The single judge bench of the Jharkhand High Court held that if the absence is the result of some compelling circumstances under which it was not possible to report for duty, such absence cannot be said to be wilful and, therefore, would not amount to misconduct.
Brief facts
The factual matrix of the case is that the Petitioner was appointed as the Hawaldar in the Central Reserve Police Force and after the completion of the training, he was posted at Mokamaghat. Then, due to the illness of his mother, the Petitioner went on earned leave, however, he couldn’t report the duty on time as the condition of his mother couldn’t improve and the Petitioner was also made the victim of jaundice. Thereafter, the Petitioner sent a letter for the extension of his leave, but no consideration was shown and the Petitioner was dismissed from the service by the disciplinary authority under section 11(1) of the CRPA Act read with Rule 27 of the CRPF Rules, 1955. The appeal was preferred and the same was rejected, therefore, the present Writ Petition is filed.
Contentions of the Petitioner
The Petitioner contended that the circumstances were beyond the Petitioner’s control and the Petitioner duly informed the Respondent. It was furthermore contended that the inquiry proceeded exparte and no second show cause notice along with the inquiry report was submitted to the Petitioner.
The Petitioner relied upon the judgments titled Union of India & Ors. Vs. Giriraj Sharma, and Bhagat Ram Vs. State of Himachal Pradesh and Ors.
Contentions of the Respondent
The Respondent contended that the petitioner was given full opportunity to place his case at every point in time. It was furthermore contended that if the Petitioner deliberately evades the inquiry, he cannot take advantage of the fact that the inquiry was conducted behind his back and it is an ex-parte proceeding.
Observations of the court
The Hon’ble court observed that when a leave period is exhausted, it is the responsibility of the employee—including the petitioner—to report back to work immediately without fail. In addition, however, the respondents must weigh all pertinent facts, including the severity, extent, and degree of the misbehavior, before applying any punishment. However, in the present case, the overstyal of leave was neither wilful nor deliberate and it was totally beyond his control.
The court relied upon the judgments titled Ranjit Thakur Vs. Union of India & Ors, Krushnakant B. Parmar Vs. Union of India Vs. Anr, and S.R. Tiwari Vs. Union of India.
The court noted that if the absence is the result of some compelling circumstances under which it was not possible to report for duty, such absence cannot be said to be wilful.
Based on these considerations, the court was of the opinion that the petitioner was under compelling circumstances due to which he could not report back to duty resulting in his unauthorized absence. The Petitioner was directed to be reinstated in the services and the matter was remanded back to the disciplinary authority on the quantum of punishment.
The decision of the court
With the above direction, the court allowed the writ petition.
Case title: Samlendra Kumar Vs Union of India
Coram: Hon’ble Mr. Justice S.N. Pathak.
Case No.: W.P.(S) No. 2694 of 2012
Advocate for the Petitioner: Mr. Vikash Kumar, Advocate
Advocate for the Respondent: Mr. Anil Kumar, ASGI
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