Disciplinary Authority Must Show "Wilful" Absence To Terminate Employee: Jammu & Kashmir High Court Sets Aside CRPF Constable's Termination

Reinstating a CRPF constable, the Jammu and Kashmir and Ladakh High Court has recently ruled that the Disciplinary Authority must prove that an employee's unauthorized absence from duty was willful before it can be considered as misconduct and lead to termination.

Justice Wasim Sadiq Nargal made these observations while hearing a plea in which the petitioner challenged his order of termination and also prayed for quashing of the order of inquiry passed by the respondents, where inquiry was initiated against the petitioner for charges on which he had already been punished.

The petitioner, who suffered from Encephalitis Sequelae (seizure) disorder and lost control over his body completely for a long time, was absent from work for 39 days while under constant treatment. However, despite the fact that the respondents were aware of his condition, he was terminated from service, it was averred.

The petitioner argued that his absence was not willful or intentional but due to his serious mental ailment. He further contended that, even when the inquiry was conducted against him, he was not in a position to defend himself because of his mental ailment, and it was on the basis of this inquiry report that the punishment of "removal from service" was awarded.

Adjudicating upon the matter, Justice Nargal observed that the petitioner had rendered five years of unblemished service and was terminated from his services for a single act of alleged absence further adding that the petitioner's absence was due to his mental sickness and, as such, cannot be called willful or intentional.

In order to answer the question of law as to whether the unauthorized absence amounts to misconduct even if the Disciplinary Authority failed to prove that the absence from duty was not willful, the bench found it worthwhile to record the observations of the Supreme Court in Krushnakant B. Parmar Vs. Union of India and another, 2012(3) SCC 178, where it was observed,

"Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc. but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a Government servant".

Applying the said position of law to the instant matter, Justice Nargal observed that the Disciplinary Authority had failed to prove that the absence of the petitioner from duty was not willful, and therefore, in absence of any such finding, the absence will not amount to misconduct as alleged by the respondents.

The bench also noted that the departmental enquiry conducted against the petitioner was in violation of Rule 27(c) of the CRPF Rules, which provides the procedure for conducting departmental enquiry.

The bench pointed that the petitioner had not been allowed to inspect the documents relied upon in support of the charge, and during the course of enquiry, the petitioner was not examined nor his statement was recorded by the enquiry officer, violating Rule 27(4).Even the medical documents submitted by the petitioner during departmental enquiry proceedings were not considered by the enquiry officer, thereby vitiating the whole enquiry process, the bench underscored.

Observing that the departmental enquiry conducted against the petitioner is in violation of Rule 27(c) of the Central Reserve Police Force Rules, Justice Nargal observed that the termination of the petitioner's services cannot sustain the test of law and is hereby quashed/set aside, as the same is shockingly disproportionate to the alleged charges leveled against the petitioner, besides being violative of the provisions of the CRPF Act and Rules framed thereunder.

Consequently, the bench set aside the order of termination and ordered that the petitioner shall stand reinstated.

Case Title: Mohd Ashraf Shah Vs Union of India

Citation: 2023 LiveLaw (JKL) 86

Coram : Justice Wasim Sadiq Nargal

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