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2020 DIGILAW 59 (JHR)

Anil Kumar Singh v. State of Jharkhand

2020-01-13

DEEPAK ROSHAN, H.C.MISHRA

body2020
JUDGMENT : Heard learned counsel for the appellant and learned counsel for the respondent State. 2. The appellant is aggrieved by the impugned Judgment dated 08.03.2016, passed by the Writ Court in W.P.(S) No. 2963 of 2012, whereby the writ application filed by the petitioner against the punishment of dismissal from service imposed upon him for prolonged unauthorized absence from duty, has been dismissed by the Writ Court. 3. The impugned Judgment shows that the appellant was posted as Police Constable at Ranchi. He took leave for 7 days on 15.10.2008, and remained unauthorisedly absent from duty for 395 days. He was placed under suspension and served with the memo of charges. He replied the memo of charges stating that he was absent from duty due to the fact that he was not mentally fit, and prayed for revocation of the order of suspension. However, the departmental proceeding was initiated and in the departmental enquiry the charges against the petitioner were found to be proved, and the medical certificates produced by the petitioner were found to be not trustworthy. The second show cause was given to the petitioner and the Disciplinary Authority, on considering the entire facts and taking into consideration the prolonged unauthorized absence of the appellant, imposed the punishment of dismissal from service by order dated 28.10.2010. The appellant filed appeal before the Appellate Authority, but punishment was also maintained by the Appellate Authority, dismissing the appeal by order dated 23.02.2011. 4. Thereafter, the appellant approached this Court in W.P(S) No. 2963 of 2012, which was also dismissed by the Hon’ble Single Judge, by the impugned Judgment dated 08.03.2016, relying upon the decision of the Hon'ble Apex Court in State of Uttar Pradesh & Anr. Vs. Man Mohan Nath Sinha & Anr., reported in (2009) 8 SCC 310 , holding that the Courts do not sit in judgment on merits of the decision in the departmental proceeding and it is not open to the High Court to re-appreciate and reappraise the evidence led before the Enquiry Officer as a Court of appeal and to reach its own conclusions. The Hon’ble Single Judge also placed reliance upon the decision of the Hon’ble Apex Court in Chennai Metropolitan Water Supply and Sewerage Board & Ors. Vs. The Hon’ble Single Judge also placed reliance upon the decision of the Hon’ble Apex Court in Chennai Metropolitan Water Supply and Sewerage Board & Ors. Vs. T.T. Murali Babu, reported in (2014) 4 SCC 108 , wherein in the case of the prolonged absence from duty with inadequate reasons, the Hon’ble Supreme Court has held that the High Court had erroneously placed reliance on the authorities where the Apex Court had interfered with the punishment, as the punishment of dismissal from service imposed in that case was not found to be shockingly disproportionate, and the interference in such punishment by the High Court was found to be not proper. The Hon’ble Single Judge has also taken into consideration the decision cited by the counsel for the writ petitioner in Krushnakant B. Parmar Vs. Union of India and Another, reported in (2012) 3 SCC 178 , wherein where the unauthorized absence was not found to be willful, it was held that it was not a misconduct. The Hon'ble Single Judge, found that in the present case the unauthorized absence and the misconduct of the writ petitioner was proved, and there were concurrent findings by two authorities, and dismissed the writ application. Aggrieved by this decision the appellant has preferred this Letters Patent Appeal. 5. Learned counsel for the appellant has submitted that the impugned orders of the Disciplinary Authority, the Appellate Authority and the Judgment passed by the Hon’ble Single Judge cannot be sustained in the eyes of law, inasmuch as, the appellant was deprived from joining the duty due to his mental illness for which he had also filed the medical certificates during the departmental proceeding. It is submitted that without any rhyme and reason the said certificates were found to be not trustworthy, even though the appellant was genuinely prevented from joining the duty due to his illness. Learned counsel has again placed reliance upon the decision of the Hon’ble Apex Court in Krushnakant B. Parmar's case (supra), wherein the Hon’ble Apex Court has held as follows:- "17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct." 6. Placing reliance on this decision, learned counsel submitted that in absence of any finding that the absence of the appellant from duty was willful, the absence shall not amount to misconduct and the impugned order of punishment as also the impugned Judgment passed by the Hon'ble Single Judge cannot be sustained in the eyes of law. 7. Learned counsel for the State, on the other hand, has opposed the prayer and drawn our attention towards the enquiry report, which shows that the appellant had taken leave for 7 days and had remained unauthorisedly absent for 395 days. During this period even letters were sent to him to join the duty at his address which he had received. It has also been shown from the enquiry report that the witnesses have fully supported the case and he was found guilty of the charges. The second show cause was also given by the Disciplinary Authority and after consideration of the same the punishment of dismissal from service was imposed upon the appellant. The appeal filed against the said punishment order was also dismissed by the Appellate Authority. Learned counsel for the State accordingly, submitted that there is no illegality in the impugned Judgment passed by the Writ Court. 8. Having heard learned counsels for both the sides and upon going through the record, we find that no illegality in the departmental proceeding has been pointed out by the learned counsel for the appellant. Learned counsel for the State accordingly, submitted that there is no illegality in the impugned Judgment passed by the Writ Court. 8. Having heard learned counsels for both the sides and upon going through the record, we find that no illegality in the departmental proceeding has been pointed out by the learned counsel for the appellant. The witnesses have supported the case and the evidence was adduced to the effect that the petitioner had absented himself willfully in spite of the fact that he received letters issued by the force at his house to join the duty, but he even did not choose to respond to those letters. We have also taken into consideration the medical certificates, which clearly show that they were given from a private clinic, and taking into consideration the fact that the appellant was receiving the letter at his house and remaining absent for 395 long days, it cannot be said that the finding of the Enquiry Officer casting doubt on the medical certificates was not justified. Indeed no medical certificate / prescription of any Government hospital was produced by the appellant, though good Government institutions are available in Ranchi for treatment of mental illness. 9. In that view of the matter, we are not in a position to hold independent to the findings in the departmental proceeding that the absence of the petitioner was not willful. The scope of the Courts in interference with the findings of guilt and the punishment imposed in the departmental proceedings are well defined by several decisions of the Hon’ble Apex Court. It is a well settled principle of law that it is not open for the High Court to re-appreciate and reappraise the evidence led before the departmental proceeding and examining the findings recorded by the Enquiry Officer as Court of appeal and to reach to its own conclusion. It is equally well settled that if the punishment is not disproportionate to the misconduct as alleged and proved, there is no scope of interference in the punishment imposed by the Disciplinary Authority. On this count also, we find that in view of unauthorized absence of 395 days from a disciplined force, the punishment of dismissal from service is neither disproportionate nor shocking the conscience of the Court. 10. On this count also, we find that in view of unauthorized absence of 395 days from a disciplined force, the punishment of dismissal from service is neither disproportionate nor shocking the conscience of the Court. 10. In Chennai Metropolitan Water Supply and Sewerage Board's case (supra), the hon'ble Apex Court was considering the case of unauthorised absence from duty for about one year and seven months, and has held that the punishment of dismissal from service was not shockingly disproportionate. It was also held that the High Court had erroneously placed reliance on the authorities, where the Apex Court had interfered with the punishment. In this case the Hon'ble Apex Court has also dealt with the decision in Krushnakant B. Parmar's case (supra), and has observed as follows:- "23. We have quoted in extenso as we are disposed to think that the Court in Krushnakant B. Parmar case has, while dealing with the charge of failure of devotion to duty or behaviour unbecoming of a government servant, expressed the aforestated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is wilful. On an apposite understanding of the judgment Krushnakant B. Parmar case we are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record during the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorised absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is wilful even if the employee fails to show the compelling circumstances to remain absent." (Emphasis supplied). 11. In the present case also, the appellant had utterly failed to show any compelling circumstances to remain absent from duty unauthorisedly for 395 days. 11. In the present case also, the appellant had utterly failed to show any compelling circumstances to remain absent from duty unauthorisedly for 395 days. We have already held that in view of unauthorized absence of 395 days from a disciplined force, the punishment of dismissal from service is neither disproportionate nor shocking the conscience of the Court. In the facts of this case we find that no case is made out for any interference either in the findings of the disciplinary proceeding, or in the punishment imposed upon the appellant. 12. For the foregoing reasons, we do not find any illegality in the impugned Judgment passed by the Hon’ble Single Judge, worth any interference in exercise of LPA jurisdiction. 13. There is no merit in this appeal and the same is accordingly, dismissed.