IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.20614 of 2002 Date of decision: 23rd November, 2010 Nachhatar Singh … Petitioner Versus State of Punjab and another … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Manu K. Bhandari, Advocate for the petitioner. Ms. Sudeepti Sharma, Dy. Advocate General, Punjab for the respondents. KANWALJIT SINGH AHLUWALIA, J. Petitioner was appointed as a Sectional Officer in the Department of Public Works (Buildings and Roads), Patiala on 7th March, 1973. He had applied for leave from 5th March, 1994 to 31st May, 1994 vide application (Annexure P-1) to visit Canada for meeting his daughter and arranging her marriage. He was granted earned leave for 55 days vide order (Annexure P-2) dated 9th March, 1994. While in Canada, the petitioner applied for extension of leave, which was rejected vide order (Annexure P-3) dated 29th November, 1994. The petitioner again renewed his request for extension of his earned leave, which was again rejected vide order (Annexure P-4) dated 3rd February, 1995. Consequently, a chargesheet (Annexure P-5) dated 23rd September, 1996 was issued to the petitioner by the Chief Engineer, PWD (B&R), Patiala for willful absence and not joining the duty. Reply to the chargesheet was submitted vide letter (Annexure P-6) dated August 19, 1997, wherein the petitioner stated that his wife met with an accident on 31st May, 1995 and he could not re-join his duty as his wife was under treatment. In support of the reply, a certificate issued by the Doctor was also attached. An Civil Writ Petition No.20614 of 2002 enquiry was held by the Enquiry Officer, who vide his report (Annexure P- 8), exonerated the petitioner from the charges leveled against him. The Chief Engineer, PWD (B&R), Patiala recorded a note of disagreement with the Enquiry Officer and issued a show-cause-notice (Annexure P-9) dated 18th December, 1998 proposing termination of services of the petitioner. The petitioner replied to the show-cause-notice vide his letter (Annexure P-10), which was not found satisfactory and vide order (Annexure P-11) dated 28th February, 1999, services of the petitioner were terminated. Aggrieved against the same, the petitioner filed a writ petition bearing Civil Writ Petition No.16027 of 1999 in this Court, which was dismissed as withdrawn vide order (Annexure P-12) dated 18th November, 1999 with a liberty to avail right of statutory appeal. The petitioner instituted a departmental appeal on 8th February, 2000 along with an application for condonation of delay of 279 days. Since the appeal was not decided, another writ petition bearing Civil Writ Petition No.18917 of 2001 was filed in this Court with a prayer to direct respondent No.1 to decide the appeal within a specified time. This Court, vide order (Annexure P-14) dated December 5, 2001 ordered the appellate authority to decide the appeal within a period of two months from the date of receipt of a certified copy of the order. The appellate authority, vide order (Annexure P-16) dated 6th June, 2002, dismissed the appeal. In the present writ petition, the petitioner has prayed that order (Annexure P-16) passed by the appellate authority, whereby the order of termination of his services (Annexure P-11) was affirmed, be set aside and the petitioner be re-instated into service along with all consequential benefits, such as continuity in service, arrears of salary along with interest at the rate of 18% per annum. 2 Civil Writ Petition No.20614 of 2002 I have heard Mr.Manu K. Bhandari, Advocate appearing on behalf of the petitioner and Ms. Sudeepti Sharma, Dy. Advocate General, Punjab appearing for the respondents. Mr. Bhandari has stated that the respondents have failed to appreciate the fact that the petitioner had rendered 26 years of service and had acquired a valuable right of grant of pension. It is contended that even if it is assumed that the petitioner was guilty of unauthorized absence from duty, it was incumbent upon the authorities to take into consideration the fact that the petitioner had rendered more than 26 years of service and was thus, eligible for grant of pension and therefore, in stead of terminating his services, he ought to have been retired compulsorily. Thus, it is submitted that the order of termination of services of the petitioner is not commensurate with the alleged misconduct. Mr. Bhandari has further submitted that the charge against the petitioner was that he had left the country before his leave was sanctioned and had over-stayed abroad without getting his leave extended. Learned counsel has further stated that the Enquiry Officer had absolved the petitioner of the charges considering his family circumstances, and his over-stay in Canada was held not to be intentional. Thus, Mr.Bhandari has contended that the disciplinary authority was not justified in recording the following disagreement: “Shri Nachhatar Singh, Junior Engineer stayed abroad for 46 months from 7.3.1994 to 6.1.1998, whereas his leave was only for two months. This office vide memo No.13154/Establishmetn Branch-II dated 24.04.1992, while granting permission for making of the passport had clarified that if Shri Nachhatar Singh does not come after the expiry of leave period his services can be terminated. The Junior Engineer did not even leave his address of Canada.” 3 Civil Writ Petition No.20614 of 2002 It is urged that while recording disagreement, the disciplinary authority had not considered the facts and circumstances of the case, which were considered by the Enquiry Officer in holding that there was a justifiable cause for the petitioner to over-stay in Canada without obtaining extension of his leave. In support of this contention, counsel for the petitioner has relied upon a judgment rendered by a Single Bench of this Court in ‘Kailash Sharma v. State of Punjab’ 2004(2) RSJ 134 to contend that where an employee had rendered 22 years of service, this Court considering the length of service, had substituted the punishment of removal from service with that of compulsory retirement. Further reliance has been placed upon a judgment rendered by a Division Bench of this Court in ‘Jarnail Singh v. State of Punjab’ 2003(3) SCT 255 to urge that the reasons recorded by the Enquiry Officer in absolving the delinquent employee were not considered by the disciplinary authority while recording disagreement. Furthermore, in the termination order (Annexure P-11), the reasons given for over-stay of the petitioner, i.e. the accident suffered by his wife and her hospitalization were not considered. Ms. Sudeepti Sharma, Deputy Advocate General, Punjab has submitted that the reasons given by the petitioner to seek extension of leave are a made-up affair and are not cogent and convincing. The appellate authority had rejected the explanation furnished by the employee by observing as under: “There is no document on record to prove that at time of submitting of his application for Ex-India Leave Sh. Nachhatar Singh mentioned the reasons for leave as marriage of his daughter. There is no record to prove that the marriage was arranged all of a sudden in Canada. He has also failed to produce any documentary evidence like marriage card, photographs etc. except record of marriage issued by Sh.Guru Singh Sabha Gurdwara. Sh. Nachhatar 4 Civil Writ Petition No.20614 of 2002 Singh did not mention marriage of his daughter as the reason when he sent the request for extension of leave from 1.10.94 to 15.11.94. This causes serious doubt as to the genuineness of the document pertaining to marriage in the absence of the invitation card and photographs etc. The factum of marriage of his daughter is not proved. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Although Sh.Nachhatar Singh has argued that he could not attend the office because of illness of his wife, he has also admitted that he has got two sons and two daughters residing in Canada. He failed to explain as to why his daughters and sons who are residing in Canada could not attend upon their mother and as to why his presence was required there. This is an extra ordinary situation where the husband after leaving in India is required to stay with his wife at Canada where as two sons and two daughters are already resident of Canada. Under these circumstances it is proved that the wife of Sh.Nachhatar Singh could have been attended upon by her sons and daughters and he was in a position to come to India to attend to office to avoid disciplinary action against him. But Sh.Nachhatar Singh stayed back in Canada without bothering for the disciplinary action against him.” The appellate authority further held that the appeal was filed beyond the period of limitation. Counsel for the State has placed reliance upon a judgment rendered by a Division Bench of this Court in Letters Patent Appeal No.75 of 2004 titled as ‘Dr. Naresh Chand v. State of Punjab and another’ decided on 1st September, 2008, wherein it was observed as under: “Similar argument was considered by the Division Bench of this Court in Smt. Harsant Kaur v. Union of India (CWP 6983-CAT of 2007 decided on 14.2.2008), wherein the petitioner working under the Chandigarh Administration 5 Civil Writ Petition No.20614 of 2002 proceeded on ex-India leave in October, 1994. The order of dismissal was passed in the year 1997, but an argument was raised that such order of dismissal is bad as the petitioner has sought voluntary retirement before the order of punishment was passed. This Court, while considering various judgments has held to the following effect:- ‘In Kailash Nath Gupta v. Enquiry Officer (R.K. Rai), Allahabad Bank & Others, JT 2003 (3) SC 322, the Hon'ble Supreme Court has held that the High Court or the 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 authority/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. In the present case, the petitioner abstained from duties for more than 2-1/2 years before the order of punishment was passed and thereafter for more than six years, no steps were taken by the petitioner. Such inaction on the part of the petitioner shows a total indifferent attitude of the petitioner so as to take recourse to her remedy in accordance with law. Having failed to do so, it cannot be said that the punishment awarded is disproportionate in any manner and shocks the conscience of the Court. We do not find that the punishment imposed is disproportionate to the misconduct in the facts and circumstances of the case.’ In view of the above, we are of the opinion that the punishment of dismissal from service imposed upon the appellant is wholly justified. Consequently, we do not find that any case for interference in exercise of the appellate jurisdiction of this 6 Civil Writ Petition No.20614 of 2002 Court arising out of a writ petition, is made out. Hence, the present appeal is dismissed.” From the arguments advanced by counsel for the petitioner, the two arguments which have been forcibly raised can be noticed as under: (a) The petitioner has 26 years of service to his credit and the same was not considered for retiring him compulsorily. (b) In the order of termination of services of the petitioner, while recording disagreement, the explanation furnished by petitioner, which had found favour with the Enquiry Officer, was not dealt with. Hon’ble the Apex Court while dealing with the unauthorized absence from duty, in ‘State of Punjab v. P.L. Singla’ 2008(3) SCT 742, observed as under: “8. Unauthorized absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which event the misconduct stood condoned. The second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct. 9. An employee who remains unauthorisedly absent for some period (or who overstays the period of leave), on reporting back to duty, may apply for condonation of the absence by offering an explanation for such unauthorized absence and seek grant of leave for that period. If the employer is satisfied that there was sufficient cause or justification for the unauthorized absence (or the overstay after expiry of leave), the employer may condone the act of 7 Civil Writ Petition No.20614 of 2002 indiscipline and sanction leave post facto. If leave is so sanctioned and the unauthorized absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline. We may note here that a request for condoning the absence may be favourably considered where the unauthorized absence is of a few days or a few months and the reason for absence is stated to be the sudden, serious illness or unexpected bereavement in the family. But long unauthorized absences are not usually condoned. In fact in Security services where discipline is of utmost importance, even a few of days overstay is viewed very seriously. Be that as it may. 10. Where the employee who is unauthorizedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence. Where the punishment is either dismissal or removal, it may not be necessary to pass any consequential orders relating to the period of unauthorized absence (unless the rules require otherwise). Where the punishment awarded for the unauthorized absence, does not result in severance of employment and the employee continues in service, it will be necessary to pass some consequential order as to how the period of absence should be accounted for and dealt with in the service record. If the unauthorized absence remains unaccounted, it will result in break in service, thereby affecting the seniority, pension, pay etc., of the employee. Any consequential order directing how the period of absence 8 Civil Writ Petition No.20614 of 2002 should be accounted, is an accounting and administrative procedure, which does not affect or supersede the order imposing punishment.” In the present case, the petitioner had left for Canada on the pretext that his daughter was to be married. He left India on 5th March, 1994. His leave commenced from 7th March, 1994 and came to an end on 31st May, 1994. His request for extension of leave was declined on 29th November, 1994 and subsequently, on 3rd February, 1995. In reply (Annexure P-6) to the chargesheet (Annexure P-5), the petitioner stated that his wife met with an accident on 31st May, 1995, i.e. one year after the expiry of the period of leave. Reply to the chargesheet was sent on August 19, 1997 and it was stated therein that he may rejoin his duty in the last week of December 1997. The Enquiry Officer was informed that the petitioner only joined his duty on 6th January, 1998. Thus, the punishing authority was right in holding that the petitioner had stayed abroad for 46 months, i.e. from 7th March, 1994 to 6th January, 1998, whereas he was granted leave for only two months. The explanation furnished by the petitioner has rightly been rejected, as the same was not convincing. Therefore, following the mandate of law laid down by Hon’ble the Apex Court that the High Court while exercising the power of judicial review shall not normally substitute its own conclusion, qua the quantum of penalty, this Court is of the opinion that no interference is warranted in the present writ petition and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE November 23, 2010 rps 9