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2021 DIGILAW 237 (MP)

Chandan Singh Jatav v. State of M. P.

2021-02-25

G.S.AHLUWALIYA

body2021
JUDGMENT : Gurpal Singh Ahluwalia, J. 1. This petition under Article 226 of the Constitution of India has been filed against the order dated 16-1-2017 passed by respondent no. 1 by which the punishment of termination imposed by respondent no. 3, has been modified to Compulsory Retirement. 2. The facts necessary for disposal of this petition in short are that the petitioner was working as Forest Guard. A charge sheet dated 11-12-2010 was issued to the petitioner on the following charges: 1. After revocation of his suspension order on 22-8-2009, the petitioner remained on unauthorized absence till 24-11-2009. 2. Letter dated 31-10-2009 was sent to the petitioner thereby directing him to report on duty. When the peons were affixing the letter on the wall of the house of the petitioner, then they were attacked by the wife and son of the petitioner, and the cycle of the peons was snatched. 3. The petitioner was posted as O.S.D. In game range Sabalgarh, but he is on an unauthorized absence from 1-7-2010. 3. The departmental enquiry was conducted. The Dy. D.F.O. was appointed as enquiry officer. The petitioner did not file any reply to the charge sheet, but participated in the enquiry. The enquiry officer, in his enquiry report found that all the charges were proved. 4. Accordingly, a show cause notice was issued to the petitioner, along with the enquiry report, but he did not respond, and demanded additional documents. Accordingly, he was informed that all the documents which were relied upon the enquiry officer, have already been provided to him. Accordingly, a reminder was sent for submitting his reply by 20-7-2013. The letter sent by respondent no. 3 was received by the petitioner on 15-7-2013, but he did not respond to the show cause notice. Then again another letter dated 23-3-2013 was sent, thereby giving a further opportunity to file his reply, but the petitioner did not respond although the reminder was received by him on 2-9-2013. 5. Accordingly, the disciplinary authority perused the record. So far as the charge no. 2 is concerned, it was held that the witnesses had failed to identify the assailants as son and wife of the petitioner and accordingly, it was held that charge no. 2 was not found proved, but the enquiry report with regard to charge no. 1 and 3 was accepted. For considering the question of punishment, the respondent no. 2 is concerned, it was held that the witnesses had failed to identify the assailants as son and wife of the petitioner and accordingly, it was held that charge no. 2 was not found proved, but the enquiry report with regard to charge no. 1 and 3 was accepted. For considering the question of punishment, the respondent no. 3 also considered the previous conduct of the petitioner and found that in the year 1985, warning was given for his negligence in discharge of duties. In the year 2001, a punishment of withholding of one increment without cumulative effect was imposed for remaining on unauthorized absence. Similarly in the year 2006, he was given censure for negligence in his duties. In the year 2009, warning was given for misbehaving with store keeper. In the year 2012, a departmental enquiry was conducted and punishment of reduction of his pay scale to the minimum of his pay scale till his superannuation was awarded. Thus, considering the previous conduct of the petitioner, the punishment of termination from service was imposed. 6. Being aggrieved by the order of punishment, the petitioner preferred an appeal, which was partially allowed and the punishment of termination was modified to compulsory retirement. 7. Challenging the punishment of compulsory retirement, it is submitted by the Counsel for the petitioner, that since, the petitioner was seriously sick, therefore, he could not report on his duty and the punishment of compulsory retirement is shockingly disproportionate. It is further submitted that the order of punishment is bad in law on the ground of double jeopardy. It is further submitted that since, the order of revocation of suspension was not served on the petitioner, therefore, when the notice in this regard was published in the news paper, then the petitioner, immediately submitted his joining. It is further submitted that since, the petitioner was paid subsistence allowance till 24-11-2009, therefore, it is clear that although the order of revocation of suspension was issued on 22-8-2009, but the department, itself was treating the petitioner under suspension by making payment of subsistence allowance. It is further submitted that the Appellate Authority has also considered the ACRs of the last 10 years, which was never brought to the knowledge of the petitioner, therefore, the procedure adopted by the Appellate Authority is contrary to the principles of Natural Justice. 8. It is further submitted that the Appellate Authority has also considered the ACRs of the last 10 years, which was never brought to the knowledge of the petitioner, therefore, the procedure adopted by the Appellate Authority is contrary to the principles of Natural Justice. 8. Per contra, the Counsel for the State has supported the order passed by the Appellate Authority. It is submitted that the Appellate Authority has already taken a very lenient view by imposing the punishment of compulsory retirement. The petitioner was working on the post of Forest Guard, and his antecedents show that he was very negligent in discharge of his duties. When the petitioner was transferred from Game Range Sabalgarh to Atarghat Game Range, Sabalgarh, then he remained on unauthorized absence. The Forest Guard has an onerous duty of protecting the forest, and any negligence in discharge of duty is a serious misconduct. 9. Heard the learned Counsel for the parties. 10. Before, considering the submissions made by the Counsel for the parties, this Court thinks it apposite to consider the scope of judicial interference in the matters of departmental enquiries. 11. The Supreme Court in the case of Apparel Export Promotion Council v. A.K. Chopra, reported in (1999) 1 SCC 759 has held as under:- ''16. 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 reappreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans observed: "The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the court." 17. Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority. 18. 18. It is useful to note the following observations of this Court in Union of India v. Sardar Bahadur: (SCC p. 623, para 15) "Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court, exercising its jurisdiction under Article 226, to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the High Court." 19. After a detailed review of the law on the subject, this Court, while dealing with the jurisdiction of the High Court or Tribunal to interfere with the disciplinary matters and punishment in Union of India v. Parma Nanda opined: (SCC p. 189, para 27) "27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the enquiry officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice, what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority." 12. The Supreme Court in the case of Mithilesh Singh v. Union of India, reported in (2003) 3 SCC 309 has held as under:- "9. The only other plea is regarding punishment awarded. As has been observed in a series of cases, the scope of interference with punishment awarded by a disciplinary authority is very limited and unless the punishment appears to be shockingly disproportionate, the court cannot interfere with the same. Reference may be made to a few of them. The only other plea is regarding punishment awarded. As has been observed in a series of cases, the scope of interference with punishment awarded by a disciplinary authority is very limited and unless the punishment appears to be shockingly disproportionate, the court cannot interfere with the same. Reference may be made to a few of them. (See: B.C. Chaturvedi v. Union of India, State of U.P. v. Ashok Kumar Singh, Union of India v. G. Ganayutham, Union of India v. J.R. Dhiman and Om Kumar v. Union of India.)" 13. The Supreme Court in the case of Union of India v. P. Gunasekaran, reported in (2015) 2 SCC 610 has held as under:- "12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience." 14. For unauthorized absence of the petitioner, from service from 1-7-2010 is concerned, it is submitted by the Counsel for the petitioner, that since, he was seriously ill, therefore, it cannot be said that he was on unauthorized absence. It is further submitted that after submitting his joining on 15-6-2011, the petitioner submitted his medical certificates on 22-6-2011. 15. Considered the submissions made by the Counsel for the petitioner. 16. It is the case of the petitioner, that on 22-6-2011, he had submitted his medical certificate, however, it is fairly conceded, that neither the petitioner had filed any application for grant of medical leave during the period of his absence, nor had filed any copy of medical prescription or receipt of purchase of medicines. Further, it is also admitted that the petitioner never applied for re-reimbursement of his medical expenses. Thus, it is clear that the contention of the petitioner that he was medically sick was rightly not accepted by the Authorities. Further, this Court while exercising its powers under Article 226 of the Constitution of India, cannot act as an Appellate Court and cannot substitute its own findings. 17. The petitioner has not raised any objection with regard to the procedure adopted in the Departmental Enquiry. He was duly served with Charge sheet. It is the case of the petitioner, that the disciplinary authority after issuing show cause notice along with the enquiry report, did not supply the documents sought by the petitioner, therefore, the entire procedure was vitiated. However, the Counsel for the petitioner could not point out the relevance of the documents sought by the Petitioner. Mere non-supply of every document sought by the delinquent officer, would not vitiate the departmental enquiry, unless and until, it is established by the delinquent officer, that non-supply of documents had caused serious prejudice to him. However, the Counsel for the petitioner could not point out the relevance of the documents sought by the Petitioner. Mere non-supply of every document sought by the delinquent officer, would not vitiate the departmental enquiry, unless and until, it is established by the delinquent officer, that non-supply of documents had caused serious prejudice to him. Further, not only the copy of the enquiry report was supplied to the petitioner, but all the documents, which were relied upon by the department were also supplied. 18. The Supreme Court in the case of Pandit D. Aher v. State of Maharashtra, reported in (2007) 1 SCC 445 has held as under:- ''10. ...A finding of fact has been arrived at that a copy of the inquiry report was supplied to him. A copy of the document which has not been relied upon, is not required to be supplied to a delinquent officer. The documents which are required to be supplied are only those whereupon reliance has been placed by the department.'' 19. The Supreme Court in the case of Chandrama Tewari v. Union of India, reported in 1987 Supp SCC 518 has held as under: ''4. ...However, it is not necessary that each and every document must be supplied to the delinquent government servant facing the charges, instead only material and relevant documents are necessary to be supplied to him. If a document even though mentioned in the memo of charges is not relevant to the charges or if it is not referred to or relied upon by the enquiry officer or the punishing authority in holding the charges proved against the government servant, no exception can be taken to the validity of the proceedings or the order. If the document is not used against the party charged the ground of violation of principles of natural justice cannot successfully be raised. The violation of principles of natural justice arises only when a document, copy of which may not have been supplied to the party charged when demanded is used in recording finding of guilt against him. If the document is not used against the party charged the ground of violation of principles of natural justice cannot successfully be raised. The violation of principles of natural justice arises only when a document, copy of which may not have been supplied to the party charged when demanded is used in recording finding of guilt against him. On a careful consideration of the authorities cited on behalf of the appellant we find that the obligation to supply copies of a document is confined only to material and relevant documents and the enquiry would be vitiated only if the non-supply of material and relevant documents when demanded may have caused prejudice to the delinquent officer.'' 20. Thus, non-supply of relevant documents on which the department has placed reliance would be fatal to the departmental procedure. However, the Counsel for the petitioner, has not pointed out the documents which were sought by the petitioner and its relevance. However, while rejecting the prayer of the petitioner, for supply of documents, it was observed by the respondent no. 3, that all documents on which reliance has been placed by the department have already been supplied to the petitioner. The petitioner could not controvert the above mentioned observation of the respondent no. 3. 21. So far as the consideration of ACRs of 10 years of the petitioner is concerned, this Court is of the considered opinion, that no illegality has been committed by the Appellate Authority by doing so for the purposes of deciding the quantum of punishment. In fact, the Appellate Authority has modified the punishment order from that of termination to Compulsory Retirement. 22. So far as the question of double jeopardy is concerned, the Counsel for the petitioner has not filed any document to show that for the charges levelled against the petitioner in the charge sheet in question, the petitioner was already punished. Therefore, the principle of double jeopardy has no application to the facts and circumstances of the case. 23. Further the petitioner did not file any reply to the charge sheet as it is clear from the enquiry report (Annexure R/2) as well as to the show cause notice issued by the Disciplinary Authority. 24. Therefore, the principle of double jeopardy has no application to the facts and circumstances of the case. 23. Further the petitioner did not file any reply to the charge sheet as it is clear from the enquiry report (Annexure R/2) as well as to the show cause notice issued by the Disciplinary Authority. 24. Looking to the charges levelled against the petitioner, this Court is of the considered opinion, that the punishment of compulsory retirement cannot be said to be shockingly disproportionate to the conscience of the Court. 25. Accordingly, the petition fails and is hereby dismissed.