The appellant has assailed through this appeal order Bearing No. 15763-70/PC dated 27.12.2006 of Commandant Police College, Sihala whereby he was compulsorily retired from service w.e.f.
13.12.2006 on account of alleged absence from duty and order Bearing No. 6966/AD-VI dated 27.2.2008 whereby his departmental appeal was rejected by Inspector General of Police being time barred.
2. As stated in the memorandum of appeal, facts in brief are that he was' appointed as Khalasi at Police College Sihala on 24.9.1990. He was proceeded against by way of show cause notice dated Bearing No. 15.6.23/PC dated 22.12.2006 under the PEEDA Act, 2006 on the following allegations:-- "You Sabir Hussain Khalasi, of this Institution absented yourself from duty without any leave or prior permission by the competent authority on 26.11.2006 to 30.11.2006 for 04 days, 11 hours & 25 minutes.
Earlier Riding Master has complained that you were detailed to look after the horse but you failed to do so consequently issued show-cause notice Bearing No. 7223/PC, dated 30.5.2006 after that the same was filed. It seems that you are habitual absentee and malingerer type of official why you should not be awarded major punishment on account of above misconduct."
He submitted reply dated 22.12.2006 explaining that his father suddenly fell ill. He being only. male member in his family, he had to go home for treatment of his father. His absence from duty was from 26.11.2006 to 30.11.2006 i.e. for four days only. Without considering his 16 years of service and just on allegation of four days absence he was compulsorily retired from service. He filed departmental appeal dated 11.5.2007, after having received the impugned order of the authority, but it was rejected despite the fact that his absence from duty was because of circumstances beyond his control.
3. Learned DDA assisted by the D.Rs stated that departmental appeal was filed on 11.5.2007 against order dated 22.12.2006 with a delay of around five months. His departmental appeal was also dismissed on the ground of limitation. Learned counsel for the appellant argued that an affidavit has been submitted alongwith service appeal that impugned; order dated 27.12.2006 of the competent authority was received by him on 1.5.2007. In parawise comments it has not been denied. If affidavit is not specifically denied by the respondents it amounts to admission. Reliance has been placed on KLR 2005 (L&S) 240, 404, KLR 2007 (L&S) 180 and AIR 1984 (SC) 1744. The date of receipt of impugned order is also mentioned on the copy of order placed on file. There was no delay in filing departmental appeal after receipt of the impugned order, but the appellate authority did not take it into consideration, therefore the period of delay may not be considered as bar for hearing the service appeal.
4. It is found that the impugned order was served upon the appellant on 1.5.2007. Affidavit to this effect attached with service appeal has not been resisted by the respondents. The appeal is found within time.
5. Learned counsel for the appellant argued that no inquiry was held to ascertain circumstances under which the appellant absented from duty. Total period of absence from duty was only four days and 11 hours but penalty imposed was too harsh and not commensurate with the allegation.
The appellate authority has not given due consideration to actual facts of the case and dismissed his appeal in Mechanical manner without application of judicious mind. The appeal may be accepted. The appellant undertakes to remit/deposit pensionary benefits availed by him.
6. Learned DDA assisted by the D.R stated that absence from duty was intentional because he did not inform any of the authorities. Neither he took leave for the purpose nor he produced medical certificate regarding illness of his father. It is not necessary that inquiry may be held in case where allegation is proved from documentary evidence. In this regard he referred to Section 5(1)(b)(ii) of the PEEDA Act, 2006 that the competent authority shall dispense with inquiry where employee is or has been absent from duty without prior approval from the competent authority. His earlier performance as reflected in the parawise comments indicates delinquency towards duty. The appeal may be dismissed.
7. Arguments advanced by the parties heard, parawise comments submitted and record produced perused. It is found that the appellant was absent for just four days and 11 hours from duty. He was proceeded against by way of show-cause notice despite the fact that he stated in his reply circumstances beyond his control. No inquiry was held. He has rendered sixteen years of service.
Punishment awarded to him is too harsh and not commensurate with the alleged absence from duty. In view of the facts brought on record the impugned orders of competent and appellate authorities are modified into stoppage of one increment for one year. The appellant be reinstated in service w.e.f. the date he was compulsorily retired from service with the condition that he will deposit/remit all the pensionary benefits in the Government treasury if already availed by him. The intervening period may be treated as leave of the kind due.
Note:--This judgment consists of four signed pages.