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2013 DIGILAW 415 (JHR)

Justin Tirkey v. Union of India

2013-03-22

SHREE CHANDRASHEKHAR

body2013
JUDGMENT By Court. - Challenging the order of removal from service dated 05.01.2002 and order dated 07.10.2002 whereby the appeal preferred by the petitioner has been rejected, the petitioner has approached this Court. 2. The petitioner was appointed as Constable in C.R.P.F on 12.09.1998. On 18.03.2001, the petitioner was granted permission to meet his family members and he was expected to return on 19.03.2001, however, the petitioner did not report for duty and remained absent. On 28.04.2001, a letter was written to the petitioner at his home address requiring him to join the duty. Despite the said letter, the petitioner did not join the duty, therefore, a departmental proceeding was initiated for unauthorised absence from duty. After the departmental proceeding concluded an enquiry report was submitted. It is the case of the petitioner that a copy of the enquiry report was not furnished to the petitioner. By order dated 5th January, 2002, an order of removal from service was passed against the petitioner. Against the said order, the petitioner preferred an appeal which was also dismissed on 7th October, 2002. 3. A counter-affidavit has been filed in which a plea has been taken that in spite of notices given to the petitioner which were sent to his home address, the petitioner did not report for duty and ultimately, the petitioner was declared deserter and a Warrant of Arrest was also issued against him. 4. The learned counsel for the petitioner submits that the petitioner was not well and he was suffering from some mental depression and that is the reason he could not join the duty. The departmental authority has not considered the plea of the petitioner and the documents submitted by the petitioner with respect to his illness have been ignored. The learned counsel for the respondents supported the impugned orders. 5. From the record of the case it transpires that the petitioner remained absent after 19.03.2001 and in spite of notices given to him he did not join the duty. The departmental proceeding was conducted and the petitioner was afforded all reasonable opportunity to defend himself. This is not a case in which it can be said that some relevant material has been ignored by the Disciplinary Authority or that some extraneous material has been considered by the departmental authority for holding the petitioner guilty of misconduct. The departmental proceeding was conducted and the petitioner was afforded all reasonable opportunity to defend himself. This is not a case in which it can be said that some relevant material has been ignored by the Disciplinary Authority or that some extraneous material has been considered by the departmental authority for holding the petitioner guilty of misconduct. The petitioner also cannot contend that this is a case in which the order of penalty has been passed without any 'evidence' brought on record against him. The absence of the petitioner from duty is an admitted fact. The petitioner did not even seek permission for extension of leave granted to him. The petitioner has not been able to plead and prove any prejudice caused to him due to the alleged non-supply of enquiry report to him. 6. Insofar as the power of the High Court to interfere with the order passed in the departmental proceeding is concerned, it has been declared by the. Hon'ble Supreme Court that the Writ Court exercising jurisdiction under Article 226 of the Constitution of India would have no power to look into the findings arrived at in the domestic enquiry unless the finding is perverse. In State of Orissa & Ors, v. Bidyabhushan Mohapatra, reported in AIR 1963 SC 779 , the Hon'ble Supreme Court has held as under : 9. "..........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............. 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 if the findings of the Enquiry Officer or the Tribunal primafacie 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." 7. In Union of India v. H.C. Goel, reported in AIR 1964 SC 364 , the Hon'ble Supreme Court has held as under : 20. "This conclusion does not finally dispose of the appeal. It still remains to be considered whether the respondent is not right when he contends that in, the circumstances of this case, the conclusion of the Government is based on no evidence whatever. It is a conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Art. 311 (2), the High Court under Art. 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of true of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed, by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence." 8. In State of Andhra Pradesh and others v. S. Shree Rama Rao, reported in AIR 1963 SC 1723 , the Hon'ble Supreme Court held that the 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." 9. The learned counsel appearing for the petitioner has also contended that the penalty imposed upon the petitioner is excessive and disproportionate to the proved misconduct. In this regard also, I find that the High Court exercising jurisdiction under Article 226 of the Constitution of India has power to interfere with the order of penalty, only when it is shown to the Court that no reasonable employer would have passed such an order against the employee. I find that the penalty order has been passed on the basis of the enquiry report wherein the misconduct alleged has been found proved. 10. In Union of India & Anr. v. 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." 11. In Apparel Export Promotion Council v. 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 v. 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....." 12. In B.C. Chaturvedi v. 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 v. Jagdish Chandra Sharma, reported in (2005) 3 SCC 401 and several other cases. 13. In Praveen Bhatia v. 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. 14. In the case of a bus conductor who was charged for misappropriation of Rs. 360/-, the Hon'ble Supreme Court refused to interfere with the order of penalty. Divisional Controller, N.E.K.R.T.C v. H. Amaresh, reported in (2006) 6 SCC 187 . 15. Considering the materials on record I find that there is no ground to interfere with the impugned orders. Accordingly, the writ petition is dismissed. Petition dismissed.