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Madhya Pradesh High Court · body

2008 DIGILAW 82 (MP)

Hari Krishna Verma v. District and Sessions Judge

2008-01-16

R.S.JHA

body2008
ORDER 1. The petitioner has filed this petition being aggrieved by order dated 2.4.1993 passed by the District and Sessions Judge, Shivpuri, compulsorily retiring him from service, and order dated 29.6.1994 rejecting the appeal filed by the petitioner against the said order. 2. The facts in brief are that the petitioner was initially appointed as Lower Division Clerk on 25.9.1972 and was posted at Shivpuri. On 17.5.1977 he was posted as Lower Division Clerk in the Court of Civil Judge, Class II, Pohri. He was granted adhoc promotion as Upper Division Clerk on 18.7.1991 and was transferred from Pohri to Pichhore as Reader to the Court of Additional District Judge on 24.7.1991. The petitioner did not join his place of transfer and applied for leave. He remained on leave till 27.9.1991. When he reported for duty at Pohri he was relieved on 4.10.1991 and directed to join at his place of transfer at Pichhore. The petitioner joined his transferred place of posting on 21.10.1991 and thereafter from 23.10.1991 went on unauthorized leave. As services of a Reader were urgently required, the Additional District Judge, Pichhore requested for a replacement of the petitioner vide his letter dated 30.11.1991 and on 16.1.1992 one Shri Ashok Sharma was transferred in his place and he joined as Reader to the Court of Additional District Judge. Pichhore. As the petitioner did not report on duty in spite of repeated reminder/letters written by the Additional District Judge, he was reverted to the post of Lower Division Clerk vide order dated 9.1.1992 and by another order of the same date he was transferred as Execution Clerk in the Court of District Judge, Shivpuri. Thereafter, the petitioner reported at Pichhore on 27.1.1992 on which date the Additional District Judge, Pichhore did not permit him to join and directed him to join his transferred present place of posting at Shivpuri. Admittedly, the petitioner did not do so and sought clarification from the Register General, High Court of M.P., vide letters dated 26.2.1992 and 23.3.1992. The District Judge, Shivpuri again directed the petitioner to join his place of posting, but the petitioner did not do so on the ground that no order of transfer had been served on him, though, admittedly he had been informed that he had been reverted and transferred to Shivpuri. The District Judge, Shivpuri again directed the petitioner to join his place of posting, but the petitioner did not do so on the ground that no order of transfer had been served on him, though, admittedly he had been informed that he had been reverted and transferred to Shivpuri. As the petitioner did not comply with the order of transfer or the clarification and notices issued by the District Judge, Shivpuri, dated 26.2.1992 and 23.3.1992, a notice of suspension and a charge-sheet dated 28.4.1992 was served upon him. 3. After conducting a full fledged Departmental Enquiry, a punishment of compulsory retirement was imposed upon the petitioner, vide impugned order dated 2.4.1993. The appeal, filed by the petitioner against the order of punishment, also suffered dismissal vide order dated 29.6.1994. Hence this petition. 4. It is submitted by the learned counsel for the petitioner that the petitioner was on leave till January, 1992 and the order of reversion and transfer was passed while the petitioner was on leave and, therefore, as the said orders were not served upon him and in spite of seeking clarification, no specific direction was issued by the authorities to join at Shivpuri, the petitioner did not do so. It is submitted that his factual aspect has not been appreciated by the Disciplinary and Appellate Authority in its proper perspective and therefore, the impugned orders suffer from perversity and deserve to be set aside. It is further submitted that the punishment of compulsory retirement for remaining absent unauthorisedly is patently shocking and apparently disproportionate to the alleged misconduct and, therefore, deserve to be set aside. 5. Per contra learned counsel for the respondents, submitted that the charges levelled against the petitioner were (i) that he remained absent without leave unauthorisedly for the period from 27.2.1992 to 2.4.1993; (ii) That the past record of the petitioner which demonstrated that the petitioner had earlier also remained absent unauthorisedly in the years 1974-75 and 1975-76 indicated that he was in the habit of doing so; and (iii) that the petitioner wilfully and knowingly disobeyed the direct instructions of the District Judge issued on 28.2.1992 to join his services at Shivpuri. It is submitted that the disciplinary authority has given full opportunity of hearing to the petitioner and permitted him to lead evidence, on the basis of which the authority has found all the 3 charges proved against the petitioner. It is submitted that the disciplinary authority has given full opportunity of hearing to the petitioner and permitted him to lead evidence, on the basis of which the authority has found all the 3 charges proved against the petitioner. It is also stated that from a perusal of the reply filed by the petitioner it is apparent that the petitioner admittedly remained absent without leave or authorization from 27 .2.1992 till the date of the impugned order of punishment without filing any application or requesting for leave and that till the very end the petitioner did not comply with the direct orders of the District Judge, Shivpuri, directing him to join services at Shivpuri. It is submitted that the Disciplinary Authority, after looking into all the facts and documents brought on record, has recorded a finding against the petitioner in respect of all the 3 charges and as this Court does not sit in appeal over departmental proceedings and as the present case is not one of absence of facts or non-consideration of material evidence the impugned orders do not call for any interference. 6. The learned counsel for the respondents has further submitted that looking to the conduct of the petitioner, i.e., not complying with the order of transfer, remaining absent without authorization and disobeying direct instructions issued by the District Judge, Shivpuri, the punishment imposed upon the petitioner cannot, by any stretch of imagination, be said to be disproportionate warranting interference by this Court under Article 226 of the Constitution of India. 7. In the present case, as is apparent from a perusal of the replies filed by the petitioner to the charge-sheet as well as his memo of appeal, it is clearly established without any shadow of doubt that the petitioner remained absent without leave unauthorisedly from 27.2.1992 onwards· and in spite of having been told that he had been transferred from Shivpuri and in spite of receiving instructions for joining his place of posting on 28.2.1992, he did not do so on the pretext that he had some family problems and that the order of transfer was not served upon him. 8. 8. In the circumstances, the present case is not one of no evidence nor can it be held that the impugned orders suffer from any kind of perversity or Wednesbury unreasonableness which are the only ground on which this Court can interfere in departmental proceedings as has been held by the Supreme Court in the case of Yoginath D. Bagde v. State of Maharashtra and another reported in (1999) 7 SCC 739 . 9. It is also clear from a perusal of the record that the charges have been found proved against the petitioner and it has been established that he has not complied with the order of transfer, that he has remained on leave unauthorisedly and that he has not complied with the direction issued by the District Judge, Shivpuri even till the end of the Departmental Proceedings and, therefore, apparently the conduct of the petitioner is not becoming that of an employee and that it has resulted in loss of faith and trust as well as loss of confidence in him and, therefore, in my considered opinion, the punishment of compulsory retirement cannot be said to be harsh or grossly disproportionate. I find support in this view from the judgment of the Supreme Court in the case of A.P.S.R.T.C. v. Raghuda Siva Sankar Prasad reported in (2007) 1 SCC 222 . 10. In view of the above, I do not find any merit in the petition which is accordingly, dismissed. In the peculiar facts and circumstances of the case there shall be no order as to the costs.