IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.13813 OF 2007 KAJAL ROY, W/O SRI BIDYUT KUMAR PAUL, R/O NAYA TOLA, NEAR KUMRAHAR, P.S AGAMKUAN, DISTRICT PATNA. …………………PETITIONER. VERSUS 1.THE PATNA UNIVERSITY THROUGH VICE CHANCELLOR, PATNA UNIVERSITY, PATNA. 2.THE REGISTRAR, PATNA UNIVERSITY, PATNA. 3.THE PLANNING OFFICER, PATNA UNIVERSITY, PATNA. 4.THE PRINCIPAL, MAGADH MAHILA COLLEGE, PATNA. ………………………RESPONDENTS. ----------- For the Petitioner : Mr. Sushanto Kumar Das, Advocate For the Patna University : Mr. Ajai Kumar Sinha, Advocate ------------ PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (28.11.2011) Mihir Kumar Jha, J. Heard counsel for the parties. In this writ application, the petitioner has assailed the order dated 20.03.2007, passed by the Registrar of the Patna University (hereinafter referred to as the University), whereby and whereunder, her service has been terminated on the ground of unauthorized absence from duty. Mr. Sushanto Kumar Das, learned counsel appearing on behalf of the petitioner has submitted that the petitioner was a permanent employee of Magadh Mahila College (hereinafter referred to as the College) under the University and as such her services could not have been dispensed with and/or terminated without conducting departmental proceeding. He has further submitted that the alleged period of unauthorized absence was well explained, inasmuch 2 as, the petitioner herself was seriously ill and as such was unable to attend her duty in the College. From the counter affidavit, it would, however, transpire that the Authorities had found the petitioner to have been absenting from duty quite frequently and in this regard, it has been stated that the petitioner has remained absent from February-2004 to 30.10.2004 and again from 07.02.2005 to 26.06.2005. In the counter affidavit, an effort has been made to explain that the petitioner was given liberty to explain her absence and the final order terminating her service was passed after considering such show cause notice. The petitioner has also filed rejoinder to the counter affidavit in which it has been stated that the allegation of the petitioner being habitual absentee and/or remaining unauthorizedly absent has been seriously controverted and in this regard, it has been explained that the period of absence of her duty between February-2004 to 03.10.2004 stands already regularized by grant of leave to her and in fact she has also been paid her salary for the aforementioned period. In the light of the pleadings on record, it is quite clear that the period of unauthorized absence, which could have become the valid ground for termination of her service, was/is from 07.02.2005 to 26.06.2005 i.e., 3 months and 19 days only. The 3 punishment of removal from service only on the ground of absence of 119 days (3 months and 19 days) is not only excessive but wholly disproportionate even if the charge against the petitioner of remaining absent from duty would have been proved. As a matter of fact, the petitioner has claimed that she was seriously ill in the aforementioned period and an information of her illness was also given to the Authorities of the College. The impugned order infact also proceeds on a misconceived notion that the petitioner was habitual offender in respect of remaining unauthorized absent from duty and if the earlier period of her absence between February-2004 to 03.10.2004 is ignored, which must be ignored as it has already been regularized with the consequential benefits of payment of her salary, that period could not have been taken into account for passing of the impugned order. Thus the solitary period of absence of the petitioner from duty is therefore, between 07.02.2005 to 26.10.2005 which in no event can lead to an inference of her being habitual offender, inasmuch as it would then be only instance of her being absent from duty. That apart in normal circumstances an order of termination of service of a permanent employee cannot be passed without holding the departmental proceeding, inasmuch as, the allegation of becoming unauthorized 4 absent from duty is itself a misconduct for which a departmental proceeding has to be necessarily conducted specially when a major punishment in the form of termination/removal from service is contemplated. In this case admittedly no such departmental proceeding was ever conducted and therefore, the order of termination of service of the petitioner even otherwise being stigmatic in nature on the basis of misconduct cannot be sustained. Reference in this connection may be made to the judgment of the Apex Court in the case of Prithipal Singh Vs. State of Punjab reported in (2002) 10 SCC 133 wherein this aspect was explained in the following terms:- "The aforesaid record plainly reveals recording of misconduct of the appellant. It records, he has disobeyed the orders of his superiors. Once this is recorded in the service record, which is disclosed by the respondent, it cannot be said there is no stigma attached to the order of discharge. Once there is stigma, the principles is well settled, an opportunity has to be given before passing any order. Even where an order of discharge looks innocuous, but on a close scrutiny, by looking behind the curtain if any material exists of misconduct and which is the foundation of passing of the order of discharge, or such could be reasonably inferred, then it leaves no room for doubt that any consequential order, even of discharge, would be construed as stigmatic. Then opportunity has to be given. It is also not in dispute that no opportunity was given to the appellant before passing the impugned order of discharge. On the facts of this case, we are deliberately not going into the wider question, whether any opportunity is necessary or not before passing an order under the aforesaid Rule, but suffice it to say that on the fats of this case, as we have recorded above it was obligatory for the respondent to have given an opportunity to the appellant before passing the discharge order. Hence the impugned order of discharge dated 22.2.1991 is 5 unsustainable and is set aside." In the given situation there can be now two alternatives, one that the petitioner has to be reinstated in service with a liberty to the respondents to initiate a departmental proceeding and the other, by setting aside the termination order and depriving the petitioner from any payment of salary for the period she has not worked but without giving any liberty for initiating a departmental proceeding. Considering the aspect that it is the only one episode of her alleged unauthorized absence which has strictly led to order of termination of the service of the petitioner i.e. 07.02.2005 to 26.06.2005, this Court would find the latter course to be more reasonable and appropriate in the facts and circumstances of this case. Reference in this connection may be usefully made to the judgment of Apex Court in the case of Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi reported in (2004)4 SCC 560 wherein it was held as follows:- "The disciplinary authority without caring to examine the medical aspect of the absence awarded to him the punishment of removal from service since their earlier order of termination of the appellant's service under the Temporary Service Rules did not materialise. No reasonable disciplinary authority would term absence on medical grounds with proper medical certificates from government doctors as grave misconduct in terms of the Delhi Police (Punishment and Appeal) Rules, 19870. Non-application of mind by quasi-judicial authorities can be seen in this case. The very fact that the respondents have asked the appellant for re-medical clearly establishes that they had received the applicant's application with medical certificate. This can never be termed as wilful 6 absence without any information to competent authority and can never be termed as grave misconduct. In B.C. Chaturvedi V. Union of India, reported in (1995)6 SCC 749 (three Judges Bench), the question posed for consideration was as to whether the High Court/Tribunal can direct the authorities to reconsider punishment with cogent reasons in support thereof or reconsider themselves to shorten the litigation. In this case, at para 18, this Court has observed as under(SCCP.-762) "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact, finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated up to the date on which the 7 appellant reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside." In that view of the matter, this Court following the ratio laid down by the Apex Court in Bhagwan Lal Arya case (supra) would quash the order of termination of service of the petitioner dated 20th March, 2007 as contained in Annexure-11 with a direction to the Respondents to reinstate the petitioner back in service forthwith. It is however made clear that the petitioner will not be entitled to payment of any amount of salary for the period she had remained out of her service pursuant to the impugned order and/or for the period she was absent from duty and had not discharged her duty. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha, J.) Patna High Court Dated the 28th November 2011 A.F.R./Ranjan