Swapan Chandra Dhar vs State Of Tripura And Ors

This petition is filed by the ex-government employee challenging his dismissal from service on the ground of long unauthorized absence from duty.

Brief facts are as under:

At the relevant time, the petitioner was holding the post of General Duty Assistant (GDA, for short), a Group-D post. In 2003 he was posted at Srinagar Primary Health Centre under Sub-Divisional Medical Officer, Sabroom Hospital. He remained absent without leave from 12.12.2003 in different spells right up to 24.07.2009. From 26.07.2009 again he remained absent unauthorisedly till a charge-sheet came to be issued to him on 03.01.2014. For such inordinately long unauthorized absence, a charge-sheet came to be issued to him in which following allegations were made:

"Annexure-I

Statement of article of Charge framed against Sri Swapan Ch. Dhar, GDA, attached to Srinagar PHC under S.D.M.O. Sabroom Hospital, South Tripura

Article -1

That the said Sri Swapan Ch. Dhar, GDA, while functioning as GDA at Srinagar PHC, under SDMO Sabroom Hospital willfully absented unauthorisedly from his duties w.e.f. 12-12-2003 to 24-07-2009 in different spell and Sri Dhar also absented from 26-7-2009 to till date without any intimation or prior permission of the authority.

That the SDMO Sabroom Hospital issued a letter No.F.2(11)-ESTT/SDMO/SBM/88 dated 17-5-04 to Sri Swapan Ch. Dhar, GDA, Srinagar PHC requesting to submit reply regarding letter dt. 09-02-04, 27-03-04 within 7 days of receipt of letter otherwise Disciplinary action may be taken against him but Sri Dhar did not comply the said order. Thereafter, another letter No.F.2(11)-ESTT/SDMO/SBM/88 dated 30-06-04 issued by the SDMO Sabroom to the DHS reported that the unauthorized absent of Sri Dhar GDA of Srinagar PHC. On 06-04-06 & 22-07-06 another letter was issued by the SDMO Sabroom with request to join in this duties in Srinagar PHC immediately but he did not comply the said order. Thereafter the Director of Health Services, Govt. of Tripura issued a Memo No.F.2(1547)-MS/ESTT-III/88 dated 02-01-07, 01-07-09 and 20-5-13 to Sri Swapan Ch. Dhar, GDA, Srinagar PHC that his unauthorized absent from 29-2-06 to till resumption of his duties shall not be treated as dies non for all purpose and also directed to resume his duties at Srinagar PHC within 15 days from the date of issue otherwise exparte decision will be taken against him but Sri Dhar did not comply or response. Memo No.F.2(1547)-MS/ESTT-III/88 dated 21-08-13 the Disciplinary Authority directed to Sri Dhar to join his duties within 7 days from the date of notification. If he fails to join in the stipulated period, exparte decision will be taken against him. The said notification was published in local daily Dainik Sambad on 25-8-13 but Sri Dhar did not comply the said order till date.

By the above acts, Sri Swapan Ch. Dhar, GDA, has shown absolute lack of integrity and devotion to duty and also done misconduct, which is unbecoming on the part of Govt. employee of his status and thus violated TSCS (Conduct) Rules, 1988."

The petitioner replied to the said charge-sheet to the disciplinary authority under a communication dated 20.01.2014. In such representation, the petitioner did not dispute his absence from duty without leave. He, however, contended that such absence was not willful but was on account of reasons beyond his control. He contended that he had to leave his duties at Srinagar as his life was not safe there. He was threatened with dire consequences if he did not leave the station immediately. He was warned of serious consequences. He, therefore, had to leave Srinagar on the night of 11.12.2003 and, therefore, could not attend to his duties from 12.12.2003. He contended that he had made an effort to resume his duties on 25.07.2009 but could not stay there due to repeated intimidation. That was the reason for his absence from duty.

The disciplinary authority did not accept such explanation and instituted a departmental inquiry by appointing an Inquiry Officer who conducted the inquiry, examined witnesses, brought documents on record and submitted his report holding that the charge was proved. The disciplinary authority after giving an opportunity to the petitioner to make representation, passed the impugned order of dismissal dated 11.04.2016. During the inquiry, the petitioner had made an application dated 19.08.2014 in which he had requested permission to engage a legal practitioner as his defence assistant. He pointed out that he had limited education and it was not possible for him to effectively defend himself. He pointed out that sub-rule (8) of Rule 14 of CCS (CCA) Rules, 1965 gives discretionary powers to the disciplinary authority to permit a legal practitioner as a defence assistant. Since this application was not decided, the petitioner sent a reminder dated 19.08.2014 repeating his request for permission to engage a legal practitioner as a defence assistant. In his representation he had submitted that no current or retired Government servant was prepared to represent him in the said departmental inquiry and, therefore, also it was necessary that he be allowed the services of a legal practitioner. The entire inquiry was conducted without deciding these applications. The disciplinary authority also in his final order of dismissal did not refer to this issue. Against the order of dismissal, the petitioner had preferred appeal dated 15.06.2015. In such appeal also the petitioner had taken up the issue of not being allowed the assistance of a legal practitioner and more importantly that the Inquiry Officer and the disciplinary authority not even deciding application for such purpose filed by the petitioner. The appellate authority dismissed the appeal by an order dated 21.07.2017 in which he did not address this issue.

In such background, the petitioner has filed this petition challenging his order of dismissal as well as the appellate order. Learned counsel Mr. Raju Datta appearing for the petitioner raised one single issue namely breach of principles of natural justice in conduct of the inquiry since the petitioner was not allowed to engage a defence assistant of his choice. He submitted that the application made by the petitioner for such purpose was not even decided. The ground raised in appeal was not considered by the appellate authority. He submitted that the petitioner was a member of Group-D staff. He was not highly educated. He could not effectively cross-examine departmental witnesses who were highly placed officers. He could not represent his case effectively before the disciplinary authority. The entire inquiry was thus conducted in violation of principles of natural justice causing serious prejudice to the petitioner. In support of his contentions, he relied on the decision of the Supreme Court in case of Bhagat Ram vrs. State of Himachal Pradesh and others reported in (1983) 2 SCC 442. It was a case in which finding that the delinquent government servant was not allowed proper defence assistance, the court held that the departmental proceedings had been vitiated. However, instead of sending back the proceedings, the court itself imposed minor punishment and put an end to the proceedings.

On the other hand, learned Addl. Government Advocate Mr. D. Sharma opposed the petition contending that the petitioner had remained unauthorisedly absent for years together. In his representation made in response to the charge-sheet he admitted the charge. The inquiry was conducted giving him an opportunity to defend himself. His explanation for absence was not found satisfactory.

As noted, the charge against the petitioner was that while discharging his duties at Primary Health Centre, Sabroom under Srinagar jurisdiction the petitioner remained absent without leave from 12.12.2003. Almost continuously he was absent from duty right up to 24.07.2009. Thereafter, once again from 26.07.2009 till the date of issuance of the charge-sheet, i.e. 03.01.2014 he remained absent without leave. The only defence raised in reply to the said charge-sheet was that he was seriously threatened. He was instructed to leave Srinagar immediately, failing which there was a serious threat to his life. He did try to resume his duties on 25.07.2009 but once again on account of threat to his life, he was forced to leave the station on 26.07.2009. The disciplinary authority did not accept such explanation and found that the petitioner was willfully absent from duties without leave and as such, the period of unauthorized leave was extremely long. He, therefore, imposed a punishment of dismissal from service. The appellate authority also considered the appeal of the petitioner but dismissed the same finding no ground to interfere.

I shall deal with the petitioner's contention of breach of natural justice in conduct of the inquiry later. For the present, I may deal with his explanation about his absence being without leave but not willful. I am conscious that there is a distinction between a Government employee being absent from duty willfully or with valid reasons. In the present case, the petitioner had cited compelling circumstances for not being able to discharge his duties. However, before the charge-sheet was issued to the petitioner on 03.01.2014, the petitioner had never intimated to the department the reasons for his absence from duty. Thus, for over 8(eight) years, the petitioner did not report for duty, nor did he intimate to the department the reasons for his absenteeism. The petitioner simply disappeared from service without any intimation to the department. If the explanation of the petitioner rendered in his representation to the charge-sheet was bona fide and correct, most natural conduct of a Government servant would be to intimate to the department the compelling reasons under which he was unable to report for his duty. Equally importantly, even in the said representation the petitioner has not elaborated the source from which he received threat to his life which made him impossible to discharge duties at the said place. He merely made an assertion of serious threat to his life at Srinagar. Such ground without any previous communication to the department and without any further details, simply cannot be accepted. In plain terms the petitioner had no worthwhile explanation or reason for his absence from duty for over 8(eight) years. His absence was thus without sanctioned leave, wholly unauthorized. His explanation being rejected, it can also be termed as willful. Looking into the long period of absence, the choice of punishment of dismissal from service also cannot be faulted.

It is true that the authorities had not dealt with the petitioner's request for engaging a legal practitioner properly. As noted, the petitioner had made his first application for such purpose on 19.08.2014. When such an application was not decided, the departmental inquiry was being proceeded. He followed up his request with a reminder and also stated that the departmental inquiry may be kept in abeyance till he is granted such permission. The disciplinary authority did not decide these applications. The Inquiry Officer completed the inquiry and the disciplinary authority passed the final order without ever deciding the request of the petitioner for engaging a legal practitioner. Even the appellate authority failed to take into account this ground raised by the petitioner in appeal. Thus clearly there was a breach of principles of natural justice in conduct of the inquiry. Ordinarily, there should, therefore, be a fresh opportunity to the petitioner to defend himself by placing back the departmental inquiry at a stage where such defect was detected. However, the constitutional Courts have been pressing in service the principle of prejudice in cases where an administrative order is found to be suffering from technical breaches. Particularly in the case of departmental inquiries, the Supreme Court in case of Managing Director, ECIL, Hyderabad and others vrs. B. Karunakar and others, a judgment rendered by the Constitution Bench, reported in (1993) 4 SCC 727 has discussed the principle of demonstrating prejudice when in conduct of a departmental inquiry breach of natural justice is alleged and established. This decision, one may recall, was a sequel to the earlier decision of three Judge Bench in case of Union of India and others vrs. Mohd. Ramzan Khan reported in (1991) 1 SCC 588 in which it was authoritatively pronounced by the Supreme Court that a delinquent Government servant must be supplied a copy of Inquiry Officer's report allowing him to make a representation against such report before the disciplinary authority decides to accept the findings of the Inquiry Officer and passes final order of punishment. In case of Managing Director, ECIL (supra), the Supreme Court held that it was not necessary in every case wherever a copy of the Inquiry Officer's report is not supplied, to mechanically and automatically quash the order of punishment and restart the departmental inquiry. It was observed as under:

"30(v). The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."

In the present case, the question of real prejudice would certainly arise in the background of the facts of this case. We have noticed that the charge against the petitioner was mere continuous and unauthorized absence from duty from 12.12.2003 right up to the date of issuance of the charge-sheet, i.e. 03.01.2014. His explanation for absence from duty was not accepted by the disciplinary authority and the appellate authority. As noted earlier, I find no acceptable justification having been offered by the petitioner for such absenteeism. In the background of such facts, I do not find that not permitting a legal practitioner to represent the petitioner in a departmental inquiry, has resulted into any prejudice to the petitioner. On the ground of no real prejudice, I do not find it appropriate to interfere in the present case. Remanding the case back before the disciplinary authority to conduct a fresh inquiry after deciding the application of the petitioner for engaging a legal practitioner would be a mere empty formality.

In the result, the petition is dismissed.

Pending application(s), if any, also stands disposed of.