Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1160 (ALL)

RAJENDRA UPADHYAY v. STATE OF U. P.

2018-05-09

AJIT KUMAR

body2018
JUDGMENT Hon’ble Ajit Kumar, J.—Heard learned counsel for the parties. 2. The petitioner is aggrieved by the order of termination of his services passed by the Disciplinary Authority on 27th of September, 1990, against which, departmental appeal of the petitioner has also come to be dismissed on 1st of September, 2003 and also the order passed by the Director General of Police, Gorakhpur Zone, Uttar Pradesh dated 14th of June, 2008 dismissing his revision petition. 3. The petitioner was appointed as a Constable (Driver) in the year 1989 and while posted at the police station, Kuber Asthan, district Deoria on 5.12.1989 he proceeded on leave and returned back only on 17th of February, 1990 by making entry in the General Diary (hereinafter referred to as ‘G.D.’) at the relevant police station. There is nothing on record to establish that thereafter the petitioner continued to discharge his duties as a Government servant any further. The preliminary enquiry was conducted in the matter of his absence from duty as he had proceeding on leave without sanction from the competent authority, and ultimately, the preliminary enquiry report was submitted on 26th of February, 1990 recommending a fulfleged departmental enquiry into the act of misconduct on the part of the petitioner. The competent police authorities directed for holding a regular enquiry in the matter on 28th of April, 1990. Charge-sheet was issued to the petitioner on 9.6.1990, but since he was not available, therefore the charge-sheet alongwith preliminary enquiry was directed to be served at his residence. The petitioner, in reply to the charge-sheet, did not submit any detailed reply and instead, he submitted a reply on 18th of July, 1990 to the effect that his earlier reply in the preliminary enquiry has not been considered by the enquiry officer. He further submitted that on account of his illness he could not discharge his duties and as leaves were available in his account, the same may be adjusted against the period of his absence. 4. The enquiry officer proceeded with the enquiry in the matter even in the absence of effective reply by the petitioner, but later on, it appears petitioner appeared before the enquiry officer and prayed that certain medical officers, who had issued the medical certificates were required to be examined. 4. The enquiry officer proceeded with the enquiry in the matter even in the absence of effective reply by the petitioner, but later on, it appears petitioner appeared before the enquiry officer and prayed that certain medical officers, who had issued the medical certificates were required to be examined. The question therefore, before the enquiry officer was whether proof of the document was strictly required to be done in accordance with law of evidence or the enquiry officer could have considered the veracity of the documents on its face value and also in view of the attending circumstances and the statements being recorded of the other persons during enquiry and so it was no more required for the enquiry officer to call for a particular defence witness. 5. The enquiry report ultimately was submitted by the enquiry officer holding the petitioner guilty of the charge. It appears that the show-cause notice thereafter was given to the petitioner to which the petitioner submitted his reply. In the show-cause notice, it has been categorically recorded by the disciplinary authority that even though the ex parte statements have been recorded of the prosecution witnesses and yet when the question was put to the petitioner as to whether he wanted to examine or cross-examine them, he outrightly refused to do so and said that he would produce his own witnesses. This observations or the statements, which have come in the show-cause notice, has not been effectively replied to, by the petitioner in his reply to the show-cause notice and he has not specifically made any statement even in the writ petition that this particular fact which has come to be recorded in the show-cause notice was incorrect. The disciplinary authority accordingly considered the reply of the petitioner and proceeded to pass an order on 27th of September, 1990 imposing maximum punishment of dismissal from service. Against that order, though the petitioner had preferred an appeal, but at the same time, he proceeded to file a claim petition before the U.P. State Public Services Tribunal, Lucknow questioning the order of termination dated 27.9.1990. The claim petition came to be dismissed on merits by the Tribunal vide order dated 13th of January, 1997. Against that order, though the petitioner had preferred an appeal, but at the same time, he proceeded to file a claim petition before the U.P. State Public Services Tribunal, Lucknow questioning the order of termination dated 27.9.1990. The claim petition came to be dismissed on merits by the Tribunal vide order dated 13th of January, 1997. The petitioner challenged the aforesaid order before this Court vide Writ Petition No. 15622 of 1997, which came to be allowed and while setting aside the order of the Tribunal dated 13th of January, 1997, this Court vide order dated 5th of May, 2003 directed the appellate authority to consider the appeal of the petitioner and decide the same on merits. It was left open for the petitioner as well to file such additional grounds and documents as he may feel appropriate for adjudication of the issues being raised in appeal considering the relevant rules in the matter. Pursuant to the order dated 5th of May, 2003, the petitioner did not raise any additional plea rather proceeded to press appeal, which was already pending before the appellate authority. The appellate authority has considered the appeal on merits and considered the grounds raised in appeal and has concurred with the findings recorded by the enquiry officer as well as the disciplinary authority resulting in imposition of major penalty of dismissal from service. The grounds raised in the appeal and the explanation submitted by the petitioner were not found satisfactory and thus the appeal got dismissed on merits. The petitioner thereafter preferred a revision that has also come to be dismissed on merits. 6. The argument advanced by the counsel for the petitioner in the present case is that virtually the entire proceeding has been ex parte as in the enquiry proceedings he was not permitted to participate and to lead sufficient evidence. The petitioner has placed reliance upon a medical certificate before this Court which has been annexed as Annexure 5 to the writ petition dated 16.12.1990. The medical certificate is stated to have been issued by the Doctor Vinod Kumar Singh, who was working as Sub Divisional Officer, Hospital, Buxar working as Assistant Surgeon. From the perusal of the said medical certificate, it transpires that no specific disease has been mentioned in the certificate. Only disease mentioned is fever. The medical certificate is stated to have been issued by the Doctor Vinod Kumar Singh, who was working as Sub Divisional Officer, Hospital, Buxar working as Assistant Surgeon. From the perusal of the said medical certificate, it transpires that no specific disease has been mentioned in the certificate. Only disease mentioned is fever. Fever in medical science is a symptom of a disease and not by itself a disease, and therefore, the question of veracity of the certificate would not arise in the event if the doctor reports in a medical certificate a symptom and not the disease for which this petitioner was admitted to medical treatment. A symptom by itself will not account for such a disease, which may detain a person suffering from fever for such a long period on bed to justify absence. The enquiry officer has considered the certificate and even disciplinary authority has considered the same and has found that the fever was not of such a nature. It was duty cast upon the petitioner to give cogent explanation for his absence from duty for more than the period of sixty days i.e. two months. Once he claimed before the enquiry officer that he would not cross-examine departmental witnesses and will produce his own witnesses, noting refrained him to produce such witness. In the absence of any genuine and convincing explanation forthcoming, the findings recorded by the enquiry officer is a finding of fact and needs no interference. Once the petitioner himself refused to cross-examine the prosecution witnesses, who proved absence without sanction, it is not open for him to raise all these grounds in the writ petition. The departmental proceedings have been concluded and resulted in a major penalty of dismissal being imposed and thereafter appeal having been dismissed and so the revision, unless, such a serious procedural flaw is apparent on the fact of proceedings in question and which can be said to have resulted in the miscarriage of justice in a given case, in a disciplinary proceedings matters, this Court cannot sit in appeal to re-appreciate the evidence, which have been brought on record before the enquiry officer discussed by him and proved. 7. 7. In the case of Narinder Mohan Arya v. United India Insurance Company Ltd. and others; AIR 2006 SC 1748 , the Apex Court dealt with the scope of interference under Article 226 of the Constitution of India in matters of final orders passed in disciplinary proceedings and concluded thus : “In Apparel Export Promotion Council v. A.K. Chopra [ 1999(1) SCC 759 ] which has heavily been relied upon by Mr. Gupta, this Court stated: “The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities.” 8. In the case of Government of India and another v. George Philip; Air 2007 SC 705 , the Apex Court has further explained the legal position in this regard thus : “9. It is trite that the Tribunal or the High Court exercising jurisdiction under Article 226 of the Constitution are not hearing an appeal against the decision of the disciplinary authority imposing punishment upon the delinquent employee. The jurisdiction exercised by the Tribunal or the High Court is a limited one and while exercising the power of judicial review, they cannot set aside the punishment altogether or impose some other penalty unless they find that there has been a substantial noncompliance of the rules of procedure or a gross violation of rules of natural justice which has caused prejudice to the employee and has resulted in miscarriage of justice or the punishment is shockingly disproportionate to the gravamen of the charge. The scope of judicial review in matters relating to disciplinary action against employees has been settled by a catena of decisions of this Court and reference to only some of them will suffice. In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 , it was observed as under in para 18 of the reports : “18. 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. In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 , it was observed as under in para 18 of the reports : “18. 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. If 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.” In Om Kumar v. Union of India, (2001) 2 SCC 386 , after considering large number of cases, the principle was summarized as under in para 71 of the reports : “71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as “arbitrary” under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and in such extreme or rare cases can the Court substitute its own view as to the quantum of punishment.” In Damoh Panna Sagar Rural Regional Bank and another v. Munna Lal Jain, (2005) 10 SCC 84 , it was observed that the Court should not interfere with the administrator’s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. The Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. In Mahindra and Mahindra Ltd. v. N.B. Narawade, (2005) 3 SCC 134 , the respondent was dismissed from service on the charge of having used abusive and filthy language against his supervisor. The labour Court on the finding that the punishment of dismissal was harsh and improper, directed his reinstatement with continuity of service and two-third back wages. The writ petition filed by the employer was dismissed both by the learned Single Judge and also by the Division Bench of the High Court. In appeal a three Judge Bench of this Court set aside the judgments of the High Court and also the award of the labour Court and upheld the order of the disciplinary authority dismissing the respondent from service. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, (2005) 2 SCC 489 , the respondent workman was found sleeping at about 11.40 a.m. while he was on duty in the first shift. On some earlier occasions also he was found guilty of similar misconduct. After domestic enquiry wherein he was found guilty, he was dismissed from service. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, (2005) 2 SCC 489 , the respondent workman was found sleeping at about 11.40 a.m. while he was on duty in the first shift. On some earlier occasions also he was found guilty of similar misconduct. After domestic enquiry wherein he was found guilty, he was dismissed from service. The labour Court held that the punishment of dismissal was harsh and disproportionate and no reasonable employer could impose such punishment for the proved misconduct and accordingly directed reinstatement with fifty per cent back wages. There was a revision to the Industrial Tribunal and then a writ petition and finally in letters patent appeal the Division Bench of the High Court modified the award of the labour Court by directing the employer to pay a sum of Rs. 2,50,000/- to the workman. In appeal this Court, after referring to large number of earlier decisions, set aside the judgment of the Division Bench and restored the order passed by the employer. 10. There are several decisions of this Court wherein the order of disciplinary authority directing removal or dismissal of an employee on the ground of long absence or overstay of leave has been upheld. In Mithilesh Singh v. Union of India and others, (2003) 3 SCC 309 , the appellant who was constable in Railway Protection Special Force left duty without leave being granted and returned after 25 days and then sought leave. The order of removal from service passed by the authorities was set aside by a learned Single Judge in a writ petition filed by the employee who directed that some punishment other than order of removal or dismissal or compulsory retirement from service may be passed. The Division Bench of the High Court restored the order passed by the disciplinary authority and the said judgment was affirmed by this Court in appeal on the ground that the scope of interference with punishment awarded by the disciplinary authority is very limited and unless the punishment is shockingly disproportionate, the Court cannot interfere with the same and the employee having failed to show any mitigating circumstances in his favour, the punishment awarded by the authorities could not be characterized as disproportionate or shocking. In Delhi Transport Corporation v. Sardar Singh, (2004) 7 SCC 574 , several cases of conductors involving absence from duty ranging from 45 days to 294 days without sanctioned leave were considered. The order of the Single Judge of the High Court holding that the employer was justified in passing the order of termination/removal was affirmed by this Court reversing the order of Division Bench of the High Court, wherein the order of the Industrial Tribunal refusing to accord approval to the punishment had been approved. In Union of India and others v. Ghulam Mohd. Bhat, (2005) 13 SCC 228 , the order of removal from service passed against the respondent, who was a constable in CRPF on the ground that he had overstayed his leave by 315 days was affirmed by this Court reversing the decision of the High Court, by which it was held that the misconduct alleged called for a minor punishment and not a punishment of removal from service. In State of Rajasthan and another v. Mohd. Ayub Naz, (2006) 1 SCC 589 , the respondent who was an employee of cooperative department remained absent for about 3 years and his service was terminated after a departmental enquiry. The learned Single Judge of the High Court took the view that the facts and circumstances of the case called for a lesser punishment and thus directed that the employee shall be deemed to have retired after having put in 20 years of service with all retiral benefits, which order was affirmed in letters patent appeal before the Division Bench. This Court set aside the order of the High Court with the observation that while considering the quantum of punishment, the role of administrative authority is primary and that of Court is secondary, confined to see if discretion exercised by the disciplinary authority caused extensive infringement of rights and held that the punishment of removal was absolutely correct.” 9. Even otherwise, the conduct of an employee, who had just entered in the service of a disciplined force, cannot be appreciated in the given facts and circumstances of the case. 10. I do not find, therefore, it to be a fit case to interfere with the disciplinary proceedings, and the action taken by the Disciplinary Authority confirmed in appeal and revision. 11. The writ petition, therefore, lacks merit and is accordingly dismissed.