In a departmental proceeding, the absence of willfulness in unauthorized absence from duty does not amount to misconduct, and findings must be based on evidence.

JUDGMENT :

Heard through V.C.

2. The instant writ application has been preferred by the petitioner praying therein for quashing the order of punishment as contained in Memo No.2766 dated 16.07.15, whereby this petitioner has been imposed with punishment of censure, stoppage of increment in payment with cumulative effect of five times and also nothing should be paid to this petitioner except subsistence allowance during the suspension period.

Learned counsel for the petitioner submits that he is not pressing the second prayer whereby he prayed that his posting should be at Dhanbad division.

3. The facts disclosed in the instant writ application are that the petitioner joined his services after becoming successful in the combined competitive examination, conducted by the Jharkhand Public Service Commission. He was given finance services, and was posted as Commercial Tax Officer, Urban Circle, Dhanbad. After completion of three years, apprehending his transfer out of Dhanbad; he made a representation requesting therein that he may allowed to be continued in Dhanbad, and be transferred and posted in any of the offices of the Commercial Taxes within the Dhanbad Urban on the ground that his wife, who is an Assistant Teacher, is posted in Government High School, Dhanbad and he has a son of four years and daughter of four months of age.

However, without considering his representation, a notification was issued; whereby the petitioner was transferred to the post of Commercial Tax Officer, Dumka Circle, Dumka vide order dated 30.06.2013. Unfortunately on this occasion; the petitioner was sick (diagnosed Infective hepatitis and Fatty Liver), and he made an application for grant of leave on 05.07.2013, but the same was rejected on 02.08.2013 and he was directed to handover the charge.

Thereafter, the petitioner again submitted an application for sanction of leave because the petitioner has been suffering from disease which is an inflammation of liver and other disease detected by the Doctor as fatty liver; which means built-up of fat in liver cell, which leads to severe liver damage, so for this reason he was recommended complete bed rest by his Doctor. He also submitted the certificate issued by his Doctor, but the same has not been considered.

Thereafter, the petitioner was suspended on 12.12.2013 and a departmental proceeding was initiated on 26.12.2013, which finally culminated into passing of the order of punishment on 16.07.2015.

At this stage, it is important to note that the Departmental Proceeding was initiated on 26.12.2013 and during the pendency, the petitioner reported before the authorities on 02.01.2014, along with fitness certificate. Thereafter, he participated in the proceeding and submitted reply denying charges on 15.01.2014. The order of punishment was passed on 16.07.2015.

4. Mr. Saurabh Shekhar, learned counsel for the petitioner submits that the Inquiry Officer without holding that it was a willful absenteeism, has passed the impugned order in spite of the fact that his regular Doctor has advised the petitioner for complete bed rest.

Learned counsel further submits that the Inquiry Officer has opined that the Doctor was not competent. He contended that it is not the jurisdiction of the Inquiry Officer to hold as to which Doctor is competent and which is not. He further submits that the report of the Doctor who advised him complete bed rest was also sent by the Inquiry Officer during the proceeding to a Medical Board duly constituted by them and the Medical Board headed by Chief Medical Officer has also held that the petitioner was suffering from “Fatty Liver with Hepatitis” and his “S. Bilirubin (Total)”was 3.70 mg/dl which is above the normal level. It was also opined by the Medical Board that only on 01.01.2014, the Doctor has found him fit and allowed him to join duty

5. Learned counsel further submits that the Hon’ble Apex Court in the case of Chhel Singh vs. MGB Gramin Bank, Pali and others reported in (2014) 13 SCC 166