Allahabad High Court
Rakesh Kumar vs Union Of India Thru. Chief Post ... on 23 August, 2017
Bench: Sudhir Agarwal, Ravindra Nath Mishra-Ii
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Court No. - 3
Case :- SERVICE BENCH No. - 1344 of 2015
Petitioner :- Rakesh Kumar
Respondent :- Union Of India Through Chief Post Master General, & 3 Others
Counsel for Petitioner :- Praveen Kumar
Counsel for Respondent :- A.S.G.,Arpit Kumar
Hon'ble Sudhir Agarwal,J.
Hon'ble Ravindra Nath Mishra-II,J.
1. Heard Sri Saroj Kumar Verma, Advocate holding brief of Sri Praveen Kumar, learned Counsel for the petitioner and Sri S.B.Pandey, learned Assistant Solicitor General of India and Sri Arpit Kumar for the respondent.
2. With the consent of the parties we proceed to hear and decide writ petition at this stage on the basis of record.
3. The writ petition is directed against judgment and order dated 23.07.2015 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as "Tribunal") in Original Application (hereinafter referred to as O.A.) No. 286 of 2010. Tribunal has dismissed petitioner's O.A. and punishment order of removal has been confirmed.
4. A charge-sheet was served upon petitioner containing basically charge of unauthorized absence and violation of Rule 6(a) and (b) of Gramin Dak Sevak (Conduct and Employment) Rules, 2001 (hereinafter referred to as "Rules, 2001). Petitioner remained absent for a period of almost 06 years. Petitioner put his defence that in the village, "Jaat" community became aggressive on the allegation that petitioner's son has eloped with a "Jaat" girl and to save self life of self and family, he shifted from village along with family. He repeatedly requested various authorities of Police and District Administration to provide security, but nothing was done.
5. Enquiry Officer submitted report dated 27.08.2008 with the finding that charge of absence of duty is proved, but further charge that absence was without any information and on account of indiscipline was not proved. The conclusion drawn by Enquiry Officer reads as under:
Þ4& fu"d"kZ & tkap esa izLrqr nLrkostksa ,oa xokgksa rFkk vkjksfir deZpkjh }kjk izLrqr viuk cpko c;ku ds vk/kkj ij M~;wVh ls vuqifLFkr jgus dk vkjksi fl) gksrk gS ijUrq fcuk lwpuk vFkok vuq'kklughurko'k vuqifLFkr jguk fl) ugha gksrk gSAÞ
"4- Conclusion - The charge of remaining absent from duty is proved on the basis of documents and witnesses presented in the inquiry and defence statement submitted by the charged employee but remaining absent without intimation or due to indiscipline, is not proved."
(English Translation by Court)
6. Disciplinary authority at no point of time disagree with the aforesaid finding of Enquiry Officer. However, it mis-read the finding as if charge in its entirety has been found proved and hence imposed punishment of "Removal" from service vide order dated 10.11.2008. There-against petitioner's appeal was also rejected by order dated 15.03.2010 by Post Master General, Bareilly Region, Bareilly. Tribunal has dismissed O.A. wherein both the orders were challenged on the ground that there was no error shown by petitioner in the decision making process and, therefore, punishment order cannot be said in bad.
7. Learned counsel for petitioner contended that mere 'absence' is not a 'misconduct' unless absence is unauthorized and willful, hence petitioner could not have been punished. The charge of misconduct was not found proved.
8. Sri S.B.Pandey, learned Assistant Solicitor General of India submitted that since petitioner has remained absent from duty from 25.02.2002 to 10.11.2008 and this absence has been found proved, this itself was sufficient to impose penalty as mere absence is a serious misconduct justifing penalty of removal.
9. In the present case charge of willful absence or on account of indiscipline has not been found proved.Therefore, no charge of misconduct, we can say was found proved. Hence no punishment could have been imposed upon petitioner. The authorities as well as Tribunal have committed manifest error, hence punishment order as well as order of Tribunal are liable to be set aside.
10. From the report, it is evident that factum of absence was found proved by Enquiry Officer but allegation of absence without information or on account of indiscipline was not found proved. This finding of Enquiry Officer has not been deferred, disagreed or dissented by disciplinary authority. Now the sole question is whether mere absence from duty is a misconduct to justify punishment under the Rules, 2001.
11. This question has been answered in Krushnakant B. Parmar Vs. Union of India and another (2012) 3 SCC 178 and in para 18 and 19 of the judgment Court has held as under:
"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."
(Emphasis added)
12. In view of aforesaid law and also considering findings of Enquiry Officer as noted above, which have not been differed or dissented by disciplinary authority, we find that charge of 'misconduct' having not been found proved against petitioner, there was no question of punishment under Rules, 2001 and, therefore, impugned order of punishment, appellate order as well as judgment of Tribunal cannot be sustained.
13. The writ petition is allowed. Judgment dated 23.7.2015 passed by Tribunal and also removal order 10.11.2008 and appellate order 15.03.2010 are hereby set aside. Petitioner shall be entitled for all consequential benefits.
14. However, we make it clear so far as period of absence is concerned, this order shall not be construed as if we have regularized aforesaid period. It shall be open to the respondent-competent authority to take appropriate decision in respect to regularization of the said period of absence as per Rules, and to pass an appropriate order under Rules.
Order Date :- 23.8.2017
Arvind
