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2010 DIGILAW 1147 (MP)

Shankarlal Verma v. High Court of MP

2010-11-18

RAJENDRA MENON

body2010
ORDER Rajendra Menon, J. 1. Challenging the order-dated 14.1.1997 - Annexure P/7 passed by the Disciplinary Authority - Respondent No. 2, imposing penalty of removal from service and the order-dated 30.3.1998 - Annexure P/8, passed by the appellate authority dismissing the appeal filed by him, Petitioner has filed this writ petition. 2. Facts, in nutshell, indicate that Petitioner was initially appointed as a peon. He was thereafter promoted on the post of Driver and his promotion was subject to the condition that his service on the promoted post of Driver should be satisfactory. However, as his work on the promoted post of Driver was not found satisfactory, vide order Annexure P/1 he was reverted to the post of peon and while so working as a peon Petitioner was transferred from the office of District and Sessions Judge, Mandleshwar to the Civil Court at Bheekagaon. After having been relieved Petitioner joined at Bheekagaon on 15.6.1996. Thereafter, he sought earned leave for the period 16.7.1996 to 16.8.1996. However, it is the case of the establishment that without sanction of leave Petitioner proceeded and thereafter remained unauthorizedly absent for a long period of time. As the Petitioner's whereabouts were not known and he was absent unauthorizedly upto 26.9.1996, charge-sheet - Annexure P/2 was issued to the Petitioner. It was pointed out in the charge-sheet that Petitioner after having availed of leave from 16.7.96 to 16.8.97 has not reported for duty and finding him to have committed act of misconduct in the matter of remaining unauthorizedly absent, charge-sheet was issued to him. Reply to the charge-sheet - Annexure P/3 was submitted by the Petitioner and it was the defence of the Petitioner that for the period in question he had submitted an application to the Nazir on 16.9.96, but the Nazir without putting it before the competent authority returned it back to the Petitioner, on 27.9.96. By filing appropriate medical certificates and other documents in support of his absence, Petitioner sought exoneration. As the reply filed by the Petitioner was found to be unsatisfactory, the Additional District Judge, Mandleshwar was appointed as the enquiry officer and after enquiry, the enquiry officer submitted a report - Annexure R/5. By filing appropriate medical certificates and other documents in support of his absence, Petitioner sought exoneration. As the reply filed by the Petitioner was found to be unsatisfactory, the Additional District Judge, Mandleshwar was appointed as the enquiry officer and after enquiry, the enquiry officer submitted a report - Annexure R/5. Based on the finding of guilt recorded in the departmental enquiry, the disciplinary authority by the impugned order having imposed the penalty of removal from service and the appeal having been rejected, Petitioner has filed this writ petition. 3. By taking me through the allegations levelled in the charge-sheet - Annexure P/2, reply filed by the Petitioner - Annexure P/3 and the documents evidencing absence of the Petitioner due to the ailment and operation of his son Shri Anubhav Jain, learned Counsel for the Petitioner, submitted that Petitioner had more than nine years of unblemished service and for the alleged misconduct of unauthorized absence, the most harsh punishment of removal from service has been imposed. Emphasizing that without taking note of the defence of the Petitioner the action is taken, Shri Jain submits that the action is unsustainable. Taking me through the statement of the defence witnesses available on record as Annexure P/6 and the entire material Shri Anubhav Jain submits that it is a fit case where interference should be made and relief granted to the Petitioner. Placing reliance on the following two judgments of the Supreme Court, Shri Jain submitted that the penalty of removal from service imposed on the Petitioner, for the misconduct of unauthorized absence, is unsustainable and, therefore, interference be made. The judgments relied upon by Shri Anubhav Jain areJagdish Singh v. Punjab Engineering College and Ors. (2009) 7 SCC 301 ; and, G. Vallikumari v. Andhra Education Society and Ors. (2010) 2 SCC 497 . 4. Shri P.R. Bhave, learned Senior Advocate, appearing for the Respondents submits that in this case allegation of misconduct has been proved in a properly conducted departmental enquiry, in which full opportunity of defence was extended to the Petitioner and once the allegations are proved in the enquiry conducted, then a Court exercising limited jurisdiction in a petition under Article 226 of the Constitution is not required to interfere in the matter. Accordingly, Shri Bhave submits that as the charges levelled against the Petitioner of unauthorized absence is proved and the appellate authority has also taken note of all these factors and dismissed the appeal, now no case is made out for interference. Accordingly, Shri Bhave prays for dismissal of this writ petition. 5. Having heard learned Counsel for the parties and on a perusal of the records, it is clear that for the alleged act of unauthorized absence, charge-sheet was issued to the Petitioner and a departmental enquiry conducted. There is nothing on record to indicate that the procedure followed in the departmental enquiry is vitiated or contrary to the principles of law. It is seen that the enquiry was conducted properly, full opportunity of defence was extended to the Petitioner and the enquiry officer after due consideration of the matter that came before him has recorded a finding of guilt against the Petitioner. So far as this aspect of the matter is concerned, this Court does not find any error in the procedure followed and the finding recorded by the enquiry officer. Even though Petitioner had tried to emphasize that he had submitted an application to the District Nazir, who returned it back to him on 27.9.96, but the statement of the Nazir available on record as PW/2 Shri Kishanlal Verma indicates that he has denied submission of any application by the Petitioner and return of the same by him. In that view of the matter Petitioner having failed to establish that he had submitted the application for leave alongwith the requisite documents as required under the rules, the finding recorded by the enquiry officer to the effect that the charges are proved is a reasonable finding and this Court does not find any ground to interfere with the same. 6. However, the question as to whether the penalty, extreme in nature, of removal from service imposed upon the Petitioner for the alleged misconduct of unauthorized absence, the past record of the Petitioner and other factors as canvassed by Shri Anubhav Jain, in the light of the law laid down by the Supreme Court, in the cases of Jagdish Singh (supra) and G. Vallikumari (supra), is a matter which is beyond the realm of judicial review in a writ petition under Article 226 of the Constitution. In a writ petition under Article , a writ Court can interfere with the quantum of punishment imposed by the disciplinary authority only if the punishment is shocking to the conscience of the Court and under law is unsustainable. The punishment in the present case would not fall in the said category, at the same time for the misconduct of unauthorized absence from service it is the question as to whether any other suitable punishment can be imposed, instead of the extreme penalty of removal from service, this is a question which has to be considered and as the said exercise is to be conducted by the appellate authority, it is thought appropriate to remand the matter back to the appellate authority to consider the limited question of modifying the penalty as prayed for by the Petitioner and the question of propriety of imposing the penalty of removal from service for the misconduct in question. 7. Accordingly, keeping in view the totality of the circumstances and the fact that Petitioner, who had more than nine years of service is visited with the extreme penalty of removal from service, interest of justice requires that the appellate authority may reconsider the question whether the penalty imposed warrants reconsideration or a lenient view can be taken. 8. In that view of the matter, this petition is allowed in part. The order of the appellate authority - Annexure P/8 is quashed and the matter is remanded back to the appellate authority to consider the limited question with regard to propriety of imposing the penalty of removal from service. On the Petitioner filing a certified copy of this order alongwith relevant material in support of his case for seeking leniency in the matter of imposition of punishment, the appellate authority shall consider the same and decide the question of quantum of punishment to be imposed for the misconduct afresh, in accordance with law, within a period of three months and communicate the decision to the Petitioner. 9. With the aforesaid, the petition stands allowed and disposed of.