# Mohd. Arif Khan v. U.O.I. & Ors

- **Citation:** (2023) 1 ILRA 1226
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-17
- **Case number:** Writ-A No. 39214 of 2017
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-arif-khan-v-u-o-i-ors-49113
- **Pages:** 10

## Headnote

A. Service Law - Disciplinary Proceedings
- Punishment - Indian Penal Code:
Section 302, 201; CRPF Act: Section 11(1)
- Unauthorized absence from duty - If the
absence
is
the
result
of compelling
circumstances under which it was not
possible to report or perform duty, such
absence cannot be held to be wilful.
Absence from duty without any application or
prior permission may amount to unauthorised
absence, but it does not always mean wilful.
There may be different eventualities due to
which an employee may abstain from duty,
including compelling circumstances beyond his
control like illness, accident, hospitalisation, etc.,
but in such case the employee cannot be held
guilty of failure of devotion to duty or behaviour
unbecoming of a government servant. In a
departmental proceeding, if allegation of
unauthorised absence from duty is made,
the disciplinary authority is required to
prove that the absence is wilful, in the
absence of such finding, the absence will
not amount to misconduct. (Para 27)

It is to be seen that the petitioner has remained
on unauthorized absence from duty primarily on
account of pendency of criminal case against
1 All. Mohd. Arif Khan Vs. U.O.I. & Ors.
1227
petitioner. When petitioner went to his native
place
after
duly
sanctioned
leave
being
obtained, a FIR was lodged on 21.07.2015 and,
thereafter, a warrant of arrest was issued
against petitioner on 25.07.2015 i.e. during the
currency of sanctioned leave. After issuance of
warrant, petitioner was searching for legal
remedies and was evading from arrest as
according to the petitioner he has been falsely
implicated in the criminal case. Petitioner was in
jail when disciplinary proceedings were being
carried out against him. (Para 28, 29)

B.
The
reason
explained
by
the
employee/petitioner during disciplinary
proceedings are required to be considered
by the employer prior to passing order on
the punishment. Disciplinary authority has
only taken into consideration, inquiry report and
thereafter, has passed the impugned order
without recording any finding whether the
absence of petitioner was wilful or whether
petitioner was forced by the facts and
circumstances, to remain absent from duty.
Such an approach by the disciplinary authority is
not warranted under law. (Para 30, 33)

C. Proportionality of the punishment has to
be considered by the disciplinary authority as
the same is within the domain of the disciplinary
authority. The disciplinary authority has not
considered the peculiar facts and circumstances,
where the petitioner was evading his arrest and
ultimately sent to jail because of a criminal case
against him. A person who is in judicial custody
cannot be expected to join his duty unless he
has been released by the court of law on bail.
The employer has deferred the punishment in
respect of Charge no.2 w.r.t. involvement of the
petitioner
in
the
criminal
case.
These
circumstances
might
have
mitigated
the
petitioner's misconduct and a different view
could have been taken by disciplinary authority
warranting a lesser punishment. (Para 32)

The
disciplinary
authority
while
considering the punishment to be imposed
on
employee
even
if
employee
has
admitted the charge is required to decide
the proportionality of the punishment on
the facts and circumstances of the case
and
a
punishment
which
is
disproportionate may entail injustice to
the employee. (Para 33)

Writ petition allowed. Matter remanded back for
a fresh decision on the quantum and nature of
punishment to be awarded by disciplinary
authority. (E-4)

Precedent followed:

## Text

1226 INDIAN LAW REPORTS ALLAHABAD SERIES
in which the order was passed, upon which
the charge-sheet was issued and was the
subject matter of the enquiry against the
petitioner. This aspect of the matter has
been completely lost sight off by the
enquiry officer as well as disciplinary
authority
and
has
also
been
noted
appropriately noticed by the Tribunal.

(20) Taking note of principles laid
down by the Apex Court in Union of India
& Ors. Vs. K.K. Dhawan (Supra) and
considering the facts and circumstances of
the case, we find that findings recorded by
the Inquiry Officer are totally vitiated for
want of any legally acceptable or relevant
evidence to support the charges of
misconduct and in absence of any evidence,
the conclusion reached by the inquiry
officer
affirmed
by
the
disciplinary
authority also stand vitiated.

(21) In view of the aforesaid, the
instant writ petition succeeds and is
allowed. The impugned judgment and
order dated 22.10.2020 passed by the
Tribunal,
punishment
order
dated
04.09.2019 and the order dated 02.03.2020
are hereby quashed. The matter shall stand
remitted to the enquiry officer, who, shall
after giving due opportunity of hearing to
the petitioner, providing all the documents
and considering the legally admissible
evidence, shall proceed with the enquiry
and endeavour be made that the same is
taken to its logical conclusion within six
months from the date a copy of this order is
produced before the authority concerned. It
is also directed that the petitioner shall not
seek any unnecessary adjournments and if
he does not co-operate in the early
conclusion of the enquiry, the enquiry
officer shall be well within his rights to
proceed in the matter in accordance with
law.
----------
(2023) 1 ILRA 1226
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2022

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Writ-A No. 39214 of 2017

Mohd. Arif Khan ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Parvez Alam, Sri Namit Srivastava

Counsel for the Respondents:
A.S.G.I., Sri Anil Kumar Pandey, Sri Arvind
Kumar Goswami

A. Service Law - Disciplinary Proceedings
- Punishment - Indian Penal Code:
Section 302, 201; CRPF Act: Section 11(1)
- Unauthorized absence from duty - If the
absence
is
the
result
of compelling
circumstances under which it was not
possible to report or perform duty, such
absence cannot be held to be wilful.
Absence from duty without any application or
prior permission may amount to unauthorised
absence, but it does not always mean wilful.
There may be different eventualities due to
which an employee may abstain from duty,
including compelling circumstances beyond his
control like illness, accident, hospitalisation, etc.,
but in such case the employee cannot be held
guilty of failure of devotion to duty or behaviour
unbecoming of a government servant. In a
departmental proceeding, if allegation of
unauthorised absence from duty is made,
the disciplinary authority is required to
prove that the absence is wilful, in the
absence of such finding, the absence will
not amount to misconduct. (Para 27)

It is to be seen that the petitioner has remained
on unauthorized absence from duty primarily on
account of pendency of criminal case against
1 All. Mohd. Arif Khan Vs. U.O.I. & Ors.
1227
petitioner. When petitioner went to his native
place
after
duly
sanctioned
leave
being
obtained, a FIR was lodged on 21.07.2015 and,
thereafter, a warrant of arrest was issued
against petitioner on 25.07.2015 i.e. during the
currency of sanctioned leave. After issuance of
warrant, petitioner was searching for legal
remedies and was evading from arrest as
according to the petitioner he has been falsely
implicated in the criminal case. Petitioner was in
jail when disciplinary proceedings were being
carried out against him. (Para 28, 29)

B.
The
reason
explained
by
the
employee/petitioner during disciplinary
proceedings are required to be considered
by the employer prior to passing order on
the punishment. Disciplinary authority has
only taken into consideration, inquiry report and
thereafter, has passed the impugned order
without recording any finding whether the
absence of petitioner was wilful or whether
petitioner was forced by the facts and
circumstances, to remain absent from duty.
Such an approach by the disciplinary authority is
not warranted under law. (Para 30, 33)

C. Proportionality of the punishment has to
be considered by the disciplinary authority as
the same is within the domain of the disciplinary
authority. The disciplinary authority has not
considered the peculiar facts and circumstances,
where the petitioner was evading his arrest and
ultimately sent to jail because of a criminal case
against him. A person who is in judicial custody
cannot be expected to join his duty unless he
has been released by the court of law on bail.
The employer has deferred the punishment in
respect of Charge no.2 w.r.t. involvement of the
petitioner
in
the
criminal
case.
These
circumstances
might
have
mitigated
the
petitioner's misconduct and a different view
could have been taken by disciplinary authority
warranting a lesser punishment. (Para 32)

The
disciplinary
authority
while
considering the punishment to be imposed
on
employee
even
if
employee
has
admitted the charge is required to decide
the proportionality of the punishment on
the facts and circumstances of the case
and
a
punishment
which
is
disproportionate may entail injustice to
the employee. (Para 33)

Writ petition allowed. Matter remanded back for
a fresh decision on the quantum and nature of
punishment to be awarded by disciplinary
authority. (E-4)

Precedent followed:

1. Jai Bhagwan Vs Commissioner of Police &
ors., 2012 (3) SCC 178 (Para 14)

2. Krushnakant B. Parmar Vs U.O.I. & ors., 2012
(3) 178 (Para 14)

3. Mirja Barkat Ali Vs. Inspector General of
Police, Allahabad & ors., 2002 (2) UPLBEC 1871
(Para 14)

Present petition challenges the order dated
30.09.2016, passed by Commandment, 101,
Battalion. R.A.F./C.R.P.F., District Allahabad,
order dated 25.01.2017, passed by Deputy
Inspector General of Police, R.A.F./C.R.P.F.,
R.K. Puram, New Delhi and order dated
25.04.2017, passed by Inspector General of
Police, R.A.F./C.R.P.F., R.K. Puram, New
Delhi.

(Delivered by Hon'ble Vikram D.
Chauhan, J.)

1. Heard learned counsel for the
petitioner and Sri Arvind Kumar Goswami,
learned counsel for the respondents.

2. It is submitted by the learned
counsel for the petitioner that the petitioner
was working on the post of Constable in
RAF/CRPF, Allahabad. Petitioner was
granted leave by respondents from 20th
July, 2015 to 29th July, 2015 for attending
Eid festival with family at his native place
and petitioner was required to report for
duty on 29th July, 2015 (A/N).

3. When petitioner was on leave, a
first information report dated 21st July,
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
2015 being Case Crime No.453 of 2015
was lodged at Police Station Nawabganj
under Section 302, 201 of Indian Penal
Code
against
unknown
persons.
In
pursuance to the aforesaid first information
report, investigation was carried out by the
police authorities and the petitioner was
found to have been involved in the criminal
case. A warrant of arrest was issued against
the petitioner on 25th July, 2015. Petitioner
was placed under suspension by the
respondents for having been indulged in a
criminal case and warrant being issued
against him. Petitioner being afraid of
arrest did not report back to his place of
employment after the sanctioned leave was
over. It is submitted that petitioner was
searching for legal remedies in criminal
prosecution.

4. On 10th September, 2015,
petitioner has surrendered before the court
of Chief Judicial Magistrate and was sent to
Naini Central Jail, Allahabad on the same
day. Petitioner was initially placed under
suspension by order dated 25th July, 2015.
On 18th August, 2015 a notice was issued
to the petitioner to immediately join his
duties.
Suspension of
petitioner
was
cancelled by respondents on 20th August,
2015. On 21st August, 2015 an order was
passed by respondent no.4 to stop payment
of salary and allowance of petitioner.

5. On 17th October 2015 and 4th
January, 2016, petitioner informed the
respondent authorities that he is confined in
jail in respect of the abovementioned first
information report. Thereafter, petitioner
was again placed under suspension on 8th
November, 2015. Subsequently, petitioner
has remained in jail and was enlarged on
bail on 28th March, 2017 by this Court.

6. Inquiry Officer was appointed by
respondents and a charge sheet dated 4th
February, 2016 was served on petitioner
levelling two charges against him in
departmental proceedings. First charge
against petitioner pertains to petitioner was
granted leave from 20th July, 2015 to 29th
July, 2015 and was required to report back
for duty on 29th July, 2015 (A/N),
however, he has not reported for duty after
completion of his sanctioned leave. In the
meantime, the petitioner has been arrested
in a criminal case and is in jail since 10th
September, 2015. The aforesaid is a
misconduct under section 11(1) of the
CRPF Act. The second charge against the
petitioner pertains to the petitioner being
arrested in a criminal case and was in jail
for an offence under Section 302 and 201
of
Indian
Penal
Code
which
is
a
misconduct under section 11(1) of the
CRPF Act.

7. On 23rd May, 2016 and 27th May,
2016, Inquiry Officer came to Naini Jail and
recorded the statement of petitioner. On 17th
August, 2016 statement of petitioner was
recorded by Inquiry Officer in jail. Inquiry
Officer submitted his report dated 29th
August,
2016
before
the
respondent
authorities. Petitioner accepted the Charge
no.1 as he has remained unauthorisely absent
from duty as he was detained in jail in a
criminal case but denied the Charge no.2.
Inquiry Officer in his report dated 29th
August, 2016 concluded that the Charge no.1
against the petitioner stands proved and in
respect of Charge no.2, Inquiry Officer held
that
the
criminal
case
is
pending
consideration before the criminal court as
such any decision in respect of Charge no.2
can be taken after completion of criminal
case before the court concerned.
1 All. Mohd. Arif Khan Vs. U.O.I. & Ors.
1229

8. Thereafter, respondent no.4 has
passed the impugned order dated 30th
September, 2016 imposing major penalty
of removal from service against the
petitioner. Petitioner being aggrieved by
order dated 30th September, 2016 passed
by respondent no.4, preferred an appeal
from jail under Rule 28 of the Central
Reserve Police Force Rules before the
Deputy
Inspector
General
of
Police,
R.A.F/C.R.P.F, R.K. Puram, Sector-1, East
Block-02, New Delhi. Appeal of petitioner
was rejected by respondent no.3 by order
dated 25th January, 2017. Petitioner being
aggrieved by the above-mentioned order
dated 30th September, 2016 and 25th
January, 2017 preferred revision before
respondent no.2. The aforesaid revision
was rejected by order dated 25th April,
2017 by respondent no.2.

9. The present writ petition is filed
challenging
the
order
dated
30th
September, 2016 passed by respondent
no.4, order dated 25th January, 2017 passed
by respondent no.3 and order dated 25th
April, 2017 passed by respondent no.2.

10. Learned counsel for the petitioner
urges
that
during
the
disciplinary
proceedings, petitioner was in jail and
petitioner
participated
in
disciplinary
proceedings from jail itself. On 4th
February,
2016
a
chargesheet
was
submitted against petitioner with two
charges. The first charge against the
petitioner was that the petitioner has
remained for unauthorize absence on duty
from 30th July, 2015 till initiation of the
disciplinary
proceedings.
The
second
charge against the petitioner was to the
effect that petitioner was involved in a
criminal case and has surrendered before
law and is in jail which is a misconduct.
Statement of petitioner was recorded by
Inquiry Officer, which is at page 66 of the
writ petition, where the petitioner has
explained to the Inquiry Officer, the
circumstances under which petitioner was
alleged to be involved in the criminal case,
how petitioner has surrendered before court
of Chief Judicial Magistrate. Inquiry
Officer,
after
completion
of
inquiry
proceedings, has submitted inquiry report
on 29th August, 2016 wherein Charge no.1
against petitioner was found to be proved.
However, in respect of the Charge no.2,
Inquiry Officer recommended that since the
matter pertains to criminal case against
petitioner, decision on the aforesaid may be
taken after the decision of the court
concerned.

11.
The
disciplinary
authorityrespondent no.4 by order dated 30th
September, 2016 has thereafter, proceeded
to consider the inquiry report and, on
Charge no.1 has directed removal of the
petitioner from service and further the
disciplinary authority has directed the
period from 10th September, 2015 till the
passing of the order i.e. 30th September,
2016 be treated as the period under
suspension and only subsistence allowance
would be paid to the petitioner. Petitioner's
medal and other honours have also be
confiscated by the respondents by means of
impugned order.

12. It is submitted by the learned
counsel for the petitioner that petitioner has
been removed from service on Charge no.1,
which is unauthorized absence from duty.
The punishment of removal from service is
disproportionate
in
the
facts
and
circumstances of the case, specifically
when the petitioner, who went on leave was
subjected to criminal proceedings while on
leave and as such the petitioner being
involved in a criminal case could not join
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
back his duties nor could inform the
respondent-authorities, which the petitioner
has admitted in the inquiry proceedings. It
is submitted that in respect of criminal
proceeding petitioner surrendered before
the court concerned and was sent to jail.
The impugned order of removal from
service has been passed against the
petitioner as the petitioner has admitted the
Charge no.1 during inquiry proceedings.

13. It is further submitted by learned
counsel for the petitioner that admission of
charge by petitioner in respect of Charge
no.1 would not ipso facto amount to
admission of quantum of punishment
imposed by the respondents. He submits
that the respondents in the facts and
circumstances of case ought to have
considered
the
peculiar
facts
and
circumstances, which has visited the
petitioner while he went on leave and
thereafter, considering the statement of
petitioner during inquiry proceedings ought
to have passed the order against the
petitioner.

14. In support of his submissions,
learned counsel for petitioner has placed
reliance upon following judgments:-

1.
Jai
Bhagwan
Vs.
Commissioner of Police and others, AIR
2013 SC 2908

2. Krushnakant B. Parmar Vs.
Union of India and others, 2012 (3) SCC
178

3. Mirja Barkat Ali Vs. Inspector
General of Police, Allahabad and others,
2002 (2) UPLBEC 1871.

15. On the strength of aforesaid
judgments, learned counsel for petitioner
submits that unauthorize absence from duty
in all cases will not warrant removal from
service, specifically when the employee
can show from facts and circumstances that
unauthorized absence was not wilful. He
submits that unauthorized absence has been
duly explained in the statement made to the
Inquiry Officer. The aforesaid statement of
the petitioner has not been considered by
the punishing authority while passing the
impugned order. It is further submitted that
criminal prosecution against petitioner is
not in respect of occurrence connected with
service of the petitioner.

16. It is further submitted that it was
imperative on part of disciplinary authority
while
considering
punishment
against
petitioner
on
Charge
no.1
to
have
considered statement of petitioner recorded
during inquiry proceedings and the case of
petitioner that he was involved in a
criminal case and was searching for legal
remedies in furtherance whereof has
surrendered before court of Chief Judicial
Magistrate. Such facts have not been
considered by disciplinary authority while
passing the impugned order and as such the
impugned order is not tenable under law.

17. Learned counsel for the petitioner
submits
that
the
proportionality
of
punishment has to be considered by the
disciplinary authority after taking into
consideration the stand of petitioner even
though, petitioner has admitted the charge.
However, explanation given by petitioner
for unauthorized absence ought to have
been
considered
while
imposing
punishment. He submits that such process
has not been adopted in present case and as
such the impugned order is liable to be set
aside.

18. Sri Arvind Kumar Goswami,
learned counsel appearing on behalf of
1 All. Mohd. Arif Khan Vs. U.O.I. & Ors.
1231
respondents submits that the petitioner was
unauthorisely absent from duty. Petitioner
was granted ten days leave to visit his
native place. However, he did not return
back and thereafter, communications were
sent to the petitioner for joining his duty.
However, he has not honoured those
communications and, thereafter, he has
been found to be involved in a criminal
case and was in jail as such he has been
placed under suspension and disciplinary
proceedings were initiated against the
petitioner.

19. It is further submitted by learned
counsel for the respondents that the
chargesheet was submitted against the
petitioner for two charges and Inquiry
Officer has submitted the inquiry report
where the Charge no.1 is proved against the
petitioner and in so far as Charge no.2 is
concerned,
Inquiry
Officer
has
recommended that any action may be taken
after decision of the court concerned.

20. It is further submitted by learned
counsel for the respondents that the
disciplinary authority thereafter considering
the report of the Inquiry Officer and
admission of petitioner that he was absent
from duty in an unauthorized manner, has
passed the order of removal from service.

21.

Learned
Counsel
for
the
respondents
further
submits
that
the
petitioner belongs to a disciplined force and
was required to join back his duty after the
leave period was over. Once he has not
joined his duties, after completion of leave
disciplinary authority was justified in
taking disciplinary action against the
petitioner.

22.

Learned
counsel
for
the
respondents submitted that the disciplinary
authority has passed the order of removal
under Section 11 of the Central Reserve
Police Force Act, 1949 and as such there
can be no fault in passing of the impugned
order.

23. It is to be noted that the petitioner
was posted as a Constable in the
RAF/CRPF, Allahabad. He proceeded on
leave for his native place from 20th July,
2015 to 29th July, 2015. When the
petitioner reached his native place, a first
information report was lodged on 21st July,
2015 under Section 302 and 201 I.P.C.
Petitioner
was
not
named
in
first
information report. However, his name was
surfaced during the investigation and a
warrant of arrest was issued against
petitioner on 25th July, 2015. According to
petitioner, he was searching for legal
remedies and evading the arrest and
ultimately surrendered before the court of
Chief
Judicial
Magistrate
on
10th
September, 2015.

24. It is also to be noted that the
petitioner had informed respondents about
the criminal case and his arrest on 17th
October, 2015. On account of pendency of
the
criminal
case
against
petitioner,
petitioner
was
initially
placed
under
suspension on 25th July, 2015 and
thereafter, aforesaid suspension order was
thereafter, revoked on 20th August, 2015.
However, when petitioner surrendered
before
the
court
of
Chief
Judicial
Magistrate and was sent to jail, he was
again placed under suspension on 8th
November, 2015.

25. It is also to be noted that the
petitioner was granted bail by this Court on
28th March, 2017. Respondents initiated
disciplinary
proceedings
against
the
petitioner and chargesheet was issued
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
against petitioner on 4th February, 2016.
Against petitioner two charges were framed
in disciplinary proceedings. Charge no.1
pertains to unauthorized absence from duty
from 30th July, 2015 and Charge no.2
pertains to the pendency of a criminal case
and as such the same was construed to be a
misconduct by disciplinary authority. When
the disciplinary proceedings were being
carried out petitioner was in jail. However,
his statement was recorded by the Inquiry
Officer, which is at page 66 of the paper
book. Relevant portion of the aforesaid
statement is extracted hereunder:-

"प्रश्न 4- आप सेन्टरल जेल नैनी
इल ि ब ि में दकस दलए एिां कब से कैि में िै?

उत्तर- श्रीम न घर ि लो ने क रण
पूछ तो पुदलस ने थ न नि िर्ांज इल ि ब ि में
हुई िो ित्य में आरोपी बत य । दजस समय
पुदलस घर आई मै और मेर भ ई सुबि घर से
ब िर टिलने र्ये थे। तथ प्र थी के घर पर खिी
सफ री र् िी पुदलस उठ ले र्यी और ित्य में
र् दमल दिख य । जबदक प्र थी क इस ित्य से
कोई लेन -िेन निीां िै। प्र थी के बड़े भ ई मो०
नसीम ख न जो केन्द्रीय ररजिग पुदलस बल से
ििलि र/जीिी पि से ररट िग थे दक ित्य सुबि
06.00बजे
के
करीब
समूि
केन्द्र
सी०आर०पी०एफ० इल ि ब ि के नजिीक
उियचन्दपुर र्ॉि में बम एिां र्ोली से म र कर
ित्य कर िी र्यी। प्र थी ने अपने भ ई के ित्य
में र् दमल िो लोर्ो को न म जि आरोपी बन य
थ पप्पु पुि आज ि ि पप्पु उफग अनिर पुि
लतीफ ि तीन अज्ञ त के क्तखल फ थ न सोरॉि में
मुकिम िजग कर य । मुकिमें की दििेचन में
पुदलस ने र मकुम र उफग दिमल को आरोपी
बन य थ । दजन व्यक्तियोां दक थ न नि बर्ांज में
ित्य हुई उनमें से एक र मकुम र उफग दिमल
य िि थ । पुदलस ने मेरे भ ई की ित्य से
जोिकर मुझे एिां मेरे भ ई को िो ित्य ओ में
आरोपी बन य जबदक मेर इस ित्य से कोई
सम्बन्ध निी िै। मै उपरोि क रणो से क फी
भयभीत िो र्य थ और पुदलस की दर्रफत री
से बचने के दलए दछप रि थ और अिक र् से
ियूटी पर समय से उपक्तथथत निी िो सक । मै ि
मेरे भ ई ने अपने को दनिोर् र् दित करने के
दलए दिनॉक 10/09/2015 को सी०जी०एम० कोटग
इल ि ब ि में सरेण्डर दकय और सी०जे०एम०
कोटग इल ि ब ि ने मुझे दिनॉक 10/09/2015 को
सेन्टरल जेल नैनी इल ि ब ि में भेज दिय दिय ।
और मै दिनॉक 10/09/2015 से अभी तक सेन्टरल
जेल नैनी इल ि ब ि में कैि में चल रि हूँ।

प्रश्न-5 - सभी अदभयोजन र्ि िोां क
बय न आपकी उपक्तथथदत में दलय र्य िै और
आप अदभयोजन र्ि िोां के बय नोां को पढ़ और
समझ दलय िै। क् आप कम ण्डेंट क य गलय
के ज्ञ पन सांख्य -पी०आठ-01/2016 थथ -िो-101
दिनॉक 04/02/2016 में ल ये र्ये आरोपोां के मि
एक और िो के दलए अपने आप को िोिी म नते
िैं?

उत्तर- श्रीम न कम ण्डेंट क य गलय के
ज्ञ पन
सांख्य -पी०-आठ-01/2016-थथ -िो-101
दिनॉक 04/02/2016 में ल ये र्ये आरोपोां के मि
एक में लर् ये र्ये आरोप के दलए अपने आप को
िोिी म नत हूँ। श्रीम न मि िो में लर् ये र्ये
आरोप के प्रदत मैं अपने आप को िोिी निीां
म नत हूँ क्ोांदक पुदलस ि र मेरे दिरूद्ध लर् ये
र्ये आरोप दनर ध र िै। इस सम्बन्ध में म मल
न्य य लय में दिच र िेतु लक्तम्बत िै।"

26. Inquiry Officer after conducting
inquiry has submitted inquiry report dated
29th August, 2016 and concluded that the
Charge no.1 against the petitioner is
proved. So far as Charge no.2 is concerned,
Inquiry Officer has recommended that
proceedings may be undertaken after
decision of court concerned where criminal
1 All. Mohd. Arif Khan Vs. U.O.I. & Ors.
1233
case is pending against petitioner. The
disciplinary authority thereafter, has passed
impugned order dated 30th September,
2016 and has recorded finding that the
Inquiry Officer has found Charge no.1 as
correct against the petitioner and aforesaid
charge has been admitted by the petitioner
and as such has inflicted the punishment of
removal from service. Petitioner being
aggrieved by the aforesaid order dated 30th
September, 2016, had preferred an appeal
before the Appellate Authority which has
been rejected by order dated 25th March,
2017. Thereafter, petitioner has preferred a
revision before the revisional authority and
same has also been rejected by order dated
25th April, 2017.

26. In Krushnakant B. Parmar v.
Union of India, (2012) 3 SCC 178 :-

"16. In the case of the appellant
referring to unauthorised absence the
disciplinary authority alleged that he failed
to maintain devotion to duty and his
behaviour
was
unbecoming
of
a
government servant. The question whether
"unauthorised absence from duty" amounts
to failure of devotion to duty or behaviour
unbecoming of a government servant
cannot be decided without deciding the
question whether absence is wilful or
because of compelling circumstances.

17. If the absence is the result of
compelling circumstances under which it
was not possible to report or perform duty,
such absence cannot be held to be wilful.
Absence from duty without any application
or prior permission may amount to
unauthorised absence, but it does not
always mean wilful. There may be different
eventualities due to which an employee
may
abstain
from
duty,
including
compelling
circumstances
beyond
his
control
like
illness,
accident,
hospitalisation, etc., but in such case the
employee cannot be held guilty of failure of
devotion to duty or behaviour unbecoming
of a government servant.

18. In a departmental proceeding,
if allegation of unauthorised absence from
duty is made, the disciplinary authority is
required to prove that the absence is wilful,
in the absence of such finding, the absence
will not amount to misconduct."

27. It is to be seen that the petitioner
has remained on unauthorized absence
from
duty
primarily
on
account
of
pendency
of
criminal
case
against
petitioner. When petitioner went to his
native place after duly sanctioned leave
being obtained, a first information report
was lodged on 21st July, 2015 and,
thereafter, a warrant of arrest was issued
against petitioner on 25th July, 2015 i.e.
during the currency of sanctioned leave.
After issuance of warrant of arrest,
petitioner was searching for legal remedies
and was evading from arrest as he was an
innocent person, according to the petitioner
he has been falsely implicated in the
criminal case.

28. Petitioner by his communication
dated 17th October, 2015 has informed the
department with regard to pendency of the
criminal
case
and
petitioner
has
surrendered before the court of Chief
Judicial Magistrate on 10th September,
2015.
Petitioner
was
in
jail
when
disciplinary proceedings were being carried
out against him. Disciplinary authority
while passing impugned order has taken
into consideration report of Inquiry Officer
and admission of petitioner to Charge no.1
as the basis for imposing the punishment of
removal from service. The disciplinary
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
authority has not recorded any independent
finding with regard to wilful absence from
duty while passing the order of punishment.
Absence from duty without authorised
leave may amount to unauthorised absence,
but it does not always mean wilful absence
from duty. There may be different
eventualities due to which an employee
may not report back to duties/abstain from
duty, including compelling circumstances
beyond his control like illness, accident,
hospitalisation, etc., but in such case
employee cannot be held guilty of failure of
devotion to duty or behaviour unbecoming
of a government servant.

29. The reason explained by the
employee/petitioner
during
disciplinary
proceedings are required to be considered
by the employer prior to passing order on
the punishment. The reasons specified by
the employee for unauthorised absence
even though the unauthorised absence may
have been admitted by the employee are
important factors to be considered by the
employer while deciding the nature of
punishment to be given to the employee
concerned for unauthorised absence.

30. Where the circumstances are
beyond the control of the employee and the
employee was prevented by justifiable
cause then it is the duty of the employer to
weigh the circumstances and impose a
punishment which is proportionate with the
nature of misconduct imputed in the facts
and circumstances of a particular case.

31. The proportionality of the
punishment has to be considered by the
disciplinary authority as the same is within
the domain of the disciplinary authority.
The
disciplinary
authority
has
not
considered
the
peculiar
facts
and
circumstances
which
has
visited
the
petitioner by lodging of a criminal case
where the petitioner was evading his arrest
and ultimately send to jail. A person who is
in judicial custody cannot be expected to
join his duty unless he has been released by
the court of law on bail. The employer has
deferred the punishment in respect of
Charge no.2 with regard to involvement of
the petitioner in the criminal case. These
circumstances might have mitigated the
petitioner's misconduct and a different view
could have been taken by disciplinary
authority warranting a lessor punishment.

32. All these factors were required to
be considered by the disciplinary authority
while
passing
the
impugned
order.
However, disciplinary authority has only
taken into consideration, inquiry report and
thereafter, has passed the impugned order
without recording any finding whether the
absence of petitioner was wilful or whether
petitioner was forced by the facts and
circumstances
which
has
visited
to
petitioner, to remain absent from duty.
Such an approach by the disciplinary
authority is not warranted under law. The
disciplinary authority while considering the
punishment to be imposed on employee
even if employee has admitted the charge is
required to decide the proportionality of the
punishment on the facts and circumstances
of the case and a punishment which is
disproportionate may entail injustice to the
employee.

33. Such an approach has not been
considered by the employer concerned, as
such
impugned
order
dated
30th
September, 2016 is not tenable under law
and is hereby set aside. The writ petition is
allowed and the matter is remanded back to
the respondent no.4 to pass appropriate
order afresh after taking into account the
circumstances which is visited to the
1 All. Lalit Kumar Vs. State of U.P. & Ors.
1235
petitioner, specifically the statement of the
petitioner, which is at page 66 of the writ
petition, after giving opportunity of hearing
to the petitioner. The consequential orders
dated 25th January, 2017 and 25th April,
2017 passed by the appellate authority as
well as the revisional authority respectively
are also hereby set aside. The disciplinary
authority-respondent no.4 shall pass a fresh
order within a period of four months from
the date of production of a certified copy of
this order.

34. Learned counsel for both the
parties agree that the matter may not be
remanded for fresh inquiry, however, may
only be remanded for a fresh decision on
the quantum and nature of punishment to
be awarded by disciplinary authority.
Accordingly,
respondent
no.4
while
passing the decision a fresh, will consider
on the question of the nature of punishment
to be awarded considering the facts and
circumstances under which petitioner was
absent from duty.
----------
(2023) 1 ILRA 1235
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Special Appeal Defective No. 466 of 2022

Lalit Kumar ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Prabhakar Awasthi

Counsel for the Respondents:
C.S.C.

A. Service Law - Recruitment/Selection -
Cancellation of candidature - Irrespective
of the fact whether the dispute is of trivial
nature
or
not,
it
is
the
credibility/creditworthiness of a particular
employee which matters most when it
comes to a public employment. There
should not be any mechanical or rhetorical
incantation of moral turpitude to deny
appointment in a government service
simplicitor which would depend on the
facts of each case. The judicial philosophy
flowing through the mind of the judges is that
every individual deserves an opportunity to
improve, learn from the past and move ahead in
life
for
self-improvement.
To
make
past
conduct, irrespective of all considerations, may
not always constitute justice. (Para 18, 19)

B. The learned Single Judge dismissed the writ
petition of the petitioner-appellant merely
observing that the impugned order was
passed on 31.01.2019 whereas the order
of acquittal was passed a day thereafter
on 01.02.2019 and thus, the petitioner
was facing trial as on the date of the
impugned order dated 31.01.2019. This
view
to
uphold
the
order
dated
31.01.2019 cannot be sustained. (Para 21)

C. When the accused is acquitted after full
consideration of the prosecution case and
the prosecution miserably fails to prove
the charges levelled against the accused,
it can possibly be said that the accused
was honourably acquitted. (Para 18)

If it is found by the Screening Committee
that the person against whom a serious
case
involving
moral
turpitude
is
registered is discharged on technical
grounds or is acquitted of the same charge
but the acquittal is not honourable, the
Screening Committee would be entitled to
cancel his candidature. Stricter norms need
to be applied while appointing persons in a
disciplinary force because public interest is
involved in it. (Para 18)

The learned Single Judge has recorded that the
allegations against the petitioner were of