Binod Kumar Singh vs Raj Raj Vidyut Parsaran Nigam
2022 Latest Caselaw 2797 Raj/2

           HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       BENCH AT JAIPUR

                   S.B. Civil Writ Petition No. 1676/2009

     Binod Kumar Singh S/o Shri Sakaldip Singh, Near Devi Gas
     Godown, Devi Mandap Road, Piska More, Ranchi- 834005
     Jharkhand
                                                                       ----Petitioner
                                        Versus
     Rajasthan Rajya Vidyut Prasaran Nigam Limited Through Its
     Chairman And Managing Director, Jyoti Nagar, Jaipur
                                                                     ----Respondent

For Petitioner(s) : Mr. Ajeet Kumar Sharma, Sr. Counsel with Mr. Rachit Sharma, Adv.

     For Respondent(s)        :     Mr. Alok Garg, Adv.



                  HON'BLE MR. JUSTICE SAMEER JAIN

                              Judgment / Order
REPORTABLE
    Reserved on 05/03/2022
    Pronounced on 01/04/2022

1. Instant writ petition under Article 226 of the Constitution of

India has been filed by the petitioner with the following prayers:-

"It is, therefore, respectfully prayed that this writ petition be kindly allowed and this Hon'ble Court may be pleased to-

(a) issue and appropriate writ, order or direction quashing the impugned orders dated 23.11.2007 (Annex. 19) and 11.09.2008 (Annex. 22) passed by the respondent with all consequential benefits.

(b) issue and appropriate writ, order or direction declaring the action of the respondent in not allowing the petitioner to voluntary retire from service of the respondent to be illegal, unconstitutional, arbitrary and unjustified and the respondent be directed to treat the petitioner as having voluntarily retired from service w.e.f. 15.03.2007 or from such other date as this Hon'ble Court may deem proper and reasonable in the circumstances of the case and the respondents

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be further directed to give all consequential benefits to the petitioner within such time as may be fixed by this Hon'ble Court alongwith interest @ 18% per annum.

(c) any other appropriate order or direction as may be deemed expedient in the facts and circumstances of the case be passed in favour of the humble petitioners.

(d) Award cost of the petition in favour of the petitioner.

2. Facts of the case as per the petitioner are that the petitioner

was appointed on the post of Junior Engineer (J.En.) in Rajasthan

State Electricity Board on 06/04/1989. He was promoted to the

post of Assistant Engineer (A.En.) on 01/12/2001 after

approximately 12 years of service and had an unblemished service

record. The cause and controversy in the matter arose when on

28/08/2006 he applied for Privileged Leave (PL) from 15/09/2006

to 19/10/2006 for a period of 35 days when he was posted at

Beawar. The petitioner thereafter applied for another PL on

11/09/2006, from 03/10/2006 to 01/11/2006 for 30 days and

earlier request for PL was requested to be cancelled. The PL from

15/09/2006 to 19/10/2006 were sanctioned on the request of the

petitioner on 13/09/2006 and PL from 03/10/2006 to 01/11/2006

were sanctioned by the respondents on the application of the

petitioner dated 11/09/2006 vide order dated 28/09/2006 and

earlier requested PL were cancelled.

3. On 25/10/2006, the petitioner applied for extension of leave

from 02/11/2006 to 01/12/2006 but the same was rejected on the

ground that the petitioner has not enclosed the prescription,

medical records sustaining the reason/s of his mother not being

well and letter of recommendation of doctor. On 24/11/2006, the

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petitioner again applied for extension of leave from 02/12/2006 to

31/12/2006. On 24/12/2006, the petitioner again applied for

extension of PL from 01/01/2007 to 31/01/2007. The respondents

did not sanction the extension of leave and on 18/01/2007

directed the petitioner to attend duties within 15 days. In spite of

the letter dated 18/01/2007, the petitioner again vide his

application dated 25/01/2007 sought extension of leave from

01/02/2007 to 28/02/2007 and also submitted his reply vide letter

dated 31/01/2007 in response to the letter of the respondent

dated 18/01/2007.

4. It is contended by the petitioner that due to compelling

circumstances of his mother being unwell and in critical position,

under unavoidable circumstances, the petitioner applied for

voluntary retirement from service w.e.f. 15/03/2007 vide

application dated 05/02/2007 as he had completed 15 years of

service as per rules and in addition, he also applied for leave from

01/03/2007 to 14/03/2007. The petitioner was under bonafide

belief and presumption that as no disciplinary proceedings are

pending against him, nor was he under suspension, he was

enjoying an unblemished service record as and the leave

applications were also filed from time to time, his application for

voluntary retirement would be accepted. But to his shock and

surprise, vide letter dated 15/05/2007, the petitioner was asked

to join again as per directions of the higher authorities. On

21/06/2007 show cause notice for not attending duties from

01/11/2006and for initiation of disciplinary action was received by

the petitioner. In response to the said show cause notice, the

petitioner submitted a detailed reply on 29/06/2007 and he

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submitted that he is not in a position to continue the job on

account of his family compulsions, critical position of his mother

and his request for voluntary retirement from service. In-spite of

the said submission, on 21/07/2007, a memorandum with charges

& statement of allegations was served upon the petitioner giving

30 days time to submit written statement of defence, which was

duly replied on 21/08/2007. On 23/11/2007, the petitioner was

removed from service w.e.f. 03/10/2006 alleging that he was

absconding and not carrying out his duty in the desired manner.

On 14/02/2008 with sufficient explanation for filing delayed appeal

as he was out of Ranchi, he filed an appeal but the same was

rejected vide order dated 11/09/2008 only on the ground of being

barred by limitation and not on merits. Hence, the present writ

petition.

5. Learned Sr. Counsel for the petitioner submitted that on

account of his mother's illness, the petitioner submitted an

application for leave which was initially granted and sanctioned for

the period from 03/10/2006 to 01/11/2006 and for the period

from 15/09/2006 to 19/10/2006, therefore, removal from service

from 03/10/2006 is perse illegal. It is also submitted that the

petitioner has an unblemished service record and he was even

promoted to the post of A.En. from the post of J.En. and carried

out services of 15 years in a very fruitful and peaceful manner. It

was only on account of the family compulsions and his mother's

illness that the petitioner applied for leave through proper channel

in accordance with law which was initially sanctioned. It is further

submitted that the show cause notice issued to the petitioner on

account of absconding, for misconduct and for not joining office is

(5 of 16) [CW-1676/2009]

contrary to his voluntary retirement application as well as is based

on incorrect facts and shows arbitrariness on the part of the

respondents. Learned Sr. Counsel further submitted that removal

of the petitioner from service is in violation of principles of natural

justice as well as contrary to the RSEB Employees (Classification,

Control & Appeal) Regulations, 1962 as well as the RSEB

Employees Conduct Regulations of 1976 in as much as neither

principles of natural justice were followed nor the provisions of

Regulation 7 of the Regulations of 1962 were followed in the

required manner. No regular enquiry was ever conducted. Even

the appellate order rejecting the appeal only on the ground of

delay shows arbitrariness and unfair play on the part of the

respondents.

6. Per-contra, learned counsel for the respondents submitted

that the leave cannot be taken as a matter of right and the

voluntary retirement also cannot be taken as a matter of right. In-

spite of directions issue by the respondents to the petitioner for

joining duties, he willfully remained absent and despite shortage

of staff, he did not join his official duties, neither did he support

the claim of illness of his mother even on asking at appropriate

time. The petitioner did not submit medical prescription and

recommendation of doctor in time. It is further submitted that the

leave cannot be taken without sanction from the competent

authority and therefore, the action of the petitioner falls under the

definition of misconduct as prescribed under Regulation 28 (a) and

(d) of the RSEB Employees Conduct Regulations, 1976. Qua

rejection of appeal, as there was no condonation of delay

application and the appeal being barred by limitation, the same

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was dismissed. The respondents have relied upon Apex Court

judgments in C.V. Francis Vs. UOI & Ors.: (Civil Appeal

No.31250/2011), decided on 03/07/2013 as well as State

of Punjab & Ors. Vs. Dr. Sanjay Kr. Bansal (Civil Appeal

No.4532/2009), decided on 16/07/2009. He also relied upon

judgment of Delhi High Court in Smt. Mitali Chakrabarty Dutta

Vs. Chairman, Rajya Sabha & Ors. (Writ Petition

No.1503/2017), decided on 20/02/2017; judgment of

Madras High Court in M. Ayyappan Vs. The Secretary to

Govt. (WA No.1240/2015), decided on 14/12/2015 as well

as judgment of Bombay High Court (DB) in Pandurang

Vithal Kevne Vs. Bharat Sanchar Nigam Ltd. (WP No.

2584/2007), decided on 05/12/2009.

7. This Court has gone through the respective arguments

advanced by learned counsel for the parties, scanned record of the

writ petition as well as considered the judgments cited at bar.

8. It is admitted that show cause notice dated 21/06/2007 was

issued to the petitioner for not attending the duties for the period

from 02/11/2006 to 21/06/2007 and it was specifically mentioned

that from 03/10/2006 to 01/11/2006, PL on account of illness of

his mother were allowed. It was also admitted that voluntary

retirement application was also submitted by the petitioner. The

show cause notice was issued merely for not attending duties post

02/11/2006. on 21/07/2007, enquiry was initiated under

Regulation 7 of the RSEB (CC&A) Regulations, 1962 and a time of

30 days was given for attending the enquiry proceedings. The

allegation levelled against the petitioner was that he has not

attended duties in spite of directions of the Controlling Officer,

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rather he has sent an application for voluntary retirement and has

filed application for extension of leave which was rejected and not

allowed. Vide order dated 23/11/2007 (Annexure-19), the

disciplinary authority terminated the petitioner from service w.e.f.

03/10/2006 i.e. the date from which the petitioner was alleged to

be absconded from duty willfully. On perusal of the order of

termination dated 23/11/2009, it appears to be beyond the scope

of show cause notice wherein there was no charge levelled qua

absconding. It was also admitted that PL were allowed by the

appropriate authority w.e.f. 03/10/2006 to 01/11/2006 and the

facts of filing of application for extension of leave on account of

mother's illness and voluntary retirement application were

admitted. It is analyzed that due to compelling circumstances, the

petitioner has applied to the appropriate authority through proper

channel for leave. On not getting sanction after appropriate time

on account of shortage of staff, the petitioner applied for voluntary

retirement from service in accordance with Regulation 18(3) of the

RSEB Employees Service Regulations, 1964. The petitioner was

neither under suspension nor any enquiry was contemplated or

pending against him on 05/02/2007 i.e. the date of submission of

application for voluntary retirement. So, it was legitimate

understanding of the petitioner that once voluntary retirement

application has been filed, as per the practice, customs and as per

provisions of Regulation 18(3) of the RSEB Employees Service

Regulations, 1964, the voluntary retirement application would be

approved by the competent authority and on account of revocation

of the same till the period of issuance of show cause notice, the

action of the petitioner for not-attending and filing leave

(8 of 16) [CW-1676/2009]

application for extension as per the petitioner was justified. Even

on perusal of the RSEB Employees (CC&A) Regulations, 1962, it

was incumbent upon the respondents to hold regular enquiry in

the manner detailed therein and the Regulation 7 of the CC&A

Regulations of 1962 in this regard, which is relevant, is

reproduced below:-

"7 (1) Imposition of major penalties.--

(i) Without prejudice to the provisions of any law for the time being in force no order imposing on an employee any of the penalties specified at items No.

(e) to (h) of Regulation 5 shall be passed, except after an enquiry held, as far as possible, in the manner detailed hereafter.

(ii) The Disciplinary Authority shall frame definite charges on the basis of the allegation on which the enquiry is proposed to be held. Such charges together with a statement of allegations, On which they are based, .shall be communicated, in writing, to the employee concerned and he shall be required to submit, within the period specified by the Authority, a written statement indicating whether he admits the truth of all or any of the charges, what explanation or defence if any ,he has to offer and whether he desires to be heard in person.

(iii) The employee shall, for the purposes of preparing his defence, be permitted to inspect and take extracts from such records of the Board, as he may specify provided that the disciplinary authority may refuse such permission in discretion for sufficient reasons, which should be recorded, but need not be communicated.

(iv) On receipt of the written statement of defence, or if no such statement is received within the time specified, the disciplinary authority may itself enquire into such of the charges as are not admitted or if it considers it necessary to do so, appoint a Committee of Inquiry or an Inquiry Officer for the purpose.

Provided that where the Board is the disciplinary authority or in case of joint enquiry including any officer/official in whose case Board is the disciplinary authority , the Chairman shall be authorised to appoint

(9 of 16) [CW-1676/2009]

inquiry Officer/Presenting Officer to conduct regular departmental enquiry.

(v) The disciplinary authority may nominate any person to present the case in support of the charge before the Inquiring authority. 3[The employee may present his case with the assistance of another employee appointed by the disciplinary authority/Secretary,(where the Board/Chairman/Member of the Board is the disciplinary authority) but may not engage a legal practitioner for the purpose unless the person nominated by the disciplinary authority/Secertary, as the case may be, is a legal practitioner, or unless the disciplinary authority/Secretary, as the case may be, having regard to the circumstances of the case, so permits provided that the Board employee shall not be allowed to be appointed as Assisting Officer in more than one departmental enquiry. For so long as he continues to be the Assisting Officer in one enquiry, he should not be allowed to become the Assisting Officer in another enquiry.

Board's Instruction :

On the request of a delinquent when an Officer/Official wishes to give consent to assist the delinquent in a departmental enquiry as prescribed-in Regulation 7(1) (v) he may seek prior approval from the disciplinary authority or from the Secretary where the Board or the Chairman or Member of the Board is the disciplinary authority before giving his consent to act as Assisting Officer. The Disciplinary Authority/Secretary,as the case may be, befroe according approval, shall take into consideration the following:-

(a) the work of such Officer/Offical will not suffer.

(b) as far as possible such Assisting Officer/Official is posted at the place where the enquiry is held, and

(c) the enquiry will not be effected prejudiciously due to his being higher officer in rank which may adversely effect the withnesses who have been summoned to give evidence.

(vi) The Inquiring Authority shall, in the course of the inquiry consider such documentary evdence and take such oral evidence as may be relevant or material in regard to the charges. The employee shall be entitled to cross examine witnesses examined in support of the

(10 of 16) [CW-1676/2009]

charges and to give evidence in person. The person presenting the case in support of the charges shall be entitled to cross examine the employee and the witness examinee in his defence. The inquiring Authority may decline to examine any witness on the ground that his evidence is not relevant or material.

(vii) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiry Authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the Board employee or may itself call for new evidence or recall or re-examine any witness and in such case the Board employee shall be entited to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the enquiry for three clear days before the production of such no evidence, exclusive of the days of adjournment and the day to which enquiry is adjourned.The Inquiring Authority shall give the Board employee an opportunity of inspecting such documents before they are taken on the record. The Inquiring Authority may also allow the Board employee to produce new evidence, if it is of the opinion that production of such evidence is necessary in the interest of justice.

Note- "The Inquiry Authority may further at its discretion call for additional envdence/relevant record/any other material to probe into the matter where the Presenting Officer/Charge- sheeted employee fails to produce the same which the Inquiry Authority considers it necessary for finding the truth."

(viii) At the conclusion of the inquiry , the Inquiring Authority shall prepare a report of the inquiry recording its findings on each of the charges together with the reasons therefore and shall send the report to the Disciplinary Authority, alongwith the record of inquiry, consisting of statement of charges and statement of allegations given to the employee, his written defence, evidnce, oral and docomentary, in the course of inquiry.

(viii) (a) A copy of the report of the Enquiry Officer with the recommendations, if any, as to punishment in the matter of proposed punishment to be inflicted, shall be supplied to the employee to make his representation, if he likes to do so, aganist the conclusions and recommendations of the Enquiry Officer.

(11 of 16) [CW-1676/2009]

(ix) The Disciplinary Authority shall consider the record and findings of the Enquiry Officer and may agree with the report or may differ, either wholly or partially from the conclusions recorded by the Enquiry Officer ip his report. The disciplinary authority shall record its finding on each charge, if it finds the employee guilty whether he agrees with the findings of the Enquiry Officer wholly or partially or differs from these findings.

(ix) (a) If he report of the Enquiry Officer records findings in favour of the employee with which the disciplinary authority agrees the disciplinary authority may make an order exonerating the employee of the charges framed against the employee.

(x) If the Disciplinary Authority is of the opinion that any of the penalties specified at numbers (a) to (d) in Regulation 5, should be imposed, it shall pass orders accordingly and if the Disciplinary Authority having regard to its findings on the charge, is of the opinion that any of the penalties specified at serial numbers

(e) to (h) should be imposed, it shall make an order imposing such penalty and it shall not be necessary to give the employee any opportunity of making representation on the penalty proposed to be imposed.

(x)(a) Save as otherwise provided in Clause (viii)

(a) nothing contained in the principles of natural justice, shall require the Disciplinary Authority to give to the employee a copy of the grounds on which he has disagreed wholly or partially with the findings of the Enquiry Officer.

Note :- The above amendments have been made in the light of the decision of the Supreme Court in Union of India Vs. Mohd. Ramjan Khan

7.(2) The procedure detailed above need not be followed or any of its provisions waived in the following cases:

(a) When the person charged admits the charge or charges.

(b) When the order of punishment such as dismissal, removal or reduction is based on factds, which have led to the conviction of the person in a criminal court,on a charge involving moral turpitude.

(c) When the person charged has absconded or when it is for other resasons impracticable or difficult to communicate with the person concerned.

(d) When the Disciplinary Authority is satsfied that it is not practical to follow the procedure prescribed in

(12 of 16) [CW-1676/2009]

these regulations or to follow such procedure is not in the interest of the Board."

9. On perusal of the said Regulations, it is mandatory to hold a

detailed regular enquiry. Framing of charges and communicating it

to the concerned employee, giving him/her on opportunity to

submit his/her defence are also mandatory before imposing any

punishment. Rather a shortcut method was adopted by the

respondents in terminating services of the petitioner going beyond

the alleged charges in the show cause notice that was extended

contrary to the leave applications, extension applications and

voluntary retirement application. Therefore, this Court is of the

view that the impugned order of termination on the charges of

absconding is not only violative of the principles of natural justice

but also beyond the allegations levelled in the show cause notice

as well as illegal and contrary to Regulation 7 of the CC&A

Regulations, 1962. The petitioner has also alleged to have

committed misconduct in terms of the provisions of Regulation

28(a) and 28(d) of the RSEB Employees Conduct Regulations,

1976 which read as under:-

     28. Acts           and    Omissions      constituting
     misconduct :-

Following acts and omissions shall be treated as misconduct, for which penalties asmentioned in Regulations 5 of the RSEB Employees (CC&A) Regulation 1962 may be imposed by the competent authority in accordance with the procedure prescribed therein.

     28 (a)      Absence from duty.
     28(b)       ....
     28(c)       ......
     28(d)       In-subordination or disobdience, whether

alone or in combination with others, to any lawful or reasonable order of a superior.

                                            (13 of 16)               [CW-1676/2009]


      (ii) Violation/non-compliance/of                   rules/orders    in
      regard to deputation for training."

10. In the facts and circumstances of the case, it is not the case

of absence of duty, rather the petitioner applied for PL w.e.f.

03/10/2006 much in advance, which was initially sanctioned on

two occasions and thereafter when the same was not permitted to

be extended, on account of compelling and emergent

circumstances, the voluntary retirement application was filed

being eigible under Regulation 18(3) of the Service Regulations of

1964. In the facts and circumstances, declaring the action of the

petitioner by the respondents as being absent from duty and

disobedient is not appropriate and will not fall within the definition

of misconduct.

11. Even the order in appeal dated 11/09/2008 which was

passed in a cryptic manner after approximately seven months of

filing appeal shows unfairness, illegality on the part of the

respondents in as much as appropriate reasons were mentioned in

the memorandum of appeal for the same being not barred but

having sufficient cause for not submitting the same in time. As

against the order dated 23/11/2007, The petitioner has

categorically submitted that due to unavoidable circumstance, as

he was out of Ranchi, he was in late receipt of the order, and upon

receiving the letters, he immediately filed an appeal in time, on

14/02/2008. Secondly, the appellate authority was competent to

condone the delay on the basis of material on record. The

petitioner was not even given opportunity of hearing and was not

permitted to present his case in appeal, nor was he given

opportunity to explain the delayed time taken to file appeal and it

(14 of 16) [CW-1676/2009]

was only after sending repeated reminders that after a period of

seven months the appeal was decided by one line order of

rejection on account of delay and latches and therefore the

petitioner's contention that he was denied fair and reasonable

opportunity was also not cured by the respondents.

12. This Court after analysis of the case is of the opinion that

due to compelling circumstances, the petitioner has applied for PL

through proper channel which was sanctioned to him but on

rejection of extension applications, the petitioner chose to take

VR, on account of his mother's extended illness, as per Regulation

18(3) of the Service Regulations, 1964 as he had completed 15

years of service and he was not able to join office as directed by

his seniors on account of his mother's illness. The petitioner was

never absconding and it is admitted on record that he was initially

sanctioned leave, later on applied for voluntary retirement,

reciprocated each and every letter, show cause notice,

memorandum of the respondents. The charge of absconding is not

only beyond the show cause notice but also beyond the

memorandum; The respondents have also not carried out the

provisions of Regulation 7 of the CC&A Regulations, 1962.

13. In the case in hand, neither any detailed enquiry was carried

out nor the disciplinary authority has appointed enquiry officer to

conduct regular departmental enquiry. Therefore, the entire

proceedings were vitiated and were not carried out in the intended

and specified manner. The invocation of Regulation 28 (a) and 28

(d) of the RSEB Employees Conduct Regulations, 1976 qua the

absence from duties and in-subordination or disobedience are also

not made out due to the reasons mentioned above. The

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termination from service vide impugned order was beyond the

show cause notice, passing of appellate order and rejection of

appeal in spite of sufficient cause and short delay was also unfair,

illegal and violative of the principles of natural justice. The cryptic

order passed in appeal on account of delay signifies unfair play

and biasness on the part of the respondents.

14. The judgments cited at bar by learned counsel for the

respondents, referred above, are on different facts as it is an

admitted case that the show cause notice was issued for non-

joining of office, but the termination order was passed beyond the

same on the ground of absconding w.e.f. 03/10/2006 wherein

admittedly the concerned authority who issued the show cause

notice is stating that on 03/10/2006 the petitioner was given

sanction for leave. Thus, application of Regulation 28 of the RSEB

Employees Conduct Regulations, 1976 for misconduct is also not

made out.

15. In the light of above, the judgments of the Apex Court and

different High Courts as relied upon by the respondents are not

application rather the judgment cited by the petitioner of the

coordinate Bench at Principal seat of this Court at Jodhpur in

Jetho Balani Vs. State of Raj. & Ors. (SB Civil Writ Petition

No.4495/2009), decided on 13/02/2015 comes to the rescue

of the petitioner wherein in the similar facts and circumstances,

the Court held and defined the absconding as under:-

"In this view of the matter and looking to the subsequent developments, this Court is of the opinion that better senses have now prevailed with the respondents who have themselves, vide order dated 11.2.2015 quashed the termination order dated 23.11.2007 and have accepted the prayer of the

(16 of 16) [CW-1676/2009]

employee for voluntary retirement w.e.f.16.2.2007. The word "absconding" was used in the order dated 11.2.2015 without any justification and is thus deleted and expunged."

16. For the reasons stated above, this Court deems it

appropriate to quash and set aside the termination order dated

23/11/2007 (Annexure-19) as well as the appellate order dated

11/09/2008 (Annexure-22). This Court also holds the action of the

respondents in not allowing the petitioner to voluntarily retire

from services of the respondents to be illegal, unconstitutional and

unjustified. Thus, the petitioner be declared as having voluntarily

retired from service w.e.f. 15/03/2007 and be awarded all the

consequential benefits accordingly. However, in the facts and

circumstances of the case, no order to costs and interest for

payment of consequential benefits is decide in favour of the

petitioner.

17. The writ petition stands disposed of in above terms. All

pending applications also stand disposed of in above terms.

(SAMEER JAIN),J

Raghu

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