Sanjay Kumar Dwivedi,j. - (1.) Heard Mr. Gaurav Abhishek, learned counsel appearing for the petitioner and Mr. Sumit Prakash, A.C. to S.C. IV for the respondents.
(2.) The petitioner has preferred this writ petition for quashing the order dated 25.01.2012 whereby the petitioner has been dismissed from the service. He has also challenged the appellate order dated 27.02. 2013 whereby the appeal has been rejected.
(3.) The petitioner was transferred by order 10.03.2011 to J.A.P.-3 Govindpur, the said order of transfer was communicated to the petitioner by letter dated 11.03.2011. The petitioner had to take charge on 16.03.2011 but he had not taken the charge on scheduled date rather his arrival was noted on 19.08.2011. As there was delay on behalf of the petitioner to join at the place of posting a charge sheet dated 9.9.11 was issued and departmental proceeding was initiated against the petitioner and accordingly suspension order was issued against the petitioner. The charge relates to that the present petitioner was absent from services for 156 days and appeared after a lapse of 156 days before the JAP-3. The learned counsel for the petitioner submits that the departmental inquiry proceeded against the petitioner ex-parte on the ground that notice was issued to the delinquent but he evaded to appear and as such a conclusion was drawn that all the charges so levelled against the petitioner was found to be true. Learned counsel for the petitioner submits that the petitioner was under treatment since 13.03.2011 and advised 15 days' bed rest by the consultant doctor as he was suffering from Typhoid fever, the medical certificate annexed at Annexure-3 to the writ petition. It was informed to the competent authority by registered post on 15.03.2011 by the petitioner's father and also several oral requests were made by the petitioner even then the said transfer order was executed. Learned counsel appearing for the petitioner submits that the petitioner was suffering from typhoid fever and he intimated the concern with the medical support that he is suffering from typhoid fever with respect to that is why he is unable to join the duty on scheduled date. Learned counsel for the petitioner by drawing the attention of the Court at impugned order submits that in the impugned order it has been stated that the notice was tried to be served at home town of the petitioner, the father of the petitioner intimated that the petitioner is being treated in Bhagalpur and the father of the petitioner refused to take the notice. He further submits that in view of this it is apparent that it was in the knowledge of the authority concerned that the petitioner is being treated at Bhagalpur in spite of that the Department proceeded against the petitioner in ex-parte manner. Learned counsel for the petitioner relied upon the case of Krushnakant B. Parmar versus Union of India and Another reported in (2012) 3 SCC 178 paragraph nos. 14, 16 and 17 which reads hereunder:- "14. The inquiry officer noticed the aforesaid facts and held that the 7.11.1995; 9-11-1995 and 10-12-1995 and 2-8-1995. However, while coming to such contention, the authority failed to decide whether such absence amounted to misconduct. The evidence led by the appellant in support of his claim that he was prevented to sign the attendance register and to perform duty through noticed the inquiry officer on presumption and surmises, held the charge proved. 16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether "unauthorized absence from duty" amounts to failure of devotion to duty or unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unuathorised absence, but it does not always mean wilful. There may be difference 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." Learned counsel for the petitioner further submitted that in the case the Inquiry Officer had not gave specific finding that as to whether the absence was willful or not and this case is fully covered by the Krushnakant B. Parmar (Supra). ;