CW 2718/96 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.2718/1996 Ashok Kr Vijay Versus State & Ors Date of Order ::: 23/07/2010 Hon'ble Mr. Justice Ajay Rastogi Mr. Rajendra Vaish, for petitioner Ms Sunita Sayarthi, Addl. Govt. Counsel, for respondents State Instant petition has been filed assailing order dt.12/08/1993 (Ann.2) whereby past services rendered by petitioner while holding the post of Jr. Accountant stood forfeited, after holding the procedure provided U/r 86 of Rajasthan Civil Services Rules, 1957 ("RSR") - against which appeal as well as review petition were dismissed by appellate & reviewing authority vide orders dt.03/02/2004 & 17/11/2005 which while filing instant petition, could not have been assailed however, application seeking amendment on being filed later on, was allowed on 14/05/10; as such appellate & review orders (supra) have also been challenged. Petitioner initially joined service on being appointed as Junior Accountant on 21/12/1982 and was confirmed on 12/07/1986. However, while being posted in Rajasthan State Text Book Board, Jaipur, petitioner remained willfully absent from duties w.e.f. 08/07/91; however, the Text Book Board informed the CW 2718/96 //2// Directorate of Treasury & Accounts vide letter dt.11/10/1991 about continued absence of petitioner from duty and thereafter relieved him from the Board directing him to report for duty to the Directorate Treasury & Accounts vide order dt.27/10/1991 duly sent at his residential address. But, the petitioner consistently sent leave applications initially on 22/11/1991 for the period from 09/10/1991 to 08/01/1992, which was rejected vide order dt.09/01/92 and did not report for duty and sent application seeking extra ordinary leave upto 31/12/1992 which was also rejected vide order dt. 11/05/1992 sent vide registered post, asking him to report for duty within seven days failing which disciplinary action will be taken. However, since he did not report back on duty, the disciplinary authority served charge sheet dt.25/08/92, to which no written reply was submitted by petitioner within time stipulated despite reminders lastly sent on 01/01/1993 calling for his reply within further fifteen days failing which it was warned to take ex parte action. When the petitioner failed to submit written reply to the charge sheet, notice was got published in daily news paper "Nav Bharat Times" on 14/06/1993 and in local news paper on 15/06/1993, calling for petitioner to furnish CW 2718/96 //3// his reply. It was only thereafter the petitioner having responded to the public notice and submitted his reply to the charge sheet on 29/06/1993. After having considered his reply, the competent authority has not found his explanation to be satisfactory and ordered to forfeited his past service rendered, vide order dt.12/08/1993 - against which he preferred appeal but was rejected on 03/02/2004 - against which review petition was filed but that has also met with the same fate vide order of rejection dt.17/11/2005. Counsel for petitioner submits that procedure provided U/r 16 of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 ("CCA Rules") was not followed by respondents while holding the petitioner guilty of wilful absence from duty and neither statements of witnesses were recorded nor he was granted opportunity to cross examination, inasmuch as no inquiry as contemplated U/r 16 of CCA Rules was conducted and inquiry report was not supplied to the petitioner - in absence whereof, very action of respondents in holding him guilty of allegations under charge sheet impugned is in violation of principles of natural justice and the same deserves to be quashed. Counsel further submits that there is no such penalty provided U/r 14 of CCA Rules CW 2718/96 //4// with regard to forfeiture of past service having been inflicted upon petitioner vide order dt.12/08/1993; inasmuch as R.86 of RSR could not be invoked since leave period from 08/07/1991 to 06/08/1991 had already been sanctioned vide order dt.10/09/91 (Ann.1) and in view whereof, forfeiture of past service is not legally sustainable. Counsel has further tried to convince that the authority has failed to examine genuineness of reasons furnished by petitioner for his absence from duty throughout the period due to his wife having serious ailment; thereby he could not report for duty - in support whereof, relevant documents were also produced but were not taken note of and examined by the authority while forfeiting past service vide order impugned. As regards appellate & review orders, Counsel submits that both, the appellate & reviewing authority failed to consider the material on record inasmuch as both the orders are non-speaking, having been passed without application of mind and thus are in violation of Art.14 of the Constitution. An additional submission has been made that despite the petitioner reported for duty respondents have failed to make payment of salary & allowances being admissible & dues w.e.f. 12/07/95 as per rules. CW 2718/96 //5// In the reply it has been averred that without seeking prior sanction of leave, petitioner wilfully remained absent from duty at his own w.e.f. 08/07/1991 as a result whereof, disciplinary action was initiated against him U/r 16 of CCA Rules vide charge sheet dt.12/08/93 and after affording opportunity of hearing and reply having been submitted by the petitioner, competent authority examined the material on record and did not find his explanation to be satisfactory and ordered to forfeit his past service rendered. It has further been averred that after having appeared on 12/07/1995 and submitted application, the petitioner again disappeared and never turned back for resuming his duties and that apart, disciplinary authority further initiated disciplinary action against him; as such there was no justification for making payment of any salary to him. However, from additional affidavit filed by respondents, it has come on record that since the petitioner failed to join at the place of his posting at District Treasury, Jaipur pursuant to order dt.28/10/93 and accordingly in fact again having wilfully remained absent from duty w.e.f. 28/10/93, another charge sheet was separately served upon him U/r 16 of CCA Rules and after holding him guilty for having willfully remained CW 2718/96 //6// absent from duty w.e.f. 28/07/1993 till 02/07/2000, in disciplinary proceedings, he was inflicted with penalty of stoppage of two annual increments with cumulative effect, with a further rider that period of his absence from 28/10/1993 to 02/07/2000 shall be considered to be extra ordinary leave and will not be computable for pension & other purposes, vide order dt.10/12/2007. This Court has considered rival contentions of Counsel for the parties and with their assistance, examined the material on record. Facts on record almost remained indisputable that the petitioner without prior permission or sanction of leave, remained absent from duty at his own will from 08/07/91 while being posted as Jr. Accountant in Rajasthan State Text-Book Board and when having failed to resumed his duty despite reminders calling him for reporting on duty, vide order dt.27/10/91, the Text Board relieved him for reporting to his parent department of Treasury & Accounts, pursuant to which also, he did not join his parent department; accordingly, one after another reminders were sent by his parent department but he remained absent from duty despite his consistent leave applications being rejected & communicated vide orders dt.09/01/92 & 11/05/92; and ultimately, charge sheet dt. CW 2718/96 //7// 25/08/92 was served U/r 16 of CCA Rules. Thus, despite reminders, the petitioner failed to resume for duty since 08/07/1991; rather turned back even to submit his written explanation to the charge sheet, notice was published in daily news paper "Nav Bharat Times" on 14/06/1993 and local news paper on 15/06/1993 and only thereafter he submitted his reply on 29/06/1993. However, since the competent authority itself was holding the proceedings, considered it appropriate not to refer the matter for inquiry; and examined the explanation submitted and on having found his written explanation unsatisfactory proceeded U/r 86(1) of RSR and ordered to forfeit past service rendered by him vide order dt.12/08/93 - against which appeal & review petition were preferred but were rejected vide orders dt.03/02/2004 & 17/11/2005. R.86 of RSR which directly deals with period of absence reads as under : “R.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 CW 2718/96 //8// 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 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. (b) Wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. (3) Notwithstanding provisions contained in sub-rules (1) & (2) above the disciplinary authority may initiate departmental proceeding 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. (4) Unless the State Government, in view of the special circumstances of the case, determines otherwise a State Government employee who CW 2718/96 //9// remains absent from duty for a continuous period exceeding five years other than on foreign service, whether with or without leave, shall be deemed to have resigned from service. Provided that a reasonable opportunity to explain the reasons for such absence shall be given to the employee before the provisions of the sub-rule are invoked.” Scheme of R.86 of RSR deals with the matter of such Government servants who remain absent after expiry of leave; however, as per R.86(1), if a Government servants remains 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 the authority is competent to forfeit past service unless satisfactory reasons are furnished by Government servant. However, R.86(2)(b) of RSR authorizes competent authority to hold disciplinary action against government servant who remains wilfully absent from duty and as regards sub- rule (3) of Rule 86 of RSR, if period of wilful absence exceeds one month, penalty to the extent of dismissal/removal from service can be inflicted upon after initiating disciplinary action under CCA Rules, 1958. Submissions made by Counsel for CW 2718/96 //10// petitioner that after the charge sheet being served upon him U/r 16 of CCA Rules, opportunity of hearing having not been afforded and inquiry report being not supplied despite required under CCA Rules, infliction of penalty forfeiting past service is in violation of principles of natural justice, are of no substance for the reason that R.86 (1) of RSR provides that if a Government servant having remained absent from duty without prior permission or leave being sanctioned by competent authority, he shall be treated to be wilfully absent from duty tantamounting to interruption of service involving forfeiture of past service, unless satisfactory reasons being furnished by Government servant for alleged absence. It is not the case of petitioner that while having proceeded on leave on 08/07/1991, his leave was duly sanctioned with prior permission. And after affording opportunity of hearing in compliance of natural justice, and in absence of satisfactory reasons being furnished by the petitioner, the authority was justified in forfeiting past service rendered, while invoking R.86 (1) of RSR. From the material on record it is clearly manifest that petitioner remained wilful absent from duty at his own w.e.f. 08/07/91 and thereafter at one point of time, CW 2718/96 //11// reported for duty on 10/09/1993 pursuant to infliction of penalty vide order dt.12/08/93 and vide order dt.28/10/93, he was posted in District Treasury, Jaipur but did not report for duty and in the facts of instant case the authority after taking note of his written explanation & material on record, has found his explanation to be not satisfactory and accordingly forfeited his past service rendered; and in this view whereof, procedure U/r 16 of CCA Rules which according to petitioner was to be followed, was not required to be adhered to by disciplinary authority while passing the order impugned for forfeiting past service. In considered opinion of this Court, in absence of satisfactory reasons forth coming from the petitioner for his absence from duty, the authority was well within its competence and no prejudice could be said to have been caused to the petitioner while adhering to procedure U/r 86(1) of RSR while passing order of forfeiture of his past service, which is certainly in confirmity with the Scheme of Rules. Submissions made with regard to appellate and review orders being non-speaking and without application of mind, are factually incorrect. The appellate authority has taken note of material on record and arrived at its CW 2718/96 //12// own finding while upholding order of competent authority. That apart, once finding of fact has been affirmed by appellate/reviewing authority, no detailed reasons in support thereof, are required to be recorded unless provided under the law. Hence submissions made deserve to be rejected. As regards claim of petitioner for entitlement of salary for the period from 12/07/1995, it is also of no substance for the reason that the petitioner merely appeared all of a sudden on 12/07/95 alongwith his applications but did not join at the place of his posting, rather disappeared thereafter with no justification for his absence from duty, for which a separate inquiry was initiated against him after serving charge sheet U/r 16 of CCA Rules on 08/11/2000 and after disciplinary proceedings being conducted under CCA Rules, he was held guilty of misconduct of wilful absence from duty for the period from 28/10/93 to 02/07/2000 and was inflicted with penalty of stoppage of two annual increments with cumulative effect vide order dt.10/12/2007 and accordingly the period of his wilful absence has been treated as extra ordinary leave being not computable for pension and other purposes in accordance with RSR. Counsel for petitioner lastly CW 2718/96 //13// contended that leave for 33 days was sanctioned vide order dt.10/09/91 (Ann.1); as such could not be treated as wilful absence from 08/07/91. Submission made is without substance for the reason that if the Government servant proceeded on leave without prior permission and being sanctioned, he can be treated as wilful absentee U/r 86(1) of RSR in the absence of satisfactory explanation and merely because leave was later on sanctioned by the authority either privilege/earned leave or extra ordinary, that in no manner absolve the Government servant from wilful absence; as such sanction of leave of whatsoever in nature is of no significance in the facts of instant case, and the submissions made by Counsel are wholly without merit. Consequently, writ petition fails and is hereby dismissed. (Ajay Rastogi), J. K.Khatri/p13/ 2718CW1996July23Rsr.doc