RAJENDRA PRASAD SRIVASTAVA v. HIGH COURT OF JUDICATURE AT ALLAHABAD
2008-11-07
DILIP GUPTA
body2008
DigiLaw.ai
JUDGMENT Honble Dilip Gupta, J.—The petitioner who was working as a Clerk in the Judgeship at Gorakhpur has filed this petition for quashing the order dated 7th January,1992 passed by the learned District Judge, Gorakhpur by which the petitioner was dismissed from service. The petitioner has also sought the quashing of the order dated 9th November, 1994 by which the Appeal filed by him for setting aside the order was rejected. 2. While the petitioner was working as a Copiest in the Copying Department of the Judgeship, he was charged for misconduct namely that he was absent on 9th May, 1991 and 10th May, 1991 without any sanction of leave and he also remained absent from 11th May, 1991 to 27th May, 1991 without prior permission and without submitting any leave application. The petitioner was also suspended on 25th May, 1991 by order dated 25th May, 1991. The Process Server made an attempt to serve the charge-sheet on the petitioner on 7th July, 1991 but the same could not be served as his wife made a statement that he had gone to the village for agriculture purposes. Another attempt was made by the Process Server on 11th July, 1991 but this time his son Pramod Kumar informed the Process Server that the petitioner had gone either to the Hospital or to the city for consulting some Doctor. On 9th August, 1991 another attempt was made by the Process Server to serve the charge-sheet on the petitioner. This time he met the petitioner who told the Process Server that he would join duty and then receive the charge-sheet. In such circumstances the charge-sheet was published in the newspaper ‘Aaj’ and the petitioner was required to submit his reply by 13th November, 1991. The petitioner, however, did not submit any reply as a result of which the Enquiry Officer proceeded with the enquiry ex-parte and submitted the enquiry report dated 20th November, 1991. He found the first charge that the petitioner had unauthorisedly remained absent on 9th and 10th May, 1991 proved. He also found the second charge that the petitioner unauthorisedly remained absent from 11th May, 1991 to 27th May, 1991 to be proved. In this connection he noticed that till 27th May, 1991, no leave application was submitted by the petitioner. 3.
He also found the second charge that the petitioner unauthorisedly remained absent from 11th May, 1991 to 27th May, 1991 to be proved. In this connection he noticed that till 27th May, 1991, no leave application was submitted by the petitioner. 3. The Disciplinary Aythority namely the District Judge accepted the enquiry report and directed that a show cause notice be issued to the petitioner. The show cause notice along with the enquiry report were sent to the petitioner by registered post. The endorsement on the envelope made by the Postman indicates that he visited the petitioner’s residence on as many as five dates namely 29th November, 1991, 30th November, 1991, 2nd December, 1991, 3rd December, 1991, and 4th December, 1991 but the same was not received since his family members told the postman that the petitioner was ill and had gone for medical treatment. The show cause notice was ultimately published in the newspaper Aaj on 14th December, 1991. The petitioner did not submit any reply to the show cause notice and by the order dated 7th January, 1992 the petitioner was dismissed from service. The petitioner filed an Appeal which was also rejected. 4. I have heard Sri Arvind Srivastava, learned counsel for the petitioner and Sri S.P. Singh, learned counsel appearing for the respondents. The original records relating to the enquiry and the Appeal have also been produced by Sri S.P. Singh, learned counsel for the respondents. 5. The first contention of the learned counsel for the petitioner is that the person who reported his absence could not have been appointed as the Enquiry Officer. This ground has not been taken in the writ petition or in the Appeal filed by the petitioner and nor is there anything on the record to indicate that the person who reported his absence was appointed as the Enquiry Officer. In such circumstances this contention cannot be accepted. 6. The second contention of the learned counsel for the petitioner is that the charge-sheet and the show cause notice could have been published in the newspaper only if the petitioner had refused to accept the charge-sheet or the show cause notice. This contention cannot also be accepted as from the records it is clear that the Process Server made numerous attempts to serve the charge-sheet upon the petitioner but the same could not be served.
This contention cannot also be accepted as from the records it is clear that the Process Server made numerous attempts to serve the charge-sheet upon the petitioner but the same could not be served. Likewise, the show cause notice was also sent by the registered post but the Postman was unable to serve it. In such circumstances the charge-sheet as well as the show cause notice were rightly published in the newspaper. 7. The third contention of the learned counsel for the petitioner is that the principles of natural justice had not been followed inasmuch as no opportunity was given to the petitioner to file a reply to the charge-sheet or to the show cause notice. This contention cannot also be accepted because even though the charge-sheet and the cause notice were published in the newspapers, the petitioner did not file any reply. 8. The fourth contention advanced by the learned counsel for the petitioner is that no reasons have been given in the termination order or the appellate order. It is true that reasons have not been given but in the facts and circumstances of the present case, the termination order and the appellate order do not deserve to be set-aside on this ground. The petitioner did not file any reply to the charge-sheet as a result of which the Enquiry Officer proceeded ex-parte and both the charges were found to be proved by the Enquiry Officer. The petitioner had unauthorizedly remained absent and even after 27th May, 1991 did not join his duties. The enquiry report is a detailed report and even though it was sent to the petitioner by registered post, the petitioner did not file any reply to it. The petitioner, therefore, cannot make any grievance about absence of detailed reasons in the termination order or in the appellate order. 9. The last contention of the learned counsel for the petitioner is that the punishment is disproportionate to the charges. This contention cannot also be accepted. The petitioner was an employee in the District Judgeship and he had unauthorizedly remained absent for a number of days. 10.
9. The last contention of the learned counsel for the petitioner is that the punishment is disproportionate to the charges. This contention cannot also be accepted. The petitioner was an employee in the District Judgeship and he had unauthorizedly remained absent for a number of days. 10. The scope of interference by Courts with the quantum of punishment has been the subject matter of a number of decisions and it has been repeatedly emphasized that interference cannot be done in a routine manner and that the principles relating to judicial review of administrative action have necessarily to be examined. The decisions of the Supreme Court clearly emphasise that where the punishment in disciplinary cases is challenged as being arbitrary, the question that would arise for consideration would be whether the administrative order is “rational” or “reasonable” and the test then to be applied is the “Wednesbury” test. The Courts will then be confined only to a secondary role to find out if the action satisfies the test. The disciplinary authority and the appellate authority, being fact finding authorities, have the exclusive power to consider the evidence with a view to maintain discipline and they are vested with the discretion to impose appropriate punishment keeping in view the gravity of the misconduct. It has also been emphasized that the High Court while exercising the power of judicial review cannot normally substitute its own opinion and impose some other penalty unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court in the sense that it is in defiance of logic or moral standards. In the present case it cannot be said that the punishment is such which will shock the conscience of the Court in the sense that it is in defiance of logical or moral standards. It is, therefore, not possible to interfere with the quantum of punishment. 11. The writ petition is, accordingly, dismissed. ————