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2007 DIGILAW 629 (AP)

A. Raj Kumar v. Divisional Security Commissioner, RPF, Hubli, Karnataka

2007-07-10

C.V.NAGARJUNA REDDY, G.S.SINGHVI

body2007
G.S. SINGHVI, CJ:- This is an appeal for setting aside order dated 21.2.2007 passed by the learned Single Judge in Writ Petition No.18940 of 2007 whereby he declined the appellant's prayer for nullifying his dismissal from service on the charge of unauthorised absence from duty. 2. The appellant joined service as Constable in the Railway Protection Force (RPF) in April 1983. In 1992, he was removed from service on the charge of unauthorised absence from duty from 28.8.1991 to 11.6.1992. On appeal, the punishment of removal from service was substituted with that of reduction of his pay for a period of three years. In the first week of April, 1993, the appellant again proceeded on casual leave. He then sent applications dated 5.4.1993, 10.4.1993 and 12.4.1993 for extension of leave on the ground of illness of his wife. He also submitted medical certificates in support of his plea of the wife's illness, but his request was not accepted by the competent authority and vide letter dated 11.5.1993, he was advised to resume duty within three days. However, instead of joining duty, the appellant submitted another application dated 21.5.1993 for extension of leave. The competent authority again declined his request. After sometime, an enquiry was instituted against the appellant under Rule 153 of the Railway Protection Force Rules, 1987 on the charge of unauthorised absence from duty. A copy of charge-sheet dated 20.9.1993 was sent to the appellant by post, but the same was returned with the remarks "addressee refused, hence returned." Shri H.N. Shotoli, who was appointed as enquiry officer, issued notice to the appellant to attend the enquiry, but he did not turn up. Therefore, after recording the statement of the departmental witness, namely, Shri L.N Tahiliani, the enquiry officer submitted report dated 31.12.1993 with the finding that the charge of unauthorised absence from duty with effect from 8.4.1993 is proved against the delinquent. A copy of the enquiry report was sent to the appellant at his residential address, but the same was returned with the remarks "unclaimed/non-available." The disciplinary authority i.e. Divisional Security Commissioner, Railway Protection Force, Hubli (respondent No.1 herein), after considering the enquiry report, passed order dated 15.2.1994 whereby he removed the appellant from service. 3. A copy of the enquiry report was sent to the appellant at his residential address, but the same was returned with the remarks "unclaimed/non-available." The disciplinary authority i.e. Divisional Security Commissioner, Railway Protection Force, Hubli (respondent No.1 herein), after considering the enquiry report, passed order dated 15.2.1994 whereby he removed the appellant from service. 3. Deputy Chief Security Commissioner, Railway Protection Force, Secunderabad (respondent No.2 herein), who considered the appeal preferred against the order of punishment, concurred with the enquiring/disciplinary authority that the appellant is guilty of unauthorised absence from duty. Respondent No.2 also took note of the fact that in the past, a similar punishment was imposed on the appellant on the charge of unauthorised absence from duty and held that there is no ground to show any sympathy with him. The revision filed by the appellant was dismissed by Chief Security Commissioner, Railway Protection Force, Secunderabad (respondent No.3 herein), vide his order dated 8.2.1995. 4. Having failed to persuade the departmental authorities to show leniency, the appellant filed Writ Petition No.18940 of 1997. The learned Single Judge adverted to the merits of the finding recorded by the enquiry officer, as also the appellate order, and held that the punishment of removal from service imposed by the disciplinary authority does not call for interference by the Court. 5. Shri Nandigam Krishna Rao, learned Counsel for the appellant fairly admitted that in the year 1992, penalty of removal from service had been imposed on the appellant and that the same was, later on, converted into reduction of pay for three years, but argued that this adverse factor could not have been taken into consideration for determining the gravity of the misconduct allegedly committed by him in 1993 because the charge framed by the disciplinary authority did not make a mention of his past adverse record. Learned Counsel further argued that the penalty of removal from service should be treated as 'shockingly disproportionate' and quashed because the charge of absence from duty levelled against the appellant was very minor and, as a matter of fact, he was compelled to remain away from duty on account of the ailment of his wife. Learned Counsel further argued that the penalty of removal from service should be treated as 'shockingly disproportionate' and quashed because the charge of absence from duty levelled against the appellant was very minor and, as a matter of fact, he was compelled to remain away from duty on account of the ailment of his wife. Sri Nandigam Krishna Rao emphasised that while imposing the extreme penalty of removal from service, the disciplinary authority altogether overlooked the factum of illness of the appellant's wife, which was duly supported by medical certificates and argued that this by itself should be treated sufficient for nullifying the order of punishment. 6. In our opinion, there is no merit in the arguments of the learned Counsel. The parameters for exercise of the High Court's power to issue a writ of certiorari are well-defined. A writ, order or direction can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals or quasi-judicial authorities. A writ can also be issued where in exercise of jurisdiction conferred on it, the Court or the Tribunal or quasi-judicial authority acts illegally or improperly, i.e., it decides a question without giving an opportunity of hearing to the party affected by the order or where the procedure adopted by it is opposed to the principles of natural justice. However, it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is supervisory in nature and not appellate one. This necessarily means that the finding of fact reached by the inferior Court, Tribunal, etc., as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the face of the record. An error of law is one which can be discovered on a bare reading of the judgment, order or award under challenge along with the documents which have been relied upon by the inferior Court, Tribunal or quasi-judicial authority. An error, the discovery of which is possible only after a detailed scrutiny of the evidence produced by the parties and lengthy debate at the bar cannot be regarded as an error of law for the purpose of a writ of certiorari. An error, the discovery of which is possible only after a detailed scrutiny of the evidence produced by the parties and lengthy debate at the bar cannot be regarded as an error of law for the purpose of a writ of certiorari. A finding of fact recorded by an inferior Court or Tribunal or quasi-judicial authority can be corrected only if it is shown ¢at in recording the said finding, the Court etc., had erroneously admitted inadmissible evidence and the same has influenced the impugned finding. Similarly, a finding of fact based on no evidence would be regarded as error of law which can be corrected by issuing a writ of certiorari. However, sufficiency or adequacy of the evidence relied upon by the inferior Court or Tribunal or quasi-judicial authority cannot be gone into by the High Court while considering the prayer for issue of a writ of certiorari. Likewise, mere possibility of forming a different opinion on re-appreciation of evidence produced by the parties is not sufficient for issue of a writ of certiorari. 7. The High Court's power of judicial review of the disciplinary action against the delinquent employee is very limited. The High Court can interfere with the order of punishment if it is found to be vitiated due to violation of the statutory rules or regulations or the principles of natural justice and such violation is found to have prejudiced the cause of the delinquent. The High Court can also nullify the order of punishment if the finding of guilty recorded by the enquiring/disciplinary authority is based on no evidence or is influenced by extraneous factors/ considerations. The doctrine of proportionality and Wednesbury Rule can be invoked by the High Court if it is convinced that the punishment imposed by the employer is per Se arbitrary/capricious or wholly disproportionate to the misconduct found proved. Of course, the last mentioned ground is not available in cases involving fraud, misrepresentation or misappropriation/embezzlement of public funds. 8. In Ranjit Thakur v. Union of India, (1987) 4 SCC 611 , the Supreme Court applied the 'doctrine of proportionality' and interfered with the discretion exercised by the employer to punish delinquent employee. Some of the observations made in that judgment are extracted below: "Judicial review generally speaking, is .not directed against a decision, but' is directed