1 2025:CGHC:7532 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3401 of 2015 Judgment reserved on : 04.12.2024 Judgment delivered on : 12.02.2025 1 - Sahinder Kawar S/o Kariya Kawar, Aged About 54 Years R/o Madhuwan Toli Marg Jashpur Nagar Post Office, Jashpur Nagar, Tahsil And Civil District Jashpur, Chhattisgarh, Chhattisgarh Petitioner(s) versus 1 - State Of Chhattisgarh Thorugh Secretary, Public Work Department, New Raipur, Chhattisgarh , Chhattisgarh 2 - Chief Engineer, P.W.D. Sarguja Circle Ambikapur Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh 3 - Superintending Engineer, P.W.D. Sarguja Division Ambikapur Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh 4 - Executive Engineer, P.W.D. Jashpur Division Jashpur Nagar, District Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh Respondent(s) For Petitioner(s) : Mr. Parag Kotecha, Advocate For Respondent-State : Ms. Nand Kumari Kashyap, PL Hon’ble Smt. Justice Rajani Dubey C A V Judgment 2 1. The petitioner has preferred the present writ petition praying for the following reliefs:- “A. A writ may kindly be issued directing the respondents to allow the petitioner to work in the office of Executive Engineer P.W.D. Jashpur Division Jashpur as an Assistant grade -3. B. A writ may kindly be issued against the respondents directing them to make payment of the arrear of his pay from 05.09.2012 the date of his joining till the date he is allowed to work in the office. C. Another writ may kindly be issued directing the respondent to make payment of monthly subsistence allowance to the petitioner till he is allowed to work in the office. D. Any other relieve which is deemed fit by the Hon'ble Court. E. Cost of the petition may kindly be allowed.” 2. Brief facts of the case are that the petitioner was working as Assistant Grade-3 in the respondent Department at the relevant point of time. He was first appointed as Assistant Grade-III on 13.02.1980 and he was posted in the office of the respondent no.4. He was doing his duty sincerely but he suddenly remained sick and could not attend the office. The petitioner had informed the Department that he was sick and under long treatment, however he worked intermittently in the office even during the period of treatment. While he was getting treatment he suddenly came across the publication of show cause notice in the daily news paper requiring him to submit his reason as to why he remained absent from duty. By that time the petitioner was a bit reequipped up so he made his appearance in the office of the respondent no 4 and submitted his joining report. The respondent 3 no.4 sent the joining report to the higher authorities for consideration but they did not allow the petitioner to join the duty. The joining report submitted by the petitioner was pending for consideration before the higher authorities, thereafter he filed a writ petition bearing WPS No.2986/2013, which was dismissed as withdrawn vide order dated 23.09.2013, thereafter the petitioner preferred a representation before the respondent authorities. The representation of the petitioner was considered by the respondent no.3 and he directed the respondent no.4 to allow the petitioner to work in the office and proposed for initiation of a departmental enquiry against the petitioner for committing gross misconduct of remaining absent from duty for a long time. In compliance of the order of the respondent no.3, the respondent no.4 passed an order dated 21.01.2015 and appointed the enquiring officer/presenting officer for departmental enquiry and thus respondent no.4 initiated a departmental enquiry against the petitioner vide order dated 20.01.2015, but the respondent no.4 after appointing the authorities for departmental enquiry against the petitioner did nothing, then the respondent no.3 issued a show cause notice to the respondent no.4 as to why the list of the witnesses and documents have not been prepared for departmental enquiry and the charges were not framed against the petitioner and kept the proceeding of enquiry pending. The Executive Engineer Jashpur instead submitting his explanation to the respondents no.3 4 Superintending Engineer Sarguja Circle Ambikapur passed the final order to the effect that petitioner is deemed to have resigned from service by remaining absent from duty vide order dated 15.06.2015 and closed the departmental enquiry which was proposed by the respondent no.4. Subsequently, the petitioner made an application to the respondent no 4 for making payment of his pay from the date of the order passed by the respondent no.3, but till now the petitioner has not been paid the amount for the aforesaid period, against which the present writ petition has been filed by the petitioner. 3. Learned counsel for the petitioner submits that the impugned order is penal in nature as such it is bad in the eye of law. It is an order amounting to be dismissal from service. Such order could not be passed without holding departmental enquiry. The impugned order has been passed without giving any opportunity of hearing to the petitioner. The said order has been passed against the principle of natural justice. He further submits that the petitioner has not been punished and he has only been exonerated from the charge of misconduct which is not leveled against him. The proposed departmental enquiry is closed. Therefore, he is entitled to get payment of the arrears of his pay right from date 05.09.2012.Therefore, the writ petition deserves to be allowed. 5 4. Learned State counsel opposes the submission made by the petitioner’s counsel and submits that the instant petition is devoid of any substantial merits and is liable to be dismissed at the threshold on the sole count that the petitioner remained absent from duty right from 1999 to till his retirement. There is no explanation on the part of the petitioner about his long leave. Remaining absent without any leave sanction tantamounts to misconduct of the petitioner. The respondent authorities have issued several notices to the petitioner and even notice was served through paper publication, however, the present petitioner neither replied nor joined the duty, which itself shows the careless and callous attitude of the petitioner. The petitioner remained absent from duty unauthorizedly for a long period without giving any application of leave or sanction of leave and in view of his long and unauthorized absence for more than five years, the respondent No.4 issued impugned order (Annexure P/1) as per rule 11(1) (2) of Civil Service (Leave) Rules, 2010 (as amended). On account of the petitioner being remained absent from duty for long period more than five years, the petitioner was deemed to have himself resigned from service as such he was retired on 30.09.2021 from service, which is just and proper and does not suffers from any illegality or infirmity. The petitioner has also failed to produce any certificate/document in relation to his illness and in absence of such document, his request was not considered by the respondents. She further submits that the 6 petitioner is claiming his service back from 2012 only as per prayer made, but there is complete silent on the part of the petitioner with regard to his long unauthorized absence between the period 1999 to 2012. There is no valid explanation for this by him. The unexplained long unauthorized leave is self evident of his casual and candid approach, as such the petitioner is not entitled for any pay or allowance for the said period. Thus, the writ petition is liable to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is not disputed in this case that the petitioner was appointed in the respondent Department as AG-III on 13.02.1980 and he was absent from duty for long time. It is also not disputed that the petitioner filed WPS No.2986/2013 (Annexure-P/3) before this Court, which was dismissed as withdrawn vide order dated 23.09.2013 with liberty to prefer representation before the respondent authorities. It is also not disputed that no departmental enquiry was concluded against the petitioner before his retirement. 7. The petitioner has filed Annexure-P/6 letter dated 02.01.2015 issued by the Superintending Engineer to the Executive Engineer, which provides as under:- “प्रति, कार्यपालन अभिर्यंा, लोक निनर्मााण निाग, 7 संाग जशपुर (छ.ग.) निषर्य :- उपस्थि ति प्रतिेदन के निति# र्माान्र्या के संबं# र्माें। संद :- आपका ज्ञापन क्रर्माांक 3641/ ा./2014 01.12.2014 कृ पर्या उपरोक्त निषर्य र्माें कार्यालर्यीन ज्ञापन क्रर्माांक 7155/ ा./2012 निदनांक 24.09.2012 का अलोकन करें जिजसर्माें श्री संनि0न्द्र कं र स0ार्यक ग्रेड-03 को उपस्थि ति निदनांक 05.09.2012 से शासन के निनद4शानुसार निनलम्बन की कार्या0ी कर उनके निरूद्ध आरोप पत्र ैर्यार कर इस कार्यालर्य को त्काल प्रु करने 0ेु निनद4भिश निकर्या गर्या ा निकन्ु आपके द्वारा उक्त निनद4श का पालन न कर लगग 2 ष बाद उसी स्थि ति र्माें प्रकरण को पुनः निचार 0ेु प्रु निकर्या गर्या 0ै। अः अब उक्त कर्माचारी के निरूद्ध उनके अनाति#कृ अनुपस्थि ति के सबं# र्माें निागीर्य जांच करने 0ेु प्रानि करें ा उपस्थि ति निदनांक 05.09.2012 से उपस्थि ति र्माान्र्य कर श्री संनि0न्द्र कर स0ार्यक ग्रेड-03 से कार्य लिलर्या जाकर इस कार्यालर्य को ी सूतिच निकर्या जाना सुनिनतिB करें।" 8. The departmental enquiry was initiated against the petitioner as per Annexure-R/5 dated 02.05.2015 but this departmental enquiry was not concluded and the petitioner got retired from service on 30.09.2021, as he attained the age of superannuation on 30.09.2021. It is clear from the documents of both the parties that before retirement of the petitioner, the departmental enquiry was not concluded. The respondents have only filed charge sheet but did not file any intimation of the petitioner that on what date he received charge sheet. It is clear from letter dated 02.01.2015 (Annexure-P/6) that the petitioner joined his duties on 05.09.2012 and till his retirement, departmental enquiry was not concluded by the respondents and according to the respondents themseleves, the petitioner remained absent from duty for the total period 11 years. Therefore, the petitioner is entitled for his salary for the period 05.09.2012 to till his retirement i.e. 8 30.09.2021 and he is entitled for his pensionary benefits for the period from 13.02.1980 to 2003 and from 2012 to 2021. 9. Accordingly, this petition is allowed and the respondents are directed to pay the salary to the petitioner for the period from 05.09.2012 to till his retirement i.e. 30.09.2021 and his pension be calculated from his joining date i.e. from 13.02.1980 to 2003 and from 2012 to 2021. This exercise be completed within a period of 6 months from the date of this order. 10. The writ petition stands allowed. No order as to costs. Sd/- Rajani Dubey Judge Nirala