Bhuneshwar Sahu Aged About 45 ... vs The State Of Jharkhand Through The ...
2023 Latest Caselaw 3079 Jhar

                                                  L.P.A. No.153 of 2022
                              -1-


    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   L.P.A. No.153 of 2022
                               ----
Bhuneshwar Sahu aged about 45 years, Son of Late Khusru
Sahu, Resident of Village-Kaliga, P.O. Konbir, Nawatoli, P.S.
Basia, District-Gumla (Jharkhand).
                          ...      ...      Appellant/Petitioner
                            Versus
1.    The State of Jharkhand through the Secretary,
Department of Home, Government of Jharkhand, having his
office at Project Building, Dhurwa, P.O. & P.S. Dhurwa,
District-Ranchi (Jharkhand).
2.    The Director General of Police, Jharkhand, Ranchi,
Police Headquarter, Department of Home, Government of
Jharkhand,m having his office at Project Building, Dhurwa,
P.O. & P.S. Dhurwa, District-Ranchi (Jharkhand).
3.    The Deputy Inspector General of Police, Ranchi Range,
Ranchi, South Chhotanagpur Range, Ranchi, Near Kutchary
Road, P.O. G.P.O., P.S. Sadar, District Ranchi (Jharkhand).
4.    The     Superintendent         of    Police,    Simdega,
At+P.O.+P.S.+District-Simdega (Jharkhand).
5.    The Superintendent of Police, Gumla, At+P.O.+P.S.+
District-Gumla (Jharkhand).
                     ...    ... Respondents / Respondents
                             -------
CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
              HON'BLE MR. JUSTICE NAVNEET KUMAR
                              ------
For the Appellant         : Mr. Satish Prasad, Advocate
                            Mr. Syed Nausad Ahmed, Advocate
For the Respondents       : Mr. Manish Kumar, Sr. S.C.-II
                            Md. Ashgar, A.C. to Sr. S.C.-II
                            --------

ORAL JUDGMENT
Order No.06 : Dated 22nd August, 2023
Per Sujit Narayan Prasad, J.

I.A. No.3310 of 2022

1. This interlocutory application has been preferred under

Section 5 of the Limitation Act for condoning the delay of 114

days in preferring this Letters Patent Appeal.

2. Heard the parties.

L.P.A. No.153 of 2022

3. Having regard to the averments made in the application

and submissions made on behalf of the appellant, we are of

the view that the appellant was prevented from sufficient

cause in filing the appeal within the period of limitation. As

such, the delay of 114 days in preferring the appeal is hereby

condoned.

4. I.A. No. 3310 of 2022 stands allowed.

L.P.A. No.153 of 2022

5. The instant intra-court appeal, preferred under Clause

10 of the Letters Patent, is directed against the order dated

28.11.2019 passed by learned Single Judge of this Court in

W.P.(S) No.6494 of 2017 by which the order of punishment as

contained in Memo No.3672 dated 31.10.2013 passed by the

original authority and the appellate order contained in Memo

No.4490 dated 21.09.2017 have been refused to be interfered

with by dismissing the writ petition.

6. Brief facts of the case as per the pleadings made in the

writ proceeding, which are required to be enumerated herein,

read as under :-

It is the case of the writ petitioner/appellant that

pursuant to the advertisement no. 01/2004, he was selected

for the post of Constable. After his selection, he joined the

services. He was made accused in relation to Gumla P.S.

Case No. 99/2012 dated 10.4.2012 registered under Sections

302/201/34 of the Indian Penal Code. The petitioner faced L.P.A. No.153 of 2022

the trial in relation to ST Case No. 305/2012 and was

acquitted on 30.09.2015. When the petitioner was implicated

in the aforesaid criminal case, vide order contained in District

Order No. 559/12 dated 21.4.2012, he was suspended with

immediate effect i.e. 20.04.2012 as he was absconding from

duty.

7. Thereafter, departmental proceeding No. 03/2013 was

initiated against him in which charge memo dated

17.07.2013 was issued by the then Superintendent of Police,

Simdega. The petitioner participated in the enquiry and

submitted his explanation before the Conducting Officer cum

Inspector of Police, Bano, Simdega on 04.08.2013. The

Conducting Officer, after completion of the enquiry, has

found the petitioner guilty of the charges leveled against him

and has submitted his enquiry report to the disciplinary

authority on 30.09.2013. The disciplinary authority, after

being satisfied from the finding of the Conducting Officer, has

been pleased to dismiss the petitioner from services vide

Order dated 31.10.2013.

8. On being acquitted on 30.09.2015 from the Gumla P.S.

Case No. 99/2012, the petitioner represented to the authority

concerned on 02.12.2015 and also represented to the

appellate authority on 03.12.2015.

9. The petitioner had filed writ application before this

Hon'ble Court vide W.P.(S) No. 353/2016 and after the order L.P.A. No.153 of 2022

passed by this Hon'ble Court, the petitioner has submitted a

fresh memo of appeal before the appellate authority on

11.7.2017. The memo of appeal preferred by the petitioner

was rejected vide letter no. 4490/Confidential dated

21.09.2017.

10. The writ petitioner challenged both the orders, i.e., order

of dismissal contained in letter No.3657/Confidential dated

31.10.2013 as well as the appellate order dated 21.09.2017

by filing writ petition being W.P.(S) No.6494 of 2017 which

was dismissed vide order dated 28.11.2019 against which the

instant intra-court appeal has been filed.

11. It is evident from the fact referred hereinabove based

upon the pleading that the writ petitioner while asked to go to

join Bano by order dated 11.04.2012 but he had not joined,

rather, he has returned back before reaching to the place of

posting on receiving information about the murder of his

nephew(maternal). The writ petitioner, after handing over his

rifle to the concerned police station, went to his house but

from there he was taken into custody in connection with his

alleged involvement in the said police case being Gumla P.S.

Case No. 99/2012. The writ petitioner was suspended from

20.04.2012 vide order passed by S.P. Simdega dated

21.04.2012. The authorities have initiated departmental

proceeding vide Departmental proceeding No. 03/2013.

Charge Sheet was submitted against him. The writ petitioner L.P.A. No.153 of 2022

was declared guilty in the departmental proceeding by

holding the charge proved by the enquiry officer. The writ

petitioner, thereafter, was inflicted with the punishment of

dismissal vide order dated 31.10.2013. The said order was

carried to the appeal but the appeal was also dismissed vide

order dated 21.09.2017.

12. The criminal case in which the writ petitioner was

alleged to be involved being Gumla P.S. Case No.99 of 2012

(S.T. Case No.305 of 2015) ultimately culminated into his

acquittal. The writ petitioner has approached to this Court by

filing writ petition praying therein for quashing of the order of

dismissal passed by the original authority as also confirmed

by the appellate authority. The departmental proceeding,

although was not initiated on the ground of involvement of

the writ petitioner in the crime of murder, rather, the

departmental proceeding was based upon the allegation of

unauthorized absence of 119 days. The writ petitioner could

not be able to defend the said charge since he was taken into

judicial custody in connection with Gumla P.S. Case No.99 of

2012. When he was released from judicial custody, he came

to know about the order of dismissal.

13. While filing the appeal, in the meanwhile, he was

acquitted from the criminal charges which he brought to the

notice of the appellate authority. But the appellate authority

kept the matter pending that occasioned the writ petitioner to L.P.A. No.153 of 2022

file writ petition being W.P.(S) No.353 of 2016. The said writ

petition was decided by directing the appellate authority to

take decision. In terms thereof, the appellate authority had

taken decision.

14. The grievance of the writ petitioner that although he was

dismissed from service by considering the charge of 119 days

to be the period of absence, but it would be evident from the

memorandum of charge that the disciplinary authority was

knowing very well that in connection with the involvement in

Gumla P.S. Case No.99 of 2012 he was in judicial custody.

Hence, the absence from duty was caused due to the reason

which was beyond his control.

15. The authority has not taken into consideration the

aforesaid aspect of the matter and without coming to a

finding by the enquiry officer with respect to the absence said

to be willful absence, the absence of 119 days has been

considered to be gross misconduct and in consequence

thereof, the order of dismissal has been passed. The ground

has also been taken that in the meanwhile the writ petitioner

was also acquitted in the criminal case.

16. The learned Single Judge has appreciated the fact and

by considering the settled position of law that even acquittal

in the criminal proceeding will have no bearing upon the

departmental proceeding if the conclusive finding has been

arrived at by the enquiry officer in the departmental L.P.A. No.153 of 2022

proceeding which culminated in the dismissal order and

accordingly dismissed the writ petition, against which the

present intra-court appeal has been filed.

17. Mr. Satish Prasad, learned counsel appearing for the

appellant has submitted that the learned Single Judge has

not appreciated the facts, more particularly, the fact that the

absence of 119 days said to be unauthorized, is without any

finding by the enquiry officer that the said absence was

willful.

18. It has been contended that the writ petitioner could not

be able to join his duty due to the reason that he was

implicated falsely in the criminal case being Gumla P.S. Case

No.99 of 2012, in consequence thereof, he was put under

suspension as also he was taken into judicial custody. Since

the writ petitioner was in judicial custody, therefore, the

absence of 119 days was caused and hence, the said reason

of absence said to be unauthorized, cannot be said to be a

misconduct in absence of a finding of willful absence.

19. The contention has been made that the learned Single

Judge has considered the fact that the writ petitioner is

seeking remedy of recall of the order of dismissal on the

ground of acquittal. Although ground of acquittal was also

one of the grounds but the main ground was that the

unauthorized absence cannot be said to be willful absence.

20. According to the learned counsel for the appellant, the L.P.A. No.153 of 2022

learned Single Judge has not appreciated the fact so far as

the issue of finding to be recorded by the enquiry office

regarding the unauthorized absence to be willful absence and

in that view of the matter, the order impugned passed by the

authority cannot be said to be justified.

21. So far as the other ground of effect of acquittal in the

criminal case is concerned, the same has the bearing over the

order of punishment since the departmental proceeding was

initiated based upon the fact of the criminal case and since in

the criminal case the appellant was acquitted, therefore, the

order of punishment was fit to be quashed. But, the learned

Single Judge has not appreciated both the facts and hence,

the order suffers from error.

22. Per contra, Mr. Manish Kumar, learned senior S.C.-II,

appearing for the respondent State, has submitted by

defending the order passed by the learned Single Judge by

taking the ground that the acquittal in the criminal case is

having no bearing over the departmental proceeding since

both, the departmental and the judicial proceeding, are on

different footing.

23. The Judicial proceeding depends upon the charge to be

proved beyond all reasonable doubt while the departmental

proceeding depends upon the preponderance of probability.

24. Therefore, merely because the writ petitioner has been

acquitted from the criminal charges, that will not have any L.P.A. No.153 of 2022

bearing upon the order of dismissal since the same has been

passed on the basis of the finding recorded by the enquiry

officer.

25. According to the learned State counsel, the learned

Single Judge, after taking into consideration the aforesaid

fact, if has dismissed the writ petition, the same cannot be

said to suffer from an error.

26. So far as the second ground is concerned, i.e., the

finding with respect to absence said to be willful is

concerned, the same cannot be said to be not willful, rather,

it was willful since the writ petitioner has not informed about

his being in the judicial custody.

27. The learned counsel for the State, on the aforesaid

premise, has submitted that the instant appeal is fit to be

dismissed.

28. We have heard learned counsel for the parties, perused

the documents available on record as also the finding

recorded by the learned Single Judge in the impugned order.

29. The fact which is not in dispute in this case is that the

writ petitioner was departmentally proceeded for

unauthorized absence for a period of 119 days as would

appear from the memorandum of charge along with the

imputation which reads hereunder as :-

आरोप प्रारूप

आरोपित िुपिस-28 मुनेश्वर साहू, िुपिस केन्द्र पसमडे गा के पिरुद्ध घोर अनुशासनहीनता, अिरापिक प्रिृपत आदे शोिंघन, मनमानेिन एिं एक अयोग्य L.P.A. No.153 of 2022

- 10 -

िुपिसकमी होने का आरोि िगाया जाता है पक :-

आरोपित िुपिस-28 भुनेश्वर साहु पदनां क- 11.04.12 को िुपिस केन्द्र, पसमडे गा से आदे श ित्र संख्या- जे०एच०-4528838 के द्वारा बानो थाना के पिए पनगगत पकया गया था, जो रास्ते से ही फरार होकर प्राप्त सूचना अनुसार हत्या करने के आरोि मे मंडि कारा गुमिा बन्द है । इस संबंि में पदिा िदापिकारी िुपिस केन्द्र, पसमडे गा का प्रपतिेदन ज्ञािां क-669/ र०का०, पदनां क- 20.04.12 के आिोक में पजिादे श सं 0-559/12, पदनां क 21.04.12 के द्वारा पनिंपबत करते हुए स्पष्टीकरण की मां ग की गयी है ।

िुपिस अिीक्षक, गुमिा के कायाग िय ित्रां क-1040/ सी०आर०, पदनां क-25.04.12 के माध्यम से सूचना प्राप्त हुआ पक आरोपित िुपिस-28 भुनेश्वर साहु गुमिा थाना काण्ड सं 0-99/12, पदनां क-30.04.12 िारा- 302/201 / 34 भा०द०पि० में पगरतार कर न्यापयक पहरासत में भेजा गया है ।

आरोपित िुपिस मंडि कारा गुमिा में बन्द होने के िश्चात् पदनां क 07.08.12 को 119 (एक सौ उन्नीस) पदन फरार रह कर िुपिस केन्द्र, पसमडे गा में योगदान पदये है । आरोपित पद०-191212 को अिना स्पष्टीकरण समपिगत पकये है । आरोपित िुपिस पदनां क - 17:04.13 को तत्कािीन िुपिस अिीक्षक महोदय के समक्ष उिस्थित होकर पनिंबन से मुक्त करने का अनुरोि पकये है । इन्हें पजिादे श सं 0-701/13 पदनां क-17.04.13 के द्वारा योगदान की पतपथ (17.04.13) से पनिंबन से मुक्त पकया गया है ।

इस कायाग िय के ित्रां क-951/र०का०, पदनां क 30.05.13 एिं ित्रां क- 1026/20 का0. पदनां क 14.06.13 के माध्यम से िुपिस अिीक्षक, गुमिा को काण्ड का अद्यतन स्थिपत की मां ग की गयीं।

िुपिस अिीक्षक, गुमिा के ित्रां क- 900/सी०आर०, पदनां क 18.06.13 के द्वारा काण्ड की अद्यतन स्थिपत प्राप्त हुई, पजसमें काण्ड के िादी चौकीदार- 07/08 मदन महिी, िे ०-स्व० काशी महिी, सा०.-भरदा ितगमान खोरा ितराटोिी थाना+पजिा गुमिा के फदग बयान के आिार िर अज्ञात अिराि कपमगयों के पिरूद्ध एक मत होकर नर हत्या कर शि को छु िाने की पनयत से सुनसान िान िर छु िाने के आरोि में गुमिा थाना काण्ड 3-99/12 पदनां क- 10.04.12 िारा-302/201 / 34 भा०द०पि० दजग कराया गया है ।

ियगिेक्षण पटप्पणी एिं प्रपतिेदन-2 में काण्ड को िारा 302/201 / 120 (बी)/34 भा० द०पि० के अन्तगगत अप्राथपमकी अपभयुक्त िुपिस-28 भुनेश्वर साहु िे० त्व० खुसरू साहु, सा०--बैरागी बगान चाहा, िाना+पजिा गुमिा के पिरूद्ध सत्य िाया गया है । अनुसंिानोिरान्त उक्त िुपिस के पिरूद्ध िारा- 302/201 /120 (बी0)/34 भा० द०पि० के अन्तगगत आरोि ित्र सं 0-113/ 12 पदनां क-23.05.12 पकया गया है ।

आरोपित िुपिस द्वारा समपिगत स्पष्टीकरण को असंतोषजनक िाते हुए पिभागीय कायगिही िारण करने का आदे श पदया गया है । तदनुसार पिभागीय कायगिही प्रारम्भ की जाती है ।

प्रदशग 1 पदिा िदापिकारी, िुपिस केन्द्र, पसमडे गा का प्रपतिेदन ज्ञािां क- 669/ र० का० पद०- 20.04.12 एिं झािां क-1147/90 का0 पद0- 03.07.13 की मूिप्रपत ।

2. गुमिा थाना काण्ड सं 0-99 / 12 पद०-10.04.12 प्राथपमकी की छायाप्रपत ।

3. अनु० िुपिस िदापिकारी, गुमिा का ियगिेक्षण पटप्पणी झािां क - 650/12. पद0-18.04.12 की छायाप्रपत ।

4. िुपिस अिीक्षक, गुमिा का झािां क- 1040/ सी०आर०. पद०- 25.04.12. ित्रां क-900/ सी०आर०, पद०-18.06.13. प्रपतिेदन-1 एिं प्रपतिेदन--2 की छायाप्रपत ।

5. आरोि ित्र सं 0-113/12, पदनां क-23.05.12 की छायाप्रपत ।

६. पसमडे गा पजिादे श 3550/12, पदनां क 21.04.12 एिं पजिादे श सं0-701/13 पदनां क- 17.04.13 की सभी प्रपत।

L.P.A. No.153 of 2022

- 11 -

गिाह-

1. िु0अ0पन0 दु गाग प्रसाद यादि, प्रिाचक, अिराि शाखा, िुपिस अिीक्षक कायाग िय, गुमिा ।

2. स०अ०पन० प्रमोद कुमार पसन्हा, प्रिाचक, अनु ० िुपिस िदापिकारी कायाग िय, गुमिा ।

3. िु०अ०पन० भरत कुमार राय थाना+पजिा-गु गुमिा ।

4. रपक्षत अिर पनरीक्षक (प्रथम), िुपिस केन्द्र पसमडे गा ।

5. पदिा िदापिकारी, िुपिस केन्द्र, पसमडे गा ।

िुपिस अिीक्षक पसमडे गा ।

ज्ञािां क 1213/ र० का० िुपिस अिीक्षक का कायाग िय, पसमडे गा ।

पदनां क- 17/07/2013

प्रपतपिपि: िुपिस 28 भुनेश्वर साहु िु ०केन्द्र, पसमडे गा को सूचनाथग एिं आिश्यक पकयाथग।

िुपिस अिीक्षक, पसमडे गा ।

30. It appears from the aforesaid charges that while he was

going to join his duty at Bano, in the midway he has received

the information of murder of his nephew. The appellant

returned back immediately from midway and handed over the

rifle to the concerned police station and proceeded to his

house. But, after two days he was taken into judicial custody

for his alleged involvement in the said criminal case.

31. The writ petitioner, on the aforesaid ground remained in

custody for a period of 119 days and when he was released

from the judicial custody, he came to know about the

initiation of the departmental proceeding for the

unauthorized absence for a period of 119 days.

32. The enquiry officer has found the charge proved based

upon the same the disciplinary authority has passed order of

punishment. The said order of punishment was also affirmed

by the appellate authority against the writ petition being

W.P.(S) No.6494 of 2017 has been filed but the same has L.P.A. No.153 of 2022

- 12 -

been dismissed against which the present appeal.

33. Learned counsel for the appellant has taken two

grounds in assailing the order of punishment, i.e.,

(i) that the Enquiry Officer has not given specific finding

that the absence of 119 days was willful and in absence

of such finding the period of absence cannot be said to

be unauthorized and hence does not warrant any

punishment; and

(ii) in the criminal case instituted for the same set of

allegation being Gumla P.S. Case No. 99 of 2012 he has

been acquitted from the criminal charges.

34. So far as the first ground, i.e., not giving specific finding

that the absence of 119 days was willful is concerned, the law

is well settled as has been laid down by Hon'ble Apex Court

in the case of Krushnakant B. Parmar vs. Union of India

and Another, (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 L.P.A. No.153 of 2022

- 13 -

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."

35. This Court is proceeding to examine the memorandum

of charge along with the enquiry report in order to assess as

to whether the Enquiry Officer has come to a finding about

the absence said to be willful.

36. It is evident from the memorandum of charge that it is

the admitted case of the disciplinary authority that when the

writ petitioner was going to join his duty at the transferred

place of posting, he had received information about the

murder of his nephew on 11.04.2012. He immediately

returned back to his previous place of posting and had

deposited the official fire arms in the office. He had proceeded

to his house but within two days he was taken into custody L.P.A. No.153 of 2022

- 14 -

for his alleged involvement in the said criminal case

committing the murder of his nephew for which Gumla P.S.

Case No. 99 of 2012 was instituted.

37. The writ petitioner remained in judicial custody for the

period of 119 days and could not be able to resume his duty,

therefore, the said period has been treated to be

unauthorized absence and accordingly, memorandum of

charge to that effect was served. The Enquiry Officer has

found the said charge proved based upon which the order of

dismissal has been passed.

38. It is evident from the memorandum of charge that the

disciplinary authority was knowing that the writ petitioner

was taken into judicial custody. Since the authority was

having the knowledge about the judicial custody of the writ

petitioner in connection with the police case and, as such,

the period when the duty was not discharged due to being in

judicial custody is the reason for initiation of the

departmental proceeding alleging therein that the writ

petitioner has absented from discharging duty for a period of

119 days.

39. The writ petitioner has tried to satisfy the authorities

that the said absence cannot be considered to be

unauthorized since he was in judicial custody. The said

aspect of the matter has not been accepted by the

disciplinary authority and finally dismissed the writ petitioner L.P.A. No.153 of 2022

- 15 -

from service.

40. The law as has been settled in the case of Krushnakant

B. Parmar vs. Union of India and Another (Supra) that in

a case of unauthorized absence which is a gross misconduct,

a finding is required to be given with respect to the absence

said to be willful. The aforesaid judgment has subsequently

been followed in the case of Chennai Metropolitan Water

Supply and Sewarage Board and Ors. vs. T. T. Murali

Babu, (2014) 4 SCC 108 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 L.P.A. No.153 of 2022

- 16 -

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 L.P.A. No.153 of 2022

- 17 -

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."

41. It is, thus, evident that in the matter of allegation of

unauthorized absence, the finding of the Enquiry Officer

must be there, based upon cogent evidence, that the absence

was willful then only punishment is to be imposed on the

allegation of unauthorized absence. The absence, if willful,

will only be considered to be unauthorized absence.

42. The Hon'ble Apex Court in the aforesaid case has laid

down the proposition that in a case of allegation of

unauthorized absence the Enquiry Officer is to come to the

conclusive finding that the absence is willful and only then

the said absence will be considered to be a misconduct within

the meaning of the service jurisprudence and in consequence

thereof, the punishment as stipulated is to be imposed.

L.P.A. No.153 of 2022

- 18 -

43. But the other side of the story will be if the absence said

to unauthorized is not willful, rather, beyond the control of

the concerned.

44. Herein, the writ petitioner admittedly was taken into

judicial custody and the same was very well known to the

disciplinary authority since the same has been referred in the

enquiry report. The absence of 119 days of the writ petitioner

is on the ground that he was taken into judicial custody. The

question, therefore, would be as to whether the confinement

in the judicial custody and in view thereof if the public

servant, writ petitioner herein, has failed in discharging duty,

can it be said to be willful absence?

45. It cannot be disputed that languishing in judicial

custody in connection with the commission of crime is within

the wish of the concerned employee, rather, the same will be

said to be beyond his control. The writ petitioner since was in

judicial custody, therefore, he could not be able to discharge

his duty.

46. Therefore, according to our considered view, the period

of 119 days which has been considered to be unauthorized

absence will not be said to unauthorized absence, since, the

writ petitioner had not chosen not to discharge duty on his

own, rather, due to compelling circumstances, i.e., he was in

judicial custody in connection with Gumla P.S. Case No.99 of

2012 and hence, the case is to be considered by taking the L.P.A. No.153 of 2022

- 19 -

said leave to be not under the fold of willful absence.

47. The matter would have been different if the writ

petitioner would have taken the other ground and hence, the

cogent evidence was to be produced for substantiating the

ground that the absence cannot be considered to be willful.

But, here it is also not required since in the memorandum of

charge itself the disciplinary authority has admitted that the

writ petitioner was in judicial custody. The writ petitioner

when was in judicial custody, then the period not spent on

duty, i.e., 119 days, cannot be construed to be absence said

to be willful.

48. The Hon'ble Apex Court in the case of Chennai

Metropolitan Water Supply and Sewarage Board and

Ors. vs. T. T. Murali Babu (Supra) has considered the

judgment rendered in Krushnakant B. Parmar vs. Union

of India and Another (Supra) wherein although the same

view has been taken but in addition to that it has been

observed therein that all the absence cannot be construed to

be an unauthorized absence without any willingness, rather,

the same is to be based upon the circumstances governing

each and every case.

49. On the basis of the aforesaid consideration, we are of

the view that the fact about languishing in judicial custody

although has been taken note of in the enquiry report but

without coming to the conclusive finding that the said L.P.A. No.153 of 2022

- 20 -

absence was willful absence.

50. The Hon'ble Apex Court as per the law laid down in the

case of Chennai Metropolitan Water Supply and

Sewarage Board and Ors. vs. T. T. Murali Babu (Supra)

and Krushnakant B. Parmar vs. Union of India and

Another (Supra) has come to the conclusive finding that in a

case of unauthorized absence, conclusive finding regarding

the absence said to be willful is to be there at the time of

proving the charge of unauthorized absence.

51. We, on consideration of the enquiry report, have not

found any finding to that effect, rather, we are of the view

that since the writ petitioner was in judicial custody in

connection with Gumla P.S. Case No.99 of 2012, due to that

reason he could not be able to report to his duty, as such, the

said reason will be said to be beyond his control and if on

that ground he has absented from duty, the same cannot be

construed to be willful absence.

52. The other part of the case is that in the criminal case

the appellant has been acquitted from the criminal liability.

The contention has been raised on behalf of the appellant

regarding acquittal in the criminal case and, as such, the

order of dismissal is fit to be reviewed.

53. The law is well settled that acquittal in the criminal case

will have no impact in the order of punishment if based on

conclusion of the departmental proceeding. Reference in this L.P.A. No.153 of 2022

- 21 -

regard be made to the judgment rendered by Hon'ble Apex

Court in the case of Deputy Inspector General of Police &

Anr. Vrs. S.Samuthiram, reported in (2013) 1 SCC 598

wherein at paragraph-26, it has been held that mere acquittal

of an employee by the criminal court has no impact on the

disciplinary proceeding initiated by the department. It has

further been laid down that if an employee is honourably

acquitted by the criminal court, no right is conferred on the

employee to claim any benefit. For ready reference,

paragraph-26 is quoted as under:-

"26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused L.P.A. No.153 of 2022

- 22 -

giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so."

54. But, here in the given facts of the case, the writ

petitioner has also tried to impress upon the court that the

acquittal in the criminal case will have effect in the order of

dismissal and, as such, the order of dismissal is also to be

reviewed on this ground but we are not impressed with such

argument since the judgment of acquittal in the criminal case

will have no bearing in the departmental proceeding, more

particularly, in the given facts of the case wherein the

departmental proceeding was initiated not on the ground of

involvement of the appellant in the criminal case, rather, the

departmental proceeding was initiated on the ground of

absence of 119 days said to be unauthorized.

55. The learned Single Judge has proceeded in the direction

of effect of the acquittal in the criminal case upon the order of

dismissal which led the learned Single Judge to dismiss the

writ petition by declining to interfere with the impugned

order.

56. The learned Single Judge, according to our considered

view, while negating the ground of acquittal in the criminal

case, ought to have taken into consideration the very charge

which was based upon the unauthorized absence of 119 days L.P.A. No.153 of 2022

- 23 -

and as per the discussion made in detail hereinabove, the

consideration ought to have been given.

57. The learned Single Judge has also failed to appreciate

the order of dismissal which has been passed by the

disciplinary authority by taking recourse of Article 311(2)(B)

of the Constitution of India. But the authority, while taking

note of the provision of Article 311(2)(B) of the Constitution of

India, has failed to appreciate that the implication of Article

311(2)(B) of the Constitution of India will only be applicable in

a case where the decision has been taken by the authority

not to take recourse of the initiation of regular departmental

proceeding by assigning the specific reason since, Article

311(2)(B) of the Constitution of India speaks about the

decision to be taken by carving out exception from of Article

311(1) of the Constitution of India which provides that the

holder of the civil post either in the State of Centre will not be

punished with the punishment of dismissal or removal or

compulsory retirement, save and except by taking recourse of

the law.

58. Here, a regular departmental proceeding has been

initiated by issuance of memorandum of charge followed by

the enquiry proceeding and thereafter the disciplinary

authority has accepted the finding recorded by the Enquiry

Officer then where is the question of applying Article

311(2)(B) of the Constitution of India.

L.P.A. No.153 of 2022

- 24 -

59. This court, on appreciation of the fact as also the settled

legal issues as discussed hereinabove, is of the view that

since the appellant was prevented from discharging his duty

on account of the reason which was beyond his control, i.e.,

he was taken into judicial custody and, as such, the Enquiry

Officer ought to have given specific finding regarding the

absence to be willful and only then the order of punishment

should have been passed.

60. But the aforesaid exercise has not been done, therefore,

the disciplinary authority has acted erroneously by passing

the order of punishment of dismissal from service. The

learned Single Judge has also failed to appreciate this aspect

of the matter. Therefore, the order passed by the learned

Single Judge needs to be interfered with.

61. Accordingly, the impugned order dated 28.11.2019

passed by learned Single Judge of this Court in W.P.(S)

No.6494 of 2017 is hereby quashed and set aside.

62. In the result, the instant appeal stands allowed.

63. The order of punishment as contained in Memo No.3672

dated 31.10.2013 passed by the original authority and the

appellate order contained in Memo No.4490 dated

21.09.2017 are also quashed and set aside.

64. The writ petition stands allowed.

65. In consequence thereof, the writ petitioner/appellant is

directed to be reinstated in service.

L.P.A. No.153 of 2022

- 25 -

66. In the result, the instant appeal stands allowed.

67. Interlocutory application, if any, also stands disposed of.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.)

Birendra/ A.F.R.