JUDGMENT
Navin Chandra Sharma, J.
1. By this writ petition, the petitioner has challenged the imposition of penalty of removal from service, made by the Disciplinary Authority by his order dated 16th/17th July, 1982 (Ann. 6) and the appellate order dated 27th Sept., 1982 (Ann. 8).
2. The charge framed against the petitioner was that he remained absent from his duties as Class-IV servant, without previous sanction or permission, during the following four periods:
(1) From 1.8.1980 to 3.9.1980
(2) From 4.9.1980 to 23.9.1980
(3) From 27.9.1980 to 1.10.1980
(4) From 4.10.1980 to 3.12.1980
A statement of allegations, along with a memorandum was served upon the petitioner. The petitioner filed a reply to the charge-sheet served upon him. In his reply, the petitioner stated that during the period from 1st Aug.,’80 to 16th Aug.,’80, he was posted in the Education (Group-3) Department of the Rajasthan Secretariat, and that with respect to this period, the mark of his attendance found place in the Attendance-Register of that department. After availing leave for the period from 17th Aug.,’80 to 2nd Sept.,’80, he had appeared in the department and he had sent his application for leave for the said period to the department. In relation to the period from 11th Sept.,’80 to 24th Sept.,’80, he had submitted application for leave in the Education Department, and that department had forwarded the same to the Department of Personnel (DOP), fro formal sanction, but, the DOP did not issue the sanction. As regards the period from 25th Sejpt.,’80 to 31st Dec.80, the petitioner stated that he had made an application for leave to the DOP (A-2), and after availing of the leave, he had reported himself on duty on 1st Jan., 81. He also stated that he had been sending leave applications from time to time, but, unfortunately, they were not available in the office, and probably they were not traceable. He concluded that he had not remained absent wilfully and without previous sanction of leave and he had been sending leave applications from time to time.
3. By an order dated 24th Dec., ’81 (Ann.3), the Disciplinary Authority appointed Suraj Mal Kedwal, Section-Officer of the DOP in Administrative Reforms, as Enquiry-Officer, to enquire into the charges framed against the petitioner. By another order (Ann.4), Hiralal Sharma UDC, was appointed as Presenting Officer. After perusing the reply filed by the petitioner to the chargesheet, the Disciplinary authority decided to hold an enquiry against the petitioner.
4. The Enquiry-Officer gave a notice to the petitioner on 29th Dec,’81, to appear before him on 11th Jan.,’82, to present his case. That notice could not be served upon the petitioner, and there was a report of the Diarist that the petitioner was not available in the Secretariat and that none else in the Education Department accepted the notice. Thereafter, another notice was issued, requiring the petitioner to appear on 18th Jan.,’82. However, on 19th Jan.,’82, at 10.30 a.m., Presenting Officer Hiralal Sharma appeared along with the petitioner before the Enquiry-Officer. The Enquiry-Officer heard both the Department Representative and the petitioner. It appears that the petitioner invited the attention of the Enquiry-Officer, to the reply that he had given to the charge-sheet on 21st Jan, ’81, addressed to the Assistant Secretary. That reply was available on the file of the DOP. After perusing the reply, the Enquiry-Officer fixed 10th Feb.,’82 as the next date. The petitioner had been given due notice on 19th Jan.,’82, of the next date, i.e., 10th Feb.,’82. However, the petitioner did not appear before the Enquiry-Officer on 10th Feb.,’82. The Enquiry-Officer perused the Attendance Register, maintained in the Education (Group-3) Department, in relation to the period from 1st Aug.,’80 to 16th Aug.,’80, and from its perusal, it appeared that the petitioner was not regularly present during that period. In between the said period, the petitioner had remained absent from time to time, and he also did not make applications for leave, in time. A statement was prepared with respect to the period from 1st Aug.,’80 to 31st Dec.,’80 showing the attendance of the petitioner and his leave applications, which was at page-6 of the file. The Enquiry-Officer found that the petitioner used to make applications for Privilege Leave after returning from leave, and this was contrary to rules. He enquired from the Departmental Representative as to why the leave applied for by the petitioner was not sanctioned. The Departmental Representative informed the Enquiry-Officer that the petitioner had been absent from 28th Dec,’79 to 27th July, 80 also and that his past services in relation to the said period was forfeited. In such circumstances, till that past matter was decided, it was not possible to sanction leave to the petitioner. This explanation was accepted by the Enquiry-Officer. The Enquiry-Officer made reference to the application for leave, which the petitioner had submitted after availing of leave, and which was available at page 20 of the file, submitted before him. It was urged by the Departmental Representative that every employee of the Government knows the rules that it is necessary to obtain permission or sanction for availing of leave before proceeding to avail it. On this basis, the Enquiry-Officer held the petitioner guilty of the charge framed against him.
5. After perusal of the report of the Enquiry-Officer, a show-cause notice was given to the petitioner by the Disciplinary Authority as against the penalty of removal from Government service, which was proposed to be imposed upon him. That notice is Annexure-4, dated 12th Sept.,’82. To this notice, the petitioner submitted his representation on 23rd Apr.,’82 (Ann.5). In his representation, the petitioner stated that the Enquiry-Officer had given his report mainly because the petitioner, on account of some reason, could not appear before the Enquiry-Officer on 10th Feb.,’82. The Enquiry-Officer ought to have given intimation to the petitioner, of the next date. It was stated that the Enquiry-Officer had also not recorded any oral evidence, nor had he exhibited documents. He also pleaded that whether the petitioner’s applications for leave were in accordance with the rules or not, this question could only be decided by the competent authority and not by the Enquiry-Officer. He also pleaded that the proposed punishment was very harsh and disproportionate.
6. The Disciplinary Authority considered the representation of the petitioner, and he came to the conclusion that the petitioner had not put-forward any strong or solid fact, and therefore, his representation was found to be not satisfying. For indiscipline of the petitioner, penalty of removal from service was imposed upon him by the Disciplinary Authority, by his order dated 16th/17th July,’82.
7. The petitioner filed an appeal (Ann. 7). He was intimated by the Deputy Secretary, DOP, Administrative Reforms that after consideration of the appeal preferred by the petitioner, no grounds were found to make any alteration in the order imposing the penalty of removal from service, as from the record, the charge framed against him was fully proved. His appeal was accordingly dismissed on 21st Sept.,’82, by order (Ann.8).
8. Rule 59 of the Rajasthan Service Rules (RSR), provides that leave cannot be claimed as a right. Discretion is reserved to the authority empowered to grant leave, to refuse or revoke leave at any time according to the exigencies of the public service.
9. Rule 60-A of the RSR 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. An application for leave or extension of leave has to be made to the authority competent to grant such leave or extension.
10. Rule-80 of the RSR enumerates the considerations which shall be taken into account by the competent authority where the applications for leave cannot be granted in the interest of public-service.
11. Rule-85 of the RSR 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 which granted the leave.
12. Rule-86 of the RSR deals with cases where a Government servant is absent, from duty without leave or before leave applied for has been sanctioned by the competent authority. In such a case, the Government servant is treated to have remained wilfully absent from duty, and such absence amounts to interruption in service involving forfeiture of past services, unless, on satisfactory reasons being furnished, the absence is regularised by grant of leave due or is commuted into extraordinary leave by the authority competent to sanction leave.
13. Sub-rule (3) of Rule 86 reserves the powers of the Disciplinary Authority to initiate disciplinary proceedings under the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958, as against a Government servant, who wilfully remains absent from duty for a period exceeding on month, and if the charge of wilful absence is proved against him, he may be removed from service.
14. It would appear on perusal of Rule-86 of the RSR 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. Such absence is visited with the consequence that it would amount to interruption in the service involving forfeiture of the past services. However, on satisfactory reasons being furnished, the authority competent to sanction leave, can regularise it by grant of leave due or can commute it into extraordinary leave. Sub-rule (2) of Rule-86 provides for cases of a Government servant who remains absent from duty after the expire of the sanctioned leave or after commutation of refusal of extension of leave. Such a Government servant is not entitled to any pay and allowances for the period of such absence, and the period of such absence shall be commuted into extraordinary leave, unless, on satisfactory reasons being furnished, the period of absence is regularised by grant of leave due by the authority to grant leave. Sub-rule (3) was inserted in Rule-86 of the RSR by notification dated 22nd Feb., 79. It starts with non-obstante clause and empowers the Disciplinary Authority to initiate departmental proceedings against a Government Servant who wilfully remains absent from duty for a period exceeding one month.
15. It would appear from going through the charge framed against the petitioner that the period from 1.8.1980 to 23.9.1980 & 4.10.1980 to 31.12.1980 are periods exceeding one month, and therefore, the Disciplinary Authority could initiate departmental proceedings against the petitioner under the Rules of 1958, and if the charge of wilful absence from duty was proved against him, he could be removed from service. It is very pertinent to note that in his reply to the charge-sheet, the petitioner nowhere stated that he had applied for leave before proceeding on leave, or that the leave applied for by him was sanctioned. All that he stated was that in relation to the period from 1.8.1980 to 16.8.1980, he was posted in the Education (Group-3) Department and his attendance was recorded in the Attendance-Register there. He stated that after availing of leave from 17.8.1980 to 2.9.1980, he had resumed his duties in the office. He only vaguely stated that he had sent leave-application for the said period, to his office. He did not state that he had applied for leave before he proceeded on leave on 17th Aug.,’80. It was not disputed that he was not present on duty from 25th Nov., ’80 to 31st Dec., ’80. All that he said was that he had sent the application for leave to DOP (A-2), and that after availing of the leave, he had resumed his duties on 1st Jan.,’81. Also he did not state that he had applied for leave before he proceeded on leave on 25th or 27th Sept.,’80, as the case might have been, and that he had got it sanctioned. The very fact that the petitioner did not make any such assertion, goes to show that the leave in respect of these periods were not applied for by the petitioner before he started availing of the leave, nor were the same admittedly sanctioned. This sort of vague reply of the petitioner cannot be lightly ignored, and it gives an indication that the leave for the above periods was not applied for before the petitioner proceeded to avail of the leave, nor were they sanctioned before that date, or at any other time.
16. A due notice of the enquiry was given to the petitioner, and as a matter of fact, the petitioner had appeared before the Enquiry-Officer on 19th Jan.,’82, at 10.30 a.m., and he had invited the attention of the Enquiry-Officer to the reply filed by him to the charge-sheet. With the written consent of the petitioner, the Enquiry-Officer fixed 10th Feb.,’82 as the date for further proceeding in the enquiry. But, the petitioner did not appear on that date before the Enquiry-Officer, Admittedly, he also did not apply for any adjournment, to the Enquiry-Officer to adjourn the enquiry for any good reason. In his representation (Ann.5), the petitioner has only stated that on account of some reason, he could not appear before the Enquiry-Officer. Even, the reason has not been disclosed. In the background of these facts and the vague reply which the petitioner had given the only enquiry needed by the Enquiry-Officer, was to look into the record regarding the attendance of the petitioner, his leave applications, and any orders passed thereon. On perusal of the relevant record, the Enquiry-Officer found that during the period from 1st Aug.,’80 to 16th Aug.,’80, the petitioner was not regularly present in the office, and that in between, he had remained absent. Let us ignore the period from 1st Aug. to 16th Aug.,’80. It has further been found by the Enquiry-Officer that the petitioner had made applications for grant of leave after he had returned from leave. He had noted this fact at more than one places in his finding and there is no reason to doubt the correctness of his
finding, and more so, when it was not even the petitioner’s case that he had applied for leave before proceeding to avail of the same. As already stated, the period from 4th Oct.,’80 to 31st Dec.,’80, exceeded the period of one month, and during this period, the petitioner wilfully remained absent, without making any application for leave and without the same being sanctioned before, he proceeded to avail of the leave. That was sufficient to hold the petitioner guilty of the charge of wilful absence from duty at least with respect to the period from 4th Oct. to 31st Dec,’80, and on proving of this charge under sub-rule (3) of Rule-86 of the RSR, the petitioner could be removed from service.
17.It was contended by the counsel for the petitioner that the Disciplinary Authority did not give a speaking order while imposing the penalty. In this connection he referred to various decisions, which may be dealt with. The first case referred to by him is the case of K.L. Sharma v. United Commercial Bank and Ors. WLR 1992(S) Raj.34. In that case, the gist of the principal charge against the petitioner was that while performing his duties as investigator for preparing creditreports on parties, the petitioner used to charge Rs. 18/- per credit-report, from each party. The names of some of the parties were specified in the charge-sheet. The other charge was that the petitioner used to recover Rs. 18/- from the borrowers while making verification of instalments of pump-sets and he withdrew Rs. 576/- as DA/TA for such verification made during the period 1970-71, from the bank, in spite of the fact that the payment was declined by the Head-Office. The petitioner, in that case, moved an application before the Enquiry Officer for production of certain documents. The Enquiry-Officer did not call for the said documents and rejected the request of the petitioner, without assigning any reasons. The petitioner again applied for summoning the documents, but, that request was also rejected by the Enquiry-Officer, and he proceeded to submit the enquiry-report. To the show-cause notice, the petitioner submitted a detailed reply. The disciplinary Authority, however, awarded the penalty of stoppage of one Grade increment with cumulative effect. His appeal also failed. One of the arguments advanced on behalf of the petitioner in that case was that the order imposing the penalty was a cryptic one and did not deal with the contention of the petitioner raised in the reply, and that the appellate order was non-speaking. The learned Single Judge held that the order imposing the penalty and the appellate order did not deal with the contentions raised by the petitioner, and therefore, they deserved to be quashed.
18. The next decision referred to is in the case of Siyaram v. State of Rqjasthan and Ors. (1992(1) WLC (Raj.) 352). In that case, the order imposing the penalty simply stated that after the charges were found proved against the petitioner a show-cause notice for imposing punishment for removal from service was given to the petitioner. His explanation was not found satisfactory, and the order of removal was passed. The learned Single Judge in that case, referred to the decisions in S.N. Mukherjee v. U.O.I. and Ram Khilari v. U.O.I. 1976 RLW 320, and on their basis, he held that the Disciplinary Authority had not applied its mind and had not recorded reasons, and thus, there was non-consideration of the case of the petitioner.
19. In Dr. R.K. Sharma v. State of Rajasthan 1989 (1) RLR 659, the petitioner who was posted as a Medical Jurist at Bikaner, was charged with imputation of preparing a false injury-report and making false statement before the Court. The charge was not found to have been established by the Enquiry-Officer. The punishing authority wrongly proceeded on the assumption that the Enquiry-Officer had found the petitioner guilty of preparing false injury-report. On a construction of Rule 16(10)(ii)(b) of the Rules of 1958, it was held that the Disciplinary Authority had failed to consider the representation filed by the petitioner, and therefore, the order imposing the penalty needed to be struck down. As has already been stated, in Dr. R.K. Sharma’s case (supra), the petitioner was not charged with negligence in the performance of his duties, but, was charged with the imputation of preparing false injury-report and making false statement before the Court. The Enquiry-Officer had not found the same to have been establihsed, and the punishing authority wrongly proceeded on the assumption that the Enquiry-Officer had found the petitioner guilty of preparing false Injury-report, and it did not deal with the submissions which had been made by the petitioner in that case in his representation and the points raised therein.
20. In the State ofRqjasthan v. Amolak Chand Sanghi (1983 (2) RLR 246), the Enquiry-Officer had given a finding that it was established that Rs. 150/- were drawn by respondent Amolak Chand falsely, as pay, in the name of Naney Kahn, who was his private servant, causing wrongful loss to the Government. On the basis of the enquiry-report, the Government passed an order imposing penalty of stoppage of two grade increments with cumulative effect, by mentioning in the order that the Government had considered the written-statement, alongwlth the report of the Enquiry-Officer. The findings of the Enquiry-Officer were mentioned, and it was stated that the petitioner-respondent had abused his official position, which was quite a serious thing, and therefore, the penalty was imposed. Reference in that case was made to Rule 16(9) of the Rules of 1958, and it was observed that under this rule, the Disciplinary Authority was required to examine the record and to apply its mind and thereafter to record specific finding on each charge. The impugned order in that case was held to be not in accordance with Rules 14 & 16(9) of the Rules of 1958.
21. It may be mentioned that Rule 16(7) of the Rules of 1958 provides that at the conclusion of the enquiry, the Enquiring Authority shall prepare a report of the enquiry regarding its findings on each of the charges together with reasons therefor. Then, sub-rule (9) of Rule-16 states that the Disciplinary Authority if it is not the Enquiring Authority, shall consider the record of the enquiry and record its findings on each charge. Then, sub-rule (11) of Rule-16 states that if the Disciplinary Authority, having regard to its findings, is of the opinion that any of the penalties specified in Clauses (i) to (ill) of Rule 14, should be imposed, it shall pass appropriate orders in the case. Sub-rule (12) of Rule-16 provides that orders passed by the Disciplinary Authority shall be communicated to the Government servant, who shall also be supplied with a copy of the report of the Enquiring Authority, and where the Disciplinary Authority is not the Enquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Enquiring Authority, unless, they have already been given by the Commission, and, where the Disciplinary Authority has not accepted the advice of the Commission, a brief statement of the reasons for such non-acceptance.
22. In the present case, in reply to the second show-cause notice, the petitioner had stated that the Enquiry-Officer had made up his mind and he had proceeded with the enquiry in haste and did not give the petitioner an opportunity of defence. He next pleaded that the Enquiry-Officer did not apply his mind to the reply which had been submitted by the petitioner. He next pleaded that the petitioner was an illiterate and he was not aware of the rules. He complained of violation of the principles of natural justice. He also stated that merely because the petitioner could not attend the enquiry on the date fixed, it was wrongly assumed that the petitioner did not want to participate in the enquiry. No evidence was adduced on behalf of the department. When no evidence was adduced, findings could not have been recorded on perusal of the departmental files. It was further stated that the Enquiry-Officer had not examined the question as to whether the competent authority had not the power to sanction leave even after the return of the Government servant from leave.
23. It would appear on going through the representation made by the petitioner to the Disciplinary Authority (Ann. 5) that nowhere in his representation, the petitioner had taken the plea that he had made application for leave to the competent authority before he proceeded to avail of the leave, or that after getting it sanctioned, he had proceeded on leave, or that the leave applied for by him was sanctioned by the competent authority later at any time. In the absence of any such plea being raised by the petitioner in his representation, what else remained to be examined by the Disciplinary Authority, except holding that the Enquiry-Officer had rightly held the petitioner guilty of the charge? For proving the charge, the above factors were only relevant, and on these factors, no dispute whatsoever was raised Admittedly, the petitioner had not appeared, in the enquiry on the date fixed, and when he did not participate in the enquiry and even did not apply for any adjournment, there remained nothing to be proved by the department, except perusal of the record, which clearly went to show that application for leave was not made by the petitioner before he proceeded on leave. It was made later on and was never sanctioned by the competent authority.
24. In the facts & circumstances of the present case and in view of the petitioner’s own case in his reply, representation and in the grounds of appeal filed before the appellate authority, no question of any consideration arose, and it was clearly brone out from the facts that the petitioner remained absent without applying for leave, without the same being sanctioned either before the petitioner had proceeded on leave or at any time thereafter, in respect of the period from 4th Oct.,’80 to 31st Dec.,’80. The period was more than one month of absence without leave, and the penalty of removal from service could, therefore, justify.
25. The counsel for the petitioner, however, urged that the penalty of removal from service to a Class-IV employee, is too much harsh. He urged that it is true that under sub-rule (3) of Rule-86 of the RSR, 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. He, however, urged that this penalty of removal from service is discretionary, and that looking to the fact that the petitioner is a Class-IV servant, a lenient view may be taken. It may be’ stated in this connection that the petitioner was removed from service on 17th July,’82, by order (Ann.6). The present writ petition was filed on 4th Oct., ’82, and it is after about 9-1/2 years that it is being decided. It is not known to the Court as to what the petitioner had been doing for the last 9-1/2 years. It may be that he might be engaged/employed gainfully somewhere else during these long 9-1/2 years. The counsel for the petitioner states that the petitioner is ready to forego all his. claim for the arrears of his pay, dearness allowance and other allowances, till date and that Instead of maintaining the punishment of removal from service, penalty of withholding grade increments may be imposed upon the petitioner.
26. Normally, a government servant cannot afford to remain absent from duty without leave, unless, he makes an application for leave before proceeding on leave and gets sanction thereon. Sometimes, occasions may arise that a Government servant may be forced by urgent circumstances to proceed on leave without having ample time to make an application. Even, in such cases, he has to show his bonafides by making an application an expeditiously as possible, after his proceeding on leave. A responsible Government servant’s remaining absent without leave, exceeding one month, is a good ground to remove him from service. The petitioner, in the present case, however, is a Class-TV employee, belonging to’a lower strata of society. Keeping in view this fact, it would be proper, if, instead of removal from service, a penalty of withholding six grade increments is imposed upon the petitioner, with a further rider that he would not be entitled to claim any salary, dearness allowance or other allowance for any time period to this date.
27. I, therefore, only partly allow this writ petition; modify the penalty of removal from service, imposed upon the petitioner by orders (Annexs. 6 & 8); and instead of that penalty, I hereby impose upon the petitioner the penalty of withholding of six grade increments. This penalty would run from the date the petitioner reports himself on duty before his appointing authority. The petitioner will not be entitled to any salary, dearness allowance or any other allowances from the date he was removed from the service, till date, and this intervening period would not be counted as qualifying service, for any purposes.