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2021 DIGILAW 392 (JHR)

Union of India v. Sk. Jakir Musalman

2021-04-13

RAVI RANJAN, SUJIT NARAYAN PRASAD

body2021
JUDGMENT : 1. With consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality. 2. The instant appeal is under Clause 10 of the Letters Patent of High Court of Judicature at Patna directed against the order/judgment dated 02.08.2019 passed by learned Single Judge of this Court in W.P. (S) No. 7563 of 2006 whereby and whereunder the order of punishment dated 19.04.1997 whereby the writ petitioner has been removed from service as also the order passed by the appellate authority dated 02.08.1997 confirming the order passed by the disciplinary authority have been quashed and set aside and the matter has been remitted before the disciplinary authority to pass a fresh order within a period of 12 weeks from the date of receipt/production of a copy of the order. 3. The brief facts of the case which are required to be enumerated, read as under: The writ petitioner was appointed as Constable under Central Industrial Security Force (hereinafter referred as CISF) and while posted at Kargali Unit of CCL, Bokaro he got an information from his sister-in-law on 09.10.1996 that his wife was unwell and was at her last stage and as such, he became very upset and he could not be able to think anything except his wife and one year son and immediately rushed to his in-laws place. He, after reaching his in-laws house, has seen his wife suffering from some shadow, shadow of some unseen power, and her treatment was only available at and by one Olisha Baba at Chandauri in Giridih District and as such, the writ petitioner immediately left with his wife and one year son for her treatment by Olisha Baba. The writ petitioner came back after recovery of his wife and gave his joining on 06.01.1997 where he was informed that he had absented himself from duty without leave/permission of the authority from the unit and as such, three letters/notices were sent on his home address but no reply was received. He was decided to be proceeded with departmental proceeding as such, a memorandum of charge was also served but has not been responded. He was decided to be proceeded with departmental proceeding as such, a memorandum of charge was also served but has not been responded. Thereafter, a regular departmental proceeding has been initiated by issuing charge-sheet dated 20.12.1996 on the charge of gross misconduct, indiscipline and unbecoming of a member of the force on the ground that he was functioning as Constable but he absented himself without leave/permission of the competent authority from the unit line with effect from 09.10.1996. The authority has also appointed an Enquiry Officer to enquire into the charges levelled against the writ petitioner which has been attended by the writ petitioner on each and every date. The writ petitioner has tendered his apology for his act by narrating the entire fact about illness of his wife and under what circumstances he had left without the leave/permission of the authority. The Enquiry Officer has found the charge proved against the writ petitioner and forwarded the Enquiry Report before the disciplinary authority who on its acceptance, inflicted the punishment of removal from service with immediate effect vide order dated 19.04.1997. Further, holding the period of absence from 09.10.1996 to 06.01.1997 i.e. the period of 90 days, would be regularized separately. The writ petitioner preferred an appeal against the order dated 19.04.1997. However, before disposal of the appeal filed by the writ petitioner against the order of removal dated 19.04.1997, the writ petitioner preferred writ petition before this Court being W.P. (S) No. 1691 of 2004 which was disposed of vide order dated 29.03.2004 with a direction upon the Director General of Police, CISF, CCL, Kargali Unit to dispose of the appeal preferred by the writ petitioner within a period of three months and in terms thereof, the appellate order dated 02.08.1997 was communicated to the writ petitioner vide letter dated 12.05.2004 whereby the appeal preferred by the writ petitioner had been rejected. The writ petitioner then preferred W.P. (S) No. 7563 of 2006 against the order dated 19.04.1997 passed by the disciplinary authority and against the order dated 02.08.1997 passed by the appellate authority. The writ petitioner then preferred W.P. (S) No. 7563 of 2006 against the order dated 19.04.1997 passed by the disciplinary authority and against the order dated 02.08.1997 passed by the appellate authority. The learned Single Judge after appreciating the arguments advanced on behalf of the parties and going through the material available on record has quashed the order of removal from service and its confirmation by the appellate authority on quantum of punishment as also remitted the matter before the competent authority to take a fresh decision within a period of 12 weeks from the date of receipt/production of the copy of the order which is the subject matter of the present intra-court appeal. 4. Ms. Nitu Sinha, learned counsel appearing for the appellantrespondent, has submitted that the learned Single Judge has failed to appreciate while quashing the impugned orders that the Enquiry Officer has found the charge proved against the writ petitioner with respect to unauthorized absence of 90 days which he has absented without any leave and permission from the competent authority. The learned Single Judge has further failed to appreciate the fact that the scope of Article 226 of the Constitution of India is very limited so far as the administrative decision pertaining to departmental proceeding is concerned but ignoring the said position of law, the impugned order of removal from service and its confirmation by the appellate authority, have been interfered by quashing and setting it aside, therefore, the same is not sustainable in the eyes of law taking into consideration the fact that the allegation of gross misconduct pertaining to unauthorized absence of 90 days has been found to be proved by the Enquiry Officer. In this backdrop, submission has been made that the impugned order suffers from infirmity as such, the same may be interfered with by quashing and setting it aside. 5. Per contra, Mrs. Ritu Kumar, learned counsel appearing for the writ petitioner, has submitted that the order of punishment is not proportionate to the charge as because the situation upon which the writ petitioner has rushed to his in-laws house was beyond the control of the writ petitioner and, as such, without waiting for the leave he has rushed to his in-laws house for providing treatment to his wife. Learned Single Judge after taking into consideration the aforesaid aspect of the matter, has interfered with the orders impugned and rightly done so since the writ petitioner has rushed to his in-laws house for providing treatment to his wife the reason which was beyond his control and therefore, the matter has been remitted before the competent authority to take fresh decision on quantum of punishment since the order of removal from service on the ground of the aforesaid charge shocks the conscience of the court. She, therefore, submits that the impugned order suffers from no infirmity and, therefore, the same may not be interfered with. 6. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge. 7. This Court, after going across the impugned order, has found that the learned counsel representing the writ petitioner before the writ court has relied upon the judgment rendered by Hon'ble Apex Court in Krushnakant B. Parmar vs. Union of India and Another, (2012) 3 SCC 178 . We have gone through the judgment rendered by Hon'ble Apex Court in Krushnakant B. Parmar vs. Union of India and Another (Supra) and found therefrom that the appellant before the Hon'ble Apex Court in the said case while functioning as SA(G) in the office of Deputy Central Intelligence Officer, Palanpur, under the subsidiary Intelligence Bureau, Ahmedabad, unauthorizedly absented from duty between 3-10-1995 and 7-11-1995, 9-11-1995 and 10-12-1995 and from 10-12-1995 to 2-8-1996 and thereby violated Rules 3(1)(ii) and 3(1) (iii) of the Central Civil Services (Conduct) Rules, 1964. The delinquent employee therein had participated in the departmental proceeding and the charge having found to be proved, he has been inflicted with the punishment of dismissal from service. The delinquent employee assailed the order of dismissal before the Central Administrative Tribunal but the Central Administrative Tribunal refused to entertain the application and allowed the appellant to avail alternative remedy. Accordingly, the appellant preferred an appeal on 17.05.2004, however, the appeal has also been dismissed. Thereafter, the writ petitioner challenged the said order before the Gujarat High Court by filing writ petition which was also affirmed by the Gujarat High Court against which Special Leave Petition was filed before the Hon'ble Apex Court. Accordingly, the appellant preferred an appeal on 17.05.2004, however, the appeal has also been dismissed. Thereafter, the writ petitioner challenged the said order before the Gujarat High Court by filing writ petition which was also affirmed by the Gujarat High Court against which Special Leave Petition was filed before the Hon'ble Apex Court. The Hon'ble Apex Court has considered the matter in entirety and by considering the nature of allegation levelled against the delinquent employee which was to the effect that due to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behavior was unbecoming of a government servant and as such the question was framed whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances which has been dealt at paragraphs 17 and 18 which read as hereunder: “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. 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.” It is evident from paragraphs 17 that Hon'ble Apex Court has been pleased to observe that 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. 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. In view of the aforesaid backdrop, the proposition has been laid down at paragraph 18 that 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. Admittedly herein, the learned counsel representing the writ petitioner before the writ court has relied upon the judgment rendered by Hon'ble Apex Court in Krushnakant B. Parmar vs. Union of India and Another (Supra) but as would be evident from the impugned order that there is no finding with respect to that aspect of the matter as to whether the unauthorized absence will be construed to be misconduct in the facts of this case. However, the learned Single Judge has travelled towards quantum of punishment which led the learned Single Judge to interfere with the order of removal from service since the learned Single Judge found that removal of the writ petitioner from service is not in commensurate with the charge levelled against him taking into consideration the fact that the reason which has been explained by the writ petitioner about the illness of his wife and in order to provide treatment he rushed to his in-laws house. 8. 8. This Court is sitting in intra-court appeal for scrutinizing the legality and propriety of the impugned order passed by the learned Single Judge in exercise of power conferred under Article 226 of the Constitution of India and it is not in dispute that the intra-court appeal is also having the power under Article 226 of the Constitution of India although the forum is available by way of the provision of Clause 10 of the Letters Patent of the High Court of Judicature at Patna and as such, this Court has considered the fact as to whether the Enquiry Officer has come out with specific finding with respect to the absence as willful absence in order to reach to the conclusion about the commission of misconduct and, therefore, we had directed the learned counsel for the appellant to bring on record the copy of the enquiry report and in terms thereof the copy of the enquiry report has been brought on record by way of supplementary affidavit filed on 18th March, 2021. Ms. Nitu Sinha, learned counsel appearing for the Union of India, has fairly submitted by referring to the enquiry report that there is no such finding recorded by the Enquiry Officer to the effect that the absence for which departmental proceeding has been initiated against the writ petitioner has been found to be willful absence and, therefore, she also submits that the judgment rendered by the Hon'ble Apex Court in Krushnakant B. Parmar vs. Union of India and Another (Supra) squarely covers the case but the question is that this Court cannot travel beyond the order passed by learned Single Judge as because the order passed by learned Single Judge has not been assailed by the writ petitioner. This Court, sitting under intra-court appeal, has considered the finding recorded by the learned Single Judge to the effect as has been laid down in the case of Krushnakant B. Parmar vs. Union of India and Another (Supra) and found therefrom that Enquiry Officer has also not found the unauthorized absence of the writ petitioner to be willful. This Court, sitting under intra-court appeal, has considered the finding recorded by the learned Single Judge to the effect as has been laid down in the case of Krushnakant B. Parmar vs. Union of India and Another (Supra) and found therefrom that Enquiry Officer has also not found the unauthorized absence of the writ petitioner to be willful. According to us, the finding recorded by the learned Single Judge that the reason for absence without leave and permission has been accepted by the writ petitioner and further recorded a finding to the effect by taking into consideration the treatment which has been provided by the writ petitioner to his wife by bringing her to “Olisha Baba” even accepting that it is superstition but since the said aspect of the matter has genuinely been accepted by the writ petitioner, therefore, the learned Single Judge has reached to the conclusion that there should not be an order of removal from service and hence the learned Single Judge has come to a finding to interfere with the order of removal from service which shocks the conscience of the court. It is settled position of law that in the order passed by the administrative authority in the departmental proceeding, there should not be interference by the writ court sitting under Article 226 of the Constitution of India but certainly the writ court can interfere with the order of punishment if the punishment inflicted shocks the conscience of the court as has been held by Hon'ble Apex Court in Union of India and Others vs. P. Gunasekaran, AIR 2015 SC 545 , at paragraph 13, laying down following guidelines: “13. 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, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 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 Article 226/227 of the Constitution of India, shall not venture into re-appreciation 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. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation 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. Under Article 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate 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.” It is evident from the said proposition of law that exception carved out by the Hon'ble Apex Court to interfere with the order of punishment in exercise of power conferred under Article 226 of the Constitution of India is also in a case if the order of punishment shocks the conscience of the court. 9. 9. This Court, therefore, is of the view that specific charge has been framed against the writ petitioner of unauthorized absence which amounts to gross dereliction of duty but the Enquiry Officer has not given specific finding to the effect that the absence was “willful” coupled with the fact that the writ petitioner has accepted the allegation and explained the reason which was beyond his control i.e. to provide treatment to his wife who was ailing at that time and since he received sudden information he rushed without any leave or permission and as such, whether on this ground the order of removal from service will be said to be commensurate with the charges leveled against the writ petitioner? According to our view, since the wife of the writ petitioner was suffering from ailment as has been suddenly informed by sister-in-law of the writ petitioner, he immediately rushed to his in-laws house for providing treatment to his wife, that will be said to be reason beyond his control as per the observation at paragraph 17 of the judgment rendered in Krushnakant B. Parmar vs. Union of India and Another (Supra) and in that view of the matter if the learned Single Judge has reached to the conclusion that the order of punishment shocks its conscience, the same cannot be said to suffer from any infirmity. We have also considered the fact that the writ petitioner is a member of disciplined force but the fact which has been considered by us is that the writ petitioner has not tried to mislead the authority rather he has accepted the fact which he has faced even while taking his wife to Olisha Baba though that is superstition but the fact is that since he has accepted what he has done for betterment of his wife and in that circumstances if the order of removal from service would be allowed to continue, that will be said to be harsh and therefore, we are of the considered view that the order passed by the learned Single Judge requires no interference. This Court, before parting with the order, requires to refer herein the process of treatment adopted by the writ petitioner is not being approved by this Court rather this Court is only going to the fact which the writ petitioner has genuinely narrated otherwise the writ petitioner would have come out with the certificate of the MBBS doctors, therefore, we are considering the conduct of the writ petitioner to be bona-fide as he has not tried to mislead his department and taking into consideration this aspect of the matter we are not inclined to interfere with the impugned order. 10. Accordingly, the instant appeal fails and is dismissed. Consequent thereto, pending interlocutory application also stands disposed of. Appeal dismissed.