Point of Law : Service matter - Unauthorized and deliberate absence – Dismissal from service - Despite serious warning having been given to petitioner time and again by authorities concerned from very beginning but instead of improving his behaviour he indulged in mis-behaviour and indiscipline with superior officers / officials and continued habitual absentism and proceeded on unauthorized leave without caring directions of officers.

JUDGMENT :

1. Heard Sri Sharad Pathak, learned counsel for the petitioner, the learned Standing Counsel for the State-respondents and Sri Pankaj Patel, learned counsel for the opposite party no. 2 to 5.

By means of this petition the petitioner has prayed following relief :

(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned dismissal order dated 29.07.2020, passed by opposite party number 3, contained as Annexure No. I to the writ petition; and pay the petitioner arrears of salary with interest and also pay other consequential dues.

2. The order under challenge is order dated 29.7.2020 passed by the opposite party no. 3 i.e. The Chief Executive Officer which is contained as Annexure no. 1 to the writ petition whereby the petitioner (since deceased) has been dismissed from service.

It is to be noted here that the main petitioner died on 1.4.2021, during the pendency of this writ petition, therefore, his legal heirs filed substitution application which was allowed by this Court, accordingly the family members of the petitioner i.e. Lata Sharma, wife, Bhavna Sharma, daughter, Ashawani Sharma, Son, Aakash Sharma, son of Late Ravi Shankar Sharma have been substituted as petitioner nos. 1 to 4.

3. The sole contention of the learned counsel for the petitioner is that the punishment order of dismissal has been passed without conducting proper inquiry, the impugned order is non-speaking and did not record reasons upon the reply given by the petitioner, past conduct of the petitioner has been taken into consideration while passing the impugned order and the impugned punishment order is disproportionate punishment which does not commensurate with the gravity of the misconduct.

4. Therefore, the question for consideration before this Court is that if the employee does not cooperate with the departmental proceedings despite ample opportunities having been provided as to whether the punishment order could have been passed conducting departmental enquiry as per law or not. While considering this question this has to be seen as to whether the past conduct of the delinquent employee may be taken into consideration that he had committed same type of misconduct on earlier occasions. Besides, the quantum of the punishment can be evaluated by the High Court.

5. Brief facts of the case, as per learned counsel for the parties, are that the petitioner was placed under suspension in contemplation of departmental inquiry by the Chief Executive Officer / Appointing Authority vide order dated 20.9.2018 (Annexure no. 2 to the writ petition). One Deputy Chief Executive Officer, Gorakhpur, Circle Gorakhpur was appointed inquiry officer in the matter.

6. After due approval of the charge-sheet dated 1.01.2019 the same has been served upon the petitioner along with relied upon documents for seeking his defense reply. The petitioner submitted his defense reply on 14.1.2019.

7. Thereafter, in conformity of U.P. Government (Discipline and Appeal) Rules, 1999, the inquiry officer issued a letter dated 16.3.2019 fixing the matter for 18.3.2019 asking the petitioner to appear on the said date and place his defense, if any. The inquiry officer has also afforded an opportunity of personal hearing to the petitioner fixing date time and place to conclude the inquiry but the petitioner after appearing before the inquiry officer has submitted that he has already filed his defense reply so he has nothing to say more.

8. The inquiry officer has recorded the findings in the inquiry report that the charges of unauthorized absence, undisciplined attitude, violation of the employees conduct rules and negligent behaviour have been found proved. The inquiry officer has also noted that on earlier occasions the petitioner remained absent unauthorizedly and his attitude and behaviour with the superiors was absolutely unbecoming of a government servant.

9. As per the learned counsel for the petitioner only one date i.e. 18.3.2019 was fixed for perso