Santosh Kumar Yadav vs The U.O.I. Thru Ministry Of Home ...
2015 Latest Caselaw 1939 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										AFR
 
					       Judgment reserved on  03.8.2015
 
					       Judgment delivered on 24.8.2015
 

 

 
Case :- WRIT - A No. - 1954 of 2013
 
Petitioner :- Santosh Kumar Yadav
 
Respondent :- The U.O.I. Thru Ministry Of Home Affairs And Ors.
 
Counsel for Petitioner :- Vinod Kumar
 
Counsel for Respondent :- A.S.G.I.,A.S.Azmi,Abu Sufiyan Azmi,S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

1. Heard Shri Vinod Kumar, learned counsel for the petitioner and Shri Abu Sufiyan Azmi, learned counsel for the respondents.

2. By means of present writ petition, the petitioner has prayed for quashing the impugned Memorandum dated 21.11.2012 and has further prayed for direction commanding the Commandant, 26th Battalion, Shashastra Seema Bal, Pilibhit to permit him for resuming his duty on the post in question and to pay him regular salary with all consequential benefits.

3. It appears from the record that the petitioner was initially appointed as Constable (GD) on 15.12.2005 and after completion of training, he was posted in 31st Battalion, Shashastra Seema Bal, Sapadi (Himachal Pradesh) and thereafter remained posted at Gosaigaon, Kokrajhar in the State of Assam. In the year 2007, he had fallen ill on account of liver disease and taken leave for 42 days from the authority concerned. He remained under treatment in G.M. Modi Hospital, New Delhi. As per direction of the Deputy Inspector General, Sector Hqr. SSB, Bongaigaon vide order dated 3.8.2009, the Competent Authority of 31st Battalion, SSB, Gossaigaon vide order dated 29.7.2010 regularized the absence period of the petitioner w.e.f. 3.1.2008 to 24.9.2009 for 631 days by granting "DIES NON" for all purposes. Thereafter the petitioner requested for his transfer from 31st Battalion to another Battalion. On 10.7.2010 he was transferred to 26th Battalion at Pilibhit (UP). He joined there and served smoothly for the nation with full devotion and sincerity. After some time, he again fell ill on account of same severe liver disease. He applied for leave on 10.4.2011, followed by extension of leave applications dated 12.6.2011, 28.6.2011, 16.7.2011 and 18.8.2011 and during the aforesaid period, the petitioner remained under treatment.

4. The Commandant, 26th Battalion, SSB, Pilibhit (UP) issued a show cause notice dated 7.10.2011 to the petitioner stating that the petitioner has been convicted under Section 21 of SSB Act, 2007 for unauthorized absence without leave w.e.f. 1.6.2011 and a Court of Inquiry has been conducted under the provision of Section 74 of the SSB Act, 2007 and Rule 175 of SSB Rule, 2009 for his absenting willingly without justified reason. The Commandant, 26th Battalion, SSB proposed to award an appropriate penalty under Rules 18 and 21 Sub rule (2) of SSB Rule 2009 under Chapter-IV taking into account the gravity of the misconduct and an act of indiscipline committed by the petitioner. Before coming to a decision about quantum of penalty the petitioner was given sufficient opportunity for resuming duty by issuing repeated rejoining notices but he did not resume duty. On careful consideration of the Court of Inquiry proceedings the Commandant had provisionally come to the conclusion that the petitioner was declared as Deserter from the force w.e.f. 1.6.2011 and and proposed to impose on him the penalty of dismissal from government service with immediate effect. However, the petitioner was given an opportunity of making a representation on the proposed penalty within 30 days. The petitioner submitted a detailed representation/explanation enclosing medical certificates and leave applications before the authority concerned giving reasons for not resuming his duty.

5. By the order dated 1.12.2011 the Commandant, 26th Battalion, Pilibhit dismissed the petitioner from service. Against the said punishment, the petitioner preferred an appeal on 20.12.2011 before the Inspector General of SSB, Sectors Headquarter, Ranikhet. Thereafter the Disciplinary Authority issued a letter dated 17.2.2012 by which the petitioner was required to submit all the original documents along with medical certificates. The petitioner had submitted an application on 29.2.2012 alongwith all the original medical certificates. By the order dated 9.3.2012, the Appellate Authority, while considering the representation of the petitioner and the papers produced by the Commandant, reached to the conclusion that the order dated 1.12.2011 issued by the Commandant was not in order and proper and set aside the dismissal order dated 1.12.2011. The petitioner was directed to join duty at 26th Battalion within ten days from the receipt of the order. The Disciplinary Authority was directed to regularize his absence period taking into account the medical certificates submitted by the petitioner. The order of the appellate order dated 9.3.2012 is reproduced herein under:-

"O R D E R

WHERE AS Ex-CT (GD) No.050383232 Santosh Kumar Yadav of 26th Bn. SSB, Pilibhit (UP) has preferred an appeal in terms of Rule-29 of SSB Rules, 2009, vide his representation dated 20/12/2011 against the order of dismissal from Govt. service issued to him by the Commandant, 26th Bn. SSB, Pilibhit (UP) vide order No.PF/CT/SKY/3232/26th BN/2011/25256-63 dated 01/12/2011, requesting to re-instate him in Govt. service.

AND WHEREAS, the undersigned having gone through his appeal, papers related to the case i.e. Court of Inquiry proceedings/order passed by the Commandant 26th Bn. Pilibhit (UP) and correspondence made by the individual has observed that:-

i) The individual had been continuously informing his inability to join the duty being sick by sending letter. The letters have been received by the Commandant along with medical documents.

ii) The Commandant never objected the genuineness of medical documents submitted by individual nor referred the case for 2nd medical opinion and nor make any efforts to verify the facts about ailment of the individual by approaching the hospital authority concerned.

iii) The inquiry report ordered by Commandant was the right step, however, the report submitted by officer conducting COI did not find any slackness on the part of individual or any irregularity of individual's overstay. The inquiry officer had further recommended the period of overstay for regularization on the joining of the individual.

iv) Letter sent to S.P. for apprehension, stopping the pay of individual, issue of show cause notice and finally issue of the order of dismissal by the Commandant, though competent, is not found in order for the reason that the matter was not properly dealt and the prescribed procedure was not followed.

NOW, THEREFORE, the undersigned being appellate authority under rule-29 of SSB, Rules, 2009, in this case while considering the representation of the individual and the papers produced by the Commandant, reached to the conclusion that:-

i) Order dated 1.12.2011 issued by the Commandant is not in order/proper. Hence, set aside.

ii) The individual is directed to join at 26th Bn. within 10 days from the receipt of the order without fail otherwise it will be presumed that the individual is not willing to join and will not be permitted to join after expiry of 10 days.

ii) The Commandant may regularize his absence period taking into account the medical certificates submitted by the individual."

6. Pursuant to the aforesaid order dated 9.3.2012 the petitioner approached to the Commandant, 26th Battalion, SSB, Pilibhit on 20.3.2012 alongwith an application to allow him to resume his duty. However, the Commandant, 26th Battalion, SSB, Pilibhit neither permitted the petitioner to resume his duty on 20.3.2012 nor passed any rejection order to this effect and the petitioner was repeatedly day-to-day appearing in the office of the Commandant and seeking permission to resume his duty.

7. It has been averred in the writ petition that the Commandant, 26th Battalion, SSB had demanded illegal gratification from the petitioner for complying the appellate order dated 9.3.2012 and threatened him that if he failed to fulfill his demand, then he may not be permitted to resume his duty. The petitioner again requested the Commandant that he is not in a position to fulfill his demand as he belongs to a very poor family and he had already incurred huge amount in his treatment. Thereafter on 27.3.2012 the Commandant had called upon the petitioner in his office and forced him to write down an application stating that neither the petitioner wants to join his services nor he would claim in future to join his services on the post in question, which was written and signed by the petitioner under duress and threatening made by the Commandant, 26th Battalion,SSB. Thereafter the petitioner returned back to his native place and told the whole story to his relative, who advised him for filing the revision before the Inspector General of SSB. The petitioner filed the revision on 11.10.2012 before the Inspector General of SSB, Ranikhet (Uttrakhand), which was rejected on 29.10.2012. Thereafter another order was issued on 31.10.2012 stating that the Revisional Authority has no power to amend/set aside the order of competent authority. However, an opportunity of personal hearing was offered to the petitioner to appear on 19.11.2012 at 10 O'Clock in the office of the Revisional Authority. Pursuant to the order dated 31.10.2012 the petitioner appeared before the Revisional Authority, who also threatened him for dire consequences and later on he ensured him that if he may seek unconditional written apology, then his revision petition may be allowed and he may be reinstated in service with all consequential benefits. The petitioner submitted an apology letter on 19.11.2012 before the Revisional Authority. By the impugned order dated 21.11.2012 the Revisional Authority has rejected the revision petition of the petitioner, giving rise to the writ petition.

8. The matter was taken up on 8.10.2013 and the Court had allowed the writ petition with following directions:-

"1. Learned counsel for petitioner stated that he has not received any counter affidavit in this matter. Sri A.S. Azmi, learned counsel appearing for respondents, stated orally that he has already filed counter affidavit but neither he could tell the date on which the counter affidavit was filed nor he could show any receipt obtained from learned counsel for petitioner with respect to filing of counter affidavit in this case. No counter is also available on Court's record. In these circumstances, I have no option but to proceed as if neither any counter affidavit was filed nor respondents are interest to contest the matter in proper way.

2. Learned counsel appearing for respondents orally submitted that petitioner was given repeated opportunity to join but he failed, but could not produce any document in support of his averments.

3. I have considered submissions and the material available before this Court. The averments contained in the writ petition, admittedly are un-controverted. No document has been placed before this Court to show that Commandant concerned ever issued any letter to petitioner requiring him to join. Annexure 10 to the writ petition is the letter submitted by petitioner before Commandant, 26th Battalion on 20.3.2012 submitting his joining but it does not appear that any order was passed by the concerned Commandant at any point of time. It is thus evident that respondent no. 4 is solely responsible for non permitting the petitioner to join, despite the fact that his appeal was allowed by Government of India vide order dated 9.3.2012 and he was allowed to join in 26th Battalion. The Commandant was also directed to regularise period of absence of petitioner but nothing has been done by the respondent no. 4 till date.

4. In view of above, writ petition is allowed. Petitioner shall be deemed to have joined duties on 20.3.2012, when he submitted joining report (Annexure 10 to the writ petition) and shall be entitled to all consequential benefits including arrears of salary etc.

5. Respondents 1 and 2 are also directed to hold an appropriate enquiry against respondent no. 4 with respect to otherwise allegations made by petitioner against him which allegedly motivated respondent no. 4 not to allow petitioner to join duties in the aforesaid Battalion, within three months from the date of production of certified copy of this order, and pass appropriate order, so as to avoid any recurrence of such incident in future.

6. Petitioner shall be entitled to cost which I quantify to Rs. 10,000/- against respondent no. 4."

9. Against the aforesaid judgment dated 8 October, 2013 the respondents had filed Special Appeal Defective No.8 of 2012, which was allowed on 7.1.2014 by a Division Bench of this Court with following observations:-

"This special appeal arises from a judgment of the learned Single Judge dated 8 October 2013. By the impugned judgment and order, the learned Single Judge has allowed the writ petition that was filed by the respondent under Article 226 of the Constitution and a direction has been issued to the effect that the respondent would be deemed to have joined duties on 20 March 2012 and that he would be entitled to all consequential benefits including arrears of salary. Moreover, an eqnuiry has been ordered against the fourth appellant who is the Commandant of the 26 Battalion SSB, Pilibhit HQ, Pilibhit.

The learned Single Judge after recording that the counsel appearing on behalf of the appellants orally stated that a counter affidavit had been filed, proceeded with the hearing of the case, as no counter affidavit was available in the record of the Court and the counsel for the State did not indicate the date on which the counter affidavit was filed and did not also produce the receipt. In these circumstances, the petition has been allowed on the basis of the averments contained therein without taking on record the reply filed on behalf of the State.

The respondent was attached to the 26 Battalion of the SSB, Pilibhit HQ, Pilibhit as a Constable. He was dismissed from service on 1 December 2011. On 9 March 2012, the Deputy Inspector General, SHQ, SSB, Pilibhit allowed the appeal of the respondent and set aside the order of dismissal. The respondent was directed to join duties within ten days, failing which, it was stated that it would be presumed that he was not willing to join duties. According to the respondent, following the order on his appeal, he presented himself on 20 March 2012. On 27 March 2012, it is alleged that the respondent addressed a communication stating that because of the recurrence of his medical condition, he was not desirous to join the service. The respondent filed a revision application before the Director General, SHQ, SSB, Ranikhet (Uttarakhand) on 11 October 2012 stating that his earlier letter dated 27 March 2012 had been obtained under duress. On 29 October 2012, an order was passed by the Deputy Inspector General, SHQ, SSB, Pilibhit stating that on reporting at the 26 Battalion HQ, the respondent had personally informed him of his inability to continue in employment due to his illness and due to certain family problems and that even after giving him a further opportunity of one day to contemplate on his action, the respondent maintained that he was not desirous to join his service. The order dated 29 October 2012 was passed by the same authority which had allowed the earlier appeal and it was held that there was no substance in the allegation that the respondent had been forced to write the letter dated 27 March 2012. In a communication dated 19 November 2012, the respondent stated that the letter dated 27 March 2012 had been written by mistake. On this statement, the petitioner raised a material issue before the learned Single Judge as to whether the respondent had, indeed, voluntarily relinquished his post by expressing a desire not to continue in service. The respondent alleges that the letter which he addressed on 27 March 2012 was under duress, whereas this is specifically disputed on behalf of the appellants. In this view of the matter, we are of the view that the learned Single Judge could have appropriately allowed a short extension of time even if, due to some inadvertence, the counter affidavit was not available on the record on the day when the petition was heard.

We are not inclined to enter on the merits of the case in the special appeal for the first time, since the interest of fairness would require that even the respondent should have an opportunity to file a rejoinder affidavit, if any, to dispute the allegations made in the counter affidavit. We have perused the photocopy of the counter affidavit which has now been annexed to the memo of the appeal and find that factual disputes arising in the proceedings would require determination by the learned Single Judge. In this view of the matter, since the learned Single Judge has allowed the petition on the basis that the allegations made therein were uncontroverted, we are of the view that the appropriate order would be to set aside the impugned judgment and restore the proceedings before the learned Single Judge for consideration afresh.

In the circumstances, we permit the appellants to file the counter affidavit before the learned Single Judge. The respondent would be at liberty to file his rejoinder, if any, within a period of two weeks from today after which it would be open to the respondent to request the learned Single Judge to list the petition at an early date for hearing and final disposal. To facilitate this exercise, we set aside the impugned order of the learned Single Judge dated 8 October 2013 and restore Writ A No.1954 of 2013 to the file of the learned Single Judge.

We have not expressed any finding on the merits of the rival contentions which are left open to be raised before the learned Single Judge. The writ petition is accordingly disposed of. There shall be no order as to costs."

10. Shri Vinod Kumar, learned counsel for the petitioner has submitted that the petitioner was initially appointed as Constable (GD) on 15.12.2005 and posted in 31st Battalion, SSB Sapadi (Himachal Pradesh) and remained posted at Gosaigaon Kokrajhar in the State of Assam. In the year 2007, he fell ill on account of liver disease. He proceeded for 42 days leave and remained under treatment in New Delhi. On 29.7.2010 the Competent Authority regularized his absence period w.e.f. 3.1.2008 to 24.9.2009 for 631 days. On 10.7.2010 he was transferred to 26th Battalion at Pilibhit (UP) on his request. After some time, he again fell ill on account of severe liver disease and applied for leave on 10.4.2011 followed by extension of leave applications dated 12.6.2011, 28.6.2011, 16.7.2011 and 18.8.2011. During the aforesaid period, the petitioner remained under treatment. The Commandant, 26th Battalion issued a show cause notice on 7.10.2011 to the petitioner to which he submitted his detailed representation/explanation enclosing medical certificates and leave application giving reasons for not resuming his duty. By the order dated 1.12.2011 the Commandant, 26th Battalion, Pilibhit dismissed the petitioner from service. Against the said punishment, the petitioner preferred an appeal on 20.12.2011 before the Inspector General of SSB, Sectors Headquarter Ranikhet, who set aside the dismissal order and directed to the Disciplinary Authority to regularize the absence of the petitioner. The petitioner approached to the Commandant, 26th Battalion but neither the Commandant permitted the petitioner to resume his duty on 20.3.2012 nor passed any rejection order. The petitioner repeatedly approached the respondent no.4 seeking permission for resuming his duty but he did not allow him to join and demanded illegal gratification.

11. It has been submitted on behalf of the petitioner that the Appellate Authority allowed the appeal on 9.3.2012 directing the petitioner to approach the Disciplinary Authority within ten days for resuming his duties. As such no discretion was given to the disciplinary authority. The petitioner approached the office of respondent no.4 but he was not allowed to resume his duty. Neither the respondent no.4 passed any order nor refused to comply with the appellate order. The respondent no.4 forced the petitioner for writing the letter dated 27.3.2012. The Disciplinary Authority had passed the final order on 21.11.2012 rejecting the request of the petitioner for resuming his duties on the post in question by treating the application dated 27.3.2012 as resignation of the petitioner. The Revisional Authority failed to consider even a single point as raised by the petitioner in his revision petition and rejected the revision. The Revision Authority has powers to examine the order of the Appellate Authority and the Revisional Authority and set aside or remand the order of his subordinate authority.

12. Learned counsel for the petitioner has further submitted that the aforesaid absence of petitioner from duty could not be treated to be unauthorised and willful absence from duty for the reason that during the period the petitioner was found absent from duty he himself was ill. Meanwhile the ex-parte inquiry was held against him and he was dismissed from service. The aforesaid situation was beyond his control as such the aforesaid period of absence from duty could not be treated to be his willful and unauthorised absence from duty and he could not be held guilty of misconduct warranting any penalty including dismissal from service.

13. Learned counsel for the petitioner has placed reliance upon a judgment of Hon'ble Supreme Court rendered in Krushnakant B. Parmar Vs. Union of India and another (2012) 3 S.C.C. 178 wherein Apex Court has held that if the absence from duty is due to compelling circumstances like accident, illness and hospitalization etc. under which it is not possible to report or perform duty, such absence cannot be held to be willful and employee cannot be held to be guilty of misconduct. Reliance has also been placed upon decisions of this Court rendered in Shiv Kumar Yadav Vs. State of U.P. and others (2013) 3 U.P.L.B.E.C. 2040 and Yashwant Singh Vs. State of U.P. and others 2012 (3) A.D.J. 108.

14. Shri Abu Sufiyan Azmi, Advocate has filed a counter affidavit on behalf of respondent nos. 1 to 7 stating that the petitioner was initially appointed as Constable (GD) on 15.12.2005 in SSB department. He was absconded from 31st Battalion, Gosaigaon from unit line and was terminated w.e.f. 3.1.2008 (FN). Later on the petitioner resumed his duty on 25.9.2009 (FN) and his willful absence period w.e.f. 3.1.2008 to 24.9.2009 for 631 days was regularized by granting him "dies none" for all purpose. On his request, the petitioner was transferred from 31st Battalion to 26th Battalion and joined 26th Battalion Hqr. on 18.7.2010. Thereafter the petitioner proceeded 05 days casual leave w.e.f. 21.10.2010 to 27.10.2010 but remained absent upto 17.4.2011 on medical ground and his absence period was regularized as per leave entitlement. The Commandant, 26th Battalion issued notices to the petitioner on 8.6.2011, 20.6.2011 and 1.7.2011 and when the petitioner had neither joined his duties nor given reply to the notices, ultimately the Commandant issued the show cause notice dated 7.10.2011. The petitioner has not made his representation to the appointing authority within 30 days from the date of issuance of the show cause notice and when no representation/application was received from the petitioner after issuing the show cause notice, the disciplinary authority issued the dismissal order dated 1.12.2011. His representation was received by the Deputy Inspector General, SHQ,SSB, Pilibhit after issuance of the dismissal order.

15. As per representation of the petitioner dated 20.12.2011 the appellate authority re-examined the case and set aside the order dated 1.12.2011. The petitioner was asked to resume his duty within ten days from the receipt of the aforesaid order. He reported at the 26th Battalion on 20.3.2012. His order for reinstatement was put up before the disciplinary authority and the petitioner was called for personal interview. During the personal interview he shown his inability before the disciplinary authority to continue in service due to his health problem and own family problem. Thereafter he was produced before the appellate authority on the same day and he also expressed his unwillingness to continue in service on the same reason. The petitioner has not approached to the Commandant, 26th Battalion after 20.3.2012.

16. Learned counsel for the respondents submitted that as per Rule 29 of SSB Rule, 2009, a person subject to the Act other than an officer, who has been dismissed, removed or compulsorily retired from service, shall have the right to put in an appeal against the termination of his service to any of the authority, higher than the one, who has passed the termination order within 90 days of the termination of service. He had filed the appeal beyond 90 days. He was given an opportunity by the DIG, SHQ, Pilibhit for joining the service but at that time he was not interested to join the duty as per his application dated 27.3.2012. As per his application dated 11.10.2012 addressed to the IG, FTR HQ, Ranikhet, he has already informed that his request could not be considered as an opportunity had already been given by the DIG, SHQ, Pilibhit for joining the service vide memo dated 31.10.2012 and there is no provision in SSB Act & Rule for reviewing the order of the appellate authority by the Inspector General. However, he was asked to appear before the Inspector General, FTR HQ, Ranikhet on 19.11.2012 at 1000 hrs.

17. Learned counsel for the respondents further submitted that the petitioner was allowed to join his duty and put up before the appellate authority where he had also shown his inability to join service due to self illness and family problems. The appellate authority has also given an opportunity for one more day to join his duty but he refused and shown his inability. There was no gratification from any side of the disciplinary authority and the appellate authority. He was given an opportunity to resume his duty by the appellate authority, but he was denied joining his duty willfully without any compulsion. Since the petitioner was afforded full opportunity to rejoin the service, which he did not avail, he has no ground to approach this Hon'ble Court at this belated stage and the writ petition is devoid of merit and is liable to be dismissed with costs.

18. I have carefully considered the submissions advanced by the learned counsel for the parties and perused the record.

19. From perusal of record it appears that the illness of the petitioner has not been denied. After going through the appeal, court of inquiry proceedings, the order passed by the Commandant, 26th Battalion,SSB, Pilibhit and the correspondence made by the petitioner, the Appellate Authority vide his order dated 9.3.2012 observed that the petitioner had been continuously informing his inability to join the duty being sick by sending letters, which were received by the Commandant along with the medical documents. The Commandant neither objected the genuineness of the medical documents submitted by the petitioner nor referred the case for 2nd medical opinion. The disciplinary authority has also not made any efforts to verify the facts about ailment of the petitioner by approaching the hospital authority concerned. The Commandant rightly ordered for the inquiry, however, the report submitted by the officer conducting Court of Inquiry did not find any slackness on the part of the petitioner or any irregularity of petitioner's overstay. The inquiry officer had further recommended the period of overstay for regularization on the joining of the petitioner. There was no irregularity found in the papers submitted by the petitioner. The letter sent to Superintendent of Police for apprehension, stopping the pay of the petitioner, issue of show cause notice and finally issuance of the order of dismissal by the Commandant, though competent, is not found in order for the reason that the matter was not properly dealt with and the prescribed procedure was not followed. Thereafter the Appellate Authority under Rule 29 of SSB, Rules, 2009, while considering the representation of the petitioner and the papers produced by the Commandant, reached to the conclusion that the order dated 1.12.2011 issued by the Commandant is not in order/proper and hence, set aside the dismissal order. The petitioner was directed to join duty at 26th Battalion within ten days from the receipt of the order without fail and the Commandant was directed to regularize the absence period of the petitioner taking into account the medical certificates submitted by the petitioner. Thereafter the petitioner approached the office of respondent no.4 but he was not allowed to resume his duty. The respondent no.4 forced the petitioner for writing the letter dated 27.3.2012 and the disciplinary authority had passed the final order on 21.11.2012 rejecting the request of the petitioner for resuming his duties on the post in question by treating the application dated 27.3.2012 as resignation of the petitioner. The petitioner has categorically stated in the revision that the petitioner moved the application dated 20.3.2012 before the Commandant stating that in pursuance of the order of the appellate authority dated 9.3.2012 the petitioner is present for re-joining his duty and he is ready for doing all the duties and he may be permitted for his rejoining. After few days the Commandant, 26th Battalion with the help of armed guard by misusing his powers threatened the petitioner and did not permit him to re-join his duty on 27.3.2012. The Commandant has got the resignation written by the petitioner in his hand-writing on gun point. His identity card was taken back by the Commandant on account of which the petitioner had written the application for not joining. Serious allegations were levelled by the petitioner in his revision petition but the revisional authority had not given any weightage to such allegations and did not consider even a single point raised by the petitioner and in cursory manner the revisional authority rejected the revision.

20. The petitioner was continuously pursuing his case to superior officers against dismissal order and had filed an appeal, which was allowed. It clearly gives an impression to the Court that the petitioner was pursuing his remedy and at no point of time he had shown any laxity. Once the appeal was allowed, then the inference may be drawn that the disciplinary authority had unnecessarily pressurized the petitioner for writing such letter. Even thereafter he had preferred a revision and after rejection of the same, he had preferred the present writ petition. If he was not inclined or reluctant to continue in the service, then he might have not filed the revision and thereafter the writ petition and moreover the appellate authority once allowed the appeal and set aside the order of the disciplinary authority and negated the same and as such it has attained finality. Now at this stage only consideration before this Court is to see the subsequent events and the alleged resignation letter. The petitioner himself moved an application on 20.3.2012 for joining, then how he has written the letter just after seven days for resignation. I am of the firm opinion on the basis of aforementioned circumstances that after setting aside the dismissal order the appellate authority has not given any direction to the disciplinary authority to exercise any discretion in the matter. It was incumbent on the disciplinary authority just to comply the appellate order. The Court is not venturing into veracity of allegations regarding bribe, but the circumstances give an indication that the allegation had substance. Otherwise, if the petitioner was regularly pursuing his remedy and after setting aside the dismissal order by the appellate authority, there was no occasion to the petitioner for submitting resignation letter.

21. In Krushnakant B. Parmar Vs. Union of India and another (2012) 3 S.C.C. 178 neither Enquiry Officer nor Appellate Authority found absence of appellant willful. Evidence produced by the appellant to substantiate his claim was ignored by the authorities concerned and on the basis of irrelevant fact and surmises he was held guilty. In the said case the impugned order of dismissal passed by the Disciplinary Authority affirmed by Appellate Authority, C.A.T. and High Court has been set aside considering that the appellant had suffered a lot since 1996 when the proceedings were initiated against him. The matter was not remitted to the Disciplinary Authority instead thereof the appellant was directed to be reinstated in service with 50% back wages. In para 17, 18 and 19 of the said decision the Apex Court observed as under:-

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

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

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 that the absence was willful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty."

22. In Mithilesh. Singh v. Union of India and Ors., 2003 (1) UPLBEC 911, the Apex Court held that absence from duty without proper intimation and permission amounted to grave offence warranting removal from service. In the case of State of U.P. v. Ramakant Yadav, 2003 (1) AWC 84 (SC) ; 2002 (3) UPLBEC 2799, the Supreme Court reversed the order of the High Court whereby the punishment had been reduced to reinstatement in service on payment of 50% of back wages with a warning to the delinquent employee, and held that the High Court ought not to have interfered with the quantum of punishment in the facts of that case.

23. In my opinion, the facts and circumstances of the instant case are somewhat identical to the facts of the case of B. Parmar's case. Therefore, I am of the considered opinion that situation was beyond the control of the petitioner due to which he could not perform his duties during which he was found absent from duties, as such his absence during the aforesaid period could not be held to be unauthorised and willful absence from duty cannot be treated to be misconduct warranting penalty of dismissal from from service against him.

24. In view of above, the impugned order dated 21.11.2012 cannot be sustained and the same is hereby quashed.

25. In the result, the petitioner is entitled for reinstatement in service with continuity of service along with seniority and other consequential benefits of service including payment of his salary but in given facts and circumstances of the case as held by Apex Court in B. Parmar's case (supra) it would be appropriate in the interest of justice to direct the respondents to make payment of 50% salary to the petitioner as back wage from the date of his dismissal till today. Thereafter the petitioner shall be entitled to his full salary as and when it becomes due to him.

26. With the aforesaid observations and directions, writ petition succeeds and is allowed.

Order Date :- 24.8.2015

RKP

(Mahesh Chandra Tripathi,J.)