Madhya Pradesh High Court
Pavan Jatav vs The State Of Madhya Pradesh on 9 May, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 9 th OF MAY, 2025
WRIT PETITION No. 8468 of 2023
PAVAN JATAV
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Mr. D.P. Singh - Advocate for the petitioner.
Mr. Dilip Awasthi - Government Advocate for the State.
ORDER
Invoking Article 226 of the Constitution of India, the petitioner has
filed this writ petition challenging the order, dated 18.12.2022 (Annexure P-
1), whereby the punishment of removal from service on account of certain
misconduct found proved against him in the departmental enquiry, has been
inflicted upon him. It is also directed that the period of absence of 173 days
is treated as 'no work no pay'. The petitioner has also challenged the order
dated 21.03.2023 (Annexure P-2), whereby his appeal filed against the
punishment order has been dismissed by the Appellate Authority.
2. The facts necessary for decision of this case are that the petitioner
was appointed as Constable on 17.12.2018. As per the averments made in
the petition, during the short tenure of service, he has received four awards
and one minor penalty of warning.
3 . The petitioner proceeded on sanctioned leave for a period from
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09.09.2020 to 24.09.2020. He was thus supposed to re-join his duty on
25.09.2020. However, an FIR came to be lodged against the petitioner with
the Police Station Bairad, District Shivpuri, for the offences punishable
under Sections 363, 366, 376(3) of IPC read with Section 5/6 of POCSO Act.
This FIR was registered against him on 27.09.2020. During the course of
arguments, learned counsel for the respondents inform that the complainant
also lodged a complaint against the petitioner in the office. The petitioner
thereafter made an application for grant of anticipatory bail which was
accepted by this Court vide order dated 17.02.2021, passed in M.Cr.C.
No.6778/2021. After having obtained the order of anticipatory bail, the
petitioner joined his duty on 16.03.2021.
4 . Since the petitioner over stayed the sanctioned leave w.e.f.
25.09.2020, a charge-sheet was issued to him on 12.02.2021 (Annexure P-7),
wherein following three charges were levelled against him :
"1. वशेष सश बल जैसे अनुशािसत बल मे शासक य सेवक के प म
कत यरत ् रहने के दौरान आपरािधक कृ य म संिल होकर पुिलस क
छ व धूिमल करना।
2. दन क 09.09.2020 से दनाँक 24.09.2020 तक के िलये 15 दवस
वशेष अवकाश पर रवाना होने के उपरा त दनाँक 25.09.2020 के
पूवा ह से आज दनाँक तक वगैर कसी पूव सूचना व अनुमित के
अनािधकृ त प से अनुप थत रहकर म० ० िस वल सेवा (आचरण)
िनयम 1965 के िनयम 3(1) (एक) (दो) का उ लंघन करना।
3. कायालय से कत य पर उप थत होने हे तु सूचना प े द कये जाने
व सूचना प को ा कर पावती अिभ वीकृ ित दये जाने के उपरा त भी
सूचना प म दिशत िनदश को नजरअंदाज कर अनवरत ् अनुप थत
रहते हुए आदे श क अवहे लना व कत य के ित अ िच दिशत कर
पुिलस रे गुलेशन के पैरा 64(4) (5) सेवा क सामा य शत का उ लंघन
करना।"
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5 . It is worth noticing that the charge-sheet was issued on
12.02.2021 during which period, the petitioner was apprehending arrest in
the aforesaid criminal case and was making effort to get anticipatory bail
from the court. Immediately thereafter, he was granted anticipatory bail by
this court vide order, dated 17.02.2021. The enquiry was thereafter
conducted by the enquiry officer and a report was submitted by him to the
Disciplinary Authority on 27.08.2021. The enquiry officer found all the three
charges proved against the petitioner. The Disciplinary Authority vide
communication, dated 31.08.2021, (Annexure P-7) forwarded the copy of
enquiry report to the petitioner and asked him to give his explanation to the
findings recorded by the enquiry officer. The petitioner submitted his
explanation on 10.12.2021. Thereafter, the Competent Authority i.e.
respondent no.4 passed the impugned order, dated 18.10.2022, (Annexure P-
1) whereby the petitioner has been inflicted with the punishment of removal
from service. Pertinently, respondent no.4 dropped the charge no.1, which
was relating to petitioner's involvement in the criminal case. Thus, the
punishment has been inflicted on the basis of findings recorded in respect of
charge no.2, which relates to his unauthorized absence for the period of 173
days and charge no.3, which relates to non-compliance of official
communication directing him to join duty. The petitioner challenged the
punishment order by filing an appeal, which has also suffered dismissal vide
order, dated 21.03.2023, (Annexure P-2). Challenging the aforesaid orders,
the petitioner is before this Court in the instant writ petition.
6 . Before adverting to the departmental enquiry conducted against
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the petitioner, the relevant facts which led to lodging of criminal case against
the petitioner, needs to be considered. After the petitioner proceeded on
leave on 09.09.2020, it is gathered, from the enquiry report, that certain
negotiation of his marriage with one Rani Jatav daughter of Mr. Prakash
Jatav, took place between two families. The marriage was fixed. However,
since the girl was short of 18 years of age, it was decided that marriage will
be performed after she attains the age of majority. It has also come on record
that because of some miscommunication, the family of the girl got to know
that the petitioner is performing engagement somewhere else. Being
offended, the FIR was lodged by family of the girl against the petitioner for
the offences punishable under Section 363, 366, 376(3) of IPC and Section
5/6 of POCSO Act. Since, the FIR was registered, the petitioner apprehended
his arrest by the police and, therefore, was hiding himself to avoid his arrest
and making efforts to get the anticipatory bail from the court. Resultantly, he
could not join his duty after completion of his leave period. The petitioner
could get anticipatory bail from this court vide order dated 17.02.2021. He as
later on, discharged in the criminal case under Section 232 of Cr.P.C. by the
Court vide order dated 14.11.2022 (Annexure P-6). The order shows that the
charges alleged against the petitioner were found to be incorrect and he was
accordingly discharged.
7 . During the course of departmental enquiry, the enquiry officer
recorded statements of as many as 13 prosecution witnesses, which also
included the statement of the petitioner's father, his maternal uncle, parents
of the complainant girl and her father. All have stated about the
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miscommunication which led to lodging of incorrect FIR against the
petitioner. For ready reference, the statement of the girl's father namely Mr.
Prakash Jatav is reproduced hereunder :
"कथन अिभयोजन सा ी कमांक -08 काश जाटव पु ी गुलाब जाटव
ाम पटपुरा तह० वजयपुर जला योपुर। ने अपने कथन म बताया क
म उ पते का िनवासी हू,ँ मेरे 02 ब चे ह, एक लड़का एवं एक लड़क ।
लड़क बड है जसका नाम रानी है तथा आयु 17 वष है , लड़के का नाम
नागे है तथा आयु 14 वष है । पवन जाटब पु ी महे श जाटब िनवासी
वजयपुर जला योपुर जो क वतमान म 18वीं बटािलयन म आर क
के पद पर पद थ है । वह हमारे र तेदार होने से उनसे मेर ब ची क
सगाई क बात चल रह थी पर तु हमार ब ची नाबािलग होने से हमने
शाद को बािलग होने तक थिगत रखा था। इसी दौरान हम कसी ने
झूठ जानकार द क पवन क सगाई कह ं और हो रह है यह सुनकर एवं
कानून का ान नह ं होने के कारण, हमने गु से और बहकावे म आकर
पवन के व थाना बैराड़ म झूठा करण दज करवा दया था। जब हम
इस बात का पता चला क पवन क सगाई कह ं और नह ं हो रह है , यह
िसफ एक अफवाह थी। जब हम सह जानकार िमली क पवन क सगाई
कह ं और नह ं हो रह है तब हमने पुिलस अधी क कायालय िशवपुर म
कायवाह नह ं करने व एफआईआर र करने हे तु आवेदन प दनांक
30.09.2020 को दया गया। हम आगे कोई कायवाह नह ं चाहते ह, दोन
प रवार के संबंध वह ह जो पहले थे। करण क स यता के संबंध म
यह कथन मैन मान० उ च यायालय खंडपीठ वािलयर म मय शपथ
प के दये गये ह जो स य व सह ह। मेरे ारा इस संबंध म ाथिमक
जांच के दौरान भी कथन दया गया था जो क दश प क0 12 के प म
िच हत है , उ कथन पूव म मेरे ारा गु से एवं आवेश म आकर दये
गये थे जो क पूण प से अस य है । यह मेरा कथन ह।"
8 . The statement quoted above, goes to show that the petitioner was
falsely implicated in the criminal case. Resultantly, he could not resume his
duty after completion of the leave period. It is also a fact available on record
that immediately after he was granted anticipatory bail by this Court, he
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submitted his joining on 16.03.2021. Thus, the absence of petitioner from
duty after 25.09.2020 appears to be because of his false implication in
criminal case and was not wilfull.
9 . During the course of enquiry, the petitioner's statement was also
recorded wherein he has narrated the aforesaid facts with regard to the
criminal case lodged against him. He specifically stated that because of
aforesaid incident, he could not resume his duty after the leave period.
Surprisingly, while discussing findings on charge no.2 & 3, neither
respondent no.4 nor respondent no.3 have considered this defense of the
petitioner.
10. It is also borne out from the record that in November' 2020 the
petitioner brought on record the certificate of sickness to justify his absence.
In the impugned orders (Annexure P-1 & P-2), the authorities have only
adverted to the aforesaid certificate of sickness and have come to a
conclusion that the petitioner has failed to explain his absence for a period
for entire 173 days. Thus, finding the absence of 173 days unexplained, the
authorities have concluded that the petitioner's absence was wilfull and thus
inflicted the aforesaid punishment.
11 . The learned counsel for the petitioner, referring to the various
documents filed along with the writ petition, particularly the enquiry report
and the statements recorded during the course of enquiry, submitted that
admittedly the respondents were aware about the petitioner's implication in
the criminal case. He has taken specific defense that because of the aforesaid
criminal case, he could not join his duty after expiry of leave period.
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However, the authorities have failed to consider his defense and have
imposed the punishment only relying upon the certificate of sickness filed by
him at one point of time. The learned counsel for the petitioner placed
reliance upon the judgment of the Apex Court in the case of Krushnakant B.
Parmar Vs. Union of India and another reported in (2012)3 SCC 178 ,
Rajinder Kumar Vs. State of Haryana and another reported in (2016)15 SCC
693, Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and
others reported in (2004)4 SCC 560 and State of Punjab Vs. Dr. P.L. Singla
reported in (2008)8 SCC 469 .
1 2 . On the other hand, learned counsel for the respondents
vehemently opposed the petition and supported the action taken by the
respondents. He submitted that the petitioner failed to resume his duty after
expiry of leave period. Despite several communications made to him by the
office of respondents, he failed to respond to either of these communications
and also failed to resume duty. It is his submission that the petitioner's
absence for 173 days was without any justification and not responding to the
communications made by the office, amounts to serious misconduct. He thus
justified the order of punishment. He further submitted that the petitioner
took contradictory stands inasmuch as on one side, he submitted the
certificate of sickness and on the other hand, he relied upon his absence due
to his false implication in the criminal case. The learned counsel for the
respondents submitted that the authorities were justified in inflicting the
punishment of removal from service. He, therefore, prays for dismissal of the
petition.
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13. Considered the arguments and perused the record.
14. The absence of an employee from duty, when held to be willful,
would amount to a misconduct. Sometimes, an absence may be unauthorized
but not willful. Therefore, respondents were required to record a specific
finding that the absence of the petitioner from duty was willful. It is not in
dispute that the petitioner was absent from duty from 25.09.2020 to
16.03.2021 (173 days). Therefore the issue before the authorities was
whether the petitioner has a genuine explanation for his absence for the
aforesaid period?
15. The respondents were aware about the petitioner's implication in
the criminal case. It is also a fact that the petitioner has been discharged in
the criminal case under Section 232 of Cr.P.C. The petitioner was found to
be falsely implicated in the criminal case which is also evident from the
statement of the complainant as also her family members recorded during the
enquiry. Therefore, there was sufficient material before the authorities to
visualize that the petitioner's absence was because of his implication in the
false criminal case. However, in the impugned orders, while discussing
findings on charge no.2 & 3, the authorities have not even referred to the
aforesaid explanation given by the petitioner during the course of enquiry.
16. The Supreme Court has considered the issue regarding willful
absence in the case of Krushnakant B. Parmar (supra). In paragraph 16 to 19,
the Court held as under:
"16. In the case of appellant referring to unauthorised absence the
disciplinary authority alleged that he failed to maintain devotion
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of 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
can not 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 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 the absence is wilful; the disciplinary
authority as also the Appellate Authority, failed to appreciate the
same and wrongly held the appellant guilty."
1 7 . Thus, remaining unauthorizedly absent is one thing and
remaining absent willfully is another. There may be genuine explanation for
an unauthorized absence. When unauthorised absence is willful then alone it
can be said to be a misconduct. At the time of passing of impugned orders,
the criminal case against the petitioner was pending in court. The
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Disciplinary Authority has, therefore, dropped the first charge which related
to petitioner's involvement in criminal case on the ground that the matter is
pending in court. The second charge levelled against the petitioner was
relating to his unauthorized absence for a period of 173 days. Even though
the authority has referred to facts regarding criminal case while its discussion
on first charge, the same were not considered while discussing the second
charge. The Disciplinary Authority failed to consider that the petitioner's
explanation for second charge charge was also the same. However, the
Disciplinary Authority only referred to petitioner's leave application
alongwith sickness certificate submitted by him at earlier point of time and
held that the same does not satisfactorily explain petitioner's absence for 173
days. The Disciplinary Authority also considered the fact that in the past also
the petitioner was imposed with a minor punishment for his absence. This
also could not have been done without serving a show cause notice to
petitioner that his past conduct is also being considered. Likewise, in respect
of third charge also, the authorities took the admitted fact, that despite
repeated correspondence to join duty, petitioner failed to either join or submit
explanation, and jumped to the conclusion that the petitioner is not interested
in performing his duty. However, the fact of the matter was again the
petitioner's false implication in the criminal case.
1 8 . At the time of passing of impugned order by Disciplinary
Authority, the criminal case was pending against the petitioner. From perusal
of impugned order, it is gathered that the authorities were seriously
influenced by the fact of petitioner's involvement in criminal case involving
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serious charges of committing rape on a minor girl. However, subsequently,
the petitioner was discharged in criminal case vide order, dated 14.11.2022,
(Annexure P/6). Pertinently, this order is passed by the Court under Section
232 of Cr.P.C. holding that there is no evidence against the petitioner in
support of allegations levelled against him. This order was placed before the
Appellate Authority. However, the Appellate Authority failed to consider the
effect of petitioner's discharge in criminal case under Section 232 of Cr.P.C.
On the contrary, it only referred to petitioner's leave application alongwith
sickness certificate submitted by him initially on 06.11.2020. It is thus
evident that both the authorities failed to consider the effect of petitioner's
involvement in criminal case and his subsequent discharge therein under
Section 232 of Cr.P.C.
19. This court had the occasion to consider the discharge of an
employee under Section 232 of Cr.P.C. in the case of Monu Singh Vs. State
of M.P. and others (W.A.No.55/2023) and this Court held thus:
"9. If the authorities are swayed by the thought of mere
registration of offence or mere conduct of the trial or acquittal or
clean acquittal or otherwise then they may be ignoring the 'LIFE'
into that 'FILE because each 'FILE' has its own 'LIFE'. Here in the
present case, appellant faced trial in two cases. One is Crime
No.292/2014 for the offence punishable under Sections 307, 323,
294 & 34 of IPC in which acquittal was recorded by the trial Court
at the stage of Section 232 of Cr.P.C. which means after
prosecution evidence has been led, the trial Court found no case
made out against the petitioner to move further in the trial for
defence evidence. Case was dismissed and acquittal was recorded
then and there only. Therefore, it was infact a false case registered
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against the petitioner or prosecution could not prove its case for
further trial with scanty evidence. Another case vide Crime
No.390/2015 for the offence under Sections 294, 336, 341, 427
and 506-B of IPC but the said case resulted into acquittal because
none of the prosecution witness supported the prosecution case
and infact there was no evidence against the petitioner, therefore,
he was acquitted. Both these proceedings indicate that false cases
have been registered against the petitioner. When petitioner came
out acquitted and his innocence stood vindicated then it cannot be
too harsh for the department to take such pedantic and hyper-
technical view. Neither the impugned order dated 10-04-2019
passed by the 13th Battalion, SAF, Gwalior discloses any specific
reason nor it appears that the whole file/ documents were verified.
This Court in W.A. No.1954/2019 (Devendra Singh Gurjar Vs.
State of M.P. and Others) decided on 01-05-2020 discussed this
aspect in detail and has considered impact of acquittal under
Section 232 of Cr.P.C. In paragraphs 6 to 11 of the said order,
detail discussion was made about various contours of the subject
matter. In the conspectus of facts and circumstances of the case,
petitioner deserves re-consideration by the concerned authority
and therefore, petition deserves to be allowed."
20. Thus, it has been consistent view of this Court that the acquittal
of a person under Section 232 of CrPC stands on a better footing than the
acquittal after full trial.
21. In view of the fact that the petitioner has taken a specific stand
during departmental enquiry that he could not join his duty for the period in
question on account of his false implication in criminal case, the authorities
were required to consider the same while recording a finding that the
petitioner's absence was willful or not. Further, the petitioner's discharge in
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criminal case under Section 232 Cr.P.C. is also required to be considered.
Further, in the given facts and circumstances of the case, particularly
petitioner's discharge in criminal case, the issue of proportionality of
punishment, is also required to be considered by authorities.
2 2 . In view of above discussion, the impugned order, dated
21.03.2023, (Annexure P/2) is set aside. The matter is remitted to the
Appellate Authority to reconsider the entire matter after taking into account
the petitioner's defense of his false implication in the criminal case and also
his discharge in criminal case under Section 232 of Cr.P.C. The Appellate
Authority shall also consider as to whether the punishment of removal from
service is proportionate to the charge no.2 & 3 levelled against the petitioner.
The Authority shall also give an opportunity of hearing to the petitioner
before passing the fresh order. The needful be done within a period of 90
days from the date of submission of certified copy of this order.
23. The petition is allowed and disposed of with aforesaid directions.
(ASHISH SHROTI)
JUDGE
bj/-
