Important point
Where a Govt. servant remained absent for three years from duty without any explanation, punishment of removal from service was proper and just and called for no interference.

Headnote:Service Law—Rajasthan Service Rules—Rule 86(3)—Wilful absence from service without intimation to the Govt.—If absence was exceeding one month and if charge of wilful absence from duty was proved, concerned official might be removed from service—Respondent, a UDC in Cooperative Department, absented for three years without intimation and after the charge of absentism was found established in the enquiry, order of removal from service was passed—High Court though endorsed that respondent did remain absent for 3 years with no satisfactory explanation to justify absence, still proceeded to reduce the punishment of removal into compulsory retirement with consequential retiral benefits—Order was upheld in appeal by Division Bench—Appeal—Whether High Court was right in converting punishment of removal into compulsory retirement with consequential retiral benefits in given facts? No.
       Held : Absenteeism from office for prolong period of time without prior permission by the Government servants has become a principle cause of indiscipline which have greatly affected various Government Services. In order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government, the Government of Rajasthan inserted Rule 86(3) in the Rajasthan Service Rules which contemplated that if a Government servant remains wilfully absent for a period exceeding one month and if, the charge of wilful absence from duty is proved against him, he may be removed from service. In the instant case, opportunity was given to the respondent to contest the disciplinary proceedings. He also attended the enquiry. After going through the records, the learned Single Judge held that the admitted fact of absence was borne out from the record and that the respondent himself has admitted that he was absent for about 3 years. After holding so, the learned Single Judge committed a grave error that the respondent can be deemed to have retired after seeking of service of 20 years with all retiral benefits which may be available to him. In our opinion, the impugned order of removal from service is the only proper punishment to be awarded to the respondent herein who was wilfully absent for 3 years without intimation to the Government. The facts and circumstances and the admission made by the respondent would clearly go to show that Rule 86(3) of the Rajasthan Service Rules is proved against him and, therefore, he may be removed from service. (Para 9)
       It was argued by learned counsel for the respondent that this Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrative authorities for a fresh decision as to the quantum of punishment. We are unable to countenance the said submission. In the instant case, the disciplinary proceedings were initiated against the respondent in the year 1981 and that the Division Bench disposed of the LPA only in December, 2001. Therefore, there has been a long delay in the time taken by the disciplinary proceedings and in the time taken in the course and, therefore, in such rare cases, this Court can substitute its own view as to the quantum of punishment. In this context, we can usefully refer to the case of B.C. Chaturvedi Vs. Union of India & Ors., AIR 1996 SC 484 (3 Judges) wherein this Court held thus:
       "Ramaswamy, J for himself and B.P. Jeevan Reddy, J.- Disciplinary authority and on appeals, appellate authority are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/ Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
       Therefore, we do not propose to issue a direction to the disciplinary/appellate authority to reconsider the penalty imposed. As pointed out by this Court in the above judgment and in order to appropriately mould the relief and to shorten the litigation, we ourselves impose the punishment of removal from service which was imposed by the disciplinary authority in the instant case which, in our view, is the appropriate punishment. (Paras 11 to 13)
       For the foregoing reasons, we are of the opinion that a Government servant who has wilfully been absent for a period of about 3 years and which fact is not disputed even by the learned Single Judge of the High Court has no right to receive the monetary/retiral benefits during the period in question. The High Court has given all retiral benefits which shall mean a lumpsum money of lakhs of rupees shall have to be given to the respondent. In our opinion, considering the totality of the circumstances, and the admission made by the respondent himself that he was wilfully absent for 3 years, the punishment of removal imposed on him is absolutely correct and not disproportionate as alleged by the respondent. The orders passed by the learned Single Judge in S.B. Civil Writ Petition No. 2239/1991 dated 24.08.2001 and of the order passed by the Division Bench in LPA No. 1073 of 2001 dated 13.12.2001 are set aside and the punishment imposed by the disciplinary authority is restored. (Para 18)

Judgment

Dr. A.R. Lakshmanan, J.—The above appeal arises from the final judgment and order dated 13.12.2001 passed by the High Court of Rajasthan in Division Bench (Civil) Special Appeal No. 1073 of 2001 wherein the appeal filed by the State of Rajasthan was dismissed by the High Court by a non-speaking order.

2. The respondent-herein joined the services of the Government of Rajasthan in the Cooperative Department. He was promoted as UDC in March, 1965. He applied for 3 days leave while he was working as UDC. According to him, he became sick and could not attend the office for the period from 09.01.1978 to 19.01.1981. He was charge-sheeted under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. The enquiry was held and the respondent attended the enquiry. It is his further case that he was not allowed to join duty even though he was marking his presence from 13.08.1984 to 23.08.1984. His services were terminated by way of publication in newspaper - Dainik Navjyoti dated 27.08.1984. He filed the appeal which was dismissed vide order dated 08.03.1988. It is also his case that notice which was sent to the respondent was deliberately sent on wrong address. Aggrieved against the orders dated 15.11.1984 and 08.03.1988, the respondent filed a writ petition in the High Court in the year 1991 i.e. after a gap of about 3 years.

3. Learned Single Judge of the High Court though endorse that the respondent did remain absent for about 3 years and that there was no satisfactory explanation to justify absence of 3 years still proceeded to reduce the punishment of removal into compulsory retirement with consequential retiral benefits. It is useful to reproduce the concluding portion of the order passed by the learned Single Judge which is as follows:-

"However, it goes without saying that the Petitioner remained absent from about 3 years. He was asked time and again to join duties. There are hardly any medical certificates placed on record even if the enquiry would have been conducted in accordance with law after giving proper opportunity, the admitted fact of absence was borne out from the record and in such situation, in my opinion, even if the Petitioner would not have been present in the enquiry, it would not have made any difference at all as the Petitioner himself has admitted that he was absent for about three years for the period mentioned above though the only circumstances which he could have brought on record was his justification for remaining absent or producing the medical certificate which were in any case not attached with the leave applications and in such situation, he could have prayed for some lesser punishment.

Viewing all the aspects of the case and in the circumstances, in my opinion for the reason that he has put in already 18 years of service, a lesser punishment could have been imposed. It is a fit case where in view of the above circumstances, instead of reinstatement in service, the lesser punishment of compulsorily retiring the Petitioner can be passed and he can be retired as if he has qualified the minimum service to obtain retiral benefits which may be available to him.

It is a fit case where in view of the above circumstances, the Petitioner can be deemed to have retired after seeking of service of 20 years with all retiral benefits, which may be available to him.

With the above said observations, the writ petition is disposed of."

4. The Division Bench in Letters Patent Appeal refused to interfere and the appeal filed by the appellant was dismissed in limine. The order passed by the Division Bench in Letters Patent Appeal reads as follows:-

"The only grievance made out by the learned counsel for the appellants is that the direction of the learned Single Judge for giving a lesser penalty to the respondent was not called for. We find no reason to interfere. The appeal fails and is, dismissed."

5. Aggrieved by the above judgment, the State has come in appeal before this Court. We hea

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2006 Supreme(SC) 8

Important pointWhere a Govt. servant remained absent for three years from duty without any explanation, punishment of removal from service was proper and just and called for no interference.

Cases Referred (5)

Important point
Where a Govt. servant remained absent for three years from duty without any explanation, punishment of removal from service was proper and just and called for no interference.