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Madhya Pradesh High Court · body

2017 DIGILAW 329 (MP)

Ramswaroop Kumhar v. State of M. P.

2017-03-06

VIJAY KUMAR SHUKLA

body2017
ORDER : Vijay Kumar Shukla, J. In this writ petition filed under Articles 226/227 of the Constitution of India the legality and validity of the order dated 07.03.2006 passed by the Chairman State Industrial Court, Indore (M.P.) is under challenge whereby the petitioner has been punished with an order for compulsory retirement after the departmental enquiry. 2. Succinctly, the necessary facts for adjudication of the present case are that the petitioner was appointed in the year, 1977 as a Lower Division Clerk and was posted in Labour Court, Shahdol. He was promoted to the post of Upper Division Clerk in the year, 1989, thereafter he was again promoted to the post of Head Clerk and was transferred to Labour Court, Ambikapur in the year, 1998. 3. At the time of bifurcation of the State of Madhya Pradesh, the petitioner was posted at Ambikapur which was within the territorial jurisdiction of the State of Chhatisgarh. The petitioner was finally allocated to the State of Madhya Pradesh and he was transferred from State of Chhatisgarh by order dated 05.04.2003 and by the same order he was relieved. A departmental enquiry was initiated against the petitioner and it was mentioned in the said order that the enquiry will not be adversely affected pending against him and his joining will be subject to decision of the enquiry. Instead of joining in pursuant to his allocation to the State of Madhya Pradesh, the petitioner submitted an application to the Presiding Officer, Labour Court, Ambikapur on 05.05.2003 vide Annexure P-3 for leave. The petitioner had also given applications to the In-charge, Registrar Industrial Court, Indore by registered AD relating to his illness stating reasons for absence. It is stated that he had applied for medical leave in accordance with the Rules, in that regard he referred the documents Annexure P-4, P-4(a) to P-4(c). It is submitted by the petitioner that his application for grant of Medical Leave was not considered by the competent authority. On the contrary a show cause notice dated 10.09.2003 (Annexure P-5) was issued to him treating the said period as an unauthorized absence from 21.04.2003 as the same amounts to 'misconduct' under Rule 3 of M.P. Civil Services conduct Rules, 1965 (hereinafter the same shall be referred as 'Rules-1965'). It is contended that he filed reply to the said show-cause notice, which was sent by Registered AD. It is contended that he filed reply to the said show-cause notice, which was sent by Registered AD. He submitted that he was on medical leave since, 28th April, 2003 that he was never relieved by the Presiding Officer, Labour Court Ambikapur. He did not receive any copy of order by which he was transferred/relieved from the State of Chhatisgarh to the State of Madhya Pradesh. 4. After recovering from the ailment, he had given joining at the Industrial Court, Indore on 03.02.2004 (Annexure P-7). He was directed to join Hoshangabad by order dated 03.02.2004 (Annexure P-8). Thereafter, he had joined duty in Labour Court Hoshangabad on 05.02.2004. The respondent no.2 did not consider the leave application and the medical certificate of the petitioner and passed an order for instituting the departmental enquiry against him. He had given an objection to the appointment of Enquiry Officer and Presiding Officer, vide Annexure P-12. The enquiry was not conducted in accordance with the M.P. Civil Services (Classification Control and Appeal) Rules, 1966 (hereinafter referred as the 'Rule 1966'). 5. During the course of arguments, learned counsel for the petitioner submitted that the order of punishment of compulsory retirement is highly disproportionate to the alleged charges levelled against him. He only confined to challenge the order of punishment on the ground that the same is disproportionate to the alleged lapse. He did not challenge the legality and validity of enquiry and order of punishment on merit. He submitted that the present case is not a case of wilful absence from the duty. The petitioner had given information in writing regarding his ailment on 05.05.2003 (Annexur P-3) and submitted various applications for grant of medical leave alongwith medical certificate. He referred the Annexures P-4, P4(a) to P4(c) and also annexures P-10 to P-10(e) with special reference to the annexure P-10(b) (page 32) i.e. the application submitted for leave in accordance with leave Rules mentioning the details. He also referred to the applications P-10(c) and P-10(D) as these applications were in the statutory form as provided in the Rule for grant of leave which were submitted before the competent authority but they did not lend any ear to the respondents. He further referred to the medical certificate filed alongwith the applications marked as Annexure P-10(E). He also referred to the applications P-10(c) and P-10(D) as these applications were in the statutory form as provided in the Rule for grant of leave which were submitted before the competent authority but they did not lend any ear to the respondents. He further referred to the medical certificate filed alongwith the applications marked as Annexure P-10(E). The plank of the submission is that the order of punishment of compulsory retirement has been passed treating the period of absence as 'misconduct' under Rule 1965 without deciding application for leave submitted in accordance with leave Rules therefore, the same would not amount to 'misconduct'. The absence for the period from 05.04.2003 to 03.02.2004 is not attributed to any deliberate and intentional absence. The same could not have been treated as unauthorized absence, as from very first date he had submitted applications for leave and repeatedly he filed applications for grant of leave before the respondent no. 2 & 3 in accordance with the Rules and since these applications remained unconsidered by the respondents no. 1 to 3, the punishment treating the said period amounting to 'misconduct' is arbitrary, irrational and unreasonable, therefore, the impugned punishment of compulsory retirement is highly disproportionate and shocking to the conscience in the light of facts of the present case. He placed reliance on the judgment passed in the case of Ramesh Singh Jatav v. State of M.P., 2013(3) MPLJ 674. 6. Per contra, learned counsel for the respondents supported the order impugned and contended that the punishment of compulsory retirement as imposed on the petitioner is legal and valid. It is also submitted that in view of the charge that the petitioner had absented from the duty unauthorizedly without prior sanction of leave, therefore the punishment cannot be held disproportionate hence, it does not warrant any interference of this Court. 7. It is submitted that after reorganization of the State of Madhya Pradesh, the services of the petitioner were allocated to the State of Madhya Pradesh and accordingly the petitioner was relieved on 05.04.2003. It is further contended that alongwith the petitioner, three other employees including one member Judge were also allocated to the State of Madhya Pradesh and all the employees, except the petitioner joined the services in the office of respondent No.3. At the time of allocation, the petitioner was working in the Labour Court, Ambikapur. It is further contended that alongwith the petitioner, three other employees including one member Judge were also allocated to the State of Madhya Pradesh and all the employees, except the petitioner joined the services in the office of respondent No.3. At the time of allocation, the petitioner was working in the Labour Court, Ambikapur. It is pleaded in para 5 of the reply that the Presiding Officer, Labour Court, Ambikapur relieved the petitioner but he had refused to receive the order of relieving, therefore, he was treated to be relieved and charge was handed over to one Shri Bhagat, Clerk by executing a Panchnama. The petitioner was given joining time to join at Indore and as per allocation/relieving order (Annexure P-2) the petitioner had to join on or before 21.04.2003 but he did not join at Indore. A show cause notice dated 10.09.2003 was issued to the petitioner (Annexure P-5). He submitted reply to the said show cause notice and after considering the reply, charge-sheet dated 06.12.2003 was issued to the petitioner. He did not submit reply within the stipulated period mentioned in the chargesheet. The departmental enquiry was conducted in accordance with the provisions of M.P. Civil Services (Classification Control and appeal) Rules, 1966. The petitioner was given full opportunity to defend himself in the enquiry and the principles of natural justice were followed. The enquiry officer submitted report and found that the charges leveled against the petitioner were fully proved, as he remained unauthorizedly absent for about 10 months. He was afforded an opportunity to submit a representation against the enquiry report and after considering his representation, the competent authority passed the order of compulsory retirement. Thus, there is no illegality in the order of punishment. 8. Having heard learned counsel for the parties and taking into consideration the facts of the present case, at this stage, I think it condign to survey the authority on the point of scope of judicial interference in the matter of quantum of punishment imposed by the disciplinary authority. In the case of State of Andhra Pradesh and others v. Sree Rama Rao, AIR 1963 SC 1723 the Apex Court held in para 7 as under: "7... In the case of State of Andhra Pradesh and others v. Sree Rama Rao, AIR 1963 SC 1723 the Apex Court held in para 7 as under: "7... The High Court is not constituted in a proceeding under Article 226 of the Constitution of a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant; it is 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 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 of to review the evidence and to arrive at an independent finding on the evidence." 9. In the case of B.C. Chaturvedi v. Union of India (1995)6 SCC 749 , the Apex Court considered the scope of judicial review by the High Court under Article 226 and held as under: "A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof." It was held that if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court or Tribunal,it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. 10. 10. In the case of Union of India v. G. Ganayutham (1997) 7 SCC 463 referring to the judgment passed in the case of B.C. Chaturvedi (Supra ) the Apex Court in para 34 held as under: "In such a situation, unless the Court/Tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B. C. Chaturvedi's case that the Court might, - to shorten litigation - think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority. (In B.C. Chaturvedi and other cases referred to therein it has, however been made clear that the power of this Court under Article 136 is different). For the reasons given above, the case cited for the respondent, namely, State of Maharashtra v. M. H. Mazumdar cannot be of any help." 11. The doctrine of proportionality in the matter of punishment and the scope of judicial review in such matters was again considered by the Apex Court in the case of State Bank of India v. Ramlal Bhaskar (2011) 10 SCC 249 the Apex Court after referring the judgment in the case of Sree P Ramarao (Supra) held that the High Court does not act as an appellate authority over the finding of disciplinary authority under Article 226 of the Constitution of India unless the finding recorded by the Enquiry Officer are not substantiated by any material on record and the allegation against the delinquent employee do not constitute any misconduct. The Doctrine of proportionality was subject matter of consideration again in the case of Commandant, 22nd Battalion Central Reserve Police Force, Srinagar v. Surinder Kumar (2011)10 SCC 244 , the word 'disproportionate' and 'shockingly disproportionate' were emphasized by the Apex Court laying down the law that punishment should not only be disproportionate but it should be shockingly disproportionate to warrant interference by the High Court under Article 226 of the Constitution of India. Para 15 of the said judgment being relevant is reproduced as under:- "Moreover, it appears from the impugned order that the High Court has in exercise of power of judicial review interfered with the punishment of dismissal on the ground that it was disproportion. In Union of India v. R.K. Sharma, this Court has taken the view that the punishment should not be merely disproportionate but should be strikingly disproportionate to warrant interference by the High Court under Article 226 of the Constitution and it was only in a extreme case, where on the face of it there is perversity or irrationality that there can be judicial review under Article 226 or 227 or under Article 32 of the Constitution. Since this is not one of those cases where the punishment of dismissal was strikingly disproportionate or where on the face of it there was perversity or irrationality, the Division Bench of the High Court ought not to have interfered with the order of dismissal from service". 12. In the case of Armed and Disciplinary Forces, the scope of judicial review on the anvil of proportionality of punishment was considered in the case of Chandra Kumar Choupra v. Union of India and others (2012) 6 SCC 369 the Court held in para 39 as under: "In Coal India Ltd. v. Mukul Kumar Choudhury & Ors., this Court adverted to the concept of doctrine of proportionality and eventually opined that the imposition of punishment is subject to judicial intervention if the same is exercised in a manner which is out of proportion to the fault. If the award of punishment is grossly in excess of the allegations made, it cannot claim immunity and makes itself amenable for interference under the limited scope of judicial review. The test to be applied while dealing with the question is whether a reasonable employer would have imposed such punishment in like circumstances. The question that has to be studiedly addressed is: whether the punishment imposed is really arbitrary or an outrageous defiance of logic so as to be called irrational and perverse warranting interference in exercise of the power of judicial review." 13. The question that has to be studiedly addressed is: whether the punishment imposed is really arbitrary or an outrageous defiance of logic so as to be called irrational and perverse warranting interference in exercise of the power of judicial review." 13. It is held that in the cases of Armed forces or disciplinary forces the interference in punishment by the Courts should be with a great care and caution only if the power is exercised in a manner which is out of proportion to the fault committed and if the award of punishment is grossly in excess of the allegations made, as it cannot claim immunity and makes itself amenable for interference under the limited scope of judicial review. The test to be applied while dealing with the question is whether a reasonable employer would have imposed such punishment in like circumstances. The question that has to be studiedly addressed is whether the punishment imposed is really arbitrary or an outrageous defiance of logic so as to be called irrational and perverse, warranting interference in exercise of the power of judicial review. 14. The doctrine of proportionality of punishment in the departmental enquiry after referring to various judgments, the Apex Court held that while examining issue of proportionality the Court can consider the circumstances under which misconduct was committed and may consider the effect if the order of punishment imposed by the disciplinary authority is set aside or substituted by some other punishment. The Courts should not interfere merely on compassionate ground. 15. In the recent judgment, in the case of Delhi Police through Commissioner of Police and others v. Sat Narayan Kaushik (2016) 6 SCC 303 the Apex Court reiterated the same view as under: "Coming to the first two submission of the learned counsel for the appellant, we are of the view that the High Court, in exercise of ts writ jurisdiction, has power to interfere with the quantum of punishment imposed taken into consideration the totality of the facts and circumstances of the case such as nature of charges levelled against the employee, its gravity, seriousness whether proved and, if so, to what extent, entire service record, work done in the past, remaining tenure of the delinquent left, etc. in other words, it is necessary for the High Court to take these factors into consideration before interfering in the quantum of the punishment." 16. in other words, it is necessary for the High Court to take these factors into consideration before interfering in the quantum of the punishment." 16. It has been held that while interfering with the quantum of punishment, the High Court has to take all those factors into consideration which have been enumerated in para-15 of the judgment, i.e., 'nature of charges levelled against the employee'; 'its gravity' and seriousness' whether proved and, if so, to what extent; 'entire service records'; 'work done in the past'; and 'remaining tenure of the delinquent left'. 17. A co-ordinate bench of this Court in the case of Rajendra Singh v. State of Madhya Pradesh & Ors., 2017(1) MPLJ 193 has referred the doctrine of proportionality with the concept of balancing test. Para 14 of the order is extracted as under : "14. The doctrine of proportionality is a well recognized concept of judicial review in our jurisprudence. It is true that it is within the discretionary domain and exclusive power of the Authority making a decision to quantify the punishment once charge of misconduct is proved, but such discretionary power becomes vulnerable and exposed to judicial intervention if exercised in a manner which is found to be out of proportion to the charges found proved i.e. if the punishment is in excess to the gravity of offence. Considerations like measure, magnitude and degree of misconduct are some of the relevant factors on which the punishment imposed is tested under the principles of doctrine of proportionality. The aforesaid principle of law clearly suggests that the proportionality is concerned with the way in which the disciplinary Authority has ordered its priorities while making decision. Attributions of relevance and importance to the factors that weighed with the Authority while passing the decision, precisely provide the factual matrix to the Courts to assess the decision as primary review while applying the principle of proportionality; in other words, it is a balancing test. The balancing test means scrutiny of excessive and onerous penalties manifesting imbalance of relevant considerations." 18. The balancing test means scrutiny of excessive and onerous penalties manifesting imbalance of relevant considerations." 18. In the backdrop of aforesaid authoritative pronouncement of law by the Courts, it is held that in exercise of its writ jurisdiction, the High Court has power to interfere with the quantum of punishment imposed by the authority in an appropriate case by taking into consideration the following factors: (i) the totality of the facts and circumstances of the case; (ii) nature of charges levelled against the employee, its gravity and seriousness; (iii) The entire service record; (iv) work done in the past, (v) remaining tenure of the delinquent left, etc. The Apex Court in the case of Commissioner of Police Sat Narayan Kaushik (Supra) held that after taking into consideration these factors, the High Court can interfere in the quantum of the punishment. In other words it can also be said, if the court finds that quantum of punishment is highly disproportionate and shocking to the conscience of the court, the power of judicial review under Article 226 of the Constitution in the quantum of punishment is held to be justified. 19. Keeping in view, the aforesaid principles and enunciation of the facts of the present case are to be considered that whether the punishment imposed on the petitioner is disproportionate and warrants interference by this Court being shocking to the conscience. The challenge was confined only on the quantum of the punishment by the counsel for the petitioner, therefore, this Court is not examining the validity of departmental enquiry/charges and the order of punishment on merit. 20. On the anvil of enunciation of law as discussed above, and the facts of the present case, it is to be considered whether the quantum of punishment of compulsory retirement in the present case is shockingly disproportionate or not. The petitioner was appointed in the year, 1977 as Lower Division Clerk and was posted in Labour Court, Shahdol. After 12 years of satisfactory service, he was promoted as Upper Division Clerk in the year, 1989. He was further promoted on the post of Head Clerk in the year, 1988 in due time. These facts are not denied by the respondents and nothing has been stated that at any point of time, the petitioner was subjected to any other disciplinary action or an enquiry. He was further promoted on the post of Head Clerk in the year, 1988 in due time. These facts are not denied by the respondents and nothing has been stated that at any point of time, the petitioner was subjected to any other disciplinary action or an enquiry. His regular and timely promotions are axiomatic to the fact that his 29 years service record was unblemished. In this case, a peculiar fact is borne out that when the petitioner was posted at Ambikapur, on reorganization of State of Madhya Pradesh, his services were finally allocated to the State of Madhya Pradesh and the State of Chhatisgarh Labour Department Raipur, had issued an order dated 05.04.2003 Annexure P-2, directing him to be relieved for the State of Madhya Pradesh forthwith. There is nothing on the record about his relieving from the Labour Court Ambikapur where he was posted. At this juncture it is apt to refer para 5 of the reply filed on behalf of the respondents, which is reproduced hereunder: "That at the time of allocation the petitioner was working in the Labour Court Ambikapur. The Presiding Officer, Labour Court Ambikapur relieved to the petitioner but the petitioner refused to receive the order of relieving therefor, on refusal it was presume that he has been relieved and the case files which were in possession of the petitioner were handed over to one Shri Bhagat Clerk and in this regard the Panchnama was prepared and through Panchanama the case file were handed over to Mr. Bhagat" 21. From a bare reading of the aforesaid reply, it is vivid that no relieving order was ever issued by the Presiding Officer, Labour Court Ambikapur, to relieve the petitioner to join the Headquarter at Indore. It is stated that since he had refused to receive the order of the State of Chhatisgarh, Annexure P-2 it was presumed that he was relieved to join the Headquarter at Indore. This must have created a dent in the mind of employee that he had to join only after his relieving from Ambikapur. 22. The facts floating on the surface of the case show that the petitioner had submitted written application for leave, Annexure P-3 to Labour Court, Ambikapur for certain dates of the intermediate period. He submits that he had signed the attendance register. 22. The facts floating on the surface of the case show that the petitioner had submitted written application for leave, Annexure P-3 to Labour Court, Ambikapur for certain dates of the intermediate period. He submits that he had signed the attendance register. However, the same has been disputed by the respondents saying that the signature on the attendance register was unauthorized. It is also found from the record that the petitioner had submitted the applications for grant of leave which are evident from Annexure P-10 to P-10(e). The leave applications were in the format of Leave Rules and they were not decided by the respondents. A co-ordinate Bench in the case of Ramesh Singh Jatav v. State of M.P. (supra) interfered with the quantum of punishment in the case of an unauthorized absence on the ground that once delinquent employee had applied for leave and the same was granted as an extraordinary leave to him, then the same could not have been treated as misconduct. The effect of grant of leave is condonation of misconduct. The punishment of removal was set aside, however, the petitioner was not held entitled for any backwages. In the present case also the petitioner had applied for sanction of leaves in accordance with the rules and if those applications would have been considered by the respondents, the alleged misconduct would have been condoned, but there is no consideration to the applications for grant of leave by the respondents in the present case. 23. After evaluation of all the facts and circumstances of the present case, especially when no relieving order was issued by the office, where the petitioner was posted and treating him deemed relieved do not justify the test of the reasonableness on the touchstone of Article 14 of the Constitution of India. The action of the respondents has to be just, fair and reasonable. It is further evident that the applications for grant of leaves submitted in the statutory forms as prescribed under the Leave Rules with the authorities were not considered. All these created reasonable belief in the mind of the petitioner that he had to confine at Ambikapur till he is relieved from the said place. Apart from this, he had 29 years of unblemished service record. He earned all promotions in due course of time. No other departmental enquiry, except present, was ever instituted against the petitioner. All these created reasonable belief in the mind of the petitioner that he had to confine at Ambikapur till he is relieved from the said place. Apart from this, he had 29 years of unblemished service record. He earned all promotions in due course of time. No other departmental enquiry, except present, was ever instituted against the petitioner. On the querry made by this Court about the remaining service of the petitioner, the learned counsel for the petitioner submitted that the petitioner will get around one year to serve in the event of his reinstatement. 24. In the present, case the disciplinary authority has failed to take into consideration the aforementioned facts and circumstances before imposition of punishment of compulsory retirement. Though this Court can exercise the jurisdiction for substitution of lesser punishment to strike the balance and equity in view of Article 14 of the Constitution of India, but since there is no consideration of the facts and circumstances as enumerated hereinabove, it is considered apposite to remand the case to the disciplinary authority for consideration of quantum of punishment and imposition of lesser punishment upon the petitioner. He is directed to pass orders in accordance with law within a period of two months from the date of receipt of certified copy of this order. 25. Ex-consequenti, the writ petition is partly allowed in the light of the observations made hereinbefore. No order as to cost.