Ram Kishore Meena vs State Of Raj And Ors
2022 Latest Caselaw 7827 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 6674/2009

Ram Kishore Meena son of Shri Hari Narain Meena, aged 38
years, resident of village Sankotda, Tehsil Jamwaramgarh,
District Jaipur.
                                                                   ----Petitioner
                                   Versus
1. State of Rajasthan through Principal Secretary Department of
Home, Government of Rajasthan, Jaipur
2. Inspector General of Police Udaipur Range Udaipur
3. District Superintendent of Police Udaipur
                                                                ----Respondents

For Petitioner(s)        :     Mr. Gautam Bhadadra
For Respondent(s)        :     Mr. Pushpendra Singh Naruka for Mr.
                               Rupin Kala, GC



              HON'BLE MR. JUSTICE SAMEER JAIN

                                    Order

15/12/2022

1. By way of the present petition, the petitioner has challenged

the order(s) dated 19.11.2008 and 17.11.2005, whereby the

Appellate Authorities have affirmed the order of dismissal passed

by the Disciplinary Authority on 08.07.2003.

2. Learned counsel for the petitioner has submitted that the

petitioner was sanctioned six days of casual leave on 07.12.2001.

Thereafter, he was required to report back on duty on 15.12.2001.

Meanwhile, the wife of the petitioner fell severely ill. Therefore, it

was only on account of such a compelling reason that the

petitioner could not report back on duty, when required. In this

regard, learned counsel argued that the petitioner had submitted

(2 of 5) [CW-6674/2009]

a Medical Certificate (Annexure-2) issued under Rule 76 of the

Rajasthan Service Rules to the concerned authorities. However,

the said certificate was not taken into consideration by the

Respondents, while dismissing the petitioner from service on

account of willful absentism for a period of 206 days. It was

further submitted that it is an undisputed fact that the petitioner

had duly participated in the proceedings initiated against him by

the inquiry officer. Moreover, he had made several representations

to the respondents qua his absence as well. Despite the same, the

petitioner was dismissed from service. Therefore, learned counsel

argued that the impugned orders suffer from various legal

infirmities as they have categorically failed to consider the

relevant documents placed on record by the petitioner, such as the

Medical Certificate (Annexure-2) and hence, the same should be

set aside and the petitioner must be reinstated in service with all

consequential benefits.

3. In support of his contentions, learned counsel for the

petitioner has relied upon the judgment of the Apex Court in

Krushnakant B. Parmar vs. Union of India reported in (2012)

3 SCC 178 and Shri Bhagwan Lal Arya vs. Commissioner of

Police, Delhi reported in (2004) 4 SCC 560.

4. Per contra, learned counsel for the respondents have

submitted that the petitioner was serving as a uniformed

employee of the respondent-Department wherein, looking to the

nature of employment, discipline in carrying out one's services is

of utmost importance and is an indispensable part of such

employment. Therefore, the reasons mentioned by the petitioner

(3 of 5) [CW-6674/2009]

for such prolonged absence were not constituted as material

considerations by the disciplinary authority in the inquiry initiated

against the petitioner. Learned counsel further submitted that in

addition to the willful absence of 206 days, the petitioner had

previously exhibited gross indiscipline as well. Hence, it was

prayed that the impugned orders, which are the subject matter of

the present petition, call for no interference of this Court.

5. Heard the arguments advanced by both sides, scanned the

record and considered the judgments cited at Bar.

6. In the case at hand, it is observed that the petitioner was

employed on a uniformed post as a 'Constable' in the Police

Department. Accordingly, learned counsel for the respondent

rightly submitted that taking into account the nature of his

employment, the petitioner was required to carry out his services

with utmost discipline and sincerity. However, in this regard, it is

pertinent to note that unauthorized absence does not always

mean willful absence. There may be compelling circumstances,

which are beyond the employees control that prevent them from

carrying out their services, as required. In the facts of the present

matter, it is noted that the petitioner is family man, who had

applied for a casual leave from 07.12.2001 to 15.12.2001.

However, on account of his wife's severe illness, he was prevented

from reporting back on duty, when required. Moreover, in order to

warrant an explanation for his absence of 206 days, he had

submitted a Medical Certificate issued under Rule 76 of the

Rajasthan Service Rules. Despite the same, the impugned orders,

without taking into consideration the said Medical Certificate,

(4 of 5) [CW-6674/2009]

passed the order of dismissal qua the petitioner on account of

willful absentism.

7. It is further observed that the antecedents cited by the

Respondents, for gross indiscipline on part of the petitioner, were

not the subject-matter for the present disciplinary proceedings

initiated against him. Therefore, the same cannot be considered

by this Court, while deciding the present writ petition.

8. It is a settled position of law that unauthorized absence does

not always account for willful absentism on part of an employee.

Therefore, the judgments cited by the learned counsel for the

petitioner in Krushnakant B. Parmar (Supra) and Bhagwan

Lal Arya (Supra) are squarely applicable to the facts of the

present case. In the said judgments, it was categorically held that

for sustaining allegations for willful absentism, it must be proved

that the unauthorized absence was willful. Moreover, if the

absence was due to compelling circumstances under which it was

not possible to report for or perform the duties, then such absence

cannot be held to be willful and therefore, the employee cannot be

dismissed from service as such major punishment would be

grossly disproportionate and perverse.

9. Hence, considering the fact that in the present matter, the

petitioner had produced a Medical Certificate issued under Rule 76

of the Rajasthan Service Rules; that the petitioner was prevented

from resuming duty only on account of compelling reasons beyond

his control; that the evidence produced by the appellant to

substantiate his claim qua his absence was not duly considered by

the disciplinary and appellate authorities and relying upon the

(5 of 5) [CW-6674/2009]

judgments of Krushnakant B. Parmar (supra) and Bhagwan

Lal Arya (supra), this Court deems it appropriate to set aside

the impugned orders dated 08.07.2003, 17.11.2005 and

19.11.2008.

10. Furthermore, this Court directs the respondents to reinstate

the petitioner in service and to grant him all consequential

benefits, as if he was not dismissed from service.

11. In view of the aforesaid, the Respondent-Department is also

directed to pay a cost of Rs. 25,000/- to the petitioner, within a

period of 90 days, considering that the Respondent-Department

have flouted the dictum of Hon'ble Apex Court judgments referred

supra, by disregarding the genuine medical certificates and

representations filed by the petitioner and have made the

petitioner suffer undue hardship for circumstances beyond his

control.

12. Consequently, the present petition is allowed in above terms.

All pending applications stand disposed of.

(SAMEER JAIN),J

Arun/12

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