Union Of India And Others v. Jagtar Singh
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) This appeal is instituted against the judgment dated 10.05.2019 rendered by learned Single Judge in CWP no.18197 of 2015. 2.
The respondent-petitioner has filed the writ petition seeking quashing of order dated 02.09.2013. The respondent-petitioner was dismissed from service. The charges levelled against the respondentpetitioner as per charge sheet dated 23.08.2013 was that he remained absent for 41 days with effect from 01.07.2013 to 11.08.2013 without leave. The respondent-petitioner feeling aggrieved by the order dated 02.09.2013 filed
an appeal before the appellate authority. This was also dismissed. 3.
The stand taken by the appellant before the learned Single Judge was that the respondent-petitioner has not been terminated for absence of 41 days but he was also habitual offender. The appellants have not brought to the notice of respondent-petitioner's earlier alleged misconduct. It is settled law that the previous misconduct can be taken into consideration after putting the delinquent to the notice. 4.
Their Lordships of the Hon'ble Supreme Court in State of Mysore vs. K.Manche Gowda, AIR 1964 SC 506 have held as under:-
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for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an Opportunity to give his explanation.
We cannot accept the doctrine of "presumptive knowledge"
or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity". We, therefore,
hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation.
8.
Before we close, it would be necessary to make one point clear. It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made a specific charge in the first stage of the enquiry itself and, if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a Government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same.
Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it, relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same."
5.
We have gone through the dismissal order as well. 6.
There is reference to his previous misconduct but the same has not been brought to his notice. The respondent-petitioner has remained absent only for 41 days. Every absence is not willful absence. The reason assigned by the respondent-petitioner for leave was family dispute. 7.
There is no merit in the appeal and the same is dismissed. +, , ,, , - ./ 01 ) 2 3)
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