Gujarat High Court Case Information System Print SCA/12432/2008 9/ 11 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12432 of 2008 [ENTITY] - Petitioner(s) Versus [ENTITY] - Respondent(s) Appearance : MR [ENTITY] for Petitioner(s) : 1, MR [ENTITY] AGP for Respondent(s) : 1, CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 13/10/2008 ORAL ORDER
1. By way of this petition under [SECTION] of the [ACT], the petitioner has prayed to quash and set aside the order dated 18.06.2008 passed by the Deputy Secretary, General Administration Department, State of Gujarat, whereby, a punishment of removal from the service was imposed on the petitioner.
2. The facts in brief are that on 22.12.1989 the petitioner was appointed in the Gujarat Administrative Service on a Class-I post by the respondent ? Government, as a direct recruit. Pursuant to her appointment, she was transferred to various places from time to time and lastly, she was transferred to Dahod, to discharge duties as the District Planning Officer, vide order dated 30.10.2006.
3. Pursuant thereto, the petitioner joined the service at the transferred place and worked as such till 22.12.2006. However, on account of certain personal reasons, the petitioner did not continue her duties, at the transferred place, w.e.f. 23.12.2006 and made several applications to the competent authority for the grant of leave. Though the same was not sanctioned by the competent authority, the petitioner did not resume her duties.
4. Therefore, Notice dated 16.06.2007 was issued to the petitioner to show cause as to why necessary inquiry should not be initiated against her in accordance with the provisions of the [ACT]. The petitioner replied to the said notice vide defense statement dated 10.08.2007.
5. Pursuant to the above, an Inquiry Officer was appointed by the respondent ? Government and departmental proceedings were initiated. On completion of the inquiry, the Inquiry Officer submitted his Report on 21.02.2008 holding that the charges leveled against the petitioner were proved.
6. The disciplinary authority of the respondent ? Government accepted the said Inquiry Report and thereafter, issued show-cause Notice dated 14.03.2008 to the petitioner. Pursuant thereto, the petitioner gave her reply vide reply dated 28.04.2008. After considering the reply submitted by the petitioner, the respondent - Government entered into necessary consultation with the Gujarat Public Service Commission for the purpose of taking necessary action against the petitioner since the charges leveled against her were proved. Consequently, the Gujarat Public Service Commission vide communication dated 17.06.2008 informed the respondent ? Government that the punishment of removal from the service be imposed on the petitioner. Thereafter, vide impugned order dated 18.06.2008, the petitioner was removed from the service by the respondent ? Government.
7. Being aggrieved by the said order, the petitioner has approached this Court by way of this petition under [SECTION] of the [ACT].
8.0 Mr. [ENTITY], learned Advocate for the petitioner, has submitted that due to certain unavoidable circumstances, which were beyond the control of the petitioner, the petitioner could not continue her duties at the transferred place, for which she had also submitted necessary leave applications to the competent authority. However, the same was not sanctioned by the authority concerned though the petitioner had sufficient leave at her credit.
8.1 Learned Advocate has contented that neither the Inquiry Officer concerned nor the disciplinary authority has considered the circumstances, on account of which the petitioner had remained absent from duty for the said period. He has submitted that the observations recorded by the Inquiry Officer in his Report that it was not upon him to consider the defense put forward by the petitioner on merits, by going into the circumstances leading to her absenteeism from service, is grossly violative of the principles of natural justice, inasmuch as the respondent ? authorities have not taken into consideration the compelling circumstances which had led to the absenteeism of the petitioner from the service. Hence, the entire inquiry proceedings, being unjust and improper, deserves to be quashed and set aside.
8.2 Learned Advocate has further submitted that this being a case of removal from service, normally, such type of matters deserve to be entertained sympathetically. In support thereof, learned Advocate has relied upon a decision rendered in [CASE NUMBER] dated 22.03.2005, wherein, it has been observed that if an order of dismissal from the service is permitted to continue, the same would be a farce.
9.0 Mr. [ENTITY], learned AGP for the respondent ? Government, has submitted that the petitioner had unauthorizedly remained absent from duty for a period of more than one year. He has submitted that though the petitioner was served with several notices, for not less than 6 ? 7 times, informing her to resume her duties, she had ignored the same and had continued to be on leave unauthorizedly. He has further submitted that since the charges leveled against the petitioner were proved beyond doubt, the punishment in question was imposed on the petitioner. Hence, no interference is required from this Court in this petition.
9.1 In support of his contention, learned AGP has relied upon a decision of the Apex Court in the case of [PRECEDENT], wherein, it has been held that a finding cannot be characterized as perverse or unsupported by any relevant materials, if it is reasonable inference from proved facts. A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt.
9.2 Learned AGP has next relied upon a decision in the case of [PRECEDENT], more particularly, on the observations made in Para-11 therein, which reads as under;
?SThe conduct of litigant who approaches to this Court seeking relief under its extraordinary equitable and discretionary remedy is very important and relevant. It is not the law nor any decision that even if the action of the employer is found to be incorrect or illegal or contrary to basic principles of natural justice or provisions of any Act or Rules, the rule is to grant relief to the litigant. The Court exercising its extraordinary equitable relief under [SECTION] of the [ACT] legitimately can deny relief to the litigant where his conduct is of such a nature which justifies the same. It is no more res integra that in a case where the misconduct has been admitted then before terminating the services of the employee, it is not required or obligatory or incumbent upon the employer to give him show-cause notice or to hold any inquiry.?S 9.3 Learned AGP has next relied upon a decision in the case of [PRECEDENT], more particularly, on the observations made in Para-9 therein, which reads as under;
?SIt is well settled that the gravity of misconduct must necessarily be measured in terms of the nature of the misconduct. A bank officer holding the post of Middle Management Officer, Grade II which is a responsible post absented himself unauthorizedly for about three years which was undoubtedly detrimental to the public interest. Such an act cannot be said to be not grave misconduct which would warrant dismissal from service. The High Court's view that the punishment of dismissal from service on the proved misconduct was disproportionate to the gravity of the misconduct is fallacious. Moreover, despite the receipt of several notices issued to him he remained adamant and shied away from participating in the enquiry proceedings. That conduct was also unbecoming of a responsible officer holding the position as a Middle Management Officer, Grade II.
9.4 Learned AGP has also relied upon a decision of the Apex Court in the case of [PRECEDENT] and upon an unreported decision of this Court passed in [CASE NUMBER] dated 26.06.2008, wherein, the orders of dismissal from service on the ground of unauthorized absenteeism was held to be just and legal.
10. Heard learned counsel for the respective parties and perused the documents on record. It is an admitted position that the petitioner resumed her duties at the transferred place on 10.11.2006 and that she proceeded on leave on the very next date. The petitioner resumed her duties on 01.12.2006 and worked as such till 22.12.2006, i.e. for a period of 22 days. Thereafter, from 23.12.2006, the petitioner consistently remained absent from duty, without any prior sanction.
11. It is the case of the petitioner that on account of certain unavoidable circumstances, which were beyond her control, she could not continue her duties at the transferred place. It is apparent from the record that the petitioner had unauthorizedly remained absent from duty at the transferred place for a period of more than one year. On as many as six to seven occasions, notices were served upon the petitioner informing her to resume her duties at the transferred place. However, ignoring all the said notices, the petitioner had continued to unauthorizedly remain absent from duty.
12. It is true that the petitioner had submitted necessary leave reports citing reasons / circumstances for her absenteeism from service but, the same were not sanctioned by the competent authority. The petitioner had also submitted an application seeking permission to leave the head-quarter. However, without getting necessary permission, the petitioner had left the head-quarter. Thus, it is evident that the petitioner has unauthorizedly remained absent from duty for a period of more than one year and has also ignored more than half a dozen notices issued by the respondent ? authority, from time to time, informing her to resume the duties.
13. Looking to the facts of the case, it would not be wrong to say that the petitioner is found guilty of serious misconduct. The Inquiry Officer has dealt with each of the charges leveled against the petitioner in detail in the Inquiry Report. It is a well-settled principle of law that the gravity of misconduct must necessarily be measured in terms of the nature of misconduct. A District Planning Officer is a very responsible post in the administrative set-up. The act of the petitioner, of unauthorizedly remaining absent from duty for a period of more than one year is, undoubtedly, detrimental to the public interest, which amounts to grave and serious misconduct affecting the public interest at large, despite the fact that the petitioner was served with notices to resume her duties on not less than half a dozen occasions. Such an act on the part of the petitioner, who is a Class-I Officer of the State Government, is highly deplorable.
14. The Inquiry Officer, after taking into consideration the aforesaid aspects, has come to the conclusion that the charges leveled against the petitioner were proved. In an administrative set-up, the powers are clearly delegated. The power to sanction or not to sanction any leave is delegated to the appropriate authority. The applications made by the petitioner to the competent authority requesting to grant leave, by citing reasons / circumstances, were not sanctioned by the competent authority. Once the leave was not sanctioned by the competent authority, it was incumbent upon the petitioner to resume her duties. However, as discussed herein above, the petitioner had not resumed her duties in spite of the fact that all the applications made by her citing different reasons / circumstances to grant leave was rejected by the competent authority. Thus, when the reasons given by the petitioner for the grant of leave were not found to be satisfactory or accepted by the competent authority, no authority could sit in appeal over the said decision. When the competent authority, authorized to sanction the leave, has rejected the applications for leave submitted by the petitioner from time to time, it implies that the said authority was not satisfied with the reasons / circumstances cited by the employee concerned for the grant of leave. The duty of an Inquiry Officer is to look into the charges leveled against a delinquent. In the case on hand, the Inquiry Officer has rightly not looked into the aspect as to whether the competent authority has considered or ignored the grounds / circumstances cited by the petitioner for her absenteeism from the service since the said aspect was beyond its scope and jurisdiction. The Inquiry Officer has to only consider the aspect as to whether the delinquent had remained absent from duty with prior sanction or not. Once the request to grant leave has been rejected by the competent authority, the Inquiry Officer cannot sit in appeal over the decision of the competent authority. Even if the order of rejection of leave is found to be erroneous, the Inquiry Officer cannot substitute his opinion. Thus, the contention raised by the petitioner that the Inquiry Officer should have considered the circumstances under which the petitioner had proceeded on leave, is devoid of any merits and is, accordingly, rejected.
15. It is not a rule of law that every matter involving removal from service is to be admitted by this Court. Ultimately, it is the discretion of the Court as to whether the matter is to be admitted or not. If, in the opinion of the Court, the matter is found to be devoid of any merits, the Court could dismiss the same at the threshold. Hence, the contention raised by the petitioner that normally this Court admits the matters involving dismissal from the service cannot be accepted and is, accordingly, rejected.
16. In view of the above discussion and looking to the facts and circumstances of the case, I am of the opinion that the inquiry has been held in accordance with the due process of law. Keeping in mind the principle laid down by the Apex Court in [PRECEDENT] and in [PRECEDENT]'s cases (supra), I do not find this to be a case wherein powers under [SECTION] of the [ACT] could be exercised in favour of the petitioner.
17. For the foregoing reasons, the petition is summarily dismissed. No orders as to costs.
[K. S. JHAVERI, J.] Pravin/*