The State Of Madhya Pradesh vs Ashok Rana
2021 Latest Caselaw 8271 MP

   HIGH COURT OF MADHYA PRADESH : JABALPUR
                 (Division Bench)


                       W.A. No.1169 of 2021

              The State of Madhya Pradesh and others
                             -Versus-
                            Ashok Rana

                               --
Mr. Ankit Agrawal, Govt. Advocate for the the appellants.
Mr. Akash Choudhary, Advocate for the respondent.
_______________________________________________________
CORAM :
       Hon'ble Shri Justice Ravi Malimath, Chief Justice.
       Hon'ble Shri Justice Vijay Kumar Shukla, Judge.

                          JUDGMENT

(Jabalpur, dtd.06.12.2021)

Per : Vijay Kumar Shukla, J.-

In the instant appeal preferred under Section 2(1) of the

Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth to Appeal)

Adhiniyam, 2005 the State and its functionaries have called in

question, the penetrability and tenability of the decision rendered by

the learned Single Judge in Writ Petition No.22687 of 2018, dated 8-

6-2021, whereby he has set aside the order dated 31-7-2018

directing the appellants to calculate the withheld amount of pension

of the writ-petitioner/respondent [hereinafter referred as "the

petitioner"] in pursuance to the impugned order of punishment and

release the same within a period of three months from the date of

submitting the certified copy of the order.

2. The petitioner preferred a writ petition under Article 226

of the Constitution of India, assailing the order dated 31-7-2018,

whereby pension of the petitioner has been reduced to 10%

permanently. The facts which are necessitous to be adumbrated are

that the petitioner was retired from service from the post of Deputy

Superintendent of Police, (AJK), Katni with effect from 31-01-

2017. While he was on service, a charge-sheet was issued to him on

16-04-2015 levelling two charges. Reply to the same was filed by

the petitioner rebutting the allegations levelled against him. An

enquiry was initiated against the petitioner, wherein the Department

examined only one witness, namely, Rajeev Pandey, who in his

statement admitted that the office of the respondent No.3 - Inspector

General of Police, Jabalpur Zone had sanctioned 30 days earned

leaves and further admitted that he submitted applications from time

to time for extension of medical leaves.

3. A notice is said to have been issued to the petitioner to

appear before the Medical Board, but he did not appear and as such

the disciplinary authority passed the order of punishment on 31-7-

2018 withholding 10% of pension permanently. The order of

punishment was challenged in the writ petition on the ground that

there is no allegation or charge against him regarding unauthorized

and willful absence from duty and the Department has failed to

prove the same. Therefore, no charge of misconduct is made out

against the petitioner and the same has not been proved by the

Department.

4. The learned counsel for the petitioner while assailing the

impugned order, has made two fold submissions. First, the charge

No.1 does not constitute any misconduct and, therefore, no

punishment could be awarded; and secondly, the alleged notice

dated 23-04-2014 was defective and the same was never served

upon the petitioner and as such the Department has failed to prove

the charge No.2 also.

5. So far as the charge No.2 is concerned, the learned

counsel for the petitioner submitted that the notice did not disclose,

as to when and where the petitioner had to report. The notice also

did not contain, as to before which Medical Board the petitioner had

to appear. Therefore, in absence of any specific date to appear

before the Medical Board of specific District, the notice cannot be

said to be proper. The prosecution witness Rajeev Pandey, in his

cross-examination from Question Nos.42 to 47 has corroborated the

stand of the petitioner. He has submitted that the prosecution has

also not produced any documentary proof to substantiate that the

notice dated 23-4-2014 was served upon the petitioner, whereas the

petitioner has specifically denied the service of notice on him.

6. As far as charge No.1 is concerned, it was contended by

the learned counsel for the petitioner that there was no dispute with

regard to ailment of the petitioner and it is also not disputed by the

prosecution that the medical certificates submitted by the petitioner

before the authority were not genuine. It is also not disputed that the

applications for extending the medical leave were submitted by the

petitioner in Form No.3 from time to time. The said aspect of the

matter has been approved by the witness produced by the

prosecution. It is strenuously urged that as such, no charge of

willful absence is levelled against the petitioner and the same is also

not proved. Thus, the petitioner has not committed any misconduct,

because he remained absent for the reason which was beyond his

control and for asking medical leave he submitted applications from

time to time in the prescribed form.

7. The learned counsel for the appellants submitted that the

charge of misconduct has been levelled against the petitioner and the

same has been proved during the course of departmental enquiry by

adducing cogent and plausible evidence and, therefore, penalty has

been imposed by the disciplinary authority upon the petitioner. He

argued with vehemence that the learned Single Judge has committed

error while interfering in the matter of disciplinary proceedings and

the impugned order would not have been interfered with in writ

jurisdiction.

8. In conspectus of the aforesaid submissions, the learned

Single Judge has taken into consideration the enquiry report

appended to the writ petition and as per conclusion drawn by the

Enquiry Officer as regards the Charge No.1, and observed that the

petitioner was sanctioned the earned leave for 30 days with effect

from 20-02-2014 to 21-03-2014. Thereafter, he did not appear on

22-03-2014, but submitted an application on 24-03-2014 for

extension of leave in the Form No.3. Subsequently, he also

submitted applications in the prescribed form on 24-4-2014, 21-5-

2014, 21-7-2014, 21-8-2014, 23-9-2014, 30-10-2014 and 201-11-

2014 and sent the same through registered post. The facts regarding

sending of application has been accepted by the prosecution witness,

namely, Rajeev Pandey.

9. The Disciplinary Authority has failed to appreciate

whether the absence of the petitioner from duty was willful or not.

The Enquiry Officer after considering the statement of the

prosecution witness - Rajeev Pandey and the documents produced,

admitted that the medical certificates were sent by the petitioner in

the prescribed form, i.e. Form No.3 to the competent authority and

correctness of those medical certificates has not been doubted.

Therefore, the absence of the petitioner cannot be said to be willful.

The doctors, who treated the petitioner, have also been examined by

the petitioner in his defence and their statements have not been

doubted by the prosecution.

10. Appreciating the aforesaid facts in proper perspective,

the learned Single Judge observed that the petitioner cannot be held

guilty, only because he had shown dereliction of duty and the same

cannot be considered to be a misconduct and the punishment as has

been inflicted on him by the Disciplinary Authority passing the

impugned order dated 31-7-2018 is not proper. It is pertinent to note

that in the present case, no charge has been levelled against the

petitioner that his absence was willful. Therefore, punishing him

for remaining absent under the circumstance which was beyond his

control, was not proper.

11. On the contrary, from the material produced during

course of enquiry and opinion given by the Enquiry Officer and the

Disciplinary Authority, not disputing the factual position in the case,

it is not established that the petitioner remained willfully absent

from duty. The circumstances existing and the documents produced

by the delinquent to substantiate the fact that under the compelling

circumstances which were beyond his control, he remained absent.

12. It is settled law that in the case where allegation of

unauthorized absence from duty is levelled, the disciplinary

authority is required to prove that the absence is willful, but if such

finding does not come, the said absence will not amount to

misconduct.

13. In the present case, no such finding has been ascribed

either by the Enquiry Officer or the Disciplinary Authority, that the

absence of the petitioner was willful. But, on the contrary, they

accepted the ailment of the petitioner qua the medical certificates

produced by him and forwarded the same to the competent

authority seeking extension of leave. An employee can be punished

when charge of misconduct is proved, but not otherwise.

14. In view of the aforesaid, we do not find any illegality or

perversity in the impugned order passed by the learned Single Judge

in allowing the writ petition filed by the petitioner, warranting any

interference in the present intra-court appeal.

15. Ex-consequenti, the writ appeal, being sans substance,

is dismissed. There shall be no order as to costs.

Pending interlocutory application(s), if any, also stands

disposed of.

       (Ravi Malimath)                               (Vijay Kumar Shukla)
         Chief Justice                                       Judge


ac.

 Digitally signed by AJAY KUMAR CHATURVEDI
 Date: 2021.12.11 14:48:48 +05'30'