Abhay Raj Singh vs State Of U.P. & Others
2014 Latest Caselaw 2704 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 58
 

 
Case :- WRIT - A No. - 60051 of 2009
 

 
Petitioner :- Abhay Raj Singh
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Sheel Kumar Singh,Arun K. Singh-I,Rajesh Kr. Yadav
 
Counsel for Respondent :- C.S.C.,P.N. Bind,Samir Sharma
 

 
Hon'ble Suneet Kumar,J.

Heard Sri Arun Kumar Singh-I, learned counsel for the petitioner and Sri Ajai Kumar Srivastava holding brief of Sri Samir Sharma, learned counsel for respondents.

The petitioner was working as a conductor under U.P. State Road Transport Corporation Ltd (U.P.S.R.T.C.). and was posted in the office of Assistant Regional Manager, U.P.S.R.T.C., Cantt. Depo, Varanasi. The petitioner on 30.10.2006 was issued a charge sheet alleging therein that he had absented from duty without any information thus his conduct is against the rules of the Corporation. The petitioner submitted his reply stating that he had informed the diesel clerk before leaving the office and had also made an application to the concerned officer. The enquiry officer, after recording the statement of the witness, came to the conclusion that the petitioner had absented without information and proposed the penalty of dismissal from service.

Show cause notice dated 17.05.2007 alongwith enquiry report was issued to the petitioner and the petitioner submitted his reply on 05.07.2007 denying the allegations and reiterated his reply and further stated that on return to duty he had submitted application for medical leave as well as fitness certificate dated 14.10.2006 for his absence. The disciplinary authority accepted the enquiry report and its finding and passed the impugned order terminating the services of the petitioner.

Aggrieved, the petitioner preferred an appeal before the respondent no. 3 Regional Manager, U.P.S.R.T.C., Varanasi, the appellate authority dismissed the appeal by order dated 04.07.2008. Aggrieved by the said order, petitioner preferred revision before the Chairman, U.P.S.R.T.C Ltd. Headquarter Lucknow which was also dismissed vide order dated 28.07.2009.

The petitioner has assailed the orders dated 02.11.2007, 04.07.2008 and 28.07.2009 passed by the disciplinary authority, appellate authority and the Revisional Authority, respectively.

Submission of learned counsel for the petitioner is that even accepting the allegation as correct that the petitioner had proceeded without information, though it is denied, the petitioner on his return had given an explanation for his absence which was on the ground of his medical illness as well as his wife's illness. The petitioner on return, had submitted medical certificate which none of the authorities have disputed its authenticity or credibility. The illness of the petitioner is not being disputed by the Authorities, hence absence from duty is not wilful. In the facts and circumstances of the case, petitioner could not have been terminated from service. In support of his submission, learned counsel for the petitioner has relied upon the cases Krushnakant B. Parmar v. Union of India and another1, Shayama Charan Tripathi v. State of U.P. and others 2and Virendra Kumar v. Union of India and others3.

In rebuttal, Sri Ajay Kumar Srivastava, learned counsel appearing for the respondents submits that the petitioner was given a fair enquiry and the procedure prescribed under the Regulations was duly followed and after providing opportunity finding was recorded that the petitioner absented without information and further the petitioner was a habitual absentee and the order of termination is fully justified.

Rival submissions fall for consideration.

In Krushanakant B. Parmar (supra), the Supreme Court held as follows:-

"16. 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.

18. 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.

19.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."

In Virendra Kumar (supra), this Court held as follows:-

"16. In our opinion unless the reasons for the absence of the petitioner were examined and a finding was recorded that the petitioner was not justified for overstayal of leave, the overstayal by itself could not be treated as misconduct on the ground that the petitioner is a member of disciplined force. The reply of the petitioner does not show that he had any intention to disobey the orders, or had overstayed for unjustified reasons. He wife was pregnant and that the child was born by cesarean operation. The wife thereafter suffered jaundice, which relapsed . The petitioner informed his Commandant and was keeping in touch with him by making applications intimating about the serious medical conditions of his wife and child with request for extension of leave. The commanding officer did not reject his applications and that no proceedings were initiated against him during his absence. It was only when he joined the duties that the Commandant, without considering the reasons, is a misconduct for which the petitioner should be proceeded with the punished. The order of punishment, assuming that the petitioner had committed misconduct for his absence, is thus arbitrary, unreasonable and irrational. Unless the reasons were examined, his absence from duties could not be treated as misconduct as contained in Rule 3 (1)(ii) and (iii) of the CCS (Conduct) Rules, 1964."

In Shyama Charan (supra), the Court held as follows:-

"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 the absence of such finding, the absence will not amount to misconduct."

The service condition of the petitioner is governed by the Uttar Pradesh State Road Transport Corporation Employees (Other than Officers) Service Regulation, 1981. Regulation 62 defines misconduct and sub-clause 7 states as follows:-

"Absence without leave or over-staying the sanctioned leave without sufficient grounds or proper or satisfactory explanation."

Regulation 54 provides for leave on medical certificate, which is as follows:-

"54. Leave on medical certificate.-(1) An employee may be granted leave on medical certificate not exceeding twelve months in all during his entire service. Such leave shall be given only on production of a certificate from such medical authority as the Board may, by general or special order, specify in this behalf and for a period not exceeding that recommended by such medical authority:

Provided that when the maximum period of twelve-month is exhausted, further leave on medical certificate not exceeding six months in all during entire service may be granted in exceptional cases on the recommendations of such medical authority.

(2) No leave may be granted under this regulation unless the competent authority is satisfied that the employee will be fit to return to duty on the expiry of the leave applied for.

(3) An employee who has been granted leave on medical certificate may not return on duty without first producing the medical certificate for fitness in such form as the Board may prescribed."

The sole allegation against the petitioner is that he absented without information which was proved in the disciplinary proceedings, but the dispute is that the petitioner's explanation for the absence has not been considered. Sub-clause 7 of Regulation 62 clearly states that absence without leave or without sanction of leave is a misconduct, but if 'sufficient grounds or proper or satisfactory explanation' has been given by the employee then that would certainly not be misconduct.

In the facts and circumstances of the case, petitioner had submitted medical certificate for his absence alongwith fitness certificate on his resuming duty which the authorities have not questioned or found fault with, since the petitioner had given sufficient and good reasons for his absence, the petitioner's mere absence without information would not amount to misconduct as already held by Supreme Court and this Court in the law cited earlier.

The impugned orders dated 02.11.2006, 04.07.2008 and 28.07.2009 passed by the disciplinary authority, appellate authority and the Chairman, respectively, are quashed. The petitioner shall be reinstated in service with all consequential benefits.

Subject to the above, the writ petition is allowed.

Order Date :- 9.7.2014/kkm