Research › Search › Judgment

Jharkhand High Court · body

2013 DIGILAW 339 (JHR)

Sunil Kumar Choudhary v. State of Jharkhand

2013-03-08

SHREE CHANDRASHEKHAR

body2013
JUDGMENT Aggrieved by the order of dismissal dated 11.11.1999 and the Appellate Order dated 23.1.2003 the petitioner has approached this Court. 2. The petitioner joined the Bihar Police as a constable on 10.5.1988. On 10.7.1997 he proceeded on leave. It is the case of the petitioner that due to flood and illness of his wife and mother he could not join his duty and thus remained absent for a period of 46 days. On 12.9.1997 the petitioner was served with charge sheet dated 5.9.1997 for remaining absent unauthorizedly for 46 days. The Charge Memo included his unauthorized absence on twelve occasions and abscondance on three occasions. An Enquiry Officer was appointed and the petitioner was given full opportunity of hearing and order of punishment dated 11.11.1999 was passed on the ground that if such indisciplined police employee continues to remain in the service it would not be in the public interest. The petitioner preferred an appeal which was dismissed by the Appellate Authority by order dated 23.1.2003. The petitioner has approached this Court in the aforesaid facts and circumstances. 3. A counter-affidavit has been filed on behalf of the respondent no. 3 in which the previous conduct of the petitioner in over-staying 12 times and remaining absent from duty without permission has been detailed . It has further been stated that in a service of 10 years the petitioner has been punished on four occasions with major punishments and he has also been awarded five minor punishments. 4. Heard learned counsel for the parties and perused the documents on record. 5. Dr. S.N. Pathak, learned senior counsel appearing for the petitioner has contended that in the present proceeding the previous conduct of the petitioner should not have been taken into account. The petitioner remained absent for a period of 46 days and he has valid excuse for the said absence from the duty. The petitioner has specifically stated that due to natural calamity and illness of his wife and mother he could not join the duty, however, the authorities have erroneously disbelieved the explanation of the petitioner. Relying on a judgment of the Hon'ble Supreme Court in the case of “Chairman-Cum-Managing Director, Coal India Limited and another Vs. The petitioner has specifically stated that due to natural calamity and illness of his wife and mother he could not join the duty, however, the authorities have erroneously disbelieved the explanation of the petitioner. Relying on a judgment of the Hon'ble Supreme Court in the case of “Chairman-Cum-Managing Director, Coal India Limited and another Vs. Mukul Kumar Choudhuri and others” reported in (2009) 15 SCC 620 , the learned senior counsel has contended that the extreme punishment of dismissal from service should not have been passed against the petitioner in view of the explanation offered by the petitioner that he remained absent from duty purely due to personal reason and reasons beyond his control. 6. Referring to the previous conduct of the petitioner, the learned senior counsel has contended that before arriving at a conclusion that the misconduct alleged against the petitioner warranted dismissal from service, it must be proved that unauthorized absence was willful. Relying on a judgment of the Hon'ble Supreme Court in the case of ”Krushnakant B. Parmar Vs. Union of India and another” reported in (2012) 3 SCC 178 , the learned senior counsel has submitted that the case of the petitioner is squarely covered by the said judgment of the Hon'ble Supreme Court. In the case of “Krushnakant B. Parmar” the employee was charged for unauthorized absence on three consecutive periods (36 days, 32 days and 234 days). It was held that the employee has failed to maintain the devotion to duty and this conduct was unbecoming of government servant and therefore, an order of dismissal was passed against the employee. In paragraph Nos. 16, 17 & 18, the Hon'ble Supreme Court has held as under, “16. In the case of the appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorized absence from duty “amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.” 7. On a closer scrutiny, I find that the cases relied upon by the learned senior counsel appearing for the petitioner, are distinguishable on facts. In the case of “Mukul Kumar Choudhuri”, the employee had fairly admitted his guilt and explained that the reason for absence was purely personal and beyond his control. It was a solitary incident and the Hon'ble Supreme Court accepted the explanation offered by the employee and found that the punishment was not only unduly harsh but grossly in excess to the allegation. 8. In the case of “Krushnakant B. Parmar” one single Charge Memo was served upon the employee for his unauthorized absence from duty during three consecutive periods and it was held by the Hon'ble Supreme Court that in the absence of a finding that such absence was willful, the Enquiry Officer could not have held the employee guilty of misconduct. In the present case, I find that the petitioner has been found over-staying on twelve occasions and he has absconded on three occasions. The petitioner has been awarded four major punishments and five minor punishments. 9. Discipline is life line of the police force. The fact that the petitioner has been found over-staying unauthorizedly on twelve occasions and absconding from duty on three occasions, is itself a proof that his absence from the duty for 46 days without permission was intentional and wilful. The petitioner has been awarded four major punishments and five minor punishments. 9. Discipline is life line of the police force. The fact that the petitioner has been found over-staying unauthorizedly on twelve occasions and absconding from duty on three occasions, is itself a proof that his absence from the duty for 46 days without permission was intentional and wilful. The plea taken by the petitioner that he was prevented to join his duty because of natural calamity and illness of his wife and mother, cannot be accepted and has been rightly disbelieved by the authorities. Previously also, the petitioner was awarded four major penalty and five minor penalty and therefore, the order of dismissal in the present case cannot be said to be excessive or disproportionate to the charge against the petitioner. In the Charge Memo itself the incidence of over-staying, abscondance, imposition of penalty etc. have been clearly mentioned and therefore, the previous misconduct of the petitioner has been rightly taken into consideration by the authorities. 10. Way back in 1841 in the case of “Queen v. James Bolton,(1841) 1 QB 66, Lord Denman, C.J, while discharging the rule, made the following observation which is considered as authoritative and good law even today, “The first of these is a point of much importance, because of very general application; but the principle upon which it turns is very simple: the difficulty is always found in applying it. The case to be supposed is one like the present, in which the Legislature has trusted the original, it may be (as here) the final jurisdiction on the merits to the magistrates below; in which this Court has no jurisdiction as to the merits either originally or on appeal. All that we can then do, when their decision is complained of, is to see that the case was one within their jurisdiction, and that their proceedings on the face of them are regular & according to law. Even if their decision should upon the merits be unwise or unjust, on these grounds we cannot reverse it.” 11. It was further observed by Lord Denman, C.J:- “Beyond this we cannot go. Even if their decision should upon the merits be unwise or unjust, on these grounds we cannot reverse it.” 11. It was further observed by Lord Denman, C.J:- “Beyond this we cannot go. The affidavits, being before us, were used on the argument; and much was said of the unreasonableness of the conclusion drawn by the magistrates, and of the hardship on the defendant if we would not review it, there being no appeal to the sessions. We forbear to express any opinion on that which is not before us, the propriety of the conclusion drawn from the evidence by the magistrates: they and they alone were the competent authority to draw it; and we must not constitute ourselves into a Court of Appeal where the statute does not make us such, because it has constituted no other.” 12. In paragraph 26 it has been held:- 26. “But the question still remains as to what is the legal import of the expression 'error of law apparent on the face of the record.' Is it every error of law that can attract the supervisory jurisdiction of the High Court, to quash the order impugned? This court, as observed above, has settled the law in this respect by laying down that in order to attract such jurisdiction, it is essential that the error should be something more than a mere error of law; that it must be one which is manifest on the face of the record. In this respect, the law in India and the law in England are, therefore, the same. It is also clear on an examination of all the authorities of this Court and of those in England, referred to above as also those considered in the several judgments of this Court, that the common-law writ, now called order of certiorari, which was also adopted by our Constitution, is not meant to take the place of an appeal where the statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction.” 13. In the case of “The State of Orissa and another Vs. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction.” 13. In the case of “The State of Orissa and another Vs. Murlidhar Jena” reported in AIR 1963 SC 404 , the Hon'ble Supreme Court has held that the High Court has no power to re-appreciate evidence and findings recorded in the departmental enquiry. The Hon'ble Supreme Court has observed as under, 14. “This observation clearly indicates that the High Court was attempting to appreciate evidence. The judgment of the Tribunal shows that it considered several facts and circumstances in dealing with the question about the identity of the individual indicated by the expression “ Chatrapur Saheb.” Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. That in effect is the approach initially adopted by the High Court at the beginning of its judgment. However, in the subsequent part of the judgment the High Court appears to have been persuaded to appreciate the evidence for itself and that, in our opinion, is not reasonable or legitimate.” 14. Another Constitution Bench of the Hon'ble Supreme Court in the case of “State of Orissa and others Vs. Bidbybhushan Mohapatra” reported in AIR 1963 SC 779 , has discussed the jurisdiction of the High Court to declare the order of dismissal illegal, by observing as under, “The High Court has held that there was evidence to support the findings on heads(c) and (d) of Charge (1) and on Charge(2). In respect of charge 1(b) the respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of charges 1(a) and 1(e) in the view of the High Court “the rules of natural justice had not been observed.” The recommendation of the Tribunal was undoubtedly founded on its findings on charges 1(a), 1(e), 1(c), 1(d) and Charge(2). The High Court was of the opinion that the findings on two of the heads under Charge (1) could not be sustained, because in arriving at the findings the Tribunal had violated rules of natural justice. The High Court was of the opinion that the findings on two of the heads under Charge (1) could not be sustained, because in arriving at the findings the Tribunal had violated rules of natural justice. The High Court therefore directed that the Government of the State of Orissa should decide whether “on the basis of charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice.” It is not necessary for us to consider whether the High Curt was right in holding that the findings of the Tribunal on charges 1(a) and 1(e) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on charges 1(a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of the five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal.” 15. The Hon'ble Supreme Court while discussing the jurisdiction of the High Court under Article 226 of the Constitution of India to interfere with the order of penalty, has observed, “If the High Court is satisfied that if some but not all of the findings of the Tribunal were “unassailable”, the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. Therefore if the order may be supported on any finding as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction of the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanor, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High Court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question.” 16. In the case of “ State of Andhra Pradesh and others Vs. S. Sree Rama Rao” reported in AIR 1963 SC 1723 , the Hon'ble Supreme Court while holding that the High Court has no power under Article 226 of the Constitution of India to interfere with the findings recorded in departmental enquiry, has held, “7. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.” 17. In the case of “State of Andhra Pradesh and others Vs. Chitra Venkata Rao “reported in (1975) 2 SCC 557 the Hon'ble Supreme Court has held, “21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.” 18. In the case of “Praveen Bhatia Vs. Union of India and others “ reported in (2009) 4 SCC 225 , the Hon'ble Supreme Court refused to interfere in a case in which the property return was not filed by the employee within the stipulated period. 19. The power of judicial review of the High Court while exercising jurisdiction under Article 226 of the Constitution of India has been discussed by a Constitution Bench of the Hon'ble Supreme Court in the case of “Nagendra Nath Bora and another Vs. Commissioner of Hills Division and Appeals, Assam and others” reported in AIR 1958 SC 398 andit has been held by the Hon'ble Supreme Court that mere formal or technical errors even though in law, will not be sufficient to attract extraordinary jurisdiction of the High Court. 20. Commissioner of Hills Division and Appeals, Assam and others” reported in AIR 1958 SC 398 andit has been held by the Hon'ble Supreme Court that mere formal or technical errors even though in law, will not be sufficient to attract extraordinary jurisdiction of the High Court. 20. In the case of “Karnataka Bank Ltd. Vs. A.L. Mohan Rao” reported in (2006) 1 SCC 63 , when the learned single judge of the High Court on a mistaken notion of sympathy interfered with the order of punishment, the Hon'ble Supreme Court set-aside the order of High Court and restored the order of termination from service. 21. It is not the case of the petitioner that he was not given fair opportunity to defend himself. It is also not the case of the petitioner that irrelevant materials have been taken into consideration or that relevant materials have been left out from consideration. On a consideration of materials on record, I am of the opinion that this is not a case which warrants interference by this Court. The petitioner is an indisciplined police constable who is a habitual offender. The order of dismissal of the petitioner from service is just and proper. 22. In the result, the writ petition fails and is hereby dismissed.