JUDGMENT
R.R. Yadav, J.
1. It is pertinent to mention that the instant writ petition was filed before the Division Bench of this Court challenging the vires of Rules 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 alleging it to be violative of Articles 14, 16 and 21 of the Constitution of India. Learned Counsel for the petitioner made a statement before the Division Bench on 20.3.1990 to the effect that he did not want to challenge the constitutional validity of Rule 16 of the Rajasthan Civil Service (Classification, Control & Appeal ) Rules, 1958 and upon his aforesaid statement, the Division Bench consisting of Hon’ble the then Acting Chief Justice Mr. M.C. Jain and Hon’ble Mr. Farooq Hasan, J. Passed the following order, which is reproduced below:
20.3.90.
Counsel for the petitioner states that he does not want to challenge the costitutional validity of Rule 16. In view of the above statement, let the matter be placed before S.B, on 26th March, 1990 as he withdraws the prayer regarding challenge to constitutional validity of Rule 16 of the Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958.
2. This is how the present wilt petition is posted before me for final hearing.
3. The petitioner has filed the present petition for quashing the impugned order of his removal from service dated 27.7.84 (Anx.4) passed by the respondent No. 2, appellate order dated 3,8.85 (Anx.5) passed by the respondent No. 3 and review order dated 1.10.86 (Anx.7) passed by the respondent No. 1 on the ground interalia that the Enquiry Officer has conducted the disciplinay enquiry against the principle of natural justice and the Disciplinary Authority has passed the order of removal of his services without discussing the material witness adduced on behalf of administration as well as defence adduced by the petitioner. It is also alleged that the charges levelled against him are baseless.
4. According to the petitioner on 5.1.83 his physical condition was serious and he was not in a position to attend his duties, so he consulted a Doctor in Chouhan Clinic, Chomu Distt. Jaipur who advised him to take rest for six days. He has sent his leave application through his brother Birbal at Jaipur in the office of Anti-Corruption Department Jaipur. His Application for leave from 5.1.1983 to 10.1.1983 for six days was not considered by the Disciplinary Authority and even medical certificate given by the Physician was dis believed without assigning any reason.
5. After service of notices on the respondents, a reply to the writ petition has been filed denying the claim putforth by the petitioner. In the additional pleas, the respondents have stated that the petitioner is guilty of material concealment and the present writ petition has been filed as if only six days wilful absence was under consideration before the Disciplinay Authority. ‘.
6. A close scrutiny of the charge sheet dated 26.3.83 (Anx.3) to the writ petition reveals that against the petitioner, two articles of charges were framed, which are reproduced below for ready reference-
Charge No. 1.
That while the petitioner was posted in Anti-corruption Department, Jaipur City-II he wilfully remained absent without informing in the office w.e.f. 5.1.83 and returned back on duty on 11.1.83. In this way, he remained wilfully absent for six days without information from 5.1.83 to 10.1.83.
Charge No. 2.
That while scrutinising the service record of Constable Shri Babu Lal, it was found that from the date of his enlistment as L. C. No. 72 w. e. f. 19.3.76, he used to remain wilfully absent and as such, a habitual wilful absentee. In the past on several occasion for his wilful absence warnings were given to him yet he did not make any improvement in his habit of wilful absence.
The conduct of the aforesaid constrable remaining wilfully absent from duty without any cause and without any information which is apparent from chart annexed to the charge sheet falls within the definition of careless indiscipline and misconduct and as such is punishable.
7. Thus from the perusal of articles of charges framed against the petitioner it is apparent on the face of record that the petitioner was given a charge sheet annexed with the chart (Anx.3) to the writ petition disclosing days of his absence from the date of his enlistment/joining uptil the date of service of charge-sheet, which is reproduced below for ready reference:
Chart Annexed to the Charge Sheet (Anx.3) wilful Absence Report of Shri Babu Lal, LC No. 72 Date of appointment: 19.3.1976 Date of Joining; 20.3.1976.
____________________________________________________________________________________
S. No. From the Date to which date Decision taken Decision to
which data be taken
1 2 3 4
_____________________________________________________________________________________
1. Commandant PDS 7 Days without
Jodhpur From Pay
20.6.76 to 23.06.76.
2. From 29.3.77 to 7 Days Earned leave
4.4.77.
3. From 20.10.77 to 12 Days Without
31.10.77 pay
4. From 14.1.78 to 2 Days Without
15.1.78 Pay
5. From 21.11.77 to 4 Days P.L.
24.11.77
6. From 17.11.78 to 13 Days P.L.
29.11.78
7. From 7.5.79 to 12 Days without
18.5.79 pay
8. From 23.1.80 to 5 Days Without
27.1.80. pay
9. From 2.2.80 to 10 Days P.L.
11.2.80
10. From 1.6.80 to 3 Days Without
3.6.80 pay
11. From 19.6.80 to 12 Days P.L.
30.6.80
12. From 24.10.80 to 11 Days P.L.
3.11.80
13. 1.9.81 1 Day Without
pay
14. From 30.10.81 to 2 Days
31.10.81 Commuted
15. From 16.11.81 to 3 Days without
18.11.81 pay
_______ _________
Total 104 days
_______ _________
16. From 7.6.82 to 10 Days
16.6.82
17. From 25.8.82 to 6 Days
30.8.82
18. From 6.9.82 to 10 Days
16.9.82
19. 20.10.82 1 Day
20. 8.11.82 1 Day
21. From 5.1.83 to 6 Days
11.1.83
22. From 22.1.83 to 2 Days
23.1.83
23. 31.1.83 1 Day
24. From 1.2.83 to 28 Days
28.2.83
______ _________
Total 65 Days
_______ _________
8. The aforesaid chart annexed to charge sheet throws a flood of light that from the date of his appointment the petitioner remained absent without leave for 104 days, for which the department had already taken decision and for second category of absence of the petitioner from Section No. 16 to 24 about 65 days no decision was taken by the department.
9. In my humble opinion, even if a lenient view is taken and wilful absence is computed from the date of absence from which date the disciplinary authority proposed to initiate disciplinary proceeding against the delinquent i.e. 5.1.83, it would be apparent from the aforesaid chart about wilful absence of the petitioner from duty from 5.1.83 to 28.2.83, would be 37 days.
10. The aforesaid chart of wilful absence from duty of the petitioner was given to him annexed with the charge sheet in order to focus his attention to explain his wilful absence atleast from 5.1.83 to 28.2.83 i.e. about 37 days. The petitioner had deliberately avoided to file his explanation to demonstrate before the court, how he has explained atleast about 37 days of his wilful absence from duty. However, it is easily deducible from the order passed by the Disciplinary Authority, Appellate Authority as well as by the State Government that the petitioner had given explanation only for six days absence from duty and has stated in his explanation that on 5.1.83 when he was coming from his village Udaipuria to Jaipur via Chomu to attend his duties, all of sudden, his condition became serious and he consulted a doctor of Chouhan Clinic at Chomu. The doctor advised his to take rest for six days, therefore, he sent his application for leave for six days through his brother Birbal because he was not in a position to attend his duties at Jaipur. The petitioner reported on duty on 11.1.83 after taking fitness certificate from the doctor of Chouhan Clinic, Chomu.
11. From the memo of review Anx.6 to the writ petition filed by the petitioner before respondent No. 1 it is further evident that what reply the petitioner has filed to the charge No. 2 to the ^charge sheet. In reply to charge No. 2 it is stated that he has already been granted leave by the authorities hence charge No. 2 cannot be attributed to him. The aforesaid reply given by the petitioner is perse false and incorrect In as much as from serial No. 16 to 24 about 65 days no leave was granted to the petitioner which is apparent from chart annexed with charge sheet Anx. 3 to the writ petition. The petitioner has wilfully and deliberately avoided to file his explanation submitted to the inquiry officer.
12. I have heard Mr. Ashok Gaur, learned Counsel for the petitioner as well as Mr. C.R. Jakhar, learned Dy. Government Advocate at length and critically gone through the material available on record.
13. The main thrust of argument of the learned Counsel for the petitioner before me is that punishment of removal from service passed by the Disciplinary Authority on the basis of wilful absence of the petitioner is very much harsh and disproportionate to his guilt since the circumstances forced his to remain absent. Second contention of the learned Counsel for the petitioner before me is that the Disciplinary Authority was required to disclose the reasons in support of the order and has no authority to pass a cryptic order, therefore, the petitioner has been deprived to demonstrate before this Court that the reasons, which pursuaded the authority to reject his explanation, are erroneous.
14. In support of his aforesaid contention, the learned Counsel for the petitioner placed reliance on two decisions rendered by the Apex Court in Union of India v. Girl Raj Sharma and Ex Noilc Sardar Singh v. Union of India & Others 1992(8) SLR, 788.
15. Mr. C.R. Jakhar, learned Dy. Government Advocate appearing on behalf of the respondents has refuted the aforesaid arguments advanced on behalf of the learned Counsel for the petitioner and submitted before me that the impugned removal order passed by the Disciplinary Authority, is eminently just and proper and does not require any indulgence of this Court on the question of quantum of punishment and secondly, he invited my attention towards the Impugned removal order passed by the respondent No. 2 dated 27.7.84 Anx. 4 to the writ petition, which has been passed after analytical discussion of the evidence adduced by the Administration as well as defence witnesses adduced on behalf of the petitioner.
16. I have given my thoughful consideration to the rival contentions made at the Bar and I would like to discuss the arguments advanced by the learned Counsel for the petitioner In seriatim.
17. As regard the first argument of the learned Counsel for the petitioner about harsh punishment of removal from service being dis-propprtionate to his guilt, is not acceptable to me. The chart of wilful absence of the petitioner from duty was handed over to him along with the charge sheet, therefore, he was required to give explanation atleast w.e.f. 5.1.83 to 28.2.83 but he has given his explanation of only six days absence on the ground of his illness but no explanation whatsoever has been submitted in respect of remaining 31 days.
18. It is submitted by the learned Counsel for the petitioner that the services of the petitioner are governed by Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958 as well as Rajasthan Service Rules, 1951. Rule 59 of the Rajasthan Service Rules, 1951 (for short ‘the Rules of 1951’) provides that leave cannot be claimed as of right. Discretion is reserved to the Authority empowered to grant leave or to refuse or revoke leave at any time according to the exigencies of the public service. Rule 60-A of the Rules of 1951 also provides that every Government Servant proceeding on leave must record on his application for leave, the address at which letters will find him during leave. Subsequent changes in address (during leave), if any, should likewise be intimated to the Head of the Office or the Department as the case may be. Rule 80 of the Rules of 1951 enumerates the consideration, which shall be taken into account by the competent authority, where all applications of leave cannot be granted in the interest of public service.
19. Rules 85 of the Rules of 1951 further provides that a Government Servant on leave may not return to duty before the expiry of the period of leave granted to him unless he is permitted to do so by the authority who granted him leave. Rule 86(1), (2) and (3) of the Rules of 1951 are as under:
86. Absence after expiry of leave. -(1) A Government servant who is absent from duty without leave or before leave applied for has been sanctioned by the competent authority shall be treated to have remained wilfully absent from duty; and such absence shall amount to interruption in service involving forfeiture of past service unless, on satisfactory reasons being furnished, the absence is regularised by grant of leave due or is commuted into extra-ordinary leave by the authority competent to sanction leave.
(2)(a) A Government servant who remains absent from duty after the expiry of the sanctioned leave or after communication of refusal of extension of leave is not out inour pay and all mencec for the period of such absence and the period of such absence shall be commuted into extra-ordinary leave unless on satisfactory reasons being furnished, the period of absence is regularised by grant of leave due by the authority to grant leave.
(b) Wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action.
(3) Notwithstanding the provisions contained in sub-rules (1) and (2) above the disciplinary authority may initiate departmental proceedings under Rajasthan Civil Services (Classification, Control & Appeal) Rules against a Government servant who wilfully remains absent from duty for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service.
20. A scrutiny of sub-rule (1) of Rule 86 of the Rules of 1951 leads towards an irresistible conclusion that when a Government servant is absent from duty without leave or before leave applied for, has been sanctioned by the competent authority, he shall be treated to have remained wilfully absent from duty and such wilful absence is visited with the consequence that it would amount to interruption in service involving forfeiture of past service. However, on satisfactory reasons being furnished, the authority competent to sanction leave, can regularise it by grant of leave due or can commute it in extra ordinary leave.
21. Sub-rule (2)(a) of Rule 86 of the Rules of 1951 provides where a Government servant who remains absent from duty after the expiry of the sanctioned leave or after communication of refusal of extension of leave, is not entitled to any pay and allowances for the period of such absence and the period of such absence shall be commuted into extra ordinary leave unless on satisfactory reasons being furnished, the period of absence is regularised by grant of leave due by the authority to grant leave.
22. Sub-rule (2) (b) of Rule 86 of the Rules of 1951 provides that wilful absence from duty after expiry of leave renders a Government servant liable to disciplinary action. The aforesaid sub-rule was inserted vide F.D. Notification No. F.1(33) F.D.(G.2) 78 dated 8.4.1986.
23. Sub-rule (3) of Rule 86 of the Rules of 1951 has been added by his excellency Governor of Rajasthan in exercise of his legislative power under Article 309 of the Constitution with a view to arrest growing tendency of lethargic lais-sez faire discharge of their duties amongst the Government servants appointed to services and posts in connection with the affairs of Rajasthan. The object of the newly inserted sub-rule(3) of Rule 86 of the Rules of 1951 is to senstised the insenstiveness of Government servants towards faithful and sincere discharge of their duties and to avoid to remain wilfully absent from their duties.
24. Sub-rule (3) of Rule 86 of the Rules of 1951 was inserted in Rule 86 of the Rules of 1951 by Notification dated 22.2.1979, which starts with non-obstinate clause and empowers the disciplinary authority to initiate a departmental proceedings against a Government servant who wilfully remained absent from duty for a period exceeding one month. Legislation in a modern state is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience.
25. There is school of throught that the traditional methodology of interpreting a statute with reference to “intention of the legislature” should now, be replaced by a new methodology of “attribution of purpose”. The following extract from an Article in (1970)33 Modern Law Review, pp. 199, 200 by Harry Bloom, explains the new idea as follows:
In time however, somebody will have to tackle the basic question how long can be sustain the fiction that when the legislature prescribes for a problem, it provides a complete set of answers; and that the court, when confronted with a difficult statute merely uses the techniques of construction to wring in innate meaning out of the words. PROFESSOR HART AND SACKS OF Harvard University have expressed ideas on this which seem to be highly attractive. They argue that interpretation should not be regarded as a search for the purpose of the legislature or even for the purpose of the statute, but as one of ‘attribution of purpose’. The court, by asking ‘what purpose do we attribute to the statute?’ allows an inquiry into how best the statute can be interpreted and applied, or related to other legislation. What this means is explained by PROFESSOR ROBERT E. KEETON, also of Harvard, in the recent book ‘venturing to do justice’: ‘ I do not understand HART AND SACKS to imply that the purpose to be attributed to the stature need be one that was or even could have been consciously formulated at the time the statute was enacted. I understand them to choose this formulation for the very reason that they wish to free the court from the handicaps of dealing with the fiction that the statute contains within it an answer to every question that might arise in its application’.
26. It would appear from going through the chart of wilful absence of the petitioner given to him along with the charge sheet that the petitioner was habitual wilful absentee from the time of his enlistment as a Constable and so far as 104 days leave is concerned, the sanctioning authority has shown his magnanimity in condoning and regularising his leave.
27. The chart indicating wilful absence of the petitioner further reveals that about 65 days of wilful absence of the petitioner the decision is yet to be taken by the authorities. Even if a lenient view is taken, the petitioner was required to give explanation about his wilful absence from 5.1.83 to 28.2.83, which period is admittedly exceeding one month, therefore, the Disciplinary Authority had rightly initiated departmental proceedings against the petitioner under Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958 and if the charge of wilful absence from duty for a period of exceeding one month is proved against him, he has rightly been removed from service. It is pertinent to mention that in his reply to the charge sheet, the petitioner nowhere explained his wilful absence for at least 31 days. He has given the explanation of his absence only from 5.1.83 to 11.1.83 for 6 days, which has already been referred in the preceding paragraphs of this, judgment.
28. Giri Raj Sharma’s case (supra) and Ex.-Naik Sardar Singh’s case (Supra) on which learned Counsel for the petitioner placed reliance in support of his argument, are not attracted in the present case. In Giri Raj Sharma’s case (Supra), their lordships have observed that the incumbent while admitting the fact that he had over stayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. But in the present case, the petitioner being a member of Disciplined Police Force is found to be habitual absentee and he has not given any explanation whatsoever at least for 31 days and could not be able to demonstrate the circumstances, which forced him to remain absent atleast for 31 days. The facts of the case of Ex-Naik Sardar Singh’s (supra) are distinguishable and the ratio laid down by their lordships of Hon’ble Supreme Court is not applicable looking into the facts and circumstances of the present case.
29. In view of the aforesaid facts and circumstances of the case, the Disciplinary Authority has not committed any error in passing the order of removal from service against the petitioner in the light of statutory sub-rule (3) of Rule 86 of the Rules 1951. As a matter of fact, from perusal of the removal order passed by the respondent No. 3, the petitioner deliberately and wilfully remained absent for 37 days, out of which, he has given explanation only for 6 days w.e.f. 5.1.83 to 10.1.83 but conspicuously failed to give explanation whatsoever for remaining 31 days about his wilful absence. In the facts and circumstances of the case, the punishment of removal from service awarded by the Disciplinary Authority to the petitioner cannot be said to be harsh and disproportionate to his misconduct. A non-obstinate clause is usually used in a provision to indicate that provision to prevail despite anything to the contrary in the provision mentioned in such non-obstinate clause. In case there is any inconsistency or a departure between the non-obstinate clause and another provision one of the objective of such a clause is to indicate that it is the non-obstinate clause which would prevail over the other clause.
30. In my humble opinion, sub-rule(3) of Rule 86 of the Rules of 1951 are clear and are capable of only one interpretation on a plain and gramatical construction and words thereof that if a delinquent incumbent is remained wilfully absent for a period exceeding one month then removal from service is the only punishment which should be awarded by Disciplinary Authority. In such a situation if a delinquent incumbent is not able to explain his wilful absence from duty for a period exceeding one month then removal from service is the only punishment under sub-rule (3) of Rule 86 of the Rules of 1951 and such punishment cannot said to be disproportionate to his delinquency. In my considered opinion it is the province of a judge to expound a law and not to speculate upon what is the best in his opinion for the delinquent incumbent remaining wilfully absent for a period of exceeding one month. Once a finding of wilful absence for a period exceeding one month is established removal from service is the only punishment which cannot said to be disproportionate by any strech of imagination. While interpreting sub-rule(3) of Rule 86 of the Rules of 1951 a court of law should not speculate that although the delinquent incumbent remained absent for a period exceeding one month yet the punishment provided under the aforesaid rule for removal of his service is disproportionate.
31. As regard second argument of the learned Counsel for the petitioner to the effect that the Disciplinary Authority has passed a cryptic order due to which the petitioner is not able to demonstrate before this Court that the reasons which persuaded the disciplinary authority to reject his explanation are erroneous is not acceptable to me. The impugned order of removal from service of the petitioner passed by the disciplinary authority discloses the points, which were considered by him and he has given cogent reasons for rejecting the explanation of the petitioner. The disciplinary authority has not passed the impugned removal order against the petitioner with closed mind but he has applied his mind judiciously to the evidence adduced before the Enquiry Officer on behalf of the administration and has also taken into account and has discussed the evidence adduced by the petitioner. The disciplinary authority has given cogent and convicing reasonsto arrive at a conclusion that both the charges levelled against the petitioner have been proved against him. Thus, it is incorrect to say that the disciplinary authority has passed the impugned removal order without applying his mind to the facts and circumstances of the case put forth by the administration as well as by the petitioner before the Enquiry Officer. The factuaPfoundation led in the writ petition is almost repetition of the memorandum of Review Petition filed before the respondent No. 1 Anx. 6 to the writ petition, which has been discussed thread bare by the respondent No. 1 while disposing of the Review Petition vide Anx. 7 to the writ petition. Thus, in my humble opinion, the second argument of the learned Counsel for the petitioner is not tenable and as such is hereby rejected.
32 Except the aforesaid points, no other point has been argued on behalf of the petitioner.
33. Before palling with the judgment it is brought to my notice that non-obstinate clause sub-rule (3) of Rule 86 of the Rules of 1951 is not properly interpreted by subordinate courts and even in those cases where a delinquent incumbent remained wilful absent from duty for a period exceeding one month and is not able to explain the compelling reasons which prevented his to remain absent yet instead of passing order for removal of service only forfeiture of past services are being passed against the mandatory provisions of the aforesaid sub-rule which is not permissible.
34. In view of the aforesaid facts and circumstances the Registrar of this Court is hereby directed to circulate a copy of this judgment to all the District Head quarters as well as out line courts of each district to ensure the strict compliance of newly inserted sub-rule(3) of Rule 86 of the Rules of 1951 in letter and spirit.
35. As result of the aforementioned discussion, the writ petition lacks merit and is hereby dismissed. Both the parties are directed to bear their own costs.