VYAS, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS writ petition has been filed by daughter of a government servant late Smt. Bhagwati, who was working on the post of Constable in the Police Department substantively. The petitioner's mother late Bhagwati was charge-sheeted under Rule 16 of the CCA Rules to remain willful absent from duty during the period of suspension for 37 days in different years. In pursuance of the charge-sheet issued to the mother of the petitioner, an enquiry was conducted and finally the enquiry officer gave its finding that there is sufficient evidence with regard to misconduct committed by mother of petitioner to remain willful absent from duties. Upon the said enquiry conducted by the Dy. Superintendent of Police (Traffic), Jodhpur, mother of the petitioner was penalized with the penalty of removal from service. Against the said order of removal dated 31. 12. 2005, an appeal was preferred under Rule 23 of the CCA Rules before the Inspector General of Police, Jodhpur Range, Jodhpur. The said appeal was also dismissed vide order dated 15. 9. 2006. It is submitted by learned counsel for the petitioner that after dismissal of the appeal, the mother of the petitioner died on 16. 10. 2006, therefore, petitioner being legal heir is challenging the validity of the orders impugned dated 31. 12. 2005 and 15. 9. 2006. It is submitted by learned counsel for the petitioner that upon perusal of charge-sheet itself, it is revealed that no misconduct is committed by late Bhagwati because for alleged period of absence from duty, she was under suspension and according to the rules, she was not required to give attendance. Further, it is submitted that as per Rule 86 (3) of the Rajasthan Service Rules, no charge sheet can be issued under Rule 16 prior to 30 days from willful absence from duty. Here in this case, admittedly, the mother of petitioner remained absent from duty for three days in the month of December, 2003, two days in the month of March, 2004, four days in the month of June, 2004, ten days in the month of December, 2004, six days in the month of December, 2004, four days in the month of January - February, 2005 and eight days in the month of April, 2005. In this view of the matter, it is evident from the charge- sheet itself that there is no allegation with regard to continuous absent from duties regularly beyond the period of 30 days, therefore, no misconduct is committed by Late Bhagwati, who was working on the post of Constable in the Police Department. Therefore, the charge-sheet issued to late Bhagwati was totally baseless. However, upon the finding arrived at by enquiry officer, late Bhagwati was penalized with the penalty of removal from service.
(3.) IT is also submitted by learned counsel for the petitioner that although as per the charge-sheet, allegation of absence of 37 days from duty was alleged but in the enquiry only 24 days absence was proved by the Department, that too is less than the period of 30 days. Therefore, according to Rule 86 (3), no charge to remain willful absence from duty beyond 30 days is proved, therefore, the punishment awarded to the petitioner upon the said finding is totally erroneous and illegal. Further, it is submitted that the appellate authority was under obligation to consider all these aspect of the matter but none of the grounds taken by late Smt. Bhagwati in her appeal were considered and by cryptic order, penalty of dismissal was upheld. Therefore, the order of penalty as well as the order passed by appellate authority deserve to be quashed. I have perused the entire record of the case. Although, this writ petition has been filed by daughter of late Smt. Bhagwati, who died on 16. 10. 2006 but upon perusal of the penalty order as well as the order passed by appellate authority, in my opinion, the punishment awarded to late Bhagwati was excessive and was not in consonance with the allegations levelled against late Bhagwati. It is also obvious from the enquiry report that the allegation with regard to willful absence from duty for 24 days only during suspension period was proved by the department, which is less than 30 days, therefore, as per Rule 86 (3) of the Rajasthan Service Rules, no action was required to be taken against late Smt. Bhagwati. ;