Jharkhand High Court
The State Of Jharkhand vs Ashok Kumar Tudu Son Of Gopin Tudu ... on 22 August, 2023
1 L.P.A. No. 118 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 118 of 2022
With
I.A. No. 2438 of 2022
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1. The State of Jharkhand.
2. The Secretary, Department of Human Resources Development, Government
of Jharkhand, having office at Project Bhawan, P.O. and P.S. Dhurwa District
Ranchi.
3. The District Superintendent of Education, Dumka, P.O. and P.S. Dumka,
District Dumka.
4. The Block Education Extension Officer-cum-area Education Officer,
Raneshwar-1, P.O. and P.S. Raneshwar, District Dumka.
... ... Appellants/Respondents
Versus
Ashok Kumar Tudu son of Gopin Tudu resident of Village Latapahari P.O.
Guhiyojori, P.S. Dumka (M), District Dumka.
... ... Respondent/Petitioner
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
-------
For the Appellants : Mr. Devesh Krishna, SC (Mines)-III
----------------------------
ORAL JUDGMENT
05/Dated: 22nd August, 2023
Per Sujit Narayan Prasad, J.
I.A. No. 2438 of 2022:
1. Learned counsel for the appellants has submitted that he is not pressing the
instant interlocutory application since the appeal has been filed in time.
2. Considering the same, the instant interlocutory application is dismissed as
not pressed.
L.P.A. No. 118 of 2022:
3. The instant appeal under Clause 10 of the Letters Patent is directed against
the order/judgment dated 30.11.2021 passed by the learned Single Judge of
this Court in W.P.(S) No. 419 of 2019, whereby and whereunder, by which
the order of punishment dated 08.10.2018 imposing the punishment of
dismissal from service upon the writ petitioner has been quashed and set
aside with a direction that the period of absence from duty shall be
regularized by the respondent-authorities in accordance with law and the
same shall be treated as period spend on duty without break in service for
the purpose of pension and post retiral benefits.
4. The brief facts of the case as per the pleading made in the writ petition
which require to be enumerated herein, read as under:
The writ petitioner was appointed in the service of Government on the
Post of Primary Teacher on the recommendation of the Bihar Public Service
Commission, Patna, vide office order issued by Respondent No.3 as
contained in memo No.1380, dated 23.06.2000. Pursuant to offer of
appointment the petitioner submitted his joining before Respondent No.3 on
24.06.2000. The writ petitioner, while continuing in Primary School,
Budhudih, has suffered from mental illness in March, 2003 which prevented
him from joining the School and the father of the petitioner informed
respondent No.3 regarding mental illness of the petitioner and request has
been made that when the petitioner becomes medically fit then immediately
he would join the services. The wife of the petitioner also informed the
respondent No.3 regarding the mental condition of the petitioner and the
petitioner continued to remain under medical treatment till February, 2011.
The writ petitioner, continuously remained under the medication and under
care and observation and the attending doctor-Dr. Ashish Soy,
Neuropsychiatrist, CIP, Kanke, Ranchi examined him on 03.02.2011 and
found him fit for duty. Thereafter the wife of the petitioner filed a
representation dated 19.04.2011 before respondent No.3 which did not
evoke any response. Again representation by the wife of the petitioner
before the Hon'ble Chief Minister, Jharkhand was made on 22.02.2011.
Thereafter, the Deputy Secretary to the Hon'ble Chief Minister, Jharkhand
vide letter dated 20.05.2011 requested the respondent No.2 to do the needful
upon the representation submitted by the petitioner's wife but no order was
passed by the respondent No.2 about acceptance of joining of the petitioner.
To the utter surprise, all of a sudden a press communique was published in
the daily newspaper calling upon the petitioner and one another teacher to
submit their defence before respondent No.3 within 15 days failing which
the decision with respect to termination of their services would be taken.
After coming to know about the aforesaid press release the petitioner
submitted representation on 21.11.2011 along with medical prescriptions
and fitness certificate before respondent No.3 and requested to consider his
case on sympathetic grounds and allow him to join his duties but the
respondent No.3 without considering the representation of the petitioner
passed order of termination from services as contained in office order dated
01.12.2011. Aggrieved thereto, the petitioner moved this court assailing the
order of termination in W.P.(S) No.2008 of 2012 and this Court after
hearing the parties quashed the order of termination remitted the matter back
to the respondents to conduct a denovo enquiry regarding alleged un-
authorized absence from duty. The same was conducted and the claim of the
petitioner regarding reinstatement was turned down vide order dated
08.10.2018.
Being aggrieved with the said order, the writ petitioner again filed writ
petition being W.P.(S) no. 419 of 2019 which has been disposed of vide
order dated 30.11.2021 wherein the order of punishment dated 08.10.2018
has been quashed and set aside, which is the subject matter of the instant
appeal.
5. It appears from the factual aspect as pleaded in the writ petition as referred
hereinabove that the writ petitioner was appointed on the Post of Primary
Teacher on the recommendation of the Bihar Public Service Commission,
Patna, vide office order issued by Respondent No.3 as contained in memo
No.1380, dated 23.06.2000. The writ petitioner has given his joining and
started discharging his duties but suffered from mental illness since March,
2003 which prevented him from joining the School. The aforesaid
information was given by his father and requested the respondent that when
the writ petitioner will become medically fit he will resume his duty. The
said information was also given by the wife of the writ petitioner to the
respondent No.3 along with care and observation that the attending doctor,
namely, Dr. Ashish Soy, Neuropsychiatrist, CIP, Kanke, Ranchi who has
examined him and when found him fit for duty, a representation was made
for acceptance of his joining. The writ petitioner at that juncture came to
know that the writ petitioner had been dismissed from service on account of
unauthorized absence vide order dated 01.12.2011.
The writ petitioner, being aggrieved, has filed writ petition being
W.P.(S) No.2008 of 2012 challenging the order of termination which was
passed without holding any regular enquiry. The learned Single Judge while
disposing of the writ petition has quashed the order of termination and
remitted the matter back to the respondents to conduct a denovo enquiry
regarding alleged un-authorized absence from duty. The said enquiry was
conducted and the claim of the petitioner regarding reinstatement was turned
down vide order dated 08.10.2018 which has been challenged by filing
another writ petition being W.P.(S) no. 419 of 2019. The learned Single
Judge has quashed and set aside the said order on the ground that such
unauthorized absence has not been found to be willful absence as per the
finding recorded by the enquiry officer. The same is the subject matter of the
instant appeal.
6. Learned counsel for the State-appellant has submitted that the writ petitioner
had not performed his duty fairly for a period of eight and a half years but
without taking into consideration the aforesaid fact not only the order of
termination has been quashed but the said period has been directed to be
regularized and the writ petitioner has been held entitled for counting the
said period for pensionary and other retiral benefits.
7. It has been contended that in a case of unauthorized absence of about eight
and a half years, there cannot be any direction as has been passed by the
learned Single Judge by interfering with the impugned decision when the
provision of Rule 76 of the Jharkhand Service Code specifically stipulates
that one or the other public servant if found to be unauthorized absent
continuously for more than five years, would be removed from service
following the procedure as laid down in the Rule.
8. Learned counsel for the appellant, on the aforesaid premise, has submitted
that it is a case where long absence of eight and a half years is there and the
provision as contained under Rule 76 also provides that for absence of more
than five years, he will be seized to be a public servant.
9. The authority since has passed the impugned order of dismissal basis upon
the finding recorded by the enquiry officer, therefore, the same cannot be
said to suffer from error. But, the learned Single Judge without appreciating
the aforesaid fact since has interfered with the same, therefore, the impugned
order needs to be interfered with.
10. We have heard the learned counsel for the appellants at this stage, perused
the documents available on record as also the finding recorded by the
learned Single Judge.
11. The fact which is not in dispute in this case is that the writ petitioner was
departmentally proceeded due to unauthorized absence for about eight and a
half years. In the earlier round, the writ petitioner was dismissed from
service without holding any enquiry. The said order was challenged before
this court by invoking the jurisdiction conferred to this Court under Article
226 of the Constitution of India. The said order was quashed and remitted
back for conducting denovo enquiry. A fresh enquiry was conducted by
appointing enquiry officer in which the writ petitioner had participated.
It appears from the enquiry report that the prescription/doctor's advice
was presented before the enquiry officer for its consideration. The enquiry
officer has found the same to be correct since there is no adverse finding
regarding the genuineness of the said certificate which would be evident
from the finding of the enquiry officer as appended in the supplementary
affidavit filed on behalf of the appellant.
If further appears from the enquiry report that the enquiry officer has
not only accepted the plea of the writ petitioner of suffering with mental
disorder but he has also given sympathetic view by making a
recommendation that the plea of the appellant is fit to be considered by
taking decision for review of the order of termination.
The disciplinary authority, however, has not accepted the part of the
recommendation rather on presumption of proving the charge, the order of
dismissal was passed. The same having been quashed by the learned Single
Judge, the instant appeal has been filed by the State.
12. Argument has been advanced on behalf of the appellant that the enquiry
officer has found the charge proved so far as unauthorized absence is
concerned coupled with the provision of Rule 76 of the Service Code, the
writ petitioner has rightly been terminated from service.
13. The law is well settled that the disciplinary authority is to act on the basis of
the finding recorded by the enquiry officer if the disciplinary authority is
accepting the charges proved as per the finding. But, in case of charge not
proved, it is available for the disciplinary authority either to accept the said
finding or to differ. In case of acceptance, the disciplinary authority will
have the jurisdiction to exonerate the delinquent employee based upon the
aforesaid enquiry report. But, in case of difference with the finding of the
enquiry officer, the requirement as per the law as has been laid down by the
Hon'ble Apex Court in Punjab National Bank & Ors v. Kunj Behari Misra,
[(1998) 7 SCC 84] the difference of opinion of the finding arrived at by the
enquiry officer is to be recorded and the same is to be supplied to the
delinquent employee so as to make comment upon the same.
The disciplinary authority is only competent to take decision for
imposing punishment only after fulfillment of the aforesaid process.
14. The law is also settled in case of unauthorized absence, the enquiry officer is
required to give specific finding regarding the absence to be willful as has
been held by the Hon'ble Apex Court in Krushnakant B. Parmar vs. Union
of India, (2012) 3 SCC 178 wherein it has been laid down that in a case of
unauthorized absence the enquiry officer is to record a finding that the
absence is due to the compelling circumstances and as such, the said absence
cannot be considered to be willful. For ready reference, the relevant
paragraph of the said judgment is being referred 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
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.
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.
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 wilful; the disciplinary authority as also the appellate
authority, failed to appreciate the same and wrongly held the appellant guilty."
15. The Hon'ble Apex Court in another judgment rendered in Chennai
Metropolitan Water Supply and Sewarage Board and Ors. vs. T. T. Murali
Babu, (2014) 4 SCC 108 has dealt with the judgment rendered by the
Hon'ble Apex Court in Krushnakant B. Parmar vs. Union of India (supra)
as would appear from paragraphs-22 and 23 thereof. For ready reference, the
said paragraphs are being referred as under:
"22. The learned counsel for the respondent has commended us to the
decision in Krushnakant B. Parmar v. Union of India [Krushnakant B.
Parmar v. Union of India, (2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] to
highlight that in the absence of a finding returned by the inquiry officer or
determination by the disciplinary authority that the unauthorised absence
was wilful, the charge could not be treated to have been proved. To
appreciate the said submission we have carefully perused the said authority.
In the said case, the question arose whether "unauthorised absence from
duty" did tantamount to "failure of devotion to duty" or "behaviour
unbecoming of a government servant" inasmuch as the appellant therein was
charge-sheeted for failure to maintain devotion to duty and his behaviour was
unbecoming of a government servant. After adverting to the rule position the
two-Judge Bench expressed thus : (SCC pp. 181-82, paras 16-18)
"16. In the case of the appellant referring to unauthorised absence the
disciplinary authority alleged that he failed to maintain devotion to duty
and his behaviour was unbecoming of a government servant. 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.
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 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.
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."
23. We have quoted in extenso as we are disposed to think that the Court
in Krushnakant B. Parmar case [Krushnakant B. Parmar v. Union of India,
(2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] has, while dealing with the
charge of failure of devotion to duty or behaviour unbecoming of a
government servant, expressed the aforestated view and further the learned
Judges have also opined that there may be compelling circumstances which
are beyond the control of an employee. That apart, the facts in the said case
were different as the appellant on certain occasions was prevented to sign the
attendance register and the absence was intermittent. Quite apart from that,
it has been stated therein that it is obligatory on the part of the disciplinary
authority to come to a conclusion that the absence is wilful. On an apposite
understanding of the judgment Krushnakant B. Parmar case [Krushnakant B.
Parmar v. Union of India, (2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] we
are of the opinion that the view expressed in the said case has to be restricted
to the facts of the said case regard being had to the rule position, the nature
of the charge levelled against the employee and the material that had come
on record during the enquiry. It cannot be stated as an absolute proposition
in law that whenever there is a long unauthorised absence, it is obligatory on
the part of the disciplinary authority to record a finding that the said absence
is wilful even if the employee fails to show the compelling circumstances to
remain absent."
16. It is further evident from the judgment rendered in Chennai Metropolitan
Water Supply and Sewarage Board and Ors. vs. T. T. Murali Babu (supra)
wherein it has been held therein that where an employee who remains
unauthorizedly absent for some period, on reporting back to duty, may apply
for condonation of the absence by offering an explanation for such
unauthorized absence and seek grant of leave for that period.
17. This Court is now proceeding to examine the basis of the order of dismissal
as has been interfered with by the learned Single Judge. So far as the core
issue that there must be a specific finding regarding absence to be willful.
18. We have considered the enquiry report as has been brought on record by
way of supplementary affidavit. We, on consideration of the said enquiry
report has found that as per the charge of unauthorized absence from March,
2003 to 2011, there is no finding that the aforesaid charge is proved.
However, it has been opined therein that the absence from the aforesaid
period has been referred to be absent without any information.
19. There is no finding that the aforesaid absence is willful so far as the charge
no.1 is concerned. Further it appears that the enquiry officer has considered
the doctor's prescription who has treated him for the mental disorder. The
aforesaid medical advice/prescription has not been discarded said to be
ingenuine rather the enquiry officer has accepted the aforesaid fact and that
led the enquiry officer to make an observation that due to the mental
disorder, the order of removal of the writ petitioner from service needs to be
considered sympathetically. For ready reference, the consideration so made
by the enquiry officer as available in the enquiry report is being referred as
under:
आरोप का वििरण तथ्य अवियुक्ति
1. श्री अशोक कुमार टु डू श्री टु डू ने अपने स्पष्टीकरण में एिां माननीय उच्च न्यायालय में
सेिामुि वशक्षक बतया वक विला वशक्षा अधीक्षक िु मका में मेरा पत्नी एिां वपता
विनाां क मार्च 2003 से ने वलक्तित रूप से सूवर्त वकया है । परन्तु कायाच लय के द्वारा
विनाां क 03.02.11 तक प्राप्त रवसि नही विये | और तो वि०वश०अधी० िु मका से
प्रा० वि० बुधुडीह वमलने विया। छायाप्रवत अिलोकनार्च सांलग्न है । प्र० वश० प्र०
अांर्ल रोनश्वर - 2 से पिा० रानेश्वर 2 के पत्ाां क 140 विनाां क | 25.08.03 में विना
विना सूर्ना सूर्ना अनु पक्तथर्त वलिा गया है । वनयमानुसार अनुपक्तथर्वत
अनुपक्तथर्त रहे है । की सूर्ना सबसे पहले अपने वनयांत्ी पिावधकारी प्र० वश० प्र०
पिा० रानेश्वर - 2 को हस्तगत कराया िाना र्ावहए र्ा ।
2. आपने वििाग को इस श्री टु डू ने स्पष्टीकरण में वलिा है वक िबवक मैं स्वांय
आशा की सूर्ना किी मानवसक रूप से विवक्षप्त एिां असांतुवलत र्ो तो वकस
नही विया गया िो पररक्तथर्वत में वििाग को सूवर्त करते । विना सूर्ना
सरकारी सेिक के अनुपक्तथर्वत सरकारी सेिक के आर्रण के विपरीत है परन्तु
विपरीत है । इनकी मानवसक वनवक्षप्रा पर सेिामुक्ति आिे श पर
सहानुिूवत पूिचक पुन विर्ार वकया िा सकता है
3. अनुपक्तथर्वत के सांबांध क्रमाां क 3 एिां 4 के आरोप के विरूद्ध श्री टु डू ने स्पष्टीकरण में
में वििाग 28.04.11 वलिा है वक िानकारी नही वमलने के कारण एिां िै वनक
द्वारा एिां विनाां क समार्ार पत् की घर में अनु पलब्धता के कारण क्तथर्वत से
11.05. 11 को सुनिाई अिगत नही हो पाये िाने के कारण सुनिाई की वतवर् को
रिा गया र्ा विसमें उपक्तथर्त नही हुआ । न ही स्पष्टीकरण एिां साक्ष्य उपलब्ध
आप अनुपक्तथर्वत रहे । कराया िा सका । अपने काां के रााँ र्ी के वर्वकत्सक के द्वारा
िारी वर्वकत्सकीय प्रीपक्रीपश्न एिां वर्वकत्सा स्वच्छता प्रमाण
पत् की छायाप्रवत एिां Krishna kant B. Parmar Vrs. Union
4. आपकी अनुपक्तथर्वत
of India and others (2012) 3 sec 1x6 paragraph 17 के
के सांबांध में िै वनक
मामले से सांबांवधत आिे श की छायाप्रवत आिलोकनार्च सांलग्न
समार्ार पत् के
वकया गया है ।
माध्यम से | स्पष्टीकरण
एिां साक्ष्य की माां ग की
गई िो आपके द्वारा
प्रस्तुत नही वकया
गया।
वनष्कर्च:- उपरोि तथ्योां को िे िते हुए श्री टु डू की मानवसक विवक्षप्ता के मद्दे निर सेिा मुि आिे श पर
पुनविर्ाच र वकया िा सकता है ।
20. It further appears on consideration although the authority has not accepted
the part of the enquiry report wherein sympathy has been opined to be
shown to the writ petitioner on the ground of mental disorder rather, he has
accepted the first part, i.e., absence without any information and
accordingly, inflicted punishment of dismissal from service.
21. We are conscious of the fact that the enquiry officer has no jurisdiction to
recommend, save and except, he has to give finding of proving of charge,
whether the charge proved or not proved.
22. The disciplinary authority has discarded the aforesaid recommendation to
consider the ground sympathetically for review of the order of dismissal but
even accepting the same to be correct decision of the authority, but the
question which is the issue as per the order passed by the learned Single
Judge as to whether the said absence if has found not to be willful then can
such punishment be inflicted.
23. We have already considered the ratio laid down in this regard by the Hon'ble
Apex Court in in Krushnakant B. Parmar vs. Union of India (supra)
wherein the requirement in a case of unauthorized absence is to give specific
finding by the enquiry officer regarding the absence to be willful. However,
the said judgment has subsequently been considered by the Hon'ble Apex
Court in Chennai Metropolitan Water Supply and Sewarage Board and
Ors. vs. T. T. Murali Babu (supra) wherein also the aforesaid view has not
been discarded rather it has been observed that before consideration of the
enquiry report, the requirement is that the reason beyond control is to be
considered by the disciplinary authority.
24. Herein, the enquiry officer has considered the said reason to be beyond the
control of the writ petitioner since he has accepted the medical prescriptions
of the doctor which led him to make such recommendation for review of the
order of dismissal. Discarding the opinion so made for review of the order of
dismissal, then also, the content of finding of the enquiry officer, suggest
that the enquiry officer is also of the conclusive view that such absence was
beyond the control of the writ petitioner since he was suffering from mental
disorder. Otherwise also, the enquiry officer would have given specific
finding by discarding the medical prescription showing therein that the
charge of unauthorized absence has been found to be proved.
25. Therefore, this Court is of the view that the requirement of punishing on the
ground of unauthorized absence to be willful is lacking in the instant case.
26. This Court in that circumstances, is to assess the decision of the disciplinary
authority vis-à-vis the order passed by the learned Single Judge.
27. Since the law is well settled as has been discussed hereinabove and in that
view of the matter if the learned Single Judge has interfered with the
impugned order taking into consideration the absence having not been
considered to be willful unauthorized absence, the order of dismissal cannot
be said to suffer from propriety.
28. Learned counsel for the appellant, however, has taken the aid of the
provision of Rule 76 of the Service Code but we are of the view that the
Rule 76 is the conferment of power upon the State Government to deal with
such employee who have been found unauthorized absent continuously for a
period of five years, if the Rule 76 implication as is being taken by the
learned counsel for the State is to be accepted then the question will be why
regular proceeding since Rule 76 does not contemplate any requirement of
initiation of proceeding.
29. This Court, on consideration of the aforesaid fact and coming to the order
passed by the learned Single Judge, is of the view that the learned Single
Judge has given thoughtful consideration regarding the judgment rendered
by the Hon'ble Apex Court which according to our considered view coupled
with the judgment rendered in Chennai Metropolitan Water Supply and
Sewarage Board and Ors. vs. T. T. Murali Babu (supra) that whatever
outcome has arrived at by the learned Single Judge by showing interference
with the order dated 08.10.2018 cannot be said to suffer from error.
30. Accordingly, the instant appeal fails and stands dismissed.
31. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Saurabh/-
A.F.R.
