Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 394 (JHR)

Firoz Khan v. Union of India

2016-03-01

SHREE CHANDRASHEKHAR, VIRENDER SINGH

body2016
JUDGMENT : Virender Singh, J. 1. Aggrieved of order dated 20.02.2015 of the learned Single Judge in W.P.(S) No. 6626 of 2007 whereby, writ petition filed by the appellant-writ petitioner has been dismissed, the appellant is before us through the medium of the instant Letters Patent Appeal, which is at admission stage, but with the consent of the counsel for both the sides taken on Board for its final consideration. 2. The factual matrix of the case is that the appellant was appointed on 18.03.1993 as Constable in Central Industrial Security Force (C.I.S.F) in Uttar Pradesh and after undergoing training, he was posted in B.S.L, Bakau and subsequently, on 26.07.1999 he was posted at A.T.C, Ranchi. The appellant was detained for induction duty at Kolkata Airport on 07.11.2001 for which he was informed by the Company Commander to report to the party incharge of H.E.C contingent on 07.11.2001 (afternoon) for collection of arms and ammunitions for moving to Kolkata Airport by Hatia-Howrah Express. The charge against the appellant is that he intentionally remained absent without leave to avoid induction duty at Kolkata Airport. Further allegation against him was that he had not taken any permission from the competent authority which tantamounts to gross indiscipline and disobedience of lawful order of the superiors. A departmental enquiry was initiated against the appellant and he was suspended vide order dated 09.11.2001. An enquiry officer was appointed and after completing the enquiry proceeding in which the appellant also joined, the appellant was punished vide order dated 17.05.2002 by the Disciplinary Authority with reduction of pay-scale and stoppage of annual increments for three years with further effect on future service. By the same order, it was ordered that during the period of suspension, the appellant would not be entitled to get salary, allowance etc., except the subsistence allowance and that the said period would be treated as period not on duty. The appellant being aggrieved of the said order, filed appeal which also met the same fate vide order dated 30.09.2002 which constrained him to file the revision however, the revision petition was also dismissed by the revisional authority vide order dated 03.07.2003. The appellant thus, assailed all three orders in the writ petition, which stood dismissed on all counts including, the proportionality of the quantum of punishment. 3. Dr. The appellant thus, assailed all three orders in the writ petition, which stood dismissed on all counts including, the proportionality of the quantum of punishment. 3. Dr. S. N. Pathak, the learned Senior counsel for the appellant without joining the issue with regard to the other aspects of the case, submits that the punishment imposed upon the appellant is not commensurate with the gravity of the misconduct. Therefore, the present case falls for reconsideration on the quantum of punishment by the concerned authority. He submitted that admittedly, it is a case of one day's leave without seeking permission for which the appellant in any case, had tendered explanation before the Disciplinary Authority stating that he on the fateful day i.e. 07.11.2001 had developed acute abdominal pain for which he had to get himself admitted in the H.E.C Hospital, Ranchi. He was medically examined by the concerned Doctor and for his pain, he was X-rayed also. 4. Per contra, Mrs. Nitu Sinha, the learned counsel appearing for the respondents in support of the impugned judgment states that the case of the appellant has been considered by the learned Writ Court on all counts and thereafter, the writ petition stood dismissed. The learned counsel thus, prays for dismissal of the instant appeal in toto. 5. The appellant had informed the superior on the same day in the second half, which fact is not disputed by the respondents. So far as the absence from duty beyond 07.11.2001 till 10.11.2001 is concerned, the discharge certificate issued by the concerned Doctor of H.E.C Hospital, Ranchi was not negated by the respondent authority. A perusal of the enquiry report reflects that the appellant had produced two witnesses in defence namely, Sri M.D.E. Haque, Assistant Commandant and Sri. N.C. Rawat, Constable, who had categorically stated that the appellant had informed on the day of his admission in the hospital that he was hospitalized. The case on hand is thus, not of such nature which calls for punishments inflicted upon him. In “Chairman-cum-Managing Director Coal India Ltd. & Anr. Vs. Mukul Kumar Choudhuri & Ors.”, reported in (2009) 15 SCC 620 , the Hon'ble Supreme Court has held as under:- 21. The case on hand is thus, not of such nature which calls for punishments inflicted upon him. In “Chairman-cum-Managing Director Coal India Ltd. & Anr. Vs. Mukul Kumar Choudhuri & Ors.”, reported in (2009) 15 SCC 620 , the Hon'ble Supreme Court has held as under:- 21. “In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company’s rules and regulations but the reason was purely personal and beyond his control and as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.” 6. In “Dev Singh Vs. Punjab Tourism Development Corporation Ltd. and Another”, reported in (2003) 8 SCC 9 , a case where an official file was misplaced and for that the employee was proceeded in departmental enquiry and he was dismissed from service for the said misconduct, the Hon'ble Supreme Court has held thus. 6.“A perusal of the above judgments clearly shows that a court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty, however, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, then the court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the above noted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case.” 7. It is also clear from the above noted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case.” 7. The procedure adopted by the departmental authorities while holding the charge levelled against the petitioner stood proved, was thus, erroneous and therefore, the impugned orders are liable to be interfered with and are hereby quashed. In view of the peculiar facts and circumstances of the present case, as stated hereinabove, in our considered view, the matter requires to be remitted back to the Disciplinary Authority for reconsidering the case of the appellant vis-a-vis quantum of punishment. Ordered accordingly. 8. The net result is that the instant appeal stands allowed in the aforesaid terms.