In departmental proceedings, the disciplinary authority must prove that an employee's unauthorized absence is 'willful' before classifying it as misconduct; failing this, or failing to adhere to the principles of natural justice, the penalty of removal from service is disproportionate and unsustainable.

ORDER:

Heard Sri Mohd. Mumtaz Pasha, learned counsel appearing on behalf of the petitioner, and Sri M. Prudhvi Raj, learned counsel representing Sri R. Mangulal, learned Standing Counsel for Central Government, appearing on behalf of the respondents.

2. The petitioner filed the writ petition seeking the following relief:

“…to issue a writ, order or directions more particularly writ of mandamus to declare the orders of the 3rd respondent dated 29.10.2019 in proceeding No.11014 (1)/Appeal/SKM-BDL(B)/SZ/L&R/2019 in conforming orders of the 4th respondent dated 16.06.2015 in Proceeding No.V-15014/ CISF/BDL(KB/B)/DISC/ MAJ-01/ SKM/2015/3145 in removing the petitioner from service, is illegal and against to the principles of law, consequentially to set aside the orders of the 3rd respondent in conforming the orders of 4th respondent and to reinstate the petitioner in service with all other service benefits and pass...”.

3. The case of the petitioner in brief as per the averments made in the affidavit filed by the petitioner in support of the present Writ Petition is as under:-

The petitioner was appointed as Constable in CISF in the year 2009. The petitioner was transferred from CISF unit NLC Neyveli to CISF unit BDL, Bhanur, Medak and movement order was issued on 30.06.2014, the petitioner was granted ten days leave for joining at new place of posting. The petitioner was hospitalized on 10.07.2014 due to malaria and jaundice. Thereafter the petitioner again seriously fell sick at his native place i.e. Bishal Village, Bihar District as the petitioner was suffering from depression and psychic ailments. The petitioner’s wife had informed to the respondent No.4 about the ill-health of the petitioner. On 04.07.2017 the petitioner requested the respondent Nos.4 and 5 to join duty but the respondent Nos.4 and 5 informed the petitioner that ex-parte enquiry has been conducted against the petitioner and order, dated 16.06.2015 was passed removing the petitioner from service. The petitioner preferred appeal before the respondent No.3, who rejected the appeal vide order dated 29.08.2017 stating that the petitioner overstayed for a period of 137 days without any leave or permission from respondent No.4, which amounts to misconduct and dereliction of duty. Aggrieved by the same, the petitioner approached the Court by filing the present writ petition.

4. PERUSED THE RECORD

(A) The Article of Charge issued to the petitioner dated 30.09.2014 by the respondent No.3 is extracted hereunder:

“CISF No.091560102 EX-CONST/GD/Shailesh Kumar Mandal of CISF Unit BDL Bhanur while posted at CISF Unit NLC Neyveli was relieved on regular posting from CISF Unit Neyveli to CISF Unit Bhanur on 30.06.2014 (AN) vide CISF Unit NLC Neyveli Movement Order bearing No.E-38014/ movement order/Adm-I/14/4996 dated 30.06.2014 As per directions contained in the said movement order, he was entitled to avail 10 days joining time from 01.07.2014 to 10.07.2014 and supposed to report at CISF Unit BDL Bhanur on 11-07-2014 (FN) but he did not report at CISF unit BDL Bhanur on 11-07-2014 and overstayed from joining time w.e.f. 11.07.2014 to24.11.2014 for a period of 137 days on his own without any leave or permission from the competent authority and reported at CISF Unit BDL Bhanur on 25.11.2014. His act of non-reporting in time to the new place of posting i.e., at CISF Unit BDL Bhanur and overstaying from joining time w.e.f. 11.07.2014 to 24.11.2014 tantamount to serious misconduct gross indiscipline, dereliction of duty and disobedience of lawful orders considering that he is a member of disciplined central Armed Police force of th