Heard learned counsel for the parties.
2. This writ petition is against the order dated 19th May, 2011 passed by the Central Administrative Tribunal, Patna Bench, in O.A No. 18/2010(R). whereby the writ petitioner's Original Application challenging the appellate order dated 4 June, 2008 and the order of punishment and removal order dated 6 June, 2007 had been dismissed.
3. Learned counsel for writ petitioner vehemently submitted that the petitioner, a class IV employee, was served with a show cause notice under Article 81(d)(3) of the Education Code, levelling allegation that the petitioner remained absent from duty from 2nd April, 2007 to 5 May, 2007 without sanction of leave and therefore, the petitioner was informed as to why the conduct of the petitioner may not be treated to be petitioner's voluntarily leaving the service. Finding this notice dated 11 May, 2007, the petitioner gave reply on 17 May, 2007, stating therein that because of his own sickness as well as sickness of his wife and son, he could not attend duties and he submitted an application for grant of extra ordinary leave (E.O.L) from 2 April, 2007. The said application was sent through U.P.C However, in spite of his application, he received two letters from the respondents, details of which have been given in reply submitted by the petitioner dated 17 May, 2007. In reference to the above letters including show cause notice dated 11 May, 2007, the petitioner submitted that still he is sick and therefore, he is not in a position to join duties. The petitioner in his letter itself further prayed for sanction of E.O.L The petitioner's representation against show cause notice-cum-application for grant of E.O.L were not considered, which is apparent from the punishment order dated 6 June, 2007, wherein it is clearly mentioned that the petitioner did not submit his representation against the show cause notice. Learned counsel for the petitioner also submitted that the appellate authority proceeded to consider the absence of the petitioner pertaining to the period from 5 December, 2006 to 11 January, 2007 and from 24 January, 2007 to 11 March, 2007, which were condoned by the Department and he was punished. It is submitted that there was no allegation against the petitioner that he was a habitual absentee and in fact, earlier two absence were not habitual absence when his leaves were regularized. So far as the appellate order is concerned, it is apparent from the appellate order that the petitioner's plea of his sickness has not been considered, nor his prayer for grant of extra ordinary leave was considered, which if would have been considered and the petitioner would have been granted E.O.L, in that situation the order of punishment could not have been passed.
4. Learned counsel for the respondents drew our attention to the facts that the petitioner remained absent on earlier occasion and by taking sympathetic view towards the petitioner, he was allowed to join duty. It is submitted that this fact of remaining absent on earlier occasion cannot be disputed by the petitioner. It is also submitted that the alleged representation of the petitioner, Annexure - 2, dated 17 May, 2007 is not against the show cause but that was for grant of E.O.L It is further submitted that the petitioner did not submit any medical evidence in support of his alleged sickness and therefore, he was not entitled to E.O.L and in view of the above reasons, impugned orders are lawfully passed.
5. We considered the submissions of the learned counsel for the parties and perused the materials placed on record. Undisputedly the petitioner was served with notice for his remaining absent from duty from 2 April, 2007 to 5 May, 2007 and the date of the show cause notice was of 11 May, 2007 and the petitioner submitted representation on 17 May, 2007 within ten days of the said notice. In the petitioner's representation, there is mention of three facts - first is the reason for his absence from duty and that was his own sickness and wife and child's sickness, second is that the representation was given by the petitioner in response to the letter dated 11 May, 2007 (show cause) and it has been stated in the body of the letter specifically that he earlier informed the employer and that still his health is poor and therefore, he cannot join the duty and third is that his E.O.L may be sanctioned.
6. The respondents admittedly did not consider any of the request of the writ petitioner and therefore, the petitioner's plea that he was sick and he could not join the duty had not been rejected. The petitioner's prayer for grant of E.O.L also had not been considered by the appropriate authority. Assuming for the sake of argument that the Disciplinary Authority could not have considered the prayer for grant of E.O.L, then also that matter could have been separated and the petitioner could have been given opportunity to produce evidence in support of his plea of his sickness and the matter for grant of E.O.L could have been referred to the competent authority for consideration who had jurisdiction to accept or reject the prayer for E.O.L Be that as it may, in the departmental proceeding, the orders impugned dated 6 June, 2007 had been passed without considering the plea of his sickness, which had been given in response to the show cause notice. Therefore, the order dated 6 June, 2007 had been passed without considering the relevant material facts, which may be due to ignorance about the letter dated 17 May, 2007.
7. The appellate authority also committed error of law in considering the fact of petitioner's earlier absence from duty, which admittedly had been regularized already. The appellate authority also committed illegality in not considering the petitioner's application dated 17 May, 2007. In view of the above reasons, the order of the Tribunal based on such reasons even after taking note of the letter of the petitioner dated 17 May, 2007, we are of the considered opinion that the Tribunal has committed serious error of law in dismissing the petitioner's original application being O.A No. 18/2010(R), vide order dated 19 May, 2011.
8. Consequently this writ application is allowed and the impugned orders dated 19 May, 2011, 4 June, 2008 and 6 June, 2007 are set aside. The respondents are directed to reinstate the petitioner forthwith. However, it is made clear that the petitioner shall not be entitled to any back-wages and that will be subject to the decision of the petitioner's application for grant of E.O.L and if the petitioner's application for grant of E.O.L is rejected, the petitioner shall not be entitled to backwages and if that leave is granted, the petitioner will be entitled to backwages. If the petitioner's application for E.O.L is rejected, the petitioner's service shall be treated to be break-in-service.