Punishment Of Forfeiture Of Service Can Be Imposed For Willful Absence Though Not Explicitly Stated Under Services Rules: Rajasthan HC

A single judge bench of the Rajasthan High Court comprising of Justice Sameer Jain while deciding a Civil Writ Petition in the case of Shiv Kumar Khandelwal vs State of Rajasthan & Ors has held that punishment of forfeiture of service can be imposed for willful absence even though it is not explicitly spelt out under Rule 14 of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958

Background Facts

Shiv Kumar Khandelwal (Petitioner) was appointed as Junior Engineer in the Agriculture Department of State of Rajasthan. In 1998, the state government issued an order permitting the Petitioner for admission in a post-graduate course at College of Technology and Agricultural Engineering, Udaipur (CTAE) as a sponsored candidate of the government. However, the Petitioner was sent of deputation by the Agriculture Department to Command Area Development, Kota (CAD). In compliance of the same, the Petitioner joined and requested to relieve him on account of his academic requirement. The Petitioner was allowed to join CTAE vide an order dated 2.11.1998 but on 24.05.1999, the Petitioner was served with a charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (CCS Rules). A departmental enquiry was conducted against the Petitioner and a penalty of forfeiture of service was imposed on the Petitioner. The Petitioner challenged the impugned penalty order vide the present Civil Writ Petition.

The Petitioner argued, inter alia, that CAD commissioner (Respondent) is neither the disciplinary authority nor the appointing authority of the Petitioner to initiate proceedings under the CCS Rules. Thus, the entire proceedings are a nullity in law. Further, the penalty imposed upon the Petitioner of forfeiture of service has not been prescribed in Rule 14 of the CCS Rules and therefore the same could not have been imposed. It was further argued that the Petitioner attended the post-graduate course after getting due permission and therefore he has committed no misconduct.

On the other hand, it was contended, inter alia, by the Respondent that the charge of wilful absence is conclusively established against the Petitioner. Further, the Petitioner cannot take the plea of lack of jurisdiction at such a belated stage after participating in the entire disciplinary proceedings. It was further submitted that the Rule 86 of the Rajasthan Service Rules, 1986 prescribes the punishment of removal from service for prolonged period of unauthorized absence. However, the proposed punishment of removal of service was downgraded to forfeiture of service. Since the punishment imposed was less severe than the proposed punishment, the same cannot be said to be arbitrary or dehors the rules. It was further contended that the order which permitted the Petitioner to take admission in CTAE was obtained fraudulently by the Deputy Secretary, Agriculture, who had nothing to do with the affairs of CAD or the Department of Agriculture

Findings of the Court

The court observed that as per a State Government order dated 25.07.1974, CAD Commissioner was competent to control the staff and procurement in all manners. Therefore, powers equivalent to the Agriculture Department were assigned to the Respondent and thus they were within their authority to conduct the departmental enquiry.

The court further observed that the charge-sheet issued against the Petitioner was for the offence of wilful absence which attracts the punishment of removal from service. The court however held that:

“Since the punishment imposed was less severe than the proposed punishment of removal of service, it cannot be set aside merely because it is not explicitly spelt out in the rules, especially considering that the charge of wilful absence stands established against the present petitioner”

It was further observed that the Respondents have the discretion to decide the quantum of punishment and such discretionary power is open to judicial scrutiny only if the punishment imposed is strikingly disproportionate to the misconduct committed.

With the aforesaid observations, the Civil Writ Petition was dismissed.

Case No.- Civil Writ Petition No. 3830/2000

Case Name- Shiv Kumar Khandelwal vs State of Rajasthan & Ors

Counsel for the Petitioner- Mr. H. V. Nandwana

Counsel for the Respondent- Mr. K. S. Chandel & Mr. Abhishek Bhandari

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