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2019 Supreme(P&H) 1512
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
Hon’ble Mr. Justice Rajiv Sharma
Hon’ble Mr. Justice B. S. Walia
Civil Writ Petition No. 8305 of 2016 (O&M)
Sukhjinder Singh
v.
Central Administrative Tribunal, Chandigarh & Ors.
{Decided on 25/03/2019}
Mr. Pankaj Jain, Advocate, for respondent nos. 2 to 4.
Headnote:
Service Law--Reinstatement--Once the charge-sheet was issued to the petitioner, then without completing the codal formalities of providing opportunity of being heard, petitioner cannot be dismissed from service
Service Law--Reinstatement--Dismissal from Service without holding inquiry--Unauthorised Absence--Petitioner got went abroad on sanctioned leave--Application for extension of leave was not allowed due to lack of requisite medical certificate--Once the charge-sheet was issued to the petitioner, then without completing the codal formalities of providing opportunity of being heard, the disciplinary authority wrongly proceeded to dismiss the petitioner from service--Respondents are directed to reinstate the petitioner in service--However, it would be open to the respondents to initiate departmental proceedings against the petitioner, if they so desire--Payment of arrears of salary shall abide by the result of such inquiry.
Sub-Rule 20 of Rule 14 of the 1965 Rules, specifically lays down that if the Government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the Inquiring Authority or otherwise fails or refuses to comply with the provisions of this rule, the Inquiring Authority may hold the inquiry exparte. (Para 11)
The disciplinary authority is required to record on the file the fact that the whereabouts of the officials concerned are not known and the police authorities have also certified to that effect and therefore, it is not reasonably practicable to hold the inquiry contemplated under Rule 14 of the 1965 Rules. In the instant case, the inquiry should have been held against the petitioner. The reasons assigned for dispensing with the inquiry by the Disciplinary Authority are neither cogent nor convincing, more particularly when it had already made up its mind to dismiss the petitioner. The Disciplinary Authority without holding any inquiry has held that the petitioner had failed to maintain devotion to duty which is unbecoming of a government servant and has contravened the provisions of Rule 3(1)(ii) and 3(1)(iii) of the 1964 Rules. He has also used the expression that charges against the petitioner stood proved without holding any inquiry. The Disciplinary Authority has only repeated the language of Rule 19(ii) of the 1965 Rules. The decision should be based on objective facts and not merely on ipse-dixit of the Disciplinary Authority. (Para 16)
JUDGMENT
Mr. Rajiv Sharma, J.:- The present writ petition has been filed by the petitioner against order dated 4.3.2016 (Annexure P12) passed in OA No. 592/CH of 2013 by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short, ‘the Tribunal’).
2. The brief facts necessary for the adjudication of the case are that the petitioner was working as Inspector with respondent no.4. He had applied for grant of earned leave from 19.5.2009 to 17.7.2009 to visit USA and Canada. It was sanctioned by the competent authority. He had to come back to join duty on 20.7.2009. However, he submitted an application for extension of earned leave by another two months with effect from 20.7.2009 to 20.9.2009. Vide communication dated 6.9.2009, he was asked to submit application in proper proforma supported by medical certificate or resume duty immediately, failing which disciplinary proceedings would be initiated against him. He came back and submitted his joining report on 24.1.2012, before Additional Commissioner of Central Excise. However, the fact of the matter is that he was dismissed from service vide impugned order dated 24.1.2012 (Annexure P9). The appeal preferred by the petitioner against the imposition of punishment was also dismissed by the appellate authority vide order dated 25.3.2013 (Annexure P11). It is in these circumstances that the petitioner filed the Original Application before the Tribunal.
3. It would be pertinent to mention here at this stage that the petitioner was served with a memorandum dated 25.5.2011 (Annexure P13). The petitioner was dismissed from service by resorting to proceedings under Rule 19 (ii) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter to be referred as, ‘the 1965 Rules’). The gist of charge-sheet dated 25.5.2011, which was issued under Rule 14 of the 1965 Rules, was that the petitioner remained on unauthorised leave from 18.7.2009 to 25.5.2011. The petitioner has placed on record copy of the charge-sheet.
4. It would be appropriate at this stage to reproduce Rule 19 (ii) of the 1965 Rules, which reads as under:-
“19. Special procedure in certain cases Notwithstanding anything contained in Rule 14 to Rule 18-
(i) xx xx xx
(ii) Where the Disciplinary Authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or
(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules.
xx xx xx
5. We have gone through the impugned order dated 24.1.2012 passed by the Commissioner and Disciplinary Authority, whereby the petitioner was dismissed from service. It is stated in the order that on 20.9.2011 the charge-sheet was posted at the address given by the petitioner in his fax massage received on 20.9.2011, however, no response was received from the charged officer. Reply was also not filed by the petitioner. He was given sufficient time to respond. On 2.1.2012, a public notice was published in three local newspapers i.e. ‘The Tribune’, ‘Dainik Bhaskar’ and ‘Desh Sewak’, English, Hindi and Punjabi, respectively. It was explicitly made clear that in case no reply was received from the charged officer, the case would be finalized under Rule 19(ii) of the 1965 Rules. It was also mentioned that the petitioner had sought extension of medical leave but had not attached any medical certificate. He was informed that his leave has been rejected and he was directed to join his duties immediately, failing which disciplinary proceedings would be initiated against him. He was again asked to submit the application for extension of leave and was directed to join his duty vide letter dated 12.1.2010. The disciplinary authority has given findings that the petitioner had been intentionally staying away from his duties on one pretext or the other. He was willfully an
