R.S. Chauhan, J. - (1.) THE petitioner has challenged the order dt. 14.05.2002, whereby he was dismissed from the post of Chief Inspector (Adventure Sports and Tourism), and the order dt. 15.06.2007 whereby his departmental appeal against the dismissal order was rejected.
(2.) IN a nutshell the case of the petitioner is that while the petitioner was working on the said post, on 20.10.1999 he submitted an application for leave for sixty -six days from 27.10.1999 to 31.12.1999. He had to go on leave as his wife was working as a Doctor in Trinidad in West Indies. In the said application, he had clearly mentioned his wife's address in Trinidad. Since the application was forwarded by the Manager, Transport Division, R.T.D.C., Jaipur, therefore, he was under a bona fide impression that the leave prayed by him would be granted. But instead of granting the leave, vide order dt. 02.12.1999, the petitioner was placed under suspension. However, the said order was never served upon the petitioner. Upon his return from Trinidad, the petitioner tried to join back his duties. However, he was informed that he has been placed under suspension. Vide order dt. 26.02.2000, he was served with a charge -sheet wherein two charges were levelled against him: firstly, he was absent from duty without sanctioned leave for a period of sixty -six days; secondly, he had gone to a foreign country without permission of the competent authority. The petitioner immediately filed a detailed reply wherein he pointed out that he had to leave the country because of compelling family circumstances, namely that his wife had to be settled in a new country far away from home. Therefore, his absence was not out of choice, but out of necessity. He had further claimed that his application for leave had been duly forwarded by the Manager. Since he was not informed about the rejection of his application for leave by the Corporation, he was under a bona fide impression that his leave had been sanctioned. Hence, his absence was not a willful one. But notwithstanding the said reply, on 27.08.2000, he was served with a show -cause notice along with the inquiry report. On 19.08.2000, the petitioner submitted a detailed reply to the show -cause notice. Meanwhile, again certain family circumstances arose for which the petitioner was forced to proceed to Trinidad. Therefore, he again applied for leave to go to the said destination. The leave was immediately sanctioned vide order dt. 28.07.2000. Therefore, the petitioner proceeded to Trinidad in August 2000. While in Trinidad he fell ill. Therefore, he sent an application for extension of his leave along with a medical certificate. While in Trinidad, the petitioner received a letter on 17.08.2001 wherein he was asked to appear for personal hearing. Immediately, vide letter dt. 28.08.2001, he informed the Corporation that he is not in a position to appear personally as he continues to be ill. Upon his return, the petitioner tried to join his posting. However, on 17.05.2002, he was surprised to receive an order dt. 14.05.2002 whereby he was dismissed from the service. The petitioner preferred a departmental appeal against the order dt. 14.05.2002. However, the appeal was not decided for three years. Therefore, the petitioner filed a representation dt. 21.09.2005 praying that his appeal be decided as soon as possible. Since the Department was sitting quietly over his appeal, therefore, the petitioner eventually filed a writ petition before this Court, registered as S.B.C.W.P. No. 858/2007. Thus, for four and a half yers, the Corporation maintained a studied silence over the appeal. Finally, vide order dt. 15.03.2007, this Court directed the respondents to decide the petitioner's appeal within a period of three months. Vide order dt. 15.06.2007, the respondents have rejected the petitioner's appeal. Hence, this petition before this Court. Mr. Imran Khan, the learned Counsel for the petitioner, has raised the following contentions before this Court : firstly, the inquiry officer has confused between "Port -of - Spain" and "Spain". The petitioner had sent his application for extension of leave from "Port -of - Spain", which happens to be the Capital of Trinidad. The Inquiry Officer has confused the city with the country "Spain" and has wrongly concluded that the petitioner was travelling here and there on foreign tours. Secondly, the disciplinary authority while passing its order has observed that the appellant is still residing in Trinidad without sanctioned leave. However, the petitioner was never charged for residing in Trinidad without leave at the time when the disciplinary authority passed its order. Therefore, the disciplinary authority has taken into account a fact for which the petitioner was never even charged. Hence, the punishment of dismissal from service is influenced by an extraneous fact. Thus, the order dt. 14.05.2002 deserve to be quashed and set aside. In order to buttress this contention, the learned Counsel has relied upon the case of Radhey Shyam Sharma v. State of Rajasthan, RLW 2002 (1) Raj. 463. Thirdly and most importantly, the quantum of punishment is shocking disproportionate to the alleged misconduct, namely absence from the duty for sixty -six days, committed by the petitioner. The Rajasthan Tourism Development Corporation (Conduct, Discipline and Appeals) Rules, 1989 ('the CCA Rules, 1989', for short) provide various major penalties. However, without considering the other alternate punishments available, the disciplinary authority has imposed the harshest punishment on the petitioner. Therefore, the punishment order dt. 14.05.2002 deserves to be quashed and set aside. Lastly, while dealing with the appeal, the appellate authority has not considered the dis -proportionality of the punishment. Therefore, the order dt. 15.06.2007 suffers from non -application of mind. Hence, it deserves to be quashed and set aside.
(3.) ON the other hand, Mr. Dinesh Yadav, the learned Counsel for RTDC, has strenuously argued that discipline has to be maintained in the service. As an employee of the Corporation, the petitioner should have waited till his leave was sanctioned by the appropriate authority. But without doing so, the petitioner proceeded to a foreign country. Secondly, even after his application for leave was rejected, the petitioner did not return immediately to the Corporation. Therefore, the Corporation was not only justified in initiating the inquiry, but was also justified in imposing the punishment. Lastly, the punishment is not disproportionate to the misconduct committed by the petitioner. Hence, he has supported the impugned orders.;