SHARMA, J. - (1.) THE petitioner while working as Spinning master with the respondent No. 2 and 3, was served with the articles of charges vide memorandum dated April 13, 1994. THE first charge related to absence from duty from February 26, 1994 to March 3, 1994 without permission and second was with regard to lack of devotion towards duty and to spoil the working environment of the Mill by instigating the staff members. A departmental enquiry was conducted and the petitioner was dismissed form service vide order dated January 18/24, 1995. THE petitioner in the instant writ petition has impugned the aforesaid charge sheet and the orders and sought all consequential benefits.
(2.) THE first ground of challenge is that there was no misconduct on the part of the petitioner as defined under clause (5) of Rule 16. 33 of the Rajasthan State Cooperative Spinning and Ginning Mills Federation Employees Service Rules 1994 (for short 1994 rules ). The petitioner's second contention is that as per clause (2) of Rule 16. 39, 1994 rules statement of allegations was not supplied to the petitioner together with the memorandum of charges. The third and last contention of the petitioner is that charge No. 2 in regard to lack of deviation towards duty and to spoil the working environment of the mill was vague, bald, ambiguous and even by implication it did not make out any charge. In the reply submitted by the respondents No. 1, 2 and 3 it is averred that the disciplinary authority after careful considering the statement of the defence submitted by the petitioner, gave the enquiry report wherein both the charges levelled against the petitioner were found proved. It is further averred that the petitioner was found absent form the headquarters for days i. e. from Feb. 24, 1994 to March 4, 1994 without getting prior permission/sanction of the unit incharge and misconducted himself as per clause (5) of Rule 16. 33. In the additional pleas details of charge sheet/notice/orders issued to the petitioner from time to time have been given and an attempt has been made to justify the order of dismissal of the petitioner. I have heard the rival submissions and perused the material on record and case law cited at the Bar.
(3.) CLAUSE (5) of Rule 16. 33 of 1994 Rules provides that absenting from work for seven days or more without intimation or proper sanction or permissions or notice in writing or without sufficient reason shall be deemed to constitute misconduct on the part of the employee. Therefore the question that requires consideration is whether the petitioner was absent from work for seven days or more without proper sanction and thus committed misconduct. A look at charge No. 1 demonstrates that the petitioner had absented himself from work from Feb. 26, 1994 till March 3, 1994 without prior permission. A telegram was however sent by the petitioner seeking extension of leave with effect from Feb. 28, 1994 but the petitioner was directed to immediately join the duties and thereafter on March 5, 1994 the petitioner joined his duties. The petitioner in para 9 of the writ petition pleaded that the was directed on telephone to attend Sales Meeting at Jaipur on March 4, 1994 hence he joined duties on March 5, 1994 after attending Sales Meeting on March 4, 1994. The respondents in their reply to para 9 did not deny this fact. The contention of the respondents that the petitioner absented himself from Feb. 24, 1994 to March 4, 1994 appears to be incorrect and against the Memorandum of Charges Ex. 4. A perusal of calendar of February and March 1994 goes to show that Feb. 27, 1994 being sunday was holiday and the petitioner has absented himself only for five days i. e. on Feb. 26, 28, March 1, 2 and 3. Even if Sunday is included then also the days come to six only and clause (5) of Rule 16. 33 is not attracted. The disciplinary authority and the appellate authority did not appreciate the provisions contained in clause (5) of Rule 16. 33 in right perspective. I therefore hold that the respondents have failed to prove that the petitioner was guilty of any misconduct and issuance of charge sheet in regard to charge No. 1 was not proper. Charge No. 2 of the memorandum of charges reads as under- " It has been seen form a long time that you are not taking any interest in your work and an attempt is being made to spoil the working environment by instigating the staff members. " In order to see as to whether statement of allegations in regard to charge No. 2 was supplied to the petitioner or not, I have carefully examined the document dated April 13, 1994 (Ex. 4 ). A close look at the said document reveals that memorandum of charges was annexed with a notification and the petitioner was required to furnish the reply of the charges within 30 days. The statement of allegations was not supplied to the petitioner. Clause (2) of Rules 16. 39 of 1994 Rules mandates that the disciplinary authority shall frame definite charges on the basis of allegations on which the enquiry is proposed to be held, such charges, together with statement of allegations on which they are based shall be communicated in writing to the employee. ;