# Jagdamba Prasad Dubey v. State of U.P. & Ors. 330 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 8 ILRA 329
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-03
- **Case number:** Writ A No. 17237 of 2016
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdamba-prasad-dubey-v-state-of-u-p-ors-330-indian-law-reports-allahabad-series-50626
- **Pages:** 9

## Headnote

Civil Law - Constitution of India, 1950 -
Article 226 - U.P. Government Servant
(Discipline & Appeal) Rules, 1999 - Rule
9(4) - U.P. Jail Manual - Paras 1033, 1105,
1111,
1114
&
1118(10)
-
U.P.
Government
Servants
Conduct
Rules,
1956 - Rule 3(1) & (2) - Unauthorized
absence - Disciplinary proceedings - Principles
of
natural
justice
-
Proportionality
of
punishment - Post facto sanction of medical
leave - Petitioner, a Deputy Jailor, challenged
Tribunal's order dismissing his claim against
punishment of reversion in pay scale for
unauthorized absence - Absence due to medical
reasons
(diarrhea),
medical
leave
later
sanctioned - Enquiry flawed due to lack of
hearing, non-supply of documents, and failure
to establish willful absence - Tribunal failed to
consider sanctioned leave and non-willful nature
of absence - Punishment disproportionate -
Orders of Tribunal, disciplinary, and appellate
authorities set aside - Petitioner entitled to
consequential reliefs - Writ petition allowed -
No costs - Not a precedent.

Writ petition allowed.

Cases referred:

St. of Pun. Vs Dr. P.L. Singla, (2008) 8 SCC 469
- Para 24 B.C. Chaturvedi Vs U.O.I., (1995) 6
SCC 749 - Para 26

## Text

8 All. Jagdamba Prasad Dubey Vs. State of U.P. & Ors.
329
an amendment to the selection process,
made midway through the selection. After
considering the scope and pendency of the
reference in Tej Prakash Pathak (supra),
the Supreme Court observed:

"53. The learned counsel for the
appellant has submitted that judgments of this
Court laying down the criteria for selection
cannot be changed during the course of
selection has been referred to a larger Bench by
a judgment of this Court in Tej Prakash Pathak
v. High Court of Rajasthan [Tej Prakash
Pathak v. High Court of Rajasthan, (2013) 4
SCC 540 : (2013) 2 SCC (L&S) 353] , hence
the judgment of this Court laying down the
criteria cannot be changed during the course of
the selection is yet to be tested. For the
purposes of the present case we proceed on the
assumption that even if the criteria can be
changed by selecting body from time to time,
the said change cannot be affected arbitrarily.
The present is a case where change in criteria
has been affected and altered arbitrarily with
the object of downgrading and not upgrading
the standards of selection. The High Court did
not commit any error in not upholding the
change of criteria effected after start of
selection process with which finding we fully
concur".

52. It is that line of reasoning and
distinction that has again been adopted and
applied in the most recent decision of the
Supreme Court, cited by learned counsel
for
the
petitioner,
in
Sureshkumar
Lalitkumar Patel (supra).

53. Here as well, the change of procedure
to select has been changed not only abruptly but
arbitrarily. Having first given out to the
candidates (through the Advertisement), that
their candidature would not be cancelled
occasioned by incomplete claim as to
reservation, the UPPSC could not have turned
around to reject such candidature of the
petitioner, after she had acted in accordance
with the terms of the Advertisement. Plainly, the
change made serves no purpose. The petitioner
being qualified as an EWS candidate, she
continues to be eligible to participate further, in
the selection process. The change made to the
selection process has not been shown to have
any intrinsic purpose or nexus to the object of
selecting the best amongst the eligible.

54. Moreover, since the present is not
a
case
of
change
of
procedural
requirements but one of change to the
substantive
requirements
of
selection,
introduced mid-way through the selection
process, we find no impediment existing by
virtue of the pending reference (to the
larger bench), at the Supreme Court.

55. Accordingly, the present petition
is
allowed.
The
impugned
communications dated 29.04.2023 and
10.05.2023 are found to have been issued
contrary to the law. They are quashed.
The petitioner is entitled to participate in
the ongoing selection process as an EWS
candidate. Let result of the petitioner for
the Mains (Written) Examination be
declared, along with the other candidates.
No order as to costs.
----------
(2023) 8 ILRA 329
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.08.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 17237 of 2016

Jagdamba Prasad Dubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
330 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Jagdish Prasad Pandey, Lalit Shukla

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India, 1950 -
Article 226 - U.P. Government Servant
(Discipline & Appeal) Rules, 1999 - Rule
9(4) - U.P. Jail Manual - Paras 1033, 1105,
1111,
1114
&
1118(10)
-
U.P.
Government
Servants
Conduct
Rules,
1956 - Rule 3(1) & (2) - Unauthorized
absence - Disciplinary proceedings - Principles
of
natural
justice
-
Proportionality
of
punishment - Post facto sanction of medical
leave - Petitioner, a Deputy Jailor, challenged
Tribunal's order dismissing his claim against
punishment of reversion in pay scale for
unauthorized absence - Absence due to medical
reasons
(diarrhea),
medical
leave
later
sanctioned - Enquiry flawed due to lack of
hearing, non-supply of documents, and failure
to establish willful absence - Tribunal failed to
consider sanctioned leave and non-willful nature
of absence - Punishment disproportionate -
Orders of Tribunal, disciplinary, and appellate
authorities set aside - Petitioner entitled to
consequential reliefs - Writ petition allowed -
No costs - Not a precedent.

Writ petition allowed.

Cases referred:

St. of Pun. Vs Dr. P.L. Singla, (2008) 8 SCC 469
- Para 24 B.C. Chaturvedi Vs U.O.I., (1995) 6
SCC 749 - Para 26

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) Heard Shri Lalit Shukla, learned
Counsel representing the petitioner and
learned Standing Counsel representing the
respondents.

(2) This writ petition under Article
226 of the Constitution of India has been
filed by the petitioner, Jagdamba Prasad
Dubey, challenging the judgment and order
dated 09.10.2015 passed by the U.P. State
Public
Services
Tribunal,
(hereinafter
referred to as the `Tribunal') Lucknow,
whereby Claim Petition No. 754 of 2014
filed by the petitioner has been dismissed.

The petitioner is also challenging
the validity of order of punishment dated
27.06.2008, by which he was reverted to
two stage below in the present pay-scale as
well
as
the
appellate
order
dated
28.06.2013, by which his appeal preferred
against the aforesaid punishment order was
dismissed.

(3) Briefly stating, the facts of the
case are that the petitioner was appointed as
a Deputy Jailor in the pay-scale of
Rs.9300-Rs.34500/- (Grade Pay-Rs.5400/-)
and was posted in the same capacity at
Central
Jail,
Naini,
Allahabad
on
14.07.1997.
He
remained
posted
at
different places and worked with full
devotion and satisfaction of the higher
authorities during his employment.

(4) Apparently, while the petitioner
was posted as Deputy Jailor in District Jail,
Lucknow in the year 2007, he submitted an
application dated 04.04.2007 seeking to
grant two days' Casual Leave on account of
the fact that he was suffering from diarrhea,
however, without getting the said Casual
Leave sanctioned, he left the station and
also he was unauthorizedly absent from
duty thereafter and as such, vide order
dated 26.04.2007, he was placed under
suspension
in
contemplation
of
departmental enquiry.

(5)

During
pendency
of
the
departmental enquiry, the petitioner joined
his services on 01.05.2007 at his place of
posting and has sought retrospective
medical
leave
w.e.f.
06.04.2007
to
8 All. Jagdamba Prasad Dubey Vs. State of U.P. & Ors.
331
30.04.2007 by moving an application in
this regard. Thereafter, vide order dated
20.06.2007, the services of the petitioner
were reinstated and he was posted in
Central Jail, Agra, however, it was directed
that enquiry instituted against him would
be continued as usual.

(6) Pursuant to the order dated
20.06.2007, the Enquiry Officer had served
a charge-sheet dated 20.06.2007 to the
petitioner, containing three charges viz. (1)
the petitioner had proceeded on casual
leave without getting it sanctioned from the
competent authority; (2) though the District
Magistrate, Lucknow, keeping in mind the
Assembly Election, 2007, issued direction
to officer/employee not to proceed on leave
or leave the headquarter, but even then the
petitioner left the station without getting his
leave sanctioned; and (3) the petitioner had
not given any information immediately to
the Jailor about his ailment along with
medical certificate.

(7) It seems that on receipt of the
aforesaid charge-sheet, the petitioner had
made an application/representation dated
23.07.2007, seeking supply of certain
documents to him, but vide letter dated
12.08.2007, the Enquiry Officer refused to
provide the demanded documents to the
petitioner,
however,
opportunity
was
granted to the petitioner to visit the office
of
the
Superintendent,
District
Jail,
Lucknow in any working day and go
through the demanded documents and then
submit his reply within ten days. However,
instead of availing the said opportunity, the
petitioner moved another application/letter
dated 22.08.2007, seeking again to supply
him the documents as demanded vide letter
dated 12.08.2007 and this time again his
request was turned down. Thereafter, the
petitioner
had
requested
vide
letter/representation dated 20.09.2007 to
change the Enquiry Officer, which was also
rejected vide order dated 08.10.2007.
Ultimately, the petitioner had filed his reply
to the charge-sheet on 01.11.2007, denying
all the charges so levelled against him.

(8) According to the petitioner, after
giving reply to the charge-sheet on
01.11.2007, the Enquiry Officer had neither
conducted enquiry by fixing date, time and
place nor charges were proved in his
presence nor any Presenting Officer was
appointed for proving the charges on behalf
of the department nor the authenticity of
the document supplied along with the
charge-sheet as evidence was ever tested
during the course of enquiry by associating
him or any witnesses for proving the
charges against him and the Enquiry
Officer had straightaway submitted enquiry
report dated 29.11.2007, holding that the
charges stood proved against him.

(9) The Disciplinary Authority, on
receipt
of
the
enquiry
report dated
29.11.2007, issued a show cause notice
dated 14.02.2008 along with the enquiry
report to the petitioner under the provisions
of Rule 9 (4) of the U.P. Government
Servant (Discipline & Appeal) Rule, 1999,
calling upon his explanation within fifteen
days. In response thereof, the petitioner
submitted
his
reply
on
03.03.2008.
Thereafter, the Disciplinary Authority had
passed the order of punishment dated
27.06.2008, by which the petitioner was
reverted to two stages below in the present
pay-scale.

(10) Aggrieved by the aforesaid order
of punishment dated 27.06.2008, the
petitioner
preferred
an
appeal
on
03.10.2008, which was dismissed by the
Appellate Authority vide order dated
332 INDIAN LAW REPORTS ALLAHABAD SERIES
28.06.2013.
Significantly,
in
the
interregnum vide order dated 03.09.2008,
medical
leave
w.e.f.
06.04.2007
to
30.04.2007 sought by the petitioner was
sanctioned by the competent authority.

(11) Consequently, the petitioner
dissatisfied with the aforesaid order of
punishment dated 27.06.2008 as well as
appellate order dated 28.06.2013, preferred
Claim Petition No. 754 of 2014 before the
Tribunal. The learned Tribunal, after
hearing the parties, dismissed the claim
petition vide order dated 09.10.2015. It is
this order dated 09.10.2015, which has
been challenged in the instant writ petition.

(12)

Assailing
the
impugned
judgment/order passed by the learned
Tribunal, the learned Counsel representing
the petitioner has contended that on
04.04.2007, while the petitioner was on
duty as Deputy Jailor in District Jail,
Lucknow, he became seriously ill on
account of diarrhea and as such, he
immediately moved an application seeking
to grant him two days' Casual Leave. As
his health was deteriorating and he felt
acute sickness, he took treatment from the
Medical Officer posted in District Jail,
Lucknow, but despite that his health was
not improving, hence in that peculiar
situation and assuming that his Casual
Leave might have been sanctioned by the
department, he firstly went to Primary
Health Centre, Sarojini Nagar, Lucknow for
his better treatment, but when his health
was not improving there, then, he went to
his home town i.e. district Pratapgarh, from
where he took his treatment at Primary
Health
Centre,
Ramganj,
Sultanpur.
Subsequently,
after
becoming
fit,
he
immediately
reported
for
duty
on
01.05.2007 along with application for grant
of medical leave i.e. w.e.f. 06.04.2007 to
30.07.2007, however in the intermittent
period, he was placed under suspension
vide
order
dated
26.04.2007
in
contemplation of inquiry.

(13) It has been contended by the
learned Counsel for the petitioner that the
absence from duty w.e.f. 06.04.2007 to
30.04.2007 was not willful or deliberate but
his absence from duty for the aforesaid
period was on account of medical issue
faced by the petitioner and that too the
department was fully aware about his
serious ailment. The said medical leave
w.e.f. 06.04.2007 to 30.04.2007 was later
sanctioned by the competent authority vide
order dated 03.09.2008. Thus, according to
him, if medical leave of 24 days was
sanctioned by the competent authority
itself, the very imposition of the impugned
punishment was unwarranted and illegal.
The learned Counsel has also submitted
that in any case, the said punishment has
been awarded without giving a proper
opportunity of hearing to the petitioner. The
disciplinary authority did not consider the
reply submitted by the petitioner against
the show cause notice wherein it had
specifically
been
submitted
that
opportunity of hearing was not afforded to
the
petitioner
during
the
enquiry
proceedings as no date, time and place was
fixed nor any documents demanded by him
were supplied to him, hence the enquiry
itself stood vitiated, and it was merely in a
mechanical
manner,
the
disciplinary
authority
had
passed
the
impugned
punishment
order,
which
remained
disproportionate to the proved delinquency.

(14) The learned Counsel has further
submitted that Appellate Authority, while
confirming the order of punishment, also
did not consider the plea of the petitioner
that the impugned punishment order has
8 All. Jagdamba Prasad Dubey Vs. State of U.P. & Ors.
333
been awarded to the petitioner in utter
violation of principle of natural justice.
According to him, though the learned
Tribunal, while passing the impugned
judgment/order, appreciated the facts that
the medical leave w.e.f. 06.04.2007 to
30.04.2007
was
sanctioned
by
the
competent authority vide order dated
03.09.2008, but the Tribunal has failed to
give any finding on this aspect of the
matter. The learned Tribunal has also erred
in not considering the Circular dated
19.04.1996, which says that the staff of the
Jail were exempted from election duty, a
fact which has not been denied by the
respondent. Thus, it has been argued that
the Tribunal has erred in dismissing the
claim petition and as such the writ petition
deserved to be allowed.

(15) Per contra, learned Standing
Counsel representing the State of U.P. has
opposed the writ petition contending that
the petitioner had been the member of a
disciplined
force.
Indiscipline
therein,
amounts to a very serious misconduct.
Therefore, it is intolerable. Once the charge
of absence stood proved, the matter does
not deserve to be considered by this Court.
The writ petition lacks merit and is liable to
be dismissed.

(16) Having regard to the rival
submissions advanced by learned counsel
for the parties and gone through the record
available before this Court in the instant
writ petition, it is required to be noted that
while the petitioner was posted as Deputy
Jailor in District Jail, Lucknow, he was
placed under suspension in contemplation
of disciplinary proceedings vide order
dated
26.04.2007 on
the
charge
of
unauthorized absence from duty. However,
during pendency of the enquiry, the
petitioner joined the services on 01.05.2007
and thereafter, he was reinstated in service
and posted in District Jail, Agra vide order
dated 20.06.2007 but enquiry was ordered
to be continued as usual. Pursuant to the
aforesaid order dated 20.06.2007, the
petitioner submitted his joining in District
Jail, Agra and an enquiry was conducted
against the petitioner by serving a chargesheet dated 20.06.2007 to the petitioner
containing
three
charges,
which
are
reproduced hereinbelow :-

"आरोप संख्या - 1

उ०प्र० जेल मैनुअल िे प्रस्तर-1111 में
प्राकविान है कि जेल अकििारी अपनी अनुपकस्थकत िी सूचना
िारापाल िो तुरन्त देंगे। कजला िारागार, लखनऊ िी तैनाती
िे दौरान आप द्वारा कदनाांि 04.04.2007 िो एि प्राथदना-
पत्र िारापाल िो कदया गया, कजसमें डायररया होने िे िारण
दो कदन िा आिकस्मि अविास कदए जाने िा अनुरोि किया
गया था। जेल मैनुअल िे प्रस्तर-1033 िे अनुसार उस पर
िारागार कचकित्सि द्वारा कचकित्सा परीक्षण ररपोटद एवां कवश्राम
िी सांस्तुकत अांकित नहीं थी। आप द्वारा किसी अन्य सक्षम
प्राकििारी िा कचकित्सा प्रमाण-पत्र भी उपलब्ि नहीं िराया
गया जबकि जेल लाइन में रहने िी दशा में िारागार
कचकित्सि से परीक्षण िराना एवां उनिी ररपोटद प्राप्त िरना
आवश्यि था और जेल मैनुअल प्रस्तर - 1114 िे अनुसार
अविाश स्वीिार िरािर तथा स्टेशन छोडने िी अनुमकत प्राप्त
िर ही िारागार पररसर छोडना चाकहए था। आप जेल लाइन से
बाहर चले गए, जो गम्भीर अकनयकमतता है। अतः आप कबना
िारागार कचकित्सि से परीक्षण िराए और उनिी सांस्तुकत प्राप्त
किए कबना तथा अविाश स्वीिृत किए जाने से पूवद ही जेल
लाइन छोडिर अनाकििृत रूप से प्रस्थान िर गए, जो गम्भीर
अनुशासनहीनता है। इस प्रिार आप उ०प्र० जेल मैनुअल िे
प्रस्तर-1111, 1114, 1033 व उ०प्र० सरिारी
िमदचाररयों िी आचरण कनयमावली, 1956 िे कनयम-
3(1) व (2) िे उल्लांघन, ितदव्यकवमुखता, बीमारी िा फजी
बहाना िर जेल लाइन छोडिर अनुशासनहीनता िा पररचय
देने िे दोर्ी ठहराते हैं।

साक्ष्य जो उपरोक्त आरोप िे समथदन में प्रस्तुत
किए जायेंगेः-
334 INDIAN LAW REPORTS ALLAHABAD SERIES

1- आपिे स्वांय िे प्राथदना-पत्र कदनाांि
04.04.07 िी प्रकत।

2- जेलर ररपोटद बुि कदनाांि 06.04.07 िे
क्रमाांि-130 िी प्रकत।

3- अिीक्षि, कजला िारागार, लखनऊ िे पत्र
सांख्या-1534/अकि०अनु०
(व्यय०पत्रा०)/07
कदनाांि
26.04.07 िी प्रकत।

4- उ०प्र० सरिारी िमदचाररयों िी आचरण
कनयमावली, 1956 िे कनयम-3(1) व (2) िी प्रकत।

आरोप संख्या-2

कजला मकजस्ट्रेट, लखनऊ द्वारा कविान सभा
कनवादचन, 2007 िे दृकष्टगत किसी भी अकििारी/िमदचारी
िो अविाश/मुख्यालय न छोडने िे आदेश कदए गए थे। इन
सबिे बावजूद आचार सांकहता लागू होने पर भी आप द्वारा
कबना अविाश स्वीिृत िराए स्टेशन छोडिर बाहर चले जाना
बैि आदेशों िी अवहेलना व अनुशासनहीनता है। इस प्रिार
आप उ०प्र० जेल मैनुअल िे प्रस्तर-1105 व 1118 (10)
व उ०प्र० सरिारी िमदचाररयों िे आचरण कनयमावली 1956
िे कनयम-3(1) व 2 िे उल्लांघन ितदव्यकवमुखता एवां
उच्चाकििारी िे वैि आदेशों िी अवहेलना िरने िे दोर्ी
ठहरते हैं।

साक्ष्य जो उपरोक्त आरोप िे समथदन में प्रस्तुत
किए जायेंगेः-

(1)
कजलाकििारी,
लखनऊ
िे
पत्र
681/कनवादचन, कदनाांि 08.03.07 िी प्रकत।

आरोप संख्या-3

आपने अपनी बीमारी िी सूचना तत्िाल
िरागार पर कचकित्सा प्रमाण-पत्र सकहत नहीं उपलब्ि िराई।
आपिा यह िहना है कि बीमारी िी दशा में िोई देखभाल
िरने वाला नहीं है जबकि कदनाांि 10.4.2007 िो आपिी
पत्नी िारागार लाइन कस्थत आवास पर उपलब्ि थी। इससे यह
स्पष्ट होता है कि आप गम्भीर रूप से बीमार नहीं थे वरन्
अनाकििृत रूप से िारागार लाइन छोडिर अनुपकस्थत हो गए
तथा लखनऊ शहर में, जहाां पयादप्त कचकित्सा सुकविा िरता है
कि आप वास्तव में बीमार नहां थे वरन् अनाकििृत रूप से जेल
लाइन छोडिर बाहर चले गए। इस प्रिार आप उ०प्र० सरिारी
िमदचाररयों िे आचरण कनयमावली 1956 िे कनयम-3(1)
व (2) िे उल्लांघन व असत्य बयान देने िे दोर्ी ठहरते हैं।

साक्ष्य जो उपरोक्त आरोप िे समथदन में प्रस्तुत
किए जायेंगेः-

1. अिीक्षि, कजला िारागार, लखनऊ िे पत्र
सांख्या - 1299/अकि०अनु० (अविाश)/07 कदनाांि
10.4.07 िी प्रकत"

(17) The record available before this
Court would reveal that the petitioner, after
submitting an application dated 04.04.2007
for grant of two days' Casual Leave on the
ground of sickness, proceeded on leave
without getting it sanctioned from the
competent authority. Thereafter, he was
unauthorizedly absent from duty w.e.f.
06.04.2007 to 30.04.2007. However, it
transpires that medical leave of the
petitioner w.e.f. 06.04.2007 to 30.04.2007
came to be sanctioned by the competent
authority vide order dated 03.09.2008 only.

(18) It is settled principle of law that
mere absence from duty does not per se
amount to a serious misconduct unless it is
held as deliberate and willful absenteeism,
more particularly for a long period or
frequent
absenteeism.
Therefore,
the
disciplinary authority requires to go into
the aspects as to why and in what
circumstances
employee
was
absent,
whether
explanation
offered
by
the
delinquent employee was satisfactory or
not or as to whether the delinquent
employee is in the habit of frequently
absenting from duty or as to whether the
absence is for a shorter period or a longer
period. Depending on the finding recorded
in the departmental proceedings on the
nature and period of absence, it is for the
disciplinary authority to impose appropriate
punishment ranging from censure to that of
dismissal from service. There is no strait-
8 All. Jagdamba Prasad Dubey Vs. State of U.P. & Ors.
335
jacket formulae for inflicting of punishment
in a departmental proceedings and the
imposition of punishment would naturally
depend on the facts and circumstances of
that particular case. Therefore, the basic
requirement for the disciplinary authority to
take a final decision to impose appropriate
punishment is finding of fact on the
allegation of unauthorized absence.

(19) In the instant case, in response to
the charge-sheet issued by the enquiry
officer, the petitioner initially requested to
supply documents and also requested to
provide some more time to file a detailed
explanation and when his request was
turned down twice, then the petitioner
submitted
his
explanation
briefly
explaining the reasons for absence. He has
also pointed out that his absence after
04.04.2007 was on health grounds, that he
applied for leave and his application for
grant of two days' casual leave were not
rejected. Therefore, this particular piece of
explanation offered by him was crucial to
assess whether the absence of employee
after 04.04.2007 was deliberate and willful.

(20) It is also apparent from the record
that absence of petitioner whether deliberate
and willful was not established. Petitioner's
absence could have been termed as deliberate
and willful if the case of the department was
that any of the medical prescription produced
by the petitioner while joining the duty was
forged, however, it is not the case of the
department that they had examined these
medical records during the course of enquiry
and during such examination had found that
the medical prescription produced by the
petitioner was forged. It is also not a case of
the department that the ailment complained
of by the petitioner was false or that he was
never suffering from any serious ailment. It is
interesting to note that in the order of
punishment,
there
is
discussion
on
applications made by petitioner for casual
leave.

(21) It is borne out from the order of
appellate authority that though the petitioner
raised several grounds in his appeal, the
appellate authority failed to consider any of
the grounds and simply affirmed the decision
of the disciplinary authority. Apparently, the
appellate authority acted teeth less and
without any application of mind.

(22) It is apt to mention that no
employee can remain absent from duty
without permission. He can be absent from
duty only by submitting leave application and
only after leave is sanctioned. Without prior
intimation and sanction of leave, if employee
does not attend to duties, such absence may
be treated as unauthorised, which may
amount
to
misconduct
and
warrant
disciplinary action. However, gravity of
misconduct depends on period of absence
and
conduct
of
employee.
Different
yardsticks may apply if absence was in
continuation to sanctioned leave. Thus, mere
absence from duty does not automatically
amount to grave misconduct. Only if absence
is wilful, deliberate and without any
justification, it would be a grave misconduct.
Thus, it is necessary for the disciplinary
authority to find out first whether the absence
was deliberate and wilful. For this, enquiry is
necessary. If the absence was proved to be
deliberate and wilful, the next question is
what punishment can be imposed. On a
proved allegation of unauthorized absence
punishment may vary from case to case and
depending on various aspects.

(23) In the instant case, there is no
discussion in the order of punishment as to
the conduct of petitioner prior to initiation
of disciplinary proceedings resulting in
336 INDIAN LAW REPORTS ALLAHABAD SERIES
imposing the impugned punishment, nor
there is any discussion on endeavour made
to secure the presence of employee nor it is
the case of the department that despite
repeated instructions to attend to duty, the
employee refused to resume his work. It is
not alleged that petitioner was in the habit
of absenting from duty. It is also not placed
on record that he was indulging in
misconduct earlier and was imposed
punishments. Perforce, application of mind
to the issue and taking conscious decision
is paramount. The same is palpably
missing. The whole exercise appears to be
vindictive.

(24) Having noticed the aforesaid, what
we find from the impugned judgment/order
passed by the Tribunal that the Tribunal has
not recorded any finding with regard to
sanctioned medical leave of the petitioner
w.e.f. 06.04.2007 to 30.04.2007 by the
competent authority nor any discussion has
been made whether the absence of the
petitioner from duty was willful or deliberate.
This court would find profitable to quote the
observation of the Apex court in the given
facts and circumstances of the present case as
was made in the case of State of Punjab Vs
Dr. P.L. Singla: (2008) 8 SCC 469, wherein
the Apex Court observed:

"8.
Unauthorized
absence
(or
overstaying leave), is an act of indiscipline.
Whenever there is an unauthorised absence by
an employee, two courses are open to the
employer. The first is to condone the
unauthorized
absence
by
accepting
the
explanation and sanctioning leave for the
period of the unauthorized absence in which
event the misconduct stood condoned. The
second is to treat the unauthorized absence as a
misconduct, hold an enquiry and impose a
punishment for the misconduct.

9. An employee who remains
unauthorisedly absent for some period (or who
overstays the period of leave), on reporting
back to duty, may apply for condonation of the
absence by offering an explanation for such
unauthorized absence and seek grant of leave
for that period. If the employer is satisfied that
there was sufficient cause or justification for the
unauthorized absence (or the overstay after
expiry of leave), the employer may condone the
act of indiscipline and sanction leave post facto.
If leave is so sanctioned and the unauthorized
absence is condoned, it will not be open to the
employer to thereafter initiate disciplinary
proceedings in regard to the said misconduct
unless it had, while sanctioning leave, reserved
the right to take disciplinary action in regard to
the act of indiscipline. We may note here that a
request for condoning the absence may be
favourably considered where the unauthorized
absence is of a few days or a few months and
the reason for absence is stated to be the
sudden,
serious
illness
or
unexpected
bereavement
in
the
family.
But
long
unauthorized
absences
are
not
usually
condoned. In fact in Security services where
discipline is of utmost importance, even a few of
days overstay is viewed very seriously. Be that
as it may"

(25) Apparently, in the present case,
the department had condoned the act of
absence by granting the sanction of leave
post facto. No doubt, the department, even
thereafter can take action against the
petitioner, subject to reservation of its
rights, however, the point to be noted is that
the Apex Court has also observed in the
said case, that in case the unauthorized
absence is for a few days or few months
and the reasons for absence is stated to be
serious illness, the said request can be
considered favorably by the department.
This court finds that although the petitioner
had given an adequate explanation for his
8 All. Renu Vs. State of U.P. & Ors.
337
absence of 26 days, however the same was
not considered favorably by the department
in a very pedantic manner. As seen from the
record, the explanation of the petitioner for
his absence from duty for 26 days justifies
his case. Hence, in the light of the
explanation submitted by the petitioner, the
punishment imposed on him appears to be
disproportionate to the charges leveled
against him.

(26) As to what kind of relief can be
granted by this Court in the present matter,
the Apex court at paragraph No. 18 of the
judgment in B.C. Chaturvedi V/s Union
of India: (1995) 6 SCC 749 has held that

"18. A review of the above legal
position would establish that the disciplinary
authority, and on appeal the appellate authority,
being fact-finding authorities have exclusive
power to consider the evidence with a view to
maintain discipline. They are invested with the
discretion to impose appropriate punishment
keeping in view the magnitude or gravity of the
misconduct. The High Court/Tribunal, while
exercising the power of judicial review, cannot
normally substitute its own conclusion on penalty
and impose some other penalty. If the punishment
imposed by the disciplinary authority or the
appellate authority shocks the conscience of the
High Court/Tribunal, it would appropriately
mould
the
relief,
either
directing
the
disciplinary/appellate authority to reconsider the
penalty imposed, or to shorten the litigation, it
may itself, in exceptional and rare cases. impose
appropriate punishment with cogent reasons in
support thereof."

(27) Having regard to the aforesaid
judgment passed by the Apex Court and in the
peculiar facts of the present case, this Court
cannot be oblivious of the fact that the present
litigation is more than 15 years old and as such
any direction to the disciplinary/appellate
authority to reconsider the punishment imposed
to the petitioner would be a travesty of justice.
Thus, for the cogent reasons as explained herein
above, we are of the view that the punishment
imposed is wholly unfounded and is a serious
error of law, therefore, the restitution of financial
benefit of which the petitioner was deprived,
deserved to be restored. The learned Tribunal
having been approached to adjudicate the matter
in its right perspective has failed to provide any
solace to the petitioner. Therefore, the judgment
of the Tribunal confirming the orders of the
disciplinary and appellate authority calls for
interference.

(28) We, accordingly, allow this writ
petition by setting aside the judgment and
order passed by the learned Tribunal dated
09.10.2015 in Claim Petition No. 754 of 2014
and consequent punishment order passed by
the disciplinary authority dated 27.06.2008 as
well as appellate authority dated 28.06.2013.
The petitioner shall be entitled for all
consequential reliefs as per the rules.

(29) It is clarified that the present order
shall not be treated as precedent as the same
has been rendered in the peculiar facts of the
present case.

(30) There shall be no orders as to cost.
----------
(2023) 8 ILRA 337
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J

Writ A No. 21430 of 2022

Renu ...Petitioner
Versus
State of U.P. & Ors. ...Respondents