The dismissal of an employee for unauthorized absence was deemed disproportionate due to procedural flaws in the inquiry and the employee's long service.

JUDGMENT :

(P.B. Bajanthri, J.)

Pursuant to our previous order dated 27.08.2024, Ms. Ayushi Kumari, Sergeant, Sub-Inspector, RSI – II, Bhojpur, Ara is present in the Court along with complete records.

2. To our query in the previous order, the officer has stated that there are no records maintained insofar as communication to the appellant of the departmental proceedings at various stages like service of charge memo and other materials till imposition of penalty, how the service was undertaken.

3. With the consent of the learned counsels for the respective parties, present appeal is taken up for final disposal.

4. The appellant is stated to have entered into service in the year 1971. He remained absent from 08.09.1998, resultantly, charge-memo was issued on 15.04.1999 followed by suspension on 30.04.1999. In the departmental proceedings, he remained ex parte. Inquiring Officer has concluded the inquiry and furnished report that charge relating to unauthorized absent from 08.09.1998 to 30.04.1999 was proved. The disciplinary authority proceeded to issue show cause notice on 03.12.2001. The appellant had submitted representation seeking extension of 15 days time to file reply/explanation to the second show cause notice along with the Inquiring Officer’s report. Thereafter, he has not furnished his explanation. Consequently, disciplinary authority proceeded to impose the penalty of dismissal from service on 06.12.2003. Feeling aggrieved by the order of dismissal, appellant preferred appeal before the appellate authority on 14.02.2007 and he suffered an order on 12.06.2009, resultantly, he has invoked the jurisdiction of filing writ petition under Article 226 of the Constitution namely CWJC No. 12945 of 2009. The learned Single Judge proceeded to affirm the order of dismissal as well as the appellate authority’s order. Hence, the present L.P.A.

5. Learned counsel for the appellant submitted that the appellant has joined the service in the year 1971. He remained absent from 08.09.1998 till placing him under suspension on 30.04.1999. Charge memo was not communicated to the appellant in the manner known to the law and it is admitted fact. Thereafter, the appellant did not submitted his reply to the second show cause notice, hence, dismissal order was passed and it was affirmed by the appellate authority. It is submitted that having regard to the service rendered by the appellant from the year 1971, imposition of penalty of dismissal from service for remaining absent for about seven months from 08.09.1998 till suspension on 30.04.1999 would be too harsh. There are no defalcation of government money so as to warrant for imposition of penalty of dismissal from service, in other words, for remaining absent for about seven months, imposition of penalty of dismissal from service is disproportionate.

6. Per contra, learned counsel for the respondents resisted the aforementioned contentions and supported the order of the learned single Judge dated 16.08.2018 passed in CWJC No. 12945 of 2009. It is submitted that charge-memo was not communicated to the appellant in the manner known to the law. To that effect, there are no records available in the file. However, he remained ex parte in the departmental inquiry for remaining unauthorized absent. The Inquiring Officer has given finding that the charge of unauthorized absent has been proved, therefore, imposition of penalty of dismissal from service is in order. There is no disproportionate insofar as imposition of penalty of dismissal and it has been affirmed by the appellate authority and so also by the learned Single Judge.

7. Heard learned counsels for the respective parties.

8. Perused the records. It is admitted fact that charge-memo was not communicated to the appellant in the manner known to the law. The appellant had joined service in the year 1971. He remained absent from 08.09.1998 till suspension i.e. on 30.04.1999, for about seven months. We have perused the Inquiring Officer’s report