[2025:RJ-JP:31649] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No.10683/2008 Balwan Singh Son of Shri Ram Singh, aged about 39 years, R/o Village and Post Office Bhangarh, Tehsil Bhadra, District Hanumangarh. ----Petitioner Versus 1. The State of Rajasthan through the Dy. Secretary, Medical (Gr. 4), Ayurved Department, Rajasthan, Jaipur. 2. The Additional Director, Ayurved Directorate, Rajasthan, Jaipur. ----Respondents For Petitioner(s) : Mr. Pawan Sharma For Respondent(s) : Ms. Somitra Chaturvedi, Dy. G.C. Mr. Vishnu Dutt Sharma HON'BLE MR. JUSTICE ANAND SHARMA Order 13/08/2025 1. In the present writ petition, the petitioner has assailed legality and validity of order dated 31.05.1993 passed by Additional Director, Directorate of Ayurved, Rajasthan, Ajmer in the capacity of disciplinary authority, whereby penalty of withholding two annual grade increments without cumulative effect has been imposed upon the petitioner. Petitioner has further challenged order dated 19.11.2001 passed by the Appellate Authority as well as order dated 03.07.2008 passed by the Reviewing Authority, whereby appeal and review filed by the petitioner against penalty order dated 31.05.1993 has been dismissed. [2025:RJ-JP:31649] (2 of 11) [CW-10683/2008] 2. Learned counsel appearing for the petitioner submits that while he was holding the post of Compounder at Government Ayurvedic Dispensary, Nanuwala, Sri Ganganagar (Rajasthan), he was served with a charge-sheet dated 04.02.1993 under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, ‘the Rules of 1958’) read with Rule 86 of Rajasthan Service Rules, 1951 wherein the charges of wilful and unauthorized absence from 17.03.1992 to 23.03.1992 as well as on 20.08.1992 were levelled against the petitioner. 3. The petitioner filed reply to the charge-sheet mentioning therein that on 17.03.1992 he was on casual leave. There were government holidays on 18.03.1992 and 19.03.1992 on account of Holi festival and therefore, the petitioner entered in the attendance register with regard to three days leave and an application for leaving the headquarter was also sent to the District Ayurvedic Officer, Sri Ganganagar on 16.03.1992. It was mentioned that on 16.03.1992 there was no Medical Officer-in- charge, therefore, the application was sent through post. He left the headquarter in the evening of 16.03.1992 and went to his native village on festival of Holi. On account of using cold water for playing Holi, he fell ill and got treatment from Government Hospital Bhangarh, Sri Ganganagar (Rajasthan) and application for extending leave along with sickness certificate were sent through U.P.C. post to the District Ayurvedic Officer on 20.03.1992. Copies of the leave application and sickness certificate were also enclosed along with the reply to the charge-sheet. He submitted that on being fit, he attended the duties on 24.03.1992 and fitness [2025:RJ-JP:31649] (3 of 11) [CW-10683/2008] certificate was also sent in original to the District Ayurvedic Officer on 24.03.1992. Photocopy of the fitness certificate was also enclosed along with the reply to the charge-sheet. By mentioning these facts, he submitted that he was not either wilfully or unauthorizedly absent from duties and the reasons for absence, as mentioned in the reply to the charge-sheet, were quite bona fide. 4. It was further submitted that as regards charge of alleged wilful absence from 20.08.1992 to 22.08.1992 also the petitioner replied that on account of there being festival of Janmashtami, he submitted an application for granting leave as well as for headquarter leave to the Medical Officer-in-charge, who entered the same in the attendance register and it was marked that the petitioner shall remain on leave for three days. However, again on being ill, the petitioner could not join the duties and remained on leave till 31.08.1992 for medical reasons for which application for extension of leave as well as sickness certificate was sent to the District Ayurvedic Officer, which also shows that there were proper information with regard to leave availed by the petitioner and such leaves with due permissions and after submitting applications for granting leave, cannot be termed as unauthorized and wilful absence. 5. Learned counsel appearing for the petitioner submits that although reply submitted by the petitioner and the reasons mentioned therein were taken note of by the disciplinary authority, yet no reason whatsoever was assigned and no finding has been given for disbelieving the version of the petitioner and in quite mechanical manner, treating the aforesaid period as unauthorized [2025:RJ-JP:31649] (4 of 11) [CW-10683/2008] and wilful absence, penalty of withholding of two annual grade increments without cumulative effect was imposed upon the petitioner. 6. Learned counsel for the petitioner also draws attention of this Court towards orders dated 08.07.1993 & 30.11.1996 whereby the aforesaid absence period from 17.03.1992 to 23.03.1992 was regularized by sanctioning earned leave and the period from 22.08.1992 to 31.08.1992 has also been regularized by granting commuted leave. Thus, learned counsel for the petitioner submits at the one hand, the aforesaid period has been treated by the respondents as period of unauthorized and wilful absence and penalty has been imposed upon the petitioner, on the other hand for the same period earned leave and commuted leave have been granted to the petitioner. 7. Learned counsel for the petitioner also submits that the aforesaid short period of absence of six days and ten days, total sixteen days, supported by leave application and sickness/fitness certificates cannot be made a ground to take action against the petitioner either under Rule 86 of Rajasthan Service Rules or under Rule 17 of the Rules of 1958. 8. Learned counsel for the petitioner would also submit that against the aforesaid penalty order, he filed appeal under Rule 23 of the Rules of 1958 in which apart from other facts, the fact with regard to conversion and regularizing the disputed period by granting earned leave and commuted leave was disclosed before the Appellant Authority. However, the Appellate Authority has not considered anything and only by mentioning that the record was [2025:RJ-JP:31649] (5 of 11) [CW-10683/2008] perused which revealed that the petitioner was wilfully absent, and by recording such one line ‘unreasoned finding’ the appeal filed by the petitioner was rejected. 9. Thereupon feeling aggrieved he also invoked powers of the Reviewing Authority under Rule 34 of the Rules of 1958 but the review petition has also been dismissed by giving totally non- speaking reasoning of one line that no case for interference was made out. 10. Learned counsel for the petitioner further submits that in the aforesaid circumstances where the petitioner was neither wilfully nor unauthorizedly absent and he proceeded on leave and also submitted applications for extension of leave for total 6+10=16 days in question, which have subsequently been regularized by granting the petitioner leaves permissible under Rajasthan Service Rules, yet the petitioner has been saddled with penalty for no good reasons. 11. Learned counsel appearing for the respondents submits that every government employee is supposed to attend his duties regularly except with the prior sanction of the leaves. In case, any employee remains wilfully and unauthorizedly absent, the provisions of Rule 86 of Rajasthan Service Rules are attracted. In the instant case, when the petitioner was found absent, charge- sheet under Rule 17 of the Rules of 1958 read with Rule 86 of Rajasthan Service Rules was issued to the petitioner. However, his reply was not found justified, therefore, minor penalty of withholding two annual increments was imposed upon the petitioner which has already been examined even by the Appellate [2025:RJ-JP:31649] (6 of 11) [CW-10683/2008] as well as Reviewing Authority. Hence, at this stage, no interference is called for in the impugned penalty imposed upon the petitioner. 12. Learned counsel for the respondents further submits that mere regularization of the absence period by granting the leaves available in the account of the concerned employee does not condone the misconduct already committed by the concerned employee. In order to maintain continuity in service, the competent authority is required to pass appropriate order to regularize the absence period, so that there may not be any break in service of the employee. Thus, merely on account of the fact that the period was regularized by granting leave, it cannot be said that the said period cannot be treated as a period of unauthorized and wilful absence, and the penalty order cannot be reconsidered on that account. 13. Learned counsel for the respondents relied upon the judgment of this Court in the case of Chhidda Ram Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 5995/2002) decided on 23.04.2025 and in the case of Dana Ram Parmar Vs. State of Rajasthan & Anr. reported in 2004 WLC (UC) 659. 14. I have perused the record and heard learned counsel for the parties. 15. The charges against the petitioner are in respect of remaining absent in two different intervals for six days and ten days. Thus, the period of absence in total was sixteen days. Reply to the charge-sheet filed by the petitioner and he also submitted leave applications as well as applications for leaving headquarter [2025:RJ-JP:31649] (7 of 11) [CW-10683/2008] as well as for seeking extension of leave on medical grounds. All these leave applications along with sickness/fitness certificates were also enclosed along with reply to the charge-sheet. 16. In the instant case, as the charge-sheet was issued under Rule 17 of the Rules of 1958, no procedure for conducting detailed inquiry by giving further opportunity to the concerned employee for leading further evidence was to be given and the charge-sheet was required to be decided only on the basis of reply/explanation filed by the delinquent employee. Under such circumstances, while considering the charges levelled under Rule 17 of the Rules of 1958, duty of the disciplinary authority was much higher to consider each and every fact, which has got material bearing over the merits of the case, while passing order in respect of such charge-sheet. 17. In the instant case, although the disciplinary authority has recorded in its order dated 31.03.1993 that the petitioner has submitted his reply in which the reasons were specified that he was on leave during the aforesaid 6+10=16 days and for which necessary applications and sickness/fitness certificates were also submitted. Despite recording such defence on the part of delinquent employee, no finding was recorded by the disciplinary authority for accepting or rejecting the version of the delinquent employee. Even awarding minor penalties affects the service career of an employee in quite adverse manner, therefore, the disciplinary authority ought to have passed such order of penalty with due care and caution, after considering and analyzing the defence of the delinquent employee in an objective manner. Thus, [2025:RJ-JP:31649] (8 of 11) [CW-10683/2008] the order passed by the disciplinary authority suffers from total non-consideration, and the order of penalty has been passed in quite mechanical manner without due application of mind. 18. Facts regarding regularizing the aforesaid absence period by way of granting earned leave and commuted leave for six days and ten days respectively for the same period for which the petitioner was penalized, also reflect significant factor. It is not a case where while regularizing the said absence of employee for the purpose of maintaining continuity in service and for avoiding any ill consequences of break in service, the Competent Authority had granted either 'leave without pay' or 'extraordinary leave'. In the instant case, where earned leave and commuted leave have been granted by the Competent Authority which rather suggests that the petitioner would be paid even for such leaves. It is a settled proposition that the period for which payment has been made cannot be treated as period of unauthorized absence. Under these circumstances, it can be said that the stand of the respondents is self-contradictory and for the period for which benefit of earned leave and commuted leave has been granted, cannot be treated as period of unauthorized and wilful absence. 19. As regards, judgment referred by learned counsel for the respondents in the case of Chhidda Ram (supra), this Court was considering a case where penalty was imposed for remaining absent for 148 days and even the delinquent was charged with allegation of remaining wilfully absent on earlier 35 occasions also. Thus, clearly it was case where the Court was considering the application in effect of Rule 86(3) of Rajasthan Service Rules. It is [2025:RJ-JP:31649] (9 of 11) [CW-10683/2008] quite relevant to note that Rule 86(3) of Rajasthan Service Rules comes into play only where the period of absence is more than one month. In the instant case, admittedly the alleged period of absence was less than one month and was rather only 16 days in total. When the period of absence is less than one month then Sub-Rule 1 & 2 of Rule 86 of Rajasthan Service Rules would come into play where it is clearly mentioned that on satisfactory reasons being furnished the absence (for a period of less than one month) can be regularized by grant of leave due. Hence, the cases under Rule 86(1) & (2) and the other cases under Rule 86(3) are to be treated differently. Therefore, the observations given in the case of Chhidda Ram (supra) were in respect of altogether different facts and implication of provision of law and therefore aforesaid judgment is not applicable in the instant case. 20. While deciding the case of Chhidda Ram (supra), the Co-ordinate Bench also referred the earlier judgment of Dana Ram Pramar (supra). Perusal of Para No.12 of the aforesaid judgment would also make it clear that the Court was considering the circumstances where, in case, a person remains absent from the duties and after conducting enquiry, he is visited with the punishment of removal from service. As stated hereinabove, the situation for removal of service can arise only in the case of Rule 86(3) of Rajasthan Service Rules, whereas the case in hand is of Rule 86(1) & (2) of Rajasthan Service Rules. Therefore, the observations made even in the case of Dana Ram Pramar (supra) is not attracted in the instant case. [2025:RJ-JP:31649] (10 of 11) [CW-10683/2008] 21. In addition to above, this Court finds that the aforesaid period of alleged absence of sixteen days was regularized by granting earned leave and commuted leave vide orders dated 08.07.1993 & 30.11.1996, i.e. subsequent to passing of penalty order and appeal filed by the petitioner against the penalty order dated 31.05.1993 was pending before the Appellate Authority even on the date when such order for regularization of absence period was passed. 22. The Appellate Authority was under an obligation to consider the effect of such regularization of alleged period of absence, by recording cogent reasonings. However, perusal of penalty order dated 19.11.2001 would make it clear that the Appellate Authority has not at all considered anything and a cryptic, unreasoned and non-speaking order has been passed by the Appellate Authority. In this regard, it would be relevant to refer to Rule 30 of the Rules of 1958, which cast a mandatory duty upon the Appellate Authority to objectively consider the grounds of appeal, however, in the instant case the Appellate Authority has utterly failed to discharge the duties fastened upon it. Thus, the appellate order dated 19.11.2001 also suffers from violation of Rule 30 of the Rules of 1958. 23. Even, the Reviewing Authority has not cared to assign any reasoning whatsoever for dismissing the review petition and simply it has been recorded that there were no rational grounds to interfere with the penalty. Thus, at no stage, there was any application of mind by any authorities over the defence put forward by the petitioner in reply to the charge-sheet as well as [2025:RJ-JP:31649] (11 of 11) [CW-10683/2008] over the effect of granting earned leave and commuted leave for the said period of absence of 6+10=16 days. 24. In view of foregoing observations, the writ petition filed by the petitioner is allowed. Penalty order dated 31.05.1993, appellate order dated 19.11.2001 and order in review dated 03.07.2008 are hereby quashed and set aside. The petitioner shall be entitled for all the benefits consequent upon quashing the aforesaid orders. The respondents shall grant and release the consequential benefits within a period of three months from the date of receipt of copy of this judgment. 25. Pending application(s), if any, also stands disposed of. (ANAND SHARMA),J DAKSH/57