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IN THE HIGH COURT OF JHARKHAND AT RANCHI
SUJIT NARAYAN PRASAD, NAVNEET KUMAR, JJ.
The State of Jharkhand - Appellant
Versus
Ranjit Kaur, S/o Late Sardar Sewa Singh – Respondent
LPA No.16 of 2021 With I.A. No.3686 of 2021
Decided on : 26-07-2023
Unauthorised Absence - Service Regularisation - Krushnakant B. Parmar Vs. Union of India (2012) 3 SCC 178
Fact of the Case:
The writ petitioner, an Assistant Teacher, was retired without counting the period from 11.12.1987 to 03.09.1992 as part of her service due to alleged unauthorised absence. The petitioner challenged the decision, arguing that no inquiry was conducted to determine the absence as unauthorised.
Finding of the Court:
The court found that no departmental proceeding or show-cause notice was initiated to declare the absence as unauthorised. It held that the absence cannot be termed unauthorised without an inquiry, especially when the employee's transfer orders were cancelled and there was no fault on the part of the petitioner.
Issues: Whether the period of absence can be termed unauthorised without an inquiry and whether the absence was wilful.
Ratio Decidendi: The court relied on the case of Krushnakant B. Parmar Vs. Union of India, which established that absence cannot be termed unauthorised without a conclusive finding from an inquiry officer. It emphasized that absence without application or prior permission may not always be wilful and that compelling circumstances beyond the employee's control may lead to absence.
Final Decision: The court dismissed the appeal and upheld the decision to regularise the petitioner's service for the period in question, quashing the earlier orders that declared the absence as unauthorised.
JUDGMENT :
Sujit Narayan Prasad, J:
This appeal is filed under clause 10 of the letters patent is directed against the order dated 27.01.2020 passed by the learned single judge in WP(S) No. 4275 of 2016, by which the period from 11.12.1987 to 03.09.1992 has been directed to regularise by quashing the decision so taken as under order 27.04.2005 and 31.03.2016 with a direction to treat the said period to be as a continuity in service and to calculate the same for making the payment of her salary as well as her retirement benefits to be paid within a stipulated period of 6 weeks.
2. The brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :-
It appears from the pleading as referred hereinabove that the writ petitioner was appointed as Assistant Teacher on 07.02.1983 and accordingly she started discharging her duty. While discharging the duty as such, the writ petitioner was deputed to another school vide memo dated 22.06.1984, i.e. the Silwar Middle School, Hazaribagh and that time she had made an application for her transfer to Patna vide application dated 11.07.1986, but her request was not accelerate to, rather she has been directed to join in the earlier place of posting i.e. Surajpura Primary School, Barhi-I, Hazaribagh and she was relieved. Accordingly the writ petitioner was rendering her service with all satisfaction and on attaining the superannuation, writ petitioner was retired on 30.04.2015. Her retrial benefit were calculated and paid but without counting the period from 11.12.1987 to 03.09.1992, which has been considered as period of unauthorised absence.
3. The writ petitioner being aggrieved had approached to authority by raising the ground that the period from 11.12.1987 to 03.09.1992 cannot be termed as unauthorised absence in absence of any inquiry, since, a declaration regarding the unauthorised absence is to be recorded on consideration of the defence of the writ petitioner also but even without show-cause notice or departmental proceeding, it has been considered as unauthorised absence. The authority concerned had passed order rejecting the claim vide order dated 27.04.2015, which was passed by the District Superintendent of Education, Hazaribagh, which has been affirmed by the order passed by the Deputy Commissioner, Hazaribagh on 31.03.2016.
4. The writ petitioner being aggrieved with both the orders have approached this Court by filing the writ petition being WP(S) No. 4275 of 2016 by taking the ground that there is no consideration by the administrative authorities for holding the period from 11.12.1987 to 03.09.1992 to be authorised, since, there is no inquiry to that effect.
5. The learned Single Judge has accepted the aforesaid ground and has quashed the order dated 27.04.2015 and 31.03.2016 by holding the writ petitioner entitled for the benefits for the aforesaid period, i.e. from 11.12.1987 to 03.09.1992.
6. The learned counsel for the State appellant has submitted that although the order has been complied with by virtue of order passed by the contempt court, but, since the appeal is lying pending, it needs to be decided on merit.
7. It has been contended that the learned single judge has not appreciated the fact in right perspective that the writ petitioner admittedly has not performed her duty from 11.12.1987 to 03.09.1992 and as such on that pretext, the appellant have came to the conclusion declaring the said period to be an unauthorised absence, the same suffers with error, but this aspect of the matter has not been considered.
8. Learned counsel appearing for respondent-writ petitioner has submitted depending upon the order passed by the learned single judge, an absence cannot be said to be an unauthorised in absence of any enquiry, more so, in this case, no opportunity even no show-cause has been given to the writ petitioner and by taking due consideration of these facts, the learned single judge has held that writ petition
Absence cannot be termed unauthorised without a conclusive finding from an inquiry officer, and compelling circumstances beyond the employee's control may lead to absence.
The main legal point established in the judgment is that unauthorized absence from duties constitutes misconduct, and the disciplinary authority is empowered to impose punishment based on fair discip....
Pensionary benefits can be denied for periods of unauthorized absence under applicable rules, and prior decisions concerning the same parties bar relitigation under res judicata principles.
Prolonged unauthorized absence from service results in salary forfeiture beyond three years prior to filing a writ petition, while pensionary rights are preserved post-superannuation.
The importance of providing an opportunity of hearing to the employee/petitioner before passing any adverse order, as mandated by the principles of natural justice.
Court affirmed 'No Work No Pay' applies where absence is unauthorized and justified by inquiry findings.
Habitual unauthorised absence, failure to comply with orders, and proportionality of punishment in disciplinary actions
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