A Staff should not be Suspended or Departmental Proceedings should not be Drawn on mere Absence from Duty [CASE LAW]

Service Law - A staff should not be suspended or departmental proceedings should not be drawn on mere absence from duty.

HIGH COURT OF MEGHALAYA AT SHILLONG

Coram: Hon'ble Mr. Justice S.R. Sen, Judge

WP(C) No. 418 of 2016

Date of Decision: 08.11.2018

Smti. Amica Nongkynrih Vs. State of Meghalaya & Ors. 

Appearance: For the Petitioner(s) : Mr. H.S. Thangkhiew, Sr. Adv. with Mr. N. Mozika, Adv. For the Respondent(s) : Mr. K.P. Bhattacharjee, GA. 

1. Heard Mr. H.S. Thangkhiew, learned Sr. counsel assisted by Mr. N. Mozika, learned counsel appearing on behalf of the petitioner as well as Mr. K.P. Bhattacharjee, learned GA appearing on behalf of the respondent No. 1-4.

2. The brief fact of the petitioner's case in a nutshell is that:

"The petitioner was initially appointed as Lower Division Assistant in the office of the Meghalaya Secretariat on 03.05.2001 and performed her duties in the post of Lower Division Assistant to the best of her abilities and without complaint from any quarters. Subsequently, she was promoted as Upper Division Assistant. In 2010 the petitioner was placed under suspension for a brief period, however, subsequently her suspension was revoked and she was reinstated in service with effect from 22.03.2011. In the first week of March, 2016 the petitioner developed sudden medical emergency of Severe Diarrhoea and upon consultation with a doctor, the petitioner was recommended for bed rest and further medical tests and treatment. The petitioner informed her office over telephone that she will take leave for 7 days from 10.03.2016 till 16.03.2016 and subsequently joined her duties on 17.03.2016 and submitted her leave application for 7 days earned leave (EL) on medical grounds. The said leave application was recommended by the Agriculture Department and forwarded to Secretariat Administration Department.

Respondent No. 2 issued a letter to the petitioner seeking explanation for the absence of duty from 10.03.2016 to 16.03.2016. Respondent No.2 also issued a letter of displeasure and warning to the petitioner. With the issuance of aforesaid warning letter the incident of petitioner not attending office from 10.03.2016 to 16.03.2016 and submitting her leave absence after joining the work on 17.03.2016 had already reached its logical conclusion. While the petitioner was regularly attending her office, Respondent No. 2 with a mala fide intention and just to harass the petitioner, again issued a letter to the Additional Chief Secretary to the Government of Meghalaya (i/c SAD) stating that the petitioner is in the habit of absenting herself from duty and is very irregular in attending to works allotted to her and in view of the above a replacement be provided in place of the petitioner.

The respondents, with a mala fide intention to harass the petitioner and to throw her out of her employment placed the petitioner under suspension purportedly under Rule 6 of the Meghalaya Services (Discipline and Appeal) Rules, 2011 pending drawal of departmental proceedings. A Memorandum of Charges along with a Statement of Articles of Charges and a Statement of Imputations of Misconduct was issued. On the same very day the petitioner was also served with a letter stating the ACR of the petitioner for the year 2015. The respondent No. 3 further asked the petitioner to respond to the above remarks/entries in the ACR within 2 weeks. The adverse entries in the ACR were communicated to the petitioner only on 03.11.2016 and the petitioner was given 2 weeks time to respond to the same. This demonstrates undue haste and mala fides on the part of the respondents to somehow throw the petitioner out of her employment.

In order to somehow make out a case against the petitioner and prejudice the disciplinary proceedings against the petitioner, the respondents have again mentioned about the said suspension of the petitioner during the year 2010 in the Memorandum of Charges which is highly illegal. The entire Memorandum of Charge is based on only one allegation that during the period from 10.03.2016 to 16.03.2016 the petitioner absented herself from duty and that she submitted her application for earned leave on medical ground only after she joined the duty. As such it is highly illegal and arbitrary on the part of the respondents to place the petitioner under suspension and start disciplinary proceedings against her only on the basis of the said absence from duty from 10.03.2016 to 16.03.2016.

The office where the petitioner is working has electronic access control system which generates monthly attendance report. The petitioner has received full salary for every month during the year 2016 which clearly implies that there is no unauthorized absence or irregular attendance on the part of the petitioner. As per Rule 9.2 of the Meghalaya Service (Discipline and Appeal) Rules 2011, the Disciplinary Authority shall invariably furnish the Government servant a list of documents and witnesses by which each article of charges is proposed to be sustained. In the instant case no list of documents and witnesses was provided to the petitioner. It was only subsequently, that a list of witnesses was furnished to the petitioner. Further, no list of witnesses has been till date furnished to the petitioner. This clearly indicates that there is a deliberate attempt on the part of the respondents to deny a proper opportunity to the petitioner to defend herself.

Being aggrieved by the actions of the respondents, the petitioner submitted a representation dated 15.11.2016 to the Chief Secretary, Government of Meghalaya for his intervention in the matter. However, till date there is no positive response in the matter. Hence this writ petition".

3. Learned Sr. counsel appearing on behalf of the petitioner argued that the petitioner took 6(six) days' earned leave (EL) in the month of March, 2016 and thereafter, a displeasure letter was issued, which is at Annexure-2 of the writ petition and finally, departmental proceedings was drawn against the petitioner on the ground that she was irregular in her duties and subsequently, she was suspended. However, the Hon'ble High Court vide order dated 23.12.2016 reinstated the petitioner after this Court intervenes and stayed the departmental proceedings as well as the suspension order.

Learned Sr. counsel further argued that even for a small matter, such drastic action should not be taken against a poor lady i.e. the petitioner. So, necessary order may be issued.

4. On the other hand, learned GA submits that the petitioner was very much irregular in her duties and she used to remain absent without any intimation, therefore the department had no other way, but to issue the notices and draw the departmental proceedings.

5. After hearing the submissions advanced by the learned counsel for the parties and on perusal of the Annexure-A Page 4 of the additional affidavit as well as other documents available before the Court, I am of the considered view that a staff should not be suspended or departmental proceedings should not be drawn on mere absence from duty. Hence, both the departmental proceeding as well as the suspension order passed earlier against the petitioner is hereby quashed. In future, the petitioner is directed to be present in the office unless and until it is beyond her control i.e. for sickness or other family problems.

6. Accordingly, the instant writ petition is allowed to that extent and stands disposed of.