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Judgment
By this special appeal, a challenge is made to the order dated 17th January, 2018 passed by learned Single Judge, whereby, the writ petition preferred
by the petitioner-appellant to challenge the order of punishment and the order passed by the Appellate Authority was dismissed.
The petitioner-appellant was Head Constable in RAC. He was subjected to disciplinary enquiry followed by a report. At the first instance, the
Disciplinary Authority remanded the case for de novo enquiry and, accordingly, a departmental enquiry with issuance of fresh charge sheet was
initiated. The charge sheet was containing as many as six charges against the petitioner. The charges were found proved in enquiry thus the
Disciplinary Authority inflicted punishment. The petitioner-appellant preferred a departmental appeal but it was dismissed.
Learned counsel submits that allegation against the petitioner-appellant was for absence during the period of suspension, though, an employee is not
required to mark attendance or to attend the duties during the aforesaid period. The period of suspension is between 14th August, 2004 till 23rd
January, 2006. The prayer is accordingly to set aside the order of punishment. It is moreso when the petitioner-appellant had even produced medical
certificate for the period of absence but it was discarded being certificate of an incompetent officer due to the period of medical certificate beyond 15
days. The petitionerappellant could not have been punished for the aforesaid when he bonafidely obtained and produced the medical certificate. It was
ignored by the respondents. In view of the above, learned Single Judge should have caused interference in the order of punishment.
A reference of the judgment of the Apex Court in the case of Anwarun Nisha Khatoon Vs. State of Bihar & Ors., 2002(6) SCC 703 as well as of the
Karnataka High Court in the case of PS Devaraj Vs. Union of India & Ors., 1999(8) FLR 439 has been given to support the arguments. It was as to
whether an employee under suspension needs to mark attendance during the period of suspension or even to report on duty.
It is further stated that so far as the criminal case is concerned, it could not have been subjected to the disciplinary action and otherwise the petitioner-
appellant was acquitted therein thus the petitioner-appellant could not have been punished for the aforesaid. Learned Single Judge has failed to
consider the issue in reference to the order of acquittal passed by the Trial Court thus for the aforesaid reason also, the order of punishment so as the
order passed on the appeal deserves to be set aside.
We have considered submissions made by learned counsel and perused the record.
The petitioner-appellant was served with the charge sheet on remand of the case by the Disciplinary Authority. The charge sheet was containing six
charges against the petitioner. It was not only in reference to absence from time to time but criminal act also. In the enquiry, it was established that
on 05th July, 2004, the petitioner-appellant got involved in a criminal case and to suppress the aforesaid, he sought leave after showing illness of his
wife. The allegation was found proved in the enquiry. The second charge was of absence. It was found proved apart from other charges.
The main plea taken by learned counsel for the petitioner-appellant is that during the period of suspension, he could not have been shown absent and
the period of suspension has also been given. We find statement aforesaid to be misleading. It is for the reason that first charge is regarding absence
on 04th July, 2004 and an incident thereupon on 05th July, 2004. The signatures in the attendance register were marked after involving himself in the
criminal case. It was found to be nothing but to mislead the authorities. The second charge was again of absence and not reporting on duty despite
notice dated 19th July, 2004. Both the dates are prior to the period of suspension, as given by learned counsel for the appellant.
The charge No.3 was in regard to the demand to give duty certificate for 05th July, 2004 to nullify his criminal act. The charge aforesaid was also
found proved and again it is prior to the period of suspension.
The charge No.4 was regarding production of medical certificate. It was found that a medical certificate beyond the period of 15 days can be given
only by a Junior Specialist and, if it is exceeding to 45 days then by Senior Specialist. Thus, the medical certificate produced by the petitioner-appellant
for 288 days was found to be in violation of the Rules and we do not find that if the charge is held proved, any error has been committed.
Other charges are not required to be taken into consideration as the period of absence involved herein is prior to the period of suspension yet the Court
was tried to be mislead by referring the period of absence during suspension. A reference of the judgment of the Apex Court has been given to
support the arguments. The arguments aforesaid are contrary to the fact thus on the aforesaid ground itself, the appeal can be dismissed and
otherwise we do not find any error in the order dismissing the writ petition taking into consideration the misconduct and proof of charges therein.
Accordingly, we do not find any merit in the appeal. Hence, it is dismissed with the cost of Rs.25,000/- to be deposited with the Rajasthan State Legal
Service Authority within a period of fifteen days from today. It is taking into consideration the misleading statement of the fact at bar.
At this stage, learned counsel for the appellant tried to question the authority of the Court and made remarks.
Looking to his conduct, the cost is enhanced and made it to be Rs.50,000/-.
After passing the order, learned counsel for the appellant tendered his unconditional apology and the same has been given in writing.
The unconditional apology, tendered in writing, is taken on record and is accepted. The cost is waived with the aforesaid.