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C.P. Kalra vs Air India on 8 April, 1993
Article 226 in The Constitution Of India 1949

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Madhya Pradesh High Court
Govind Vakil vs Jawaharlal Nehru Krishi Vishwa ... on 17 September, 2003
Equivalent citations: 2003 (4) MPHT 390
Author: S Khare
Bench: S Khare

ORDER

S.P. Khare, J.

1. This is a writ petition under Article 226 of the Constitution of India for quashing the order dated 19-11-1997 (Annexure P-1) by which the penalty of "stoppage of two annual grade increments with cumulative effect" has been imposed upon the petitioner and the order dated 13-1-2000 (Annexure P-26) by which his period of absence from 1-5-1981 to 15-2-1993 has been treated as "Dies non" under F.R. 18.

2. The petitioner was Assistant Professor in Jawaharlal Nehru Krishi Vishwavidyalaya (hereinafter to be referred to as 'the University'). He was served with a charge-sheet on 7-7-1986. There were two charges against him. The first was that he was in the habit of remaining absent from duty. He was absent from 25-4-1977 to 3-3-1981, The second charge was that he was absent from duty from 1-5-1981 to 7-7-1986 without the sanction of leave. So far as the first charge is concerned it was subsequently regularised. On the second charge the departmental enquiry was held. The petitioner submitted his reply. The enquiry report is dated 23-8-1997 (Annexure P-14). The enquiry officer has held that the petitioner could not justify his long absence. The petitioner took the plea that he was "ailing" or "sick" during this period. He has not disclosed in the petition what was the illness with which he was suffering on account of which he remained absent for more than five years. The enquiry officer held this charge as proved. Then a show-cause notice along with the enquiry report was served upon the petitioner. He submitted his representation dated 12-9-1997 (Annexure P-15). After its consideration the impugned order dated 19-11-1997 (Annexure P-l) was passed by the disciplinary authority. By this order the period of absence from 1-5-1981 to 16-6-1993 was also treated as "dies-non" under F.R. 18. In appeal by the petitioner the Chancellor directed by order dated 2540-1999 (Annexure P-25) that "dies-non " not being a penalty under M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 should not be treated as penalty and a separate order should be passed under the Leave Rules. Thereafter, the second impugned order dated 13-1-2000 (Annexure P-26) has been passed treating the period 1-5-1981 to 15-2-1993 as "Dies-non".

3. The petitioner had earlier filed a writ petition on 30-10-1986 challenging the departmental enquiry. That was M.P. No. 3436 of 1986. That was decided by order dated 18-1-1993 of this Court. Paras 17 and 18 of the said order are relevant for the present purposes and these are as under :--

"17. So far as his claim for salary right from 1977 till this date is concerned, in our opinion, the same will require an enquiry into the fact whether the petitioner, during the entire period while he was away from University work, was employed gainfully elsewhere or not. That enquiry can not appropriately be done in these proceedings before us. We, therefore, leave the petitioner liberty to approach the Jawaharlal Nehru Krishi Vishwa Vidyalaya, Jabalpur with a claim for the purpose and the J.N.K.V.V., Jabalpur may consider that claim and grant relief on the basis of material and evidence made available by the petitioner. If the petitioner is dissatisfied by the action or decision of J.N.K.V.V., Jabalpur with regard to the claim of arrears of his salary, he would be free to approach the Civil Court for the aforesaid monetary claim.

18. In view of the discussion aforesaid, the petition partly succeeds and it is allowed to the extent mentioned below. The Jawaharlal Nehru Krishi Vishwa Vidyalaya, Jabalpur (respondent No. 1) shall accept the joining report, if submitted by the petitioner, within a period of one month from today and post him at the appropriate place within its jurisdiction to enable him to discharge duties of his post. The relief claimed by him for payment of arrears of his salary is rejected with liberty to him to raise such claim before the J.N.K.V.V., Jabalpur and if not granted, to approach the Civil Court for the purpose. We also direct that the J.N.K.V.V., Jabalpur after formal notice to the petitioner, complete the disciplinary enquiry against him pursuant to the show-cause notice dated 7-7-1986 (Annexure-L), within a period of four months from today in accordance with the rules."

4. In pursuance of the above directions the petitioner joined his services on 16-6-1993 and he has been paid his salary since then. He is now retired.

5. The petitioner's case is that the departmental enquiry, as per earlier order dated 18-1-1993 of this Court was to be completed within four months and therefore no enquiry could be held thereafter. He has further stated that he had appeared before Civil Surgeon, Hoshangabad and he had promised to send the medical certificate to the respondent University directly. The petitioner was not allowed to join his duties after 12-1-1985 and therefore, the period of his absence from that date to 16-2-1993 could not be treated as "Dies-non". The petitioner has claimed that the respondent University be directed to sanction his leave from 1-5-1981 to 11-1-1985, and to treat him on duty from 12-1-1985 to 16-2-1993. He has claimed salary for these periods.

6. The respondents' case is that there was delay in conducting the enquiry after the order of this Court as the original record of departmental enquiry which was submitted before this Court in the earlier writ petition was lost. It is further stated that so far as the claim for arrears of salary upto 18-1-1993 is concerned that has been rejected by the order in the earlier writ petition and that can not be reconsidered in this fresh petition. The petitioner could file a civil suit as per earlier directions and as he has not done so he can not be given salary for that period. The impugned orders passed by the respondent University are according to law.

7. The learned Counsel for both the sides have been heard. A written synopsis has been submitted on behalf of the petitioner. It is admitted that the petitioner remained absent for a long period from 1-5-1981 to 7-7-1986. No leave was sanctioned for this period. Therefore, it was unauthorised absence. It was for the petitioner to justify in the departmental enquiry his absence for such along period. He did not submit any medical certificate in support of his plea that he was ailing. He did not even disclose what was the illness with which he was suffering. That does not find place in the petition also. Therefore, the finding of the enquiry officer and the disciplinary authority that the petitioner is guilty of 'misconduct' for being absent unauthorisedly for a long time is correct. It was not for the University to show that the petitioner's absence was without any basis. On the other hand the burden was on the petitioner to prove why he remained absent for a long period of more than five years. He was earlier also absent for four years. No employer can keep such an employee in his employment. The petitioner is trying to put the boot on the other leg. That is not permissible. The absence for such a long period amounts to misconduct. The action taken against the petitioner can not be said to be arbitrary. The punishment is also not shockingly disproportionate. Penalty of removal from service for unauthorised absence from duty for more than a year has been held not arbitrary or highly disproportionate. The justification of the absence, if any, has to be established by the employee and it is not for the department to show that there is no justification for the absence. In State of A.P. v. Rahimuddin Kamal, AIR 1997 SC 947, it has been held that the absence from duty for a long period is covered by the definition of misconduct. The penalty imposed upon the petitioner was "very lenient". He deserved penalty of dismissal or removal from service.

8. The petitioner's claim for arrears of salary upto 18-1-1993 has been rejected in the earlier petition. Therefore, it can not be considered in the present petition. To that extent the earlier order operates as res-judicata or estoppel by record. He could at the most file civil suit but he has not done so. Therefore, the claim lor arrears of salary can not be sustained in this petition.

9. The Court had earlier directed the completion of enquiry within four months. The respondents have demonstrated that the original record of the departmental enquiry was lost in the Court and therefore, there was delay in completion of the D.E. The enquiry can not be held to be invalid on that count.

10. In the earlier order dated 19-11-1997 the period from 1-54981 to 16-6-1993 was treated as "dies-non". Now in view of the appellate order a fresh order has been passed on 13-1-2000 (Annexure P-26) treating the period 1-5-1981 to 15-2-1993 as Dis-non under F.R. 18. This has been rightly done. Any employee after remaining absent firstly for four years and then again for more than five years can not just walk into the office and join again. The employer can treat such long absence as abandonment of service. Such indiscipline can not be tolerated by any employer. The petitioner's claim for salary upto the date of the order in the earlier petition has already been rejected and therefore the period of absence has been rightly treated as dies-non under F.R. 18.

11. The petition is dismissed. The petitioner will pay Rs. 2,000/- as costs to the respondents.