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2013 Supreme(UK) 753
UTTARAKHAND PUBLIC SERVICES TRIBUNAL
V.K. Maheshwari & U.D. Chaube, JJ.
Pramod Singh – Petitioner
Versus
State of Uttarakhand and Others – Respondents
Claim Petition No. 21 of 2010
Decided On : 30.4.2013
Advocate Appeared:
Sri V.P. Sharma, Advocate, for the Petitioner.
Sri Umesh Dhaundiyal, A.P.O. & Sri Inderjeet Singh, Advocate for the Respondents.
Disciplinary proceedings must afford sufficient opportunity for defense and consider compelling circumstances such as illness. Absence from duty without willfulness may not amount to misconduct. Dismissal must be proportionate to the offense.
Headnote:
Dismissal - Public Servant - Uttarakhand Public Services Tribunal Act, 1976 - Rule 62, 63 of Uttar Pradesh State Road Transport Corporation Employees (other than officers) Service Regulation 1981 - The court discussed the petitioner's challenge to the dismissal order on grounds of inadequate opportunity for defense, consideration of illness, absence not being willful, and disproportionate punishment. The court referred to various Supreme Court and High Court cases to analyze the legality of the dismissal and the principles of conducting disciplinary proceedings.
Fact of the Case:
The petitioner, a public servant, was dismissed for remaining absent from duty due to illness. The petitioner challenged the dismissal on grounds of inadequate opportunity for defense, consideration of illness, absence not being willful, and disproportionate punishment.
Finding of the Court:
The court found that the disciplinary proceedings were conducted without sufficient opportunity for defense and without proper consideration of the petitioner's illness. The court also found the punishment of dismissal to be disproportionate considering the petitioner's absence was not willful.
Issues: Inadequate opportunity for defense, consideration of illness, absence not being willful, and disproportionate punishment.
Ratio Decidendi: The court held that disciplinary proceedings must afford sufficient opportunity for defense and consider compelling circumstances such as illness. The court also emphasized that absence from duty without willfulness may not amount to misconduct. Additionally, the court found the dismissal to be disproportionate considering the petitioner's absence was not willful.
Final Decision: The claim petition was allowed, the impugned orders were set aside, and the respondents were directed to reconsider the petitioner's case within three months after affording an opportunity to produce evidence and be heard. The quashing of the impugned order did not entitle the petitioner to join service, which would be subject to the decision of the disciplinary authority.
V.K. Maheshwari, J.
1. The petitioner has challenged the order dated 26.8.2009 of dismissal of services as well as the order passed on his departmental appeal dated 31.12.2009.
FACTS
2. The petitioner had joined the U.P. State Road Transport Corporation in the year 1989 on the post of Conductor and after the creation of the State of Uttarakhand, he became the employee of Uttarakhand Transport Corporation, which is wholly governed and controlled by the State of Uttarakhand, therefore, he is a public servant as defined in Clause-B of Section 2 of the Uttarakhand Public Services Tribunal Act, 1976.
3. In the year 2002, the petitioner was admitted in Doon Hospital for the treatment of Jaundice and remained there w.e.f. 29.8.2007 to 10.10.2007 but after rejoining his service on 11.10.2007, he again came under the attack of Hepatitis and had to remain admitted in Doon Hospital again w.e.f. 13.10.2007 to 29.1.2008. The petitioner was declared fit to join his service on 31.1.2008, but soon after his rejoining, he again fell ill on 23.3.2008 and was again remained under treatment in Doon Hospital, Dehradun w.e.f. 23.3.2008 to 19.5.2008. Meanwhile the petitioner had sent the medical certificates on 20.5.2008 to the concerned authorities and after finally recovering from the illness, he reported to the duty. However, the departmental proceedings were initiated against him for remaining absent and after holding enquiry, the petitioner was held guilty of remaining absent which amounts to misconduct and consequently, was dismissed from the service by the impugned order. The departmental appeal preferred by the petitioner was also dismissed vide order dated 31.12.2009. Hence this petition. The petitioner had challenged the impugned order of dismissal on the following grounds:-
(a) That the enquiry was conducted in haste only one day and sufficient opportunity was not afforded to the petitioner.
(b) That the illness of the petitioner was not properly considered.
(c) That the petitioner was not negligent or delinquent in discharging his duties, but he was prevented to perform his dues by illness.
(d) That the punishment of dismissal is too harsh keeping in view the alleged misconduct of remaining absent.
4. The petition has been opposed on behalf of all the respondents and it has been stated that the petitioner almost remained absent from duties without any intimation i.e. 28.8.2007 to 21.7.2008, which is serious lapse on the part of the petitioner and subversive to discipline. He was directed through registered letters thrice to report on duty, but all in vain. Moreover, no intimation was sent by the petitioner regarding his illness to the authorities. On the report of the station in charge, departmental proceedings were initiated and after framing appropriate charges and considering the representations of the petitioner, the impugned order was passed. It is further stated that the petitioner for the first time stated in the enquiry that he was ill. The petitioner was afforded adequate and sufficient opportunity for making defence and there is no illegality or irregularity in the departmental proceedings. The ground of illness is an after thought which cannot be accepted. The respondents Transport Corporation has to suffer financial loss because of absence of the petitioner and its not possible to permit any employee to remain absent for an indefinite period. The impugned order does not suffer from any illegality or irregularity and petition lacks merit and is liable to be dismissed.
5. A rejoinder affidavit dated 20.1.2011 has also been filed by the petitioner reiterating the facts mentioned in the main petition. A supplementary affidavit has also been filed on behalf of the respondents on 13.5.2011 by which certain documents were filed. After the judgment of the Hon'ble High Court, a fresh affidavit has also been filed by the petitioner on 3.9.2012 and supplementary affidavit was also filed by the respondents on 28.9.2012.
6. We have heard
