Dhiraj Kumar Roy Samant vs DEPTT OF POSTS on 11 November 2026

O R D E R

PRAMOD KUMAR DAS, MEMBER (ADMN.):

The case of applicant, in nutshell, is that on 10.07.1995 he was appointed as PA and posted at Koraput Division. He applied for five days EL from 03.04.2021 to 07.04.2021 to go for medical checkup. By submitting medical certificates, he applied for extension of his leave. While continuing on leave he was detected to have suffered from COVID-19 and, subsequently, detected on testing, to have been suffered from DENGUE. While continuing on medical leave, he was served a Memorandum of Charge dated 28.07.2021 under Rule 16 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965. On 18.08.2021, Res.No.3 rejected his medical certificate. He submitted reply on 26.08.2021 to the allegation made against him vide Memorandum dated 28.07.2021. Respondent No.3, imposed punishment vide order dated 08.10.2021 holding him guilty of the allegation, mentioned above. However, after being medically fit, he resumed duty on 21.10.2021. On 02.11.2021, the authority while sanctioning his leave from 03.04.2021 to 07.04.2021, treated the period of his absence from 08.04.2021 to 07.06.2021 as DIES NON. On 15.11.2021, applicant preferred appeal followed by addendum RAVI KUMAR

on 30.11.2021 to Res.2 against the order dated 08.10.2021 as also represented on 02.12.2021 for sanction of his leave from 08.06.2021 to 20.10.2021. Res.No.3 served another charge sheet under Rule 16 vide Memorandum dated 13.12.2021 alleging that he availed leave from 26.06.2021 to 20.10.2021 without prior sanction of leave, to which he submitted his defence on 24.12.2021 pleading not guilty. Res.No.3 vide order dated 18.07.2022 imposed the punishment of stoppage of one increment for a period of three years without cumulative effect besides declaring the period from 26.06.2021 to 20.10.2021 as DIES NON. The Appellate Authority, vide order dated 27.05.2023, quashed the order dated 02.11.2021 treating his absence period from 08.04.2021 to 07.06.2021 as DIES NON but upheld the order of first punishment imposed vide order dated 08.10.2021. Applicant preferred appeal, on 30.10.2023, against his second order of punishment and treating his absence from 26.06.2021 to 20.10.2021 as DIES NON, dated 18.07.2022; which appeal was rejected by Res.No.2, being barred by time, vide order dated 01.05.2024. Hence, by filing this OA, he prayed this Bench to –

(i) Quash charge sheet bearing Memo No. B1- 569 dated 13.12.2021 [A/12]; RAVI KUMAR

(ii) Quash Memo No. B1-569 dated 18.08.2021 [A/13] rejecting his medical certificate;

(ii) Quash Order vide Memo No.B1-569 dated 18.07.2022 [A/17],

(iv) Quash the order of Appellate Authority vide Memo No. ST/06-08 dated 01.05.2024 [A/20];

(v) Quash the entire disciplinary proceedings.

2. In support of the relief, according to Applicant/Learned Counsel for the Applicant, since the applicant was suffering from fever, he could not find it easy or convenient to collect a medical certificate of unfitness from an AMA and, thus, as per the rules contained under Rule 19.1 (ii) of CCS (Leave) Rules, 1972, he collected medical certificate of unfitness for extension of leave conveniently from his family consultant Doctor cum Registered Medical Practitioner, namely Dr. S.K.Choudhury and submitted the same before his authority but Res.No.3, who has no competency being not an expert to sit over the medical report, rejected the said report illegally, arbitrarily without getting any second medical opinion vide order dated 18.08.2021; which is a nullity in the eyes of law. In the said circumstances, initiation of disciplinary proceedings against him alleging his absence as unauthorized, is opposed to the provisions enunciated vide DGP&T Letter No. 6/28/70-I (SPB-I) dated 05.10.1972. His next stand is that as per RAVI KUMAR

the mandate issued by National Disaster Management Authority as well as MoHA & MoH&FW any persons detected to have suffered from COVID-19 must go for self- isolation to avoid dispersion and, therefore, remaining on leave due to his suffering from COVID-19 followed by DENGUE, supported with medical certificate of unfitness, of course from other than AMA, cannot be treated as willful so as to be visited with the punishment. His further stand is that treating the period of absence as ‘DIES NON’ has its own cascading adverse effect in the service career of an employee, and, therefore, as per law, the same cannot be imposed, without giving opportunity to an employee. In the instant case, respondent no.3 imposed the punishment for his unauthorized absence. But without giving him any opportunity, in compliance of natural justice and as mandate in law, treated his period of absence as DIES NON, which is bad in law. It is stated that applicant had applied extension of leave as per Rule 61 of Postal Manual Volume III to avoid probable negligence in duty or dislocation of work on account of his illness and such application was submitted by him without any delay as required under Rule 162 of Postal Manual Volume III. Therefore, disciplinary RAVI KUMAR

proceedings were initiated against him which ended with imposition of punishment, without any basis or evidence.

3. The stand taken by the applicant and prayer made in the pleadings have been countered by the Respondents in their reply filed in this case so also by learned counsel appearing on their behalf by stating that the applicant, Shri Dhiraj Kumar Roy Samant, while working as SPM (LSG) Bandhugaon S.O. remained absent from duty w.e.f. 26.06.2021 to 20.10.2021 unauthorisedly without prior approval of competent authority by submitting medical certificates of unfitness dated 26.06.2021 recommending leave of 2 weeks, dated 10.07.2021 recommending leave of 15 days, dated 25.07.2021 recommending leave for 30 days, dated 24.08.2021 recommending leave for 29 days and dated 22.09.2021 recommending leave of 29 days in support of his suffering from various ailments. He paid a deaf ear to the orders of competent authority rejecting the said medical certificates of unfitness. He did not resume his duty even after direction of the competent authority vide his letter dated 18.08.2021. He availed leave from 26.06.2021 to 20.10.2021 without prior sanction of the competent authority in violation of the provisions of Rule-19(5) of RAVI KUMAR

CCS (Leave) Rules (FR SR Part-III). The said act of his was unbecoming on the part of a Govt. Servant and is subversive of discipline as enjoined in Rule-62 of Postal Manual Volume-III (Corrected up to 01.07.1986) and was also in violation of provisions of Rule-3(1)(ii) and (iii) of CCS (Conduct) Rules, 1964. Thus, he was proceeded against under Rule-16 of CCS(CCA) Rules, 1965 vide memorandum dated 13.12.2021.

4. The disciplinary authority considered his defence representation dated 24.12.2021 and concluded that the submission of Medical Certificates of Unfitness from RMP was in violation of Leave Rules and is a serious offence on his part. He was found guilty of the charges levelled against him. However, taking a lenient view of the matter and, considering his past service, the disciplinary authority vide order dated 18.07.2022 awarded the penalty of stoppage of his increment when falls due next for a period of three years without cumulative effect and the period of unauthorized absence for the period from 26.06.2021 to 20.10.2021 was ordered to be treated as "dies-non" which will neither construe as service nor as break in service. The said order was communicated to the applicant on 27.07.2022, whereas, he RAVI KUMAR

preferred appeal only after a lapse of one year on 31.10.2023, which was beyond the prescribed period of forty-five days provided under the Statute and, hence, rejected being barred by time. It is stated that although, opportunity was available to him under the Statute to make revision, he preferred not to avail the same instead approached this Bench and, therefore, the same is liable to be dismissed.

5. Heard. Perused the records.

6. It is established that the Applicant has filed this OA against the second charge sheet issued to him vide Memo No. B1-569 dated 13.12.2021 [A/12], for his absence from duty w.e.f. 26.06.2021 to 20.10.2021 which was concluded by the Disciplinary Authority vide Memo No.B1-569 dated 18.07.2022 [A/17] by imposing punishment of stoppage of his increment when falls due next for a period of three years without cumulative effect and treating the period from 26.06.2021 to 20.10.2021 as ‘DIES NON’ which will neither construe as service nor as break in service, and, admittedly, applicant preferred appeal belatedly, which was rejected by the Appellate Authority vide Memo No.B1- 569 dated 18.07.2022 [A/17], on the ground that the appeal RAVI KUMAR

preferred beyond the period provided under Rules, without considering the merit of the matter.

7. The period of the alleged unauthorized absence for which the applicant was proceeded departmentally under Rule 16 of Rules, 1965 and punished relates to 20.06.2021 to 20.10.2021. We have gone through the Medical Certificate produced by the Applicant with his OA, some of them are extracted below: Period Days Name of disease suffered Certificate issuing authority 07.06.2021

Lumbiago Not readable

08.06.2021 COVID-19 (+ve) Authorized Officer, Control Room, IDSP, O/o the CDM&PHO, Koraput. 26.06.2021 2 weeks MFever & Back Dr.R.K.Biswal (MD), Asst.PROF Community Medicine, SLN Medial College, Koraput. 10.07.2021

Complicated UTI -do- Authorized medical attendant. 25.07.2021

DENGUE (+ve) Dr.Shiba Sai Swarup, MBBS, MD, SLN Medical College & Hospital, Koraput Authorized medical attendant. 24.08.2021 29 days Malaria and PFR (+ve) -do- 22.09.2021

LBA & Weakness Dr.R.K.Biswal (MD), Asst.PROF Community Medicine, SLN Medial College, Koraput. Authorized medical attendant.

RAVI KUMAR

O.A.No. 260/00609 of 2024

8. It is found that the Respondents rejected the unfitness certificate dated 26.06.2021, 10.07.2021 and 25.07.2021 by stating the reasons that the medical certificates does not show any OPD number of patient nor registration number of Doctor and some of the certificates signed by Asst. Professor of SLNMCH. This Bench cannot loss sight of the very fact of the global panic, systemic collapse, and psychological distress that occurred during the major COVID-19 waves around the world as also the panic suffered by people who detected to have suffered from DENGUE. The applicant also submitted testing reports of his suffering from COVID-19, DENGU and MALARIA (+ve). The authorities doubted the medical certificates submitted by applicant since the same did not contain registration or OPD numbers and rejected the same, still the test reports remain in support of the suffering of the applicant for the same not being doubted or rejected. The authorities may discard the medical certificates if the same did not contain any such requirement as noted still suffering of the applicant for COVID-19, MALARIA (+ve) and DENGUE cannot be ruled out based on the testing report and any contrary report by the respondents. Further, if the respondents doubted the medical RAVI KUMAR

O.A.No. 260/00609 of 2024 report, they should have sent the same to the concerned Doctors or Hospital for verification. Instead of doing so, proceedings against the applicant, treating his absence as unauthorized, does not appeal to the judicial conscience.

9. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others, (2006) 5 SCC 88, wherein the Hon’ble Apex Court held as under: "It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

10. The courts of law are Parens Patriae and have risen time and again in protecting the employees by holding that in a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove RAVI KUMAR

O.A.No. 260/00609 of 2024 that the absence is willful, in absence of such finding, the absence will not amount to misconduct vide Krushnakant B. Parmar Vs Union Of India & Anr, 2012 AIR SCW 1633, an excerpt from it reads as under: “15. In the case of appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant.

16. The question whether `unauthorized absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful 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 can not be held to be willful.”

18. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different 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 behaviour unbecoming of a Government servant.

19. In a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct.”

11. In the instant case, the Disciplinary Authority imposed the punishment alleging the absence of the applicant from 20.06.2021 to 20.10.2021 as unauthorized without making any whisper that RAVI KUMAR

O.A.No. 260/00609 of 2024 such absence of the applicant was intentional or willful in any manner. In the said circumstances, it is safely established that the order of punishment imposed by Disciplinary Authority vide order dated 18.07.2022 is contrary to law and, thus, making it unsustainable for all purposes.

12. Admittedly, applicant preferred appeal belatedly; which, despite the facts noted above, was rejected by Appellate Authority, on hyper technicality of limitation, without considering the merit of the matter; although inherent discretion is available with the appellate authority to condone such delay; wherever necessary in befitting cases and the order of appellate authority is conspicuously silent of the reasons as to why he did not prefer to condone such delay. In view of the above, and, the circumstances elaborated dealt into above holding as to how the order of the DA is not sustainable, this Bench is constraint to hold that the order of Appellate Authority is also not sustainable in the eyes of law.

13. The corollary of the discussions made above is that this OA is bound to succeed. Accordingly, the impugned orders dated 18.07.2022 and 01.05.2024 are hereby quashed. The Respondents RAVI KUMAR

O.A.No. 260/00609 of 2024 are directed to restore and grant the increments of the applicant which were stopped in compliance of the above order and pay him the arrears within a period of 60 (sixty) days from the date of receipt of a copy of this order. The OA is accordingly allowed. No costs.

(PRAMOD KUMAR DAS)

Member (Admn.)

RK/PS RAVI KUMAR