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2019 DIGILAW 1890 (JHR)

Meera Kumari v. State of Jharkhand

2019-11-20

H.C.MISHRA, RAVI RANJAN

body2019
JUDGMENT : Heard learned counsel for the appellant and the respondent State. 2. The appellant is aggrieved by the Judgment dated 10.4.2019, passed by the Hon’ble Single Judge in WP(S) No.5868 of 2017, whereby the writ application filed by the appellant, challenging the order dated 16.08.2017 imposing major punishment of dismissal from service on the ground of unauthorized absence, has been dismissed by the Writ Court. 3. Shorn of unnecessary details, brief facts of the case are that the appellant was appointed as Medical Officer on 3.11.1998. She went on study leave for two years. After availing her study leave, she gave her joining on 25.11.2000 but, in view of the fact that she was not given her choice posting, she did not join her place of posting at Araria in the State of Bihar. After the process of cadre division was finalised due to reorganisation of unified State of Bihar, she was allocated Jharkhand Cadre and she gave her joining on 6.10.2005. It appears from the impugned order passed by the Writ Court that the appellant had given an application to regularize the period of her absence, whereupon, she was subjected to departmental proceeding for the unauthorized absence from 25.11.2000 to 5.10.2005. The enquiry report suggested that since she was not given her choice posting at Koderma, she did not join the post. 4. Since the charges were found to be proved, the Disciplinary Authority gave a second show-cause notice to the appellant against the proposed major punishment to be imposed upon her and, since nothing new was stated in her response to the second show-cause notice, the major punishment of dismissal from service was imposed upon the appellant vide order dated 16.8.2017. 5. Without availing the appellate remedy, the appellant moved this Court in WP(S) No.5868 of 2017, which was adjudicated upon by the Writ Court, finding that the period of unauthorized absence, i.e., 4 ½ years was a very long period and the claim of the petitioner that it was not a wilful absence, could not be accepted. The explanation given by the appellant petitioner that she could not join at Araria, (as she was living at Koderma with her husband and ailing in-laws), was also not found acceptable, as she had remained willfully absent from duty for not getting her choice posting at Koderma. The explanation given by the appellant petitioner that she could not join at Araria, (as she was living at Koderma with her husband and ailing in-laws), was also not found acceptable, as she had remained willfully absent from duty for not getting her choice posting at Koderma. The Writ Court also found that all the procedures were duly followed in the departmental proceeding and in exercise of the jurisdiction under Article 226 of the Constitution of India, the Writ Court could not sit in appeal over the findings in the departmental proceeding. The Writ Court also found that the punishment awarded was commensurate to the charge of wilful long absence, which was for more than 4 ½ years. Thus, finding no merit in the writ application, the same was dismissed. Aggrieved thereby, the appellant filed this Letters Patent Appeal. 6. It is submitted by learned counsel for the appellant that the departmental proceeding was initiated against the petitioner in the year 2015, i.e., much after the joining of the appellant and as such, there was an inordinate delay in initiating the departmental proceeding and accordingly, further proceedings are vitiated due to inordinate delay. 7. We cannot accept this submission of the learned counsel for the appellant, in as much as, the appellant had joined in the cadre of State of Jharkhand only after the bifurcation of the cadre and prior to that, she was in the cadre of State of Bihar. As such, the unauthorized absence of the appellant was not known to the respondent authorities in the State of Jharkhand which came to be known to the respondent authorities only after the representation was given by the petitioner for regularizing the period of her unauthorized absence, whereupon, the departmental proceeding was initiated against the appellant. In that view of the matter, we do not find any substance in the submission of the learned counsel for the appellant that there was an inordinate delay in initiating the departmental proceeding. 8. The law is well settled that the Writ Court has its limited scope to interfere in the matters of departmental proceeding which is subjected to judicial review only in cases of any procedural lacuna in conducting the departmental proceeding, or violation of the principles of natural justice. 8. The law is well settled that the Writ Court has its limited scope to interfere in the matters of departmental proceeding which is subjected to judicial review only in cases of any procedural lacuna in conducting the departmental proceeding, or violation of the principles of natural justice. The Court may also, in some circumstances, look into the quantum of punishment, if the punishment awarded is not commensurate to the charges proved. But in the present case, it cannot be said that the punishment awarded to the appellant was not commensurate to the proved charge of unauthorized absence of 4 ½ years. No other lacuna in conducting the departmental proceeding and awarding the punishment upon the appellant could be pointed out to us, by the learned counsel for the appellant. 9. The law in this connection, is well settled by Hon’ble Apex Court since long. In State of Andhra Pradesh & Ors. Vs. S. Sree Rama Rao, reported in AIR 1963 SC 1723 , the law has been laid down as follows:- "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. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in manner in consistent 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, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of the facts and if there be some legal evidence on which their findings can be based, and 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 of the Constitution." (Emphasis supplied). 10. Again in State of Uttar Pradesh & Anr. Vs. Man Mohan Nath Sinha &Anr., reported in (2009) 8 SCC 310 , the law has been laid down by the Hon'ble Apex Court as follows:- "15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. -------------." 11. In view of the settled principle of law, we do not find any illegality in the impugned order 10.4.2019, passed by the Hon’ble Single Judge, in WP(S) No.5868 of 2017, worth any interference in exercise of LPA jurisdiction. 12. Consequently, we do not find any merit in this appeal, and the same is, accordingly, dismissed.