JUDGMENT :

Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred for following reliefs:

a. For issuance of appropriate writ(s)/order(s)/,direction(s) for quashing the order dated 03.11.2010, whereby and whereunder the petitioner has been suspended from the service;

b. For issuance of appropriate writ(s)/order(s), direction(s) for quashing the order dated 6.1.2012, passed in departmental proceeding No. 2/2011;

c. For issuance of appropriate writ(s)/order(s)/, direction(s) for quashing the order dated 6.6.2012;

d. For issuance of appropriate writ(s)/order(s)/, direction(s)s for quashing Appeal Memorial dated 5.5.2014;

3. Brief fact of the case is that while the petitioner was posted at Dhanbad, he was unable to attend the duty due to a minor injury in his finger and pursuant to that a letter dated 28.10.2010 was issued alleging about the absence of this petitioner from duty. Subsequently, vide letter dated 31.10.2010 it was further informed that the petitioner was not found during counting and was found absent. Thereafter, the petitioner was suspended from service vide order dated 31.11.2010 for inappropriate behavior, irresponsibility and misconduct. A charge-sheet was issued to the petitioner for the alleged act of irresponsibility of absence from duty on 27.10.2010 and on 30.10.2010. The petitioner was given 10 days time to represent himself before the concerned authorities for explaining and showing the reason of absence from duty.

The specific case of the petitioner is that since he was severely ill and was facing hardship so he was not in a condition to attend the duty or proceeding. Thereafter, a departmental proceeding, being Departmental Proceeding No. 2 of 2011 was initiated against this petitioner vide letter dated 07.12.2011 and thereafter, the petitioner participated after sometime and finally the enquiry officer found the charge to be proved with regard to absence from duty on 27.10.2010 and 30.10.2010.

The Enquiry Officer submitted his report and the Disciplinary authority passed the impugned order whereby the petitioner has been terminated from service.

4. Mr. A.K. Das, learned counsel for the petitioner assailed the impugned order of termination on two grounds:

(i) The charge of absence relates to only two days, i.e. 27.10.2010 and 31.10.2010; as such the finding of the Disciplinary Authority that the petitioner remained absent for one year and the punishment of termination imposed on that basis is beyond the charge.

He contended that had the charge-sheet been issued for absence of one year then certainly the petitioner would have explained the reasons that why he was absent during the course of disciplinary proceeding; however, when there is no charge for absence from duty for one year; the finding of the Enquiry officer and/or Disciplinary Authority with regard to absence for one year is non-est in the eye of law.

(ii) For holding any delinquent guilty for the allegation of unauthorized absence from duty; the disciplinary authority is required to prove that the absence was willful and in absence of such finding, the absence will not amount to misconduct.

He further submits that in the instant case the respondents have failed to give any finding that the absence was willful; as such the order of termination is not sustainable in the eye of law. In this regard he referred to the decision rendered in the case of Krushnakant B. Parmar v. Union of India and Another reported in (2012) 3 SCC 178 wherein at Paragraph 16, 17 and 18 the Hon’ble Apex Court has held as under :

“16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful