Western Railways, Church Gate, Mumbai-20.

¶8

The Dy. Chief Security Commissioner, Railway Protection Force, Western Railways, Church Gate, Mumbai-20.

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The Divisional Security Commissioner, Railway Protection Force, Jaipur.

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----Respondents

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For Petitioner(s) : Mr. Prahlad Singh, Adv. For Respondent(s) : Mr. P.C.Sharma, Adv.

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Judgment reserved on :11.12.2018

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Judgment pronounced on: 07.01.2019

¶14

(1) The petitioner by way of this writ petition has challenged two departmental enquries conducted by way of two separate charge-sheets and the punishment orders passed separately in the two charge-sheets.

¶15

(2) Ordinarily and in the normal course the writ petition would not lie assailing two charge-sheets and two different orders of punishment and two separate writ petitions ought to have been filed challenging the orders. However, writ petition filed in the year 2001 stood admitted on 05.02.2008 and is listed for final hearing,

¶16

(2 of 19)

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[CW-1128/2001]

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therefore, I deem it appropriate to decide the case on merits and deal with both the charge-sheets separately.

¶19

First Charge-sheet:-

¶20

(3) The first charge-sheet issued to the petitioner was vide memorandum dated 19.09.1998 and served on the petitioner on 28.10.1998. Enquiry Officer was appointed on the day chargesheet was issued. The petitioner has alleged that when he reported on duty on 29.10.1998 at R.P.F. Post, Phulera, he did not have any notice regarding any date of enquiry or appointment of Enquiry Officer. However, on 1.11.1998 his statement was recorded by one Devi Lal Rathore, Assistant Sub-Inspector and he was handed over a letter fixing date of enquiry as 8.11.1998. On 6.11.1998 petitioner had been attached with Escort Company in Jaipur and thus he could not appear before the Enquiry Officer on 8.11.1998. He sought time to appoint a defence representative which was rejected and enquiry officer fixed the date to be 14.11.1998. Petitioner denied the charges levelled against him and again requested the enquiry officer for giving him time to appoint defence representatives. Whereafter he submitted a consent letter of his defence representatives but the Enquiry Officer did not accept the same under Rule 153 of the Rules of 1987. The petitioner was sick and he sought permission but the same was refused and ex-parte proceedings were ordered on 06.01.1999. On 7.1.1999 petitioner submitted two applications pointing out that Enquiry Officer had not conducted enquiry in terms of Rules and the enquiry officer had obtained his signature forcibly and under duress and the petitioner also moved another

¶21

(3 of 19)

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[CW-1128/2001]

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application requesting to change the Enquiry Officer. But the grievances of the petitioner were not redressed and the enquiry officer held enquiry ex-parte against the petitioner. Enquiry Officer submitted his enquiry report which was made available to the petitioner. The petitioner submitted his representation to the enquiry report and objected to the ex-parte enquiry conducted but the disciplinary authority held the petitioner guilty of the charges and imposed punishment of reduction of his pay in the pay scale by 5 stages for five years effecting his future grade increments by order dated 16.4.1999.

¶24

(4) Appeal preferred by the petitioner was also dismissed vide order dated 20.07.1999.

¶25

(5) The allegation levelled against the petitioner was that while he was holding the post of Constable and posted as Phulera he was on weekly leave, compensated leave and five days causal leave w.e.f. 28.06.1998 and was under treatment of Medical Officer, Mathura Cant. As per Certificate dated 03.07.1998, he left his headquarters and at around 13.45 hours on 01.08.1998 entered the first floor of the building situated at Phulera Station in the Office of the Inspector and without permission took off the keys of the main gate of the Kot situated at the basement and entered the Kot without permission.

¶26

(6) In the inquiry six witnesses were examined and none of them stated to have seen the petitioner entering the Kot nor they saw the petitioner opening the lock and thus, the Counsel submits that none of the witnesses had given any statement against the petitioner to prove the charges. However, the enquiry officer

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(4 of 19) [CW-1128/2001]

¶28

himself has given a finding that the petitioner took the keys unauthorisedly and opened the door of the main gate and entered the Kot which according to the Counsel for the petitioner is wholly perverse.

¶29

It is submitted that petitioner had pointed out these aspects in his written submission to the enquiry report which was not considered by the disciplinary authority and the disciplinary authority imposed a major penalty against the petitioner. The appellate authority also did not take into consideration the submissions and the order passed by the appellate authority was a non-speaking order.

¶30

(7) Learned Counsel has further submitted that criminal case was registered against the petitioner, on the basis of which an FIR No.35/1998 was lodged against the petitioner wherein allegations were further levelled of the petitioner having stolen one pistol, two magazines and 28 rounds of pistol.

¶31

(8) The petitioner has been acquitted honourably by the competent Court.

¶32

(9) Per contra, with regard to this charge sheet the respondents have filed their reply and submitted that the petitioner had been arrested in the said case and had been released on bail on 13.8.1998. He was suspended from duty vide order dated 16.9.1998 w.e.f. 1.8.1998 and the charge sheet was issued vide letter dated 19.9.1998. The enquiry officer found all the charges proved against the petitioner and submitted his report to the disciplinary authority and the disciplinary authority passed an order of imposing the punishment by reducing his pay in the

¶33

(5 of 19) [CW-1128/2001]

¶34

pay scale by 5 stages for five years vide order dated 16.4.1999. It is submitted that several attempts were made to serve the charge-sheet to the petitioner but the petitioner avoided receiving the same. The petitioner had not cooperated in the enquiry proceedings and, therefore, punishment order was rightly passed. It is submitted that as per provisions of Rule 153.8 of R.P.F. Rules, 1987, only in service Sub-Inspector or any other member of the force below the rank of sub-inspector can be appointed as ‘representative or the defence assistant’. The petitioner did not follow the rules. The allegations levelled against the enquiry officer were frivolous and no interference is called for. Learned Counsel has further submitted that against the other Constable Subhash Chand Yadav punishment of dismissal was passed which was converted to compulsory retirement by the Division Bench of this Court in D.B.Civil Special Appeal No.931/2003- Union of India Vs. Subhash Chand Yadav.

¶35

(10) Heard learned Counsel for the parties.

¶36

(11) With regard to the facts, learned Counsel submits that it so happened that on 1.8.1998 one pistol, two magazines and 28 rounds of pistol were said to have been stolen from the R.P.F.Post, Phulera while the petitioner was on leave and was residing at Uttar Pradesh at his native place. He was arrested from his native place at Mathura on 2.8.1998 at Village Sihora in District Mathura in the morning at 5.30 A.M. and thus, it is not possible that the petitioner could have been present on the spot on 1.8.1998. The petitioner was kept in judicial custody and was released on bail subsequently. It was a specific case of the petitioner that he was

¶37

(6 of 19)

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[CW-1128/2001]

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unwell and was taking treatment at Mathura but the railway doctor refused to treat him and, therefore, he went to District Medical Officer, Agra and took treatment there upto 10.8.1998. The statements of Bhurey Lal, Assistant Security Commissioner, Ramesh Chandra Saxena, Inspector (Head Qr.), R.P.F., Jaipur, Bhajan Lal Sharma, Inspector (SW), Jaipur, Subhash Chand, Head Constable, Phulera, Parashu Ram Singh6, Sub-Inspector, Phulera and Anil Kumar Constable, Phulera were recorded who were on duty at the place of incident and did not depict petitioner entering or taking the key or opening the lock. Thus, he has taken this Court to the statements which have been placed on record of all the aforesaid witnesses as also the enquiry report.

¶40

(12) I have considered the submission of the learned Counsel and find that the statement of Subhash Chand, Head Constable, Phulera does mention of the Constable Prahlad Singh having taken the keys or entering into the main gate of the Kot or opening the lock.

¶41

(13) The statement of Subhash Chand has not been crossexamined as no witness has been cross-examined by the delinquent Prahlad Singh. Since ex-parte proceedings were conducted against him, the entire enquiry is thus an ex-parte enquiry. With regard to allegations as noted above, the criminal case was also registered where the petitioner has been acquitted.

¶42

(14) As per the Railway Protection Force Rules the procedure for imposing major punishment under Rule 153 is as under:-

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(7 of 19)

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[CW-1128/2001]

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“153. Procedure for imposing major punishments :

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(1) Without prejudice to the provisions of the Public Servants Inquires Act, 1850, no order of dismissal, removal, compulsory retirement or reduction in rank shall be passed on any enrolled member of the Force (save as mentioned in rule 161) without holding an inquiry, as far as may be in the manner provided hereinafter, in which he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded a reasonable opportunity of defending himself.

¶47

(2)1 Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an enrolled member of the Force, it may itself inquire into, or appoint an Inquiry Officer higher in rank to the enrolled member charged but not below the rank of Inspector, or institute a Court of Inquiry to inquire into the truth thereof.

¶48

(2) 2. Where the disciplinary authority itself holds the inquiry, any reference to the Inquiry Officer in these rules shall be construed as a reference to the disciplinary authority.

¶49

(2).3 On receipt of complaint or otherwise, the disciplinary authority on going through the facts alleged or brought out shall decide whether it is a case for major or minor punishment. No attempt shall be made to convert cases punishable under section 16 A or section 17 into disciplinary cases nor divert cases in respect of which major punishments are imposable to the category of cases where minor or petty punishments are imposable.

¶50

(2).4 Where it is proposed to hold an inquiry against an enrolled member of the Force under this rule, the disciplinary authority may order that the enrolled member shall not be transferred to any other place nor given leave without its written permission till the conclusion of the disciplinary proceedings, and the disciplinary authority shall draw up or cause to be drawn up –

¶51

(a) the substance of the imputations of misconduct or misbehavior into definite and distinct articles of charge;

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(b) a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain,-

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(i) a statement of all relevant facts including any admission or confession made by the enrolled member of the Force, and

¶54

(ii) a list of documents by which and a list of witnesses by whom the articles of charge are proposed to be sustained.

¶55

(5) The disciplinary authority shall deliver or cause to be delivered to the delinquent member, at least seventy-two hours before the commencement of the inquiry, a copy of the articles of charge, the statement of imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be

¶56

(8 of 19)

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[CW-1128/2001]

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sustained and fix a date when the inquiry is to commence; subsequent dates being fixed by the Inquiry Officer.

¶59

(6) Where the enrolled member charged has absconded or where it is not possible to serve the documents on him in person or where he deliberately evades service, the procedure laid down in sections 62, 64, 65 and 69 of the Code of Criminal Procedure, 1973 shall be adopted by the Inquiry Officer for service of such documents and the same shall be deemed to be a conclusive proof of service.

¶60

(7) For securing the presence of private prosecution witnesses, the Inquiry Officer may allow free travel passes according to their status in accordance with extant Railway Rules.

¶61

(8) The enrolled member charged shall not be allowed to bring in a legal practitioner at the proceedings but he may be allowed to take the assistance of any other member of the Force (hereinafter referred to as “friend” ) where in the opinion of the Inquiry Officer, the enrolled member charged cannot put up his defence properly. Such “friend” must be a serving member of the Force of or below the rank of SubInspector for the time being posted in the same division or the battalion where the proceedings are pending and not acting as a “friend” in any other proceedings pending anywhere. Such “friend” shall, however, not be allowed to address the Inquiry Officer nor to cross-examine the witnesses.

¶62

(9). If the enrolled member charged fails to turn up on the day fixed for the start of inquiry and no reasonable excuse is offered for not being present on the fixed time and day, the Inquiry Officer may commence the inquiry ex-parte.

¶63

(10). At the commencement of the inquiry, the party charged shall be asked to enter a plea of “guilty” or “not guilty” after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary. If oral-

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(a) it shall be direct;

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(b) it shall be recorded by the Inquiry Officer in the presence of the party charged; and the party charged shall be allowed to cross-examine the witnesses.

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(11) If the witnesses are government officers of a rank superior to the party charged, the Inquiry Officer may, at the request of the party charged, put the questions to such officer.

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(12) All evidence shall be recorded, in the presence of the party charged, by the Inquiry Officer himself or on his dictation by a scribe. Cross-examination by the party charged or the fact of his declining to cross-examine the witness, as the case may be, shall also be recorded. The statement of each witness shall be read over to him and explained, if necessary, in the language of the witness, whose signature

¶68

(9 of 19)

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[CW-1128/2001]

¶70

shall be obtained as a token of his having understood the contents. Statement shall also be signed by the Inquiry Officer 79 and the party charged. Copy of each statement shall be given to the party charged who shall acknowledge receipt on the statement of witness itself. The Inquiry Officer shall record a certificate of having read over the statement to the witness in the presence of the party charged.

¶71

(13) Documentary exhibits, if any, are to be numbered while being presented by the concerned witness and reference of the number shall be noted in the statement of the witness. Such documents may be admitted in evidence as exhibits without being formally proved unless the party charged does not admit the genuineness of such a document and wishes to cross-examine the witness who is purported to have signed it. Copies of the exhibits may be given to the party charged on demand except in the case of voluminous documents, where the party charged may be allowed to inspect the same in the presence of Inquiry Officer and take notes.

¶72

(14) Unless specifically mentioned in these rules, the provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 shall not apply to the departmental proceedings under these rules.

¶73

(15) The party charged shall then be examined and his statement recorded by the Inquiry Officer. If the party charged has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If he pleads “not guilty”, he shall be required to file within 10 days a written statement together with a list of such witnesses as he may wish to produce in his defence and giving therein a gist of evidence that each witness is expected to give. If he declines to file a written statement, he shall again be examined by the Inquiry Officer on the expiry of the period allowed and his statement, if any, recorded.

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(16) If the party charged refuses to produce any witnesses or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence, the Inquiry officer shall proceed to record the evidence. If the Inquiry Officer considers that the evidence of any witness or any document which the party charged wants to produce in his defence is not material to the issues involved in the case, he may refuse to call such witness or to allow such document to be produced in evidence, but in all such cases he must briefly record his reasons for considering the evidence inadmissible. When all relevant evidence has been brought on record, the proceedings shall be closed for orders after recording the statement, if any, of the party charged and obtaining any clarification, if necessary, from him.

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(17) Under no circumstances additional prosecution witnesses shall be examined after the defence has been let in unless supplementary defence witnesses have been allowed on that ground. However, if at any stage during the inquiry, it appears to the Inquiry Officer that examination of any

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(10 of 19)

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[CW-1128/2001]

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witness who has not been produced by either party so far or recall of any witness who has already been examined is essential in the interest of justice or to clear any doubt, he may summon him for the purpose and examine him as a witness of the Inquiry Officer after recording his reasons for doing so. Such a witness may also be cross examined by the party charged, if desired.

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(18) Whenever any Inquiry Officer after having heard and recorded the whole or any part of the evidence in an inquiry, ceases to exercise jurisdiction therein and is succeeded by another Inquiry Officer who has and exercises such jurisdiction, the Inquiry Officer so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by him or himself record it afresh as he deems expedient.

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(19) At the conclusion of the inquiry, the Inquiry Officer shall prepare a report of the inquiry recording his findings on each of the charges with reasons therefor. The findings must be of “guilty” or “not guilty” and no room shall be allowed for “benefit of doubt” or personal surmises. A charge shall be deemed to have been proved if after considering the evidence before him, the Inquiry Officer believes the ingredients constituting the charge to exist or considers their existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they exist.

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(20) If in the opinion of the Inquiry Officer, the proceedings of the inquiry establish charges different from those originally framed, he may record his findings on such charges:

¶82

Provided that findings on such charges shall not be recorded unless the party charged has admitted the facts constituting them and has had an opportunity of defending himself against them.”

¶83

From the perusal of the aforesaid, it is apparent that the enquiry shall be conducted in terms of Rules 268(8) so that the enquiry may be conducted as per 153(12) which provide that all evidence shall be recorded, in the presence of the party charged, by the Inquiry Officer himself or on his dictation by a scribe. Cross-examination by the party charged or the fact of his declining to cross-examine the witness, as the case may be, shall also be recorded. The statements of such witnesses have to be

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(11 of 19) [CW-1128/2001]

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logically explained to him. However, since the petitioner did not participate in the enquiry, ex-parte proceedings were conducted.

¶86

In view thereof, the petitioner presence has been proved on the day when the incident occurred. The allegation has been found to be proved by the Enquiry Officer. This Court would not go into the appreciation of evidence which the enquiry officer has done. It is also noticed that the disciplinary authority has also dealt with the charges and also examined the statements which were recorded during the course of enquiry and reached to the conclusion that petitioner was guilty of the charge.

¶87

Learned Counsel for the respondents has pointed out that other Constables who were also posted on that very day including Subhash Chand Yadav and Anil Kumar have been punished by conducting separate enquiries and the said punishment has been modified by the Division Bench as noticed above.

¶88

Taking into consideration the overall facts and circumstances of the case, this Court is not inclined to interfere with the order of punishment awarded to the petitioner on the basis of the charge-sheet issued to the petitioner. A look at the order would show that there has been an independent discussion of the charges and it is not a case where the appellate authority has passed a non-speaking order.

¶89

Thus viewed, the orders dated 16.4.1999 passed by the disciplinary authority and the appellate authority order order dated 31.12.1999 do not call for any interference.

¶90

(12 of 19)

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[CW-1128/2001]

¶92

Second Charge Sheet:-

¶93

The second charge sheet was served on the petitioner vide memorandum dated 6.8.1999 wherein allegation was leveled against the petitioner of having remained absent from duty. The first charge levelled against the petitioner is that after the petitioner had been released from custody, he should have reported for duty on 14.8.1998. The second charge levelled against the petitioner is that he had got his attendance marked on 29.10.1998. He had remained under treatment from 14.8.1998 to 26.10.1998 under a private doctor which is contrary to the provisions of the Railway Medical Rules and the said period has not been sanctioned. Similarly he remained under treatment from 14.8.1998 to 26.10.1998 and the said period is thus treated as willful absent. Third charge levelled against the petitioner was of not reporting back on duty on 02.02.1999 in the morning after having remained overstayed his leave granted for two days from 21.01.1999 to 23.1.1999. Fourth charge levelled against the petitioner was of having remained unauthorisedly absent and not reporting after having been granted 15 days out permission from 29.05.1999 and was supposed to join on 14.6.1999 whereas he joined on 15.6.1999. The fifth charge against the petitioner was of having remained absent for 14 days by overstaying permission granted from 10.07.1999 to 19.7.1999 and joining duties on 03.8.1999 in the forenoon.

¶94

Admittedly when the notices were issued on 13.04.2001 this Court noticed that one point involved in the writ petition was whether during the period of suspension, an

¶95

(13 of 19)

¶96

[CW-1128/2001]

¶97

employee is required to mark his presence and in case, he is absent from duty during the period of suspension for certain days, does it fall under the misconduct for the purpose of disciplinary proceedings.

¶98

It has come on record that the petitioner had been suspended vide order dated 02.08.1999 under Rule 133 of the Railway Protection Force Rules, 1987 w.e.f. 1.8.1998. Later on a corrigendum was issued on 16.09.1998 treating the petitioner to be under suspension from 1.8.1998 in the forenoon mentioning that he remained in custody from 1.8.1998 to 13.8.1998. The suspension order also directs that the Constable during suspension period would receive subsistence allowance and would submit his attendance in the morning at 8.00 A.M. and in an evening at 20.00 P.M. at Phulera Post. Thus, for the Constable he is required to mark his attendance at headquarter during suspension.

¶99

While an employee under suspension would be required to mark his attendance every day but for a Constable of the Railway Protection Force, the Rules are otherwise. Counsel for the respondent has also submitted that the sanction is required to be taken for leaving the post. The question which involved in the present petition is that if the person is ill during suspension period, can he be further subjected to departmental enquiry if he is overstayed the said period. The respondents have punished the petitioner for said charge by holding departmental enquiry and have removed him from service vide order dated 31.12.1999. The appeal preferred by the petitioner against the said order has also been rejected vide order dated 31.03.2000.

¶100

(14 of 19)

¶101

[CW-1128/2001]

¶102

Counsel for the petitioner has submitted that petitioner had overstayed the leave as he was unwell. Merely because the petitioner has got his treatment from a private doctor, he cannot be said to be willfully absent from duty. Further, it is pointed out that for the period for which he was under suspension he was not obliged to remain on duty for the entire day and at best if there is any allegation of the petitioner having reported to the post belatedly and the same is proved to be deliberate and willful and without any reason, the respondents could have at best denied subsistence allowance for the said period.

¶103

Learned Counsel further submits that the petitioner's wife was seriously unwell as she was in the family way and petitioner who was under suspension had to take leave to get her treatment done. Learned Counsel also points out that complications had arisen during pregnancy of his wife and ultimately child was born by operation. The petitioner had pointed out all these facts and at the same time informed the authorities that documents in this regard have also been placed and were submitted before the enquiry officer who has ignored the documents. Petitioner has also placed before the enquiry officers the fax and the telegrams informing the same and also Certificate of the doctors in this regard. However, the enquiry officer has failed to take notice of them. Learned Counsel has further submitted that in terms of proceedings conducted against the petitioner the same were contrary to the provisions contained under Rule 153, 154 and 156 of the Railway Protection Force Rules, 1987. The petitioner could not have been removed from

¶104

(15 of 19)

¶105

[CW-1128/2001]

¶106

service under Rule 156(3) of the Rules of 1987. Removal from

¶107

service of an employee can be for having repeated minor misconducts or for absence from duty without prior intimation or overstaying without sufficient leave. Since it is his submission that there was a sufficient cause for over-staying of leave and he had also given proper intimation by sending telegram, receipts whereof has been placed before the enquiry officer, the enquiry officer’s findings are perverse and the punishment awarded to the petitioner is wholly excessive and unjustified.

¶108

Per contra, learned Counsel appearing for the respondents submits that the scope for this Court in departmental proceedings is limited. He relies upon the judgment passed by the Supreme Court in CISF Vs. Abrar Ali reported in AIR 2017

¶109

Supreme Court 200 . Learned Counsel has also relied on judgment passed by the Supreme Court in State of U.P. Vs. Nand Kishore reported in 1996 AIR (SC) 1561 to submit that Court is not a Court of appeal to go into the question of imposition of punishment.

¶110

I have considered the submissions and find that in case of Krushnakant B.Parmar Vs. Union of India & Anr. (2012) 3 SCC 178 almost similar issue arose before the Apex Court with regard to person who was absent or was over-staying his leave and the Apex Court found that the delinquent who was a Security Assistant with the intelligence Wing of the Union of India had overstayed leave and absented from duty for a period of 36 days, 32 days and 234 days and the disciplinary authority had on the basis of the Enquiry Officer report of the said appellant being

¶111

(16 of 19) [CW-1128/2001]

¶112

unauthorised absent proceeded to hold him guilty. The Apex Court examining the issues found that under the conduct rules a person who has remained unauthorisedly absent from duty cannot be held guilty without deciding the question that absence was willful or because of compelling circumstances. Taking into consideration the aspect the Apex Court held in para 17, 18 and 21 & 24 of the judgment as under :-

¶113

“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.

¶114

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.

¶115

In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty.

¶116

In the result, the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority, affirmed by the Appellate Authority; Central Administrative Tribunal and High Court are set aside. The appellant stands reinstated.”

¶117

(17 of 19)

¶118

[CW-1128/2001]

¶119

A look at the present case shows that the petitioner was prevented from joining back to the duty on account of his illness in two instances and on account of his illness of his wife and on account of the delivery of his child.

¶120

Keeping in view the fact that the petitioner was under suspension and he was not in active duty, the absence cannot be said to be in any manner willful merely because he has submitted a private doctor Certificate under whom he has got his treatment done which is found to be wrongful by the disciplinary authority. It cannot be said that the petitioner was willfully absent. The illness which can be said to be a compelling circumstance would be sufficient to hold that the petitioner has not misconducted himself.

¶121

The Apex Court in AIR 2002 (6) SC 2806 Jagdamba Prasad Shukla Vs.State of U.P. & Ors. held that an employee is not required to mark attendance during suspension. In the circumstances even though the procedure of remaining posted during suspension for a Constable may be necessary for the purpose of department enquiry, the order cannot be allowed to sustain. Since the allegations of absence from duty without proper intimation or over-staying beyond sanctioned leave without sufficient cause is not found and there is an absolute perversity in the findings of the enquiry officer, the order of removal could not have been passed. A look at the order passed by the disciplinary authority and the appellate authority would show that they have not given reasons and have not even discussed the submissions raised by the petitioner. A short cryptic order has been passed of

¶122

(18 of 19)

¶123

[CW-1128/2001]

¶124

punishment. A non-speaking order without recording reasons is a non-est order in the eyes of law.

¶125

In S.N.Mukherjee Vs. Union of India (1990) 4

¶126

Supreme Court Cases 594 , the Apex Court has held that recording of reasons are mandatory in disciplinary proceedings. The appellate Court is also required to give reasons. In Ram

¶127

Chander Vs. Union of India reported in (1986) 3 Supreme

¶128

Court Cases 103 it has been held as under:-

¶129

“2.1 The word 'consider' has different shades of meaning and must in rule 22(2), in the context in which it appears,mean an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decision.

¶130

In the instant case, the impugned order is just a mechanical reproduction of the phraseology of rule 22(2) without any attempt on the part of the Railway Board either to marshall the evidence on record with a view to decide whether the finding arrived at by the Disciplinary Authority could be sustained or not. There is also no indication that the Railway Board applied its mind as to whether the act of misconduct with which the appellant was charged together with the attendant circumstances and the past record of the appellant were such that he should have been visited with the extreme penalty of removal from service for a single lapse in a span of 24 years of service. There being noncompliance with the requirements of Rule 22(2) of the Railway Servants Rules, the impugned order passed by the Railway Board is liable to be set aside.”

¶131

Learned Counsel has relied on several judgments passed by this Court following the aforesaid principles reported in 2008(4) RLW 2998 (Raj.)- Rajendra Kumar Vs. The Chairman, Rajasthan State Road Transport Corporation & Ors., Vasudeo K. Hardasani Vs. The State of Raj. & Anr. RLR 1989(1) 99, Phool Chand Vs. State of Rajasthan & Ors. WLN (UC) 1980 311 etc. etc.

¶132

(19 of 19)

¶133

[CW-1128/2001]

¶134

The judgments cited by the learned Counsel for the respondents in Abrar Ali (supra) goes to show that the Apex Court has in that case also reduced the punishment of dismissal from service to compulsory retirement finding it to be excessive and harsh. However, as this Court has taken a view that petitioner could not have been held guilty of the charge as he cannot be said to have committed any misconduct as he was under suspension having reached to the conclusion that the petitioner cannot be said to have committed misconduct while he was under suspension and the suspension was revoked only on 30.07.1999.

¶135

Keeping in view that the period of over-staying leave during suspension is prior to 13.07.1999, accordingly, punishment order dated 31.12.1999 and the appellate order dated 31.03.2000 are quashed and set aside. The petitioner would be entitled to reinstatement with all consequential benefits.

¶136

Accordingly the writ petition is partly allowed while upholding the order dated 16.4.1999 of punishment in the first charge sheet dated 19.09.1998, the order in the second chargesheet of removal from service is quashed and set aside. The petitioner would be entitled to all consequential benefits. Order shall be complied within one month from the date of submission of certified copy of the order.

¶137

No costs.

¶138

(SANJEEV PRAKASH SHARMA),

¶139

N.Gandhi/74

Prahlad Singh v. UOI and Ors.

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Prahlad Singh v. UOI and Ors.

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