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2018 Supreme(Raj) 609
IN THE HIGH COURT OF RAJASTHAN
PUSHPENDRA SINGH BHATI, J.
Shiv Kumar Soni - Appellant
Vs.
State of Rajasthan - Respondent
C.W.P. No. 4125 of 2009
Decided On : 13-03-2018
P. Dave, Vipin Makkad
The penalty for unauthorized absence should be proportionate to the gravity of the charge.
Headnote:
QUANTUM OF PUNISHMENT - UNAUTHORIZED ABSENCE - COMPULSORY RETIREMENT - RAJASTHAN SERVICE RULES, 1951 - RAJASTHAN CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1958 - Held, the penalty of dismissal for absence of 13 days is disproportionate to the gravity of the charge. The penalty is substituted with compulsory retirement.
Fact of the Case:
Petitioner, a government employee, was dismissed from service for unauthorized absence of 13 days. He challenged the dismissal order, arguing that the punishment was disproportionate to the gravity of the charge.
Finding of the Court:
The court found that the petitioner had a clean record except for the absence and that the absence was due to illness. The court also considered the length of the petitioner's service, which was over 20 years.
Issues: Whether the penalty of dismissal for unauthorized absence of 13 days is disproportionate to the gravity of the charge.
Ratio Decidendi: The court held that the penalty of dismissal was disproportionate to the gravity of the charge. The court considered the petitioner's clean record, the length of his service, and the fact that the absence was due to illness.
Final Decision: The court modified the impugned orders to substitute the penalty of dismissal with a penalty of compulsory retirement. The petitioner was entitled to all consequential benefits arising out of the compulsory retirement.
Pushpendra Singh Bhati, J.
Petitioner has preferred this writ petition with the following prayer :-
"1. By an appropriate writ, order or direction, the impugned orders dated 26.11.2005, 28.11.2005, 22.05.2007 and 13.01.2009 may kindly be quashed and set aside. The petitioner may kindly be exonerated from the charges levelled in the memo of charges dated 04.03.2005, the findings of enquiry officer contained in the enquiry report dated 28.04.2005 may kindly be quashed and set aside.
2. By an appropriate writ, order or direction, the respondents may kindly be directed to reinstate the petitioner back in service with all consequential benefits.
3. Any other appropriate order, which deemed fit in the facts and circumstances of the case may kindly be passed in favour of the petitioner."
2. Learned counsel for the petitioner states that the petitioner joined the post of LDC vide order dated 12.12.1984. The petitioner's record except for the absence remained clean. On 11.08.2004, the petitioner fell ill and therefore, sent a telegram seeking leave. The respondents issued a notice to the petitioner under Rule 86(2) of the Rajasthan Service Rules, 1951 for remaining on unauthorize leave without any application from 23.08.2004 to 04.09.2004. The petitioner replied that on account of sudden illness, the petitioner remained absent for such period but he had not willfully neglected the duty. The memo of charges were issued under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 whereby the charge No.1 was to the effect that the petitioner remained absent from his duties from 23.08.2004 to 04.09.2004 and charge No.2 was to the effect that the petitioner remained absent from duties from 28.08.2004 to 04.09.2004. The enquiry was undertaken and enquiry officer found the charges to be proved. The notice of under Rule 14 of the Rules 1958 was given and finally the orders of dismissal were passed on 28.11.2005.
3. Learned counsel for the petitioner does not oppose the impugned order on merits but at the outside makes a limited argument that the petitioner has rendered services from 12.12.1984 to 28.11.2005 and the charge made out against the petitioner is only for a period of 13 days absence, therefore, the lenient view may be taken and therefore, the counsel for the petitioner has addressed this Court only on the issue of quantum of punishment.
4. Learned counsel for the petitioner has relied upon the judgment of Jaipur Bench of this Hon'ble Court in Ramesh Chandra Soni Vs. State of Rajasthan & Ors., (2015) 1 WLC(Raj) 522. The judgment reads as under :-
"1. This writ petition has been preferred by petitioner Ramesh Chandra Soni challenging the order of his removal dated 13.01.1999 and the order dated 25.05.1999 thereby dismissing his appeal there against.
2. Petitioner was appointed as Constable with the respondent Police Department on 02.05.1975, he was confirmed on the said post on 02.05.1977. A charge-sheet was issued to him under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 on allegation of willful absence for 179 days on different periods from February, 1994 to August, 1994. Petitioner replied to the charge-sheet contending that it was not a case of willful absence. One Additional Superintendent of Police Shri G.S. Srivastava, was appointed as inquiry officer. He, in his report, found the charges against the petitioner proved. The disciplinary authority i.e. the respondent No. 3 proposed to award a major penalty vide notice dated 05.02.1998. The petitioner submitted a representation against the enquiry report and proposed penalty. The disciplinary authority on being satisfied that the disciplinary enquiry has not been conducted as per the provisions contained in CCA Rules inasmuch as neither any witness has been examined nor any documents exhibited, did not accept the enquiry report and directed conducting de-novo enquiry.
3. Earlier this writ petiti
