- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Smt. Saroj Bhardwaj vs. State & Ors. S.B.CIVIL WRIT PETITION NO. 4375/2006 DATE OF ORDER : 28th July, 2008 P R E S E N T HON'BLE JUSTICE GOPAL KRISHAN VYAS Mr.S.N.Trivedi, for the petitioner. Mr.B.L.Bhati, Government Counsel. BY THE COURT: In this petition, petitioner has prayed for quashing charge sheet dated 24/7/2006 (Annex.5) with all consequential benefits. The case of petitioner is that she was selected and appointed as Physical Teacher on 17/12/1977 and presently she is working satisfactorily at Government Karnani Girls Secondary School, Gangashahar, Bikaner. As per petitioner when she was posted at Government Secondary School, Sri Doongargarh she proceeded on leave on medical ground due to her mental disease - 2 - for which an application was moved along with the medical sickness certificate. In para no.4 of the writ petition, it is stated by the petitioner that the then District Education Officer (Girls) Bikaner vide her letter dated 12/7/1991 directed the petitioner to join her duties with immediate effect and in pursuance of said direction she joined the duties on 15/7/1991 in the office of District Education Officer (Girls) Bikaner. On joining the duties, she was given posting order, whereby, she was posted at Government Girls Secondary School, Loonkaransar vide order dated 25/7/1991. According to petitioner she is working with Education Department since then without an interruption. The contention of petitioner is that after joining in the month of July, 1991 petitioner is being paid salary at the minimum of pay scale along with admissible allowances and she has not been paid annual grade increment till today so also the benefit of selection scale and revision of pay as per Revised Pay Scales Rules have also not been granted to her without assigning any reason, therefore, it resulted in the fact that petitioner is getting less salary. The case of petitioner is that she is repeatedly demanding the above benefits and for the same she made several representations but no heed has been given by the respondents, - 3 - therefore, she filed an appeal before the Rajasthan Civil Service Appellate Tribunal and her appeal was registered as Appeal No.352/2000. The said appeal was dismissed on the ground of maintainability by the Full Bench of Tribunal vide order dated 4/12/2003 and it was held that as per Section 4 and 9 of the Rajasthan Civil Services Appellate Tribunal Act, 1976 without any order in writing, no appeal lies. It is contended by learned counsel for the petitioner that after rejection of petitioner's appeal, petitioner again made a demand for benefits of fixation and selection scale for which she is entitled but prayer of petitioner was not accepted without any cogent reasons. On one hand petitioner has been denied benefit of annual grade increments, selection scale and revised pay scales & on the other hand notice under Section 86 of the Rules of 1951 was issued to petitioner vide letter dated 7/5/2004 (Annex.3) in which it is stated that petitioner remained willful absent from duty for more than ten years. It is submitted that though petitioner submitted reply to the said notice and same was forwarded to the higher authorities but no disciplinary inquiry was initiated against her. It is contended by learned counsel for petitioner that petitioner never remained willful absent from duty and moreover she was on medical leave for which an application and certificate were filed but without - 4 - considering the same and without any cogent reasons, after lapse of about 15 years from the date of joining in the year 1991, a charge sheet under Rule 16 of the CCA Rules, 1958 has been issued to petitioner on 24/7/2006. The contention of petitioner is that a charge sheet which is issued at such a belated stage is not tenable. As per petitioner she remained on medical leave w.e.f. 4/1/1978 to 14/7/1991 due to her mental disease, thereafter, she was allowed to assume her duties on 15/7/1991 and since then she has been working satisfactorily and peacefully without any break but she has been paid minimum of pay scale of the post with admissible allowances and no other service benefits like increments, selection scale and revision of pay scale were allowed to her. Therefore, now at belated stage there is no ground or reason for issuing charge sheet to the petitioner for willful absent from duty, therefore, only on the ground of delay the charge sheet deserves to be quashed being illegal, unjustified and unconstitutional. It is contended by learned counsel for the petitioner that there is no material on record or prima facie case made out against the petitioner for issuing charge sheet. Further it is submitted that there is oblique motive in issuing charge sheet at such a belated stage for the alleged misconduct of willful absent from duty w.e.f. 1978 to 1991, therefore, charge sheet deserves - 5 - to be quashed and petitioner is entitled for all service benefits including regular grade increments, selection scale and revision of pay scale. Per contra, by filing reply it is pointed out by the respondents that admittedly when petitioner was on probation she remained absent from January, 1978 to 14/7/1991 for about 13 years. It is specifically denied in para no.3 that no medical certificate for illness was produced by the petitioner, therefore, charge sheet under Rule 16 of the Rules of 1958 has been issued for gross misconduct of the petitioner for willful absence from duty for 13 years. It is also submitted that petitioner remained willful absent from duty for 13 years and somehow she managed to join duties in the year 1991 and now she is claiming all benefits for the period during which she remained absent from duty, which is obviously not permissible under the law, therefore, there is no question of quashing charge sheet issued against the petitioner because as per petitioner herself she did not join duties w.e.f. January, 1978 to July, 1991 due to her mental disease but there is no medical certificate on record for the said period. It is also submitted that under Rajasthan Service Rules no such leave can be granted for long 13 years. Learned counsel for the respondent has specifically stated - 6 - that petitioner is trying to mislead this Hon'ble Court because she has not disclosed the date on which she left the office. It is submitted that in para no.3 of writ petition in very vague manner it is stated by petitioner that she proceeded on leave on medical ground but no date has been disclosed and straightway in para no.4 it is contended that she assumed duties on 12/7/1991. According to learned counsel for the respondent, this attempt of petitioner clearly speaks that somehow she wants to hide the clear picture from this Court and in whole of the writ petition only in sub-para (i) of grounds it is stated that she was on medical leave during the period 4/1/1978 to 14/7/1991 due to her mental disease. The above conduct of petitioner does not deserve any relief from this Court under Article 226 of the Constitution of India. The department has issued charge sheet within its jurisdiction. According to Rule 23 of the RSR after absence of 5 years after inquiry services of an employee can be dispensed with so also under Rule 86(3) of R.S.R. a government employee can be removed from service who remain willful absent from duty for more than one month, therefore, charge sheet has rightly been issued for willful absence from duty for 13 years. I have heard learned counsel for the parties and - 7 - considered the material on record. In my opinion, petitioner is not entitled for any relief under Article 226 of the Constitution of India because according to petitioner herself she was appointed on 17/9/1977 on the post of Physical Teacher and as per para (a) of the ground she went on medical leave on 4/1/1978 and remained absent till 14/7/1991. Admittedly, during this period petitioner did not work and just after 20 days of appointment, she left the job. Obviously, for such lapse there was no occasion to take the petitioner back on duty but record of the case speaks that without any proper order of any competent authority somehow she was allowed to join her duties in the year 1991. It is very serious matter because authorities of the Education Department have allowed the petitioner to join the duties, who remained absent from duty for near about 13 years that too just after 20 days of appointment in service. Now when petitioner asked for all service benefits then a charge sheet has been issued for her absence from duty for about 13 years. In this case, it appears that Department has granted illegal and undue advantage to petitioner while allowing her to join the duties in 1991 without any objection. According to Rule 23 of the RSR after five years of willful absence from duty while treating abandonment of service, disciplinary action is required to be taken against an employee but in this case due to inaction on the part of Education Department no action was taken by the - 8 - authorities concerned and petitioner was allowed to join duties in 1991 after 13 years of absence and during the period no disciplinary action was taken against her. In these circumstances, now when charge sheet has been issued against the petitioner, no interference is required because in my opinion such an employee who remained absent from duty for 13 years which is gross misconduct claiming her right to all service benefits which is not permissible under the law, therefore, petitioner does not deserve any sympathy. Further, bare perusal of para no.3 and 4 of writ petition it is clear that in stylish manner while hiding the important facts, petitioner has tried to convince this Court that due to illness she remained absent from duty and she was allowed to join duties in 1991. It is no where stated in para no. 3 that on which date she left the duty or went on medical leave, thus, petitioner has tried to mislead this Court and as such she is not entitled for any indulgence. In my opinion, although respondent department has not commenced the departmental inquiry within time but at the same time it cannot be said that petitioner has not committed any misconduct because just after 20 days of appointment, she left the service and after absence of 13 years she came back and - 9 - joined the duties. In view of above, I see no reason to interfere in this matter for quashing the charge sheet issued against the petitioner for absence from duty for near about 13 years. The writ petition is dismissed. Respondents are directed to complete the inquiry within a period of six months from today and take final decision and inform this Court the outcome of the inquiry. No order as to costs. (GOPAL KRISHAN VYAS), J. pb