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2013 DIGILAW 379 (JHR)

Praveen Kumar v. Union of India

2013-03-15

SHREE CHANDRASHEKHAR

body2013
JUDGMENT By Court—The petitioner has approached this Court challenging the order of dismissal dated 11.10.2001 and the appellate order dated 27.03.2002 whereby his appeal has been dismissed. The petitioner was appointed on 18.11.1995 as Assistant SubInspector. On 08.01.2001, he was served a chargememo for overstaying from duty on the ground that after his transfer from Dimapur, he was given usual leave of 10 days however, thereafter he did not join duties. It is the case of the petitioner that prior to his transfer, he was suffering from mental illness and he was admitted in CRPF Base Hospital, New Delhi between the period 25.11.1999 and 24.12.1999. After he was given the fitness certificate, he was permitted to join duty but without weapons. It is also the case of the petitioner that thereafter, he again became mentally ill and he was admitted to Davis Institute of Neuro Psychiatry, Kanke, Ranchi from 18.08.2001 to 17.09.2001. His father vide letter dated 24.10.2000 informed the authorities about the illness of the petitioner. 2. An enquiry was conducted and the petitioner was asked to report to the enquiry officer within 15 days however, the petitioner did not report to the enquiry officer. A certificate of the doctor and prescription and letter dated 17.04.2001 have been brought on record. The departmental enquiry proceeded exparte and the report of the enquiry was sent to the home address of the petitioner. However, the petitioner did not submit any reply and therefore, an order of penalty has been passed. The petitioner preferred appeal which was also dismissed by the appellate authority. In these circumstances, the petitioner has approached this Court. 3. A counter affidavit has been filed in which the respondents have taken the stand that the medical prescription do not indicate that the petitioner was suffering from mental illness. After he was declared fit he did not report for duties. He did not join duties till the order of dismissal was passed. Only after the order of dismissal was passed the petitioner made a representation that he is fit to join the duty and he should be allowed to join. The charge against the petitioner was grave and it was found proved in the departmental enquiry. The petitioner was given ample opportunity to defend himself however, he absented himself from the departmental enquiry. 4. Heard learned counsel appearing for the parties and perused the documents. 5. The charge against the petitioner was grave and it was found proved in the departmental enquiry. The petitioner was given ample opportunity to defend himself however, he absented himself from the departmental enquiry. 4. Heard learned counsel appearing for the parties and perused the documents. 5. The learned Senior counsel appearing for the petitioner has submitted that overstaying is not a misconduct within the CRPF Rules. Petitioner was granted 10 days usual leave and thereafter, due to his illness he could not join duty. The learned Sr. Counsel has further submitted that although the petitioner has produced the medical certificate of the doctors to indicate that he was not able to join the duty due to the reasons beyond his control and his father had also requested to the authorities however, order of penalty has been passed. The petitioner has been victimised by the authorities. She has further submitted that the order of dismissal from service is disproportionate to the misconduct proved. On these grounds she has submitted that the order of penalty and the appellate order are liable to be interfered with by this Court. 6. The learned counsel for the petitioner has relied on the judgment of the Hon'ble Supreme Court in “Union of India & Ors. Vs. Giriraj Sharma”, reported in AIR 1994 SC 215 to substantiate her contention that overstaying from duty does not warrant punishment of dismissal from service. 7. I have perused the documents on record and judgment cited by the learned counsel for the petitioner. I find that in “Union of India & Ors. Vs. Giriraj Sharma” (supra), the employee was granted 10 days' leave and he had made an application for further 12 days' leave, which was rejected and in these circumstances, it was found by the Hon'ble Supreme Court that the punishment awarded by the department was harsh and disproportionate to the misconduct. 8. The learned Sr. counsel for the petitioner has also placed reliance on the judgment of the Hon'ble Supreme Court in “Hindustan Lever Ltd. Vs. Ashok Vishnu Kate & Ors.”, reported in AIR 1996 SC 285 . Para 18 of the said judgment is 18. 8. The learned Sr. counsel for the petitioner has also placed reliance on the judgment of the Hon'ble Supreme Court in “Hindustan Lever Ltd. Vs. Ashok Vishnu Kate & Ors.”, reported in AIR 1996 SC 285 . Para 18 of the said judgment is 18. “A mere look at Item I of Schedule IV shows that it would be a general unfair labour practice on the part of the employer to discharge or dismiss employees on any of the grounds mentioned in clauses (a) to (g) of this Item. On this aspect there is no dispute between the parties. The moot question is whether the sweep of the item can cover any of the alleged general unfair labour practices on the part of the employer before the employer concerned actually discharges or dismisses the employees on any of the grounds enumerated in clauses (a) to (g). Let us take an illustration to see how this item operates. If an employer discharges or dismisses an employee by way of victimization it would be a complete unfair labour practice on his part as contemplated by Clause (a) of Item I of Schedule IV. As we have seen above, the Act is enacted with a view to prevent such unfair labour practice. Therefore, the question squarely arises as to how such an unfair labour practice of discharge or dismissal of an employee by way of victimization can be prevented. If it is to be prevented, it has to be prevented from taking effect or getting completed. Therefore, the intervention of the Labour Court can be sought where the concerned general unfair labour practice on the part of the employer to discharge or dismiss an employee by way of victimization has not resulted into its culmination but it is in pipeline or process. Under the standing orders governing the concerned industries, before an employee can be discharged or dismissed on the ground of any misconduct, departmental enquiry has to be held. Consequently, taking the initial step towards the direction of discharging or dismissing of any employee on the ground of any misconduct by issuing a chargesheet can be said to be the first action taken by the employer towards such ultimate discharge or dismissal of an employee. Consequently, taking the initial step towards the direction of discharging or dismissing of any employee on the ground of any misconduct by issuing a chargesheet can be said to be the first action taken by the employer towards such ultimate discharge or dismissal of an employee. It can then be said that the process of alleged unfair labour practice on the part of the employer to discharge or dismiss an employee on ground (a) mentioned in Item I of Schedule IV is started or has got initiated or is triggered off by the employer. If an employee can make out a strong prima facie case for interdiction of such a process, he can legitimately invoke the jurisdiction of the Labour Court for preventing such an unfair labour practice from getting fructified or completed. In this connection it is necessary to note that the general unfair labour practice on the part of the employers as mentioned in Item I of Schedule IV pertains to different types of objectionable actions based on grounds which are indicative of unfair labour practices and any action based on such grounds with a view to discharge or dismiss an employee is considered by the Act to be an unfair labour practice on the part of the employer.” 9. In the present case it cannot be said that the petitioner has been victimized by the authorities. No such plea has been taken and substantiated by the petitioner. The medical certificates brought on record by the petitioner contradict the stand of the petitioner. The letter written by the father of the petitioner and the medical certificate dated 23.10.2000 indicate that the petitioner was suffering from jaundice and even after recovering from illness he was not willing to join duty and therefore, his father had written letter dated 17.04.2001 requesting the Commandant to take steps at his end, so that the petitioner joins duty. 10. In view of the admitted case on record that the petitioner absented himself from the enquiry and he even did not choose to reply to the notice sent along with the enquiry report, though his father has written letters to the authorities and also sent medical prescriptions, it is not open to the petitioner to allege violation of principles of natural justice. There is no formal letter seeking sanction of leave from the authorities on the ground of illness. There is no formal letter seeking sanction of leave from the authorities on the ground of illness. The authorities have disbelieved the plea taken by the petitioner. In view of the aforesaid discussion, I am unable to accept the contention of the petitioner, that he was prevented from joining duty due to his illness. 11. The Constitution Bench of the Hon'ble Supreme Court in “Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors.”, reported in AIR 1958 SC 398 , has held that the fact finding authority is the disciplinary authority or the appellate authority alone. The Court has no power to interfere with the facts arrived at in a disciplinary proceeding. 12. The power of the High Court in exercising the jurisdiction under Article 226 of the Constitution of India has been settled in a catena of judgments of the Hon'ble Supreme Court. In “State of Orissa & Ors. Vs. Bidyabhushan Mohapatra”, reported in AIR 1963 SC 779 , the Hon'ble Supreme Court has held as under: 9. “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 those 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 Court 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 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....” 13. In “State of “Andhra Pradesh & Ors. Vs. S. Shree Rama Rao”, reported in AIR 1963 SC 1723 , the Hon'ble Supreme Court held that High Court has no power under Article 226 to interfere with the finding of misconduct recorded during the departmental enquiry. In para 7 the Hon'ble Supreme Court has observed as under, 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.” 14. In “State of Andhra Pradesh and others Vs. Chitra Venkata Rao”, reported in (1975) 2 SCC 557 , the Hon'ble Supreme Court has held that the High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against the public servant. Taking note of the judgment of the Hon'ble Supreme Court in “State of Andhra Pradesh and others Vs. S. Shree Rama Rao” reported in (1964) 3 SCR 25 , the Hon'ble Supreme Court has observed as under, 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.(1964) 3 SCR 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.” 15. In so far as the contention of the learned counsel for the petitioner that the punishment awarded to the petitioner is excessive and disproportionate to the misconduct alleged, I find that this Court has very limited power to enter into that aspect of the matter. In “Union of India & Anr. Vs. G. Ganayutham”, reported in (1997) 7 SCC 463 , the Hon'ble Supreme Court has held that, “in the matter of penalty imposed in a disciplinary case, unless the Court/Tribunal opines in its secondary role, that the administrator was, on the material before him irrational, the punishment cannot be quashed.” 16. In “Apparel Export Promotion Council Vs. A.K. Chopra”, reported in (1999) 1 SCC 759 , the Hon'ble Supreme Court has held, 22. “.....The High Court should not have substituted its own discretion for that of the authority. In “Apparel Export Promotion Council Vs. A.K. Chopra”, reported in (1999) 1 SCC 759 , the Hon'ble Supreme Court has held, 22. “.....The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone.....” 17. In “B.C. Chaturvedi Vs. Union of India”, reported in (1995) 6 SCC 749 , the Hon'ble Supreme Court has held that the Court will not interfere with the order of punishment unless the punishment awarded is one which shocks the conscience of the Court. A similar view has been expressed by the Hon'ble Supreme Court in “M.P. Electricity Board Vs. Jagdish Chandra Sharma”, reported in (2005) 3 SCC 401 and several other cases. 18. In “Praveen Bhatia Vs. Union of India & Ors.”, reported in (2009) 4 SCC 225 , the Hon'ble Supreme Court has refused to interfere with the order of penalty in a case in which the property return was not filed by the employee within the stipulated period of 6 months and the charges stood proved against the employee. 19. In “Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh”, reported in (2006) 6 SCC 187 , where a bus conductor was charged for misappropriation of Rs. 360/, the Hon'ble Supreme Court refused to interfere with the quantum of punishment. 20. In view of the discussions made above, I find no reason to interfere in the matter and hence, it is dismissed.