Vijay Kumar Singh vs The State Of Jharkhand & Ors.

Heard Mr P.K. Mukhopadhyay, learned counsel for the petitioner, and Mr Aditya Raman, learned AC to GA-III, for the respondents.

On the intervening night of 20/21.03.2011, there was a theft in the office of Shri Akhilesh Kumar, Judicial Magistrate, Dhanbad, after breaking the lock of the door. A CPU and a Monitor were found missing. The locks of the chambers of Shri Sudhir Kumar Singh, the then Additional District & Sessions Judge, Dhanbad, and the Steno of the S.D.J.M. were also found broken.

The petitioner, amongst others, was deputed on duty from 2.00 pm to 10.00 pm on 20.03.2011, but was found to be absent from duty. This is a categorical finding recorded in the enquiry report. This is based on evidence, and there is absolutely no reason to disbelieve this finding.

Even the petitioner has not disputed that he was not present. Mr Mukhopadhyay, learned counsel for the petitioner, however, submits that the petitioner had applied for three days’ leave and was assured that he would be granted leave. He further submits that it is the practice of the Courts for employees to proceed on leave after applying for leave, even without waiting for its sanction.

After all this, we must note at the outset that a very minor penalty has been imposed upon the petitioner, i.e. withholding of one increment. Along with all the other Guards, consequential orders have been made not to treat the period of suspension as on duty, thereby entitling the petitioner to only the subsistence allowance which he had already drawn.

Now this petition has been filed, firstly on the ground that we should take cognisance of the alleged system prevailing in the Courts where the employees give their leave applications and proceed on leave simply because no formal disapproval is conveyed to them or simply because they are allegedly given an oral assurance that leave will be granted. There is also a suggestion that the penalty is disproportionate. A complaint is also made about the pendency of the appeal against the penalty.

Insofar as delay in disposal of the appeal is concerned, we note that the petitioner did not take any steps to seek redressal in the context of delay. In any event, the delay has not prejudiced the petitioner.

Insofar as the contention that leave was applied for and about some alleged practice prevailing in the Courts, where the employees give their leave applications and proceed on leave simply because no formal disapproval is conveyed to them or simply because they are allegedly given an oral assurance that leave will be granted, we cannot accept the same.

Firstly, we refuse to believe the existence of any such practice. There is absolutely no evidence about the prevalence of such a practice. There is also no evidence about any assurance being given to the petitioner that leave would be granted. In any event, we deprecate such practice, unless, of course, a case of some grave urgency is made out.

If night guards and other employees can abandon their posts merely by filing an application for leave or by relying on alleged assurances for which there is no evidence whatsoever, then the very functioning of the Courts would be rendered extremely difficult.

We are sure that there is no such practice prevalent in the Courts, and even if, as contended by Mr Mukhopadhyay, there is such a practice, we strongly deprecate such a practice and direct all concerned that it should be discontinued, unless, of course, a case of some grave urgency is made out. Such a practice, if it indeed exists, would be plainly contrary to public policy and hamper the effective administration of justice through the Courts.

There is no disproportionality whatsoever in the penalty imposed. If there is any disproportionality, it is because the petitioner has been let off very lightly. This kind of misconduct, as proved during the departmental proceedings, calls for a much harsher penalty than has been imposed.

Still, since justice is to be tempered with mercy, we refrain from taking any steps to recommend the enhancement of such penalty.

This is not because the petitioner deserves any mercy, but simply because, at this point in time, we cannot forget that the petitioner is a Class-IV employee with a family comprising a wife and two children. It is on account of these considerations that we refrain from recommending any enhancement of the penalty.

The petition is meritless and is dismissed without any order for costs.

The Registrar- General must circulate a copy of this order to all the Principal District Judges, so that if at all there is any practice as suggested by Mr Mukhopadhyay, then such practice must forthwith stop.