AVADH BEHARI PACHAURI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner who was a Upper Division Clerk in the Rehabilitation Branch of the District Collector Jaipur and has subsequently retired from service has filed this writ petition challenged the order of his dismissal dated 23. 10. 91 as contained in Annexure-15. This order was passed after an enquiry was held against him for the charge of wilfull absence from duty regarding which his explanation was not accepted by the enquiry Officer nor his leave was adjusted against the leave which were due to him. As a consequence of this order, the petitioner has been denied even his pensionary benefits inspite of long years of service.

(2.) IN order to high-light the controversy involved in this writ petition, a slight enumeration of the facts appears to be essential. IN this context it may be stated that the petitioner while he was serving as an Upper Division Clerk in the Office of the District Collector (Rehabilitation Jaipur remained on leave from 29. 9. 87 to 11. 10. 87 for thirteen days and thereafter from 16. 10. 87 to 18. 10. 87 for three days and again on 27. 10. 87. According to the petitioner's version, he went to join his duties on 1st February 1988 alongwith the medical and fitness certificate but he was not permitted to do the same and under compulsion he was sitting idle. On 20. 2. 88 a charge sheet was served on the petitioner laying down therein that he wilfully absented from duty for the period noted hereinbefore-that is from 29. 9. 87 to 11. 10. 87, 16. 10. 87 to 18. 10. 87 and 27. 10. 87 and as per the charge-sheet the petitioner continued his absence even after this period. The petitioner filed the reply and submitted his explanation in regard to this charge. He specifically took the plea that he had applied for leave from 29. 9. 87 to 11. 10. 87, 16. 10. 87 to 18. 10. 87 and 27. 10. 87 to 31. 1. 88 and thereafter when he went to join his duties on 1. 2. 88 alongwith the medical and fitness certificate, the same was not accepted and therefore he requested that the period of his absence from duty be adjusted towards his leave which were due on account of his earned leave and other leave.

(3.) THE question also emerges on the surface whether absence from duty can be construed as wilful absence from duty if the employee has remained absent for reasons beyond his control as it has been happened in this case and the petitioner on the first date of absence that is 29. 10. 87 was also on casual leave and some period during which he was allowed to have remained absent from duty were also national holidays or a Sunday then whether all these period could have been treated as wilful absence from duty. In the facts and circumstances of this case where the petitioner employee had remained absent on the ground of illness and the medical certificate was disbelieved without assigning any reason, it is difficult to treat such absence as willful absence from duty, as the petitioner on 1. 2. 88 had gone to join his duty alongwith the medical certificate, but the Department restrained him from joining the duties and thus the employee-petitioner was compelled not to continue on his duty. THE said period by any stretch of imagination cannot be treated as wilful absence from duty as it is difficult to understand how the petitioner could be charged for the offence of wilful absence from duty when he was restrained from continuing with his duties although he was not permitted to join. It is the respondent-department which issued charge sheet on him on 22. 2. 88 and without issuing any order of suspension he was not permitted to join his duties. THEse facts do not make out a case of wilful absence from duty on the part of the petitioner at least after the date on which he had gone to join his duties. Thus the conclusion which emerges after these discussion is that the respondent-department has failed to establish the charge of wilful absence from duty at the behest of the petitioner.