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2025 DIGILAW 1167 (RAJ)

Pooran Mal v. State of Rajasthan

2025-04-25

ANAND SHARMA

body2025
JUDGMENT : ANAND SHARMA, J. 1. By filing the instant writ petition, the petitioner has assailed legality and validity of penalty order dated 31.08.2006, as well as the Appellate order dated 05.03.2008 whereby appeal filed by the petitioner against penalty of removal from service has been rejected. 2. Facts in brief are that the petitioner has come out with a case that he was appointed on the post of Constable in respondent-Department in the year 1984. He applied for Privilege Leave (P.L.) of 45 days, which was granted to him and accordingly he proceeded on sanctioned leave from 18.06.2004 for a period of 45 days. Thereafter on completion of the aforesaid leave period, he requested for extending the leave which was also sanctioned for 30 more days and accordingly he was required to report on duty on 01.09.2004. As per the petitioner unfortunately, he was falsely implicated in a criminal case under Section 302 of IPC, due to which, in order to seek legal advise and to avail remedies for his safeguard, he could not report on duty and remained absent for as many as 175 days. 3. Thereupon, the Superintendent of Police (Headquarter), Jaipur City, Jaipur, issued one charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeals) Rules , 1958 (for short, ‘the Rules of 1958’) levelling as many as three charges with regard to remaining willfully absent for as many as 175 days and during the period of absence, he did not give any information to the Higher Officers; nor has he ever tried to get the leave sanctioned. It was also alleged that he was habitual of remaining willfully absent and earlier also he has been penalized with minor and major penalties but he failed to show any improvement even thereafter. 4. Petitioner has also stated in his writ petition that on the basis of aforesaid charge-sheet, an enquiry was conducted by the Enquiry Officer, who found the petitioner guilty of charges levelled against him and submitted enquiry report to the Disciplinary Authority. The Disciplinary Authority albeit afforded him personal hearing, yet only on the basis of conjectural findings given by the Enquiry Officer and without examining the record objectively, it was baselessly assumed that the petitioner was willfully absent and, therefore, quite harsh penalty of removal from service was imposed upon him vide order dated 31.08.2006. 5. The Disciplinary Authority albeit afforded him personal hearing, yet only on the basis of conjectural findings given by the Enquiry Officer and without examining the record objectively, it was baselessly assumed that the petitioner was willfully absent and, therefore, quite harsh penalty of removal from service was imposed upon him vide order dated 31.08.2006. 5. The petitioner has also averred that against the penalty order dated 31.08.2006, he preferred appeal before the Inspector General of Police, Jaipur, which was also rejected by the Appellate Authority without considering the grounds of appeal. 6. Thereafter, he submitted review petition for reviewing the penalty order, however, the Reviewing Authority did not grant any indulgence and the review petition was also dismissed vide order dated 24.12.2010. 7. As per the petitioner, the penalty order, Appellate Order and orders passed in review are totally arbitrary and illegal liable to be quashed and set aside. 8. On receiving the notices of the writ petition, the respondents have filed reply to the writ petition categorically denying the contents of the writ petition. It has been mentioned in reply to the writ petition that as the petitioner unauthorizedly over stayed even after completion of sanctioned leave period without giving any information to the Higher Authorities or without getting the leave sanctioned, which amounts to a serious misconduct, therefore, charge-sheet under Rule 16 of the Rules of 1958 was served upon him. However, the petitioner did not file any reply to the charge-sheet. Thereupon, the Disciplinary Authority appointed Enquiry Officer, who conducted the enquiry after affording complete opportunity of hearing to the petitioner. Enquiry was conducted strictly as per procedure contemplated under the Rules and he was also granted full opportunity to defend himself as well as to cross examine the witnesses produced by the Management. The Enquiry Officer has meticulously dealt with each and every material available on record; and has also analyzed the statements given by the witnesses. After thorough examination of the record, nature of allegations and the provisions of conduct Rules, the Enquiry Officer has arrived at the findings that the petitioner was willfully and unauthorizedly absent from duties and was also a habitual absentee. 9. After thorough examination of the record, nature of allegations and the provisions of conduct Rules, the Enquiry Officer has arrived at the findings that the petitioner was willfully and unauthorizedly absent from duties and was also a habitual absentee. 9. In reply, it was also stated that copy of the enquiry report was duly served upon the petitioner with an opportunity to make a representation against the findings of Enquiry Officer, however, the petitioner did not avail such opportunity and no representation was submitted by the petitioner against the Enquiry Report. Under these circumstances, after examining the entire material including the enquiry report, the Disciplinary Authority has rightly passed the order dated 31.08.2006 for imposing penalty for removal from service upon the petitioner, in which, no infirmity was there. The appeal filed by the petitioner has also been duly examined by the Appellate Authority and after discussing the ground raised by the petitioner in memo of appeal, the Appellate Authority has dismissed the appeal. On receiving the review petition, the entire record was examined by the competent authority and on the basis of material on record, the review authority also came to the conclusion that no interference was called for in the penalty order issued against the petitioner. Hence, Review order dated 24.12.2010 has not been challenged by the petitioner in the instant petition. In the light of above, the writ petition filed by the petitioner is liable to be rejected. 10. I have examined the pleadings of the parties, documents on record and have also carefully heard learned counsel for the parties at length. 11. It has been vehemently argued by Shri Manoj Bhardwaj, learned counsel for the petitioner, that his absence for 175 days cannot be termed as 'willful absence' for the reason that on account of being falsely implicated in a criminal case and only with a view to secure his liberty and to avail the legal remedies, he could not report on duty. Thus, it was not that he was intentionally absent, but on account of prevailing constraining circumstances, which were beyond his control, he could not attend his duties. Such circumstances were duly placed by the petitioner before the enquiry officer also. Even the management witnesses, on being put to cross examination, has deposed that the petitioner was absent on account of pursuing his remedies in a criminal case related to murder. Such circumstances were duly placed by the petitioner before the enquiry officer also. Even the management witnesses, on being put to cross examination, has deposed that the petitioner was absent on account of pursuing his remedies in a criminal case related to murder. Even then the Enquiry Oficer, merely on the basis of surmises has recorded a finding that even arrest in a criminal case is not justifiable reason to remain absent. Thus, such conjectural finding given by the Enquiry Office cannot be made the basis for treating the petitioner 'willfully and unauthorizedly absent'. The petitioner has fully cooperated during the enquiry and has discharged his burden to prove his absence as bonafide. However, the Disciplinary Authority has mechanically upheld the findings given by the Enquiry Officer and merely on account of the fact that earlier also some of the penalties were imposed upon the petitioner, he was erroneously treated as habitual absentee and penalty of removal has been imposed, which is otherwise shockingly disproportionate to the guilt and is liable to quashed and set aside. 12. Learned counsel for the petitioner has relied upon the judgment in the case of Krushnakant B. Parmar Vs. Union of India and Anr., (2012) 3 SCC 178 . 13. Per contra, learned counsel for the respondents Ms. Karishma Soni has submitted that scope of interference in writ petition under Article 226 of the Constitution of India, more particularly, in the matter of Disciplinary Authority is very very limited and interference can be sought only in the case, where manifest & patent illegality has been established; or principles of natural justice have been violated; or the mandatory procedure contemplated under the disciplinary Rules have not been followed. However, in the instant case, the petitioner has not been able to show any of such deficiency in the impugned penalty order(s), therefore, the writ petition cannot be entertained and is liable to be dismissed at the outset. 14. Apart from above, it has also been argued by the counsel for the respondents that after serving charge-sheet due opportunity to file reply to the charge-sheet was given to the petitioner, however, petitioner did not choose to file reply to the charge- sheet. The Enquiry Officer while conducting enquiry pursuant to the charge-sheet has granted complete and fair opportunity to the petitioner. The Enquiry Officer while conducting enquiry pursuant to the charge-sheet has granted complete and fair opportunity to the petitioner. Statement of witnesses have been recorded and the petitioner was also granted complete opportunity to cross- examine the witnesses. The Enquiry Officer, after considering the material on record and after analysis of each and every charge, has arrived at finding that all the charges have been proved against the petitioner. 15. It has also been submitted by the counsel for the respondents that thereafter copy of Enquiry Report was also furnished to the petitioner in order to make representation against the findings recorded by the Enquiry Officer but the petitioner has utterly failed to avail such opportunity and no representation against the charge-sheet was filed. Under these circumstances, after giving opportunity of being personally heard, the Disciplinary Authority after scanning the entire record has passed the penalty order for awarding penalty of removal from service and while doing so, the Disciplinary Authority has also properly applied its mind regarding choice of penalty and quantum of punishment. Looking to the past conduct of the petitioner, in as much as, for the similar charges relating to willful absence, he had been awarded minor and major penalties earlier also, the Disciplinary Authority was justified while awarding punishment of removal from service against the petitioner. 16. It has also been submitted that even the Appellate Authority has duly examined the appeal filed by the petitioner and has dismissed the appeal and the reviewing authority after examining the entire record has also rejected the review petition. Under these circumstances, the instant writ petition filed by the petitioner does not call for any interference. 17. Counsel for the respondents in order to support her arguments has placed reliance upon the judgment in the case of General Manager (Operation-1)/Appellate Authority, UCO Bank and Ors. Vs. Krishna Kumar Bhardwaj, (2022) 13 SCC 237 as well as on the judgment delivered by Hon’ble Supreme Court in the case of State of Bihar & Ors. Vs. Phulpari Kumari, (2020) 2 SCC 130 , State of Karnataka & Anr. Vs. N. Gangaraj, (2020) 3 SCC 423 and the judgment delivered by Hon’ble Supreme Court in the case of Ex-Const/DVR Mukesh Kumar Reigar Vs. Union of India & Ors., 2023 LiveLaw (SC) 44. 18. Vs. Phulpari Kumari, (2020) 2 SCC 130 , State of Karnataka & Anr. Vs. N. Gangaraj, (2020) 3 SCC 423 and the judgment delivered by Hon’ble Supreme Court in the case of Ex-Const/DVR Mukesh Kumar Reigar Vs. Union of India & Ors., 2023 LiveLaw (SC) 44. 18. Thereupon, learned counsel for the petitioner, while making submission in rejoinder has argued that even if the charges have been proved against the petitioner, looking to the long period of services rendered by the petitioner for around 20 years prior to alleged incident of willful absence mentioned in the charge-sheet, penalty of removal is an extremely excessive penalty and would cause grave prejudice and miscarriage of justice to the petitioner. Hence, in such circumstances the petitioner could have been penalized with a lesser penalty. 19. On the basis of rival submissions put forward by both the sides, while examining the record of the writ petition as well as the material placed before this Court, it has come out that procedure contemplated under the Rules of 1958 has been followed in letter and spirit by the respondents while conducting enquiry against the petitioner. Petitioner has not raised any ground with regard to lack of opportunity to defend himself or even violation of principles of natural justice; or non-compliance of any particular rule with regard to conducting Disciplinary Enquiry. 20. One of the prime contention raised by the petitioner is that the respondent in the entire enquiry process have utterly failed to appreciate the reason for which the petitioner was absent for 175 days as alleged in the charge-sheet was quite bonafide. As per the petitioner since he was pursuing remedies in criminal case, therefore, such absence cannot be termed as unauthorized or willful absence for the reason that in the obtaining circumstances prevailing with the petitioner, he was compelled to remain absent on duty so as to pursuing his cause in criminal case in better manner. However, no justification whatsoever has been laid by the petitioner to clarify the reason for not sending even an application or intimation letter to the competent authority, or for sending any request for extension of leave. However, no justification whatsoever has been laid by the petitioner to clarify the reason for not sending even an application or intimation letter to the competent authority, or for sending any request for extension of leave. For want of any such information, where the employee is not attending his duty and more particularly looking to the fact that petitioner was holding the post of Constable in police department, where degree of discipline is much higher than other departments of State Governments, such conduct of the petitioner obviously come within the arena of 'willful and unauthorized absence'. Consequently, the Enquiry Officer has rightly come to the conclusion that the charges of willful absence have been sufficiently proved against the petitioner. 21. Merely any statement during the course of cross examination given by the management witnesses that probably the petitioner was absent on account of criminal case registered against him, is not sufficient for the petitioner to assume that such vague statement is sufficient to hold him not guilty. Burden of proof in disciplinary proceedings to explain the questionable conduct obviously is upon the delinquent and he cannot shift his burden to the employer to prove the charges beyond reasonable doubt. 22. Charge No.3 levelled against the petitioner was with regard to past conduct of the petitioner, which alleges that the petitioner was habitual absentee and earlier also he has been penalized for remaining willful absent. Such fact that the petitioner has been penalized earlier also for the similar charges of willful absence has not been denied by the petitioner. Rather undettered by the earlier punishments, he has repeated the same misconduct, which has obviously attracted a graver and stricter punishment. 23. In the case of Krushnakant B. Parmar Vs. Union of India and Anr. (supra) relied upon by the petitioner, the Hon’ble Supreme Court has observed that for sustaining the allegations with regard to the willful absence, it must be proved that the unauthorized absence was willful and in case the employee was absent due to any compelled reasons, such absent cannot be treated as willful and employee cannot be held guilty of misconduct. However, in the aforesaid case, the Hon’ble Supreme Court has also given examples citing different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc. However, in the aforesaid case, the Hon’ble Supreme Court has also given examples citing different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc. Since none of such contingencies are there in the case in hand, therefore, the aforesaid judgment is not applicable in the present case. 24. Whereas, on the other side, Hon’ble Supreme Court in the case of General Manager (Operation-1) Appellate Authority, UCO Bank and Ors. (supra) has given a mandate that constitutional courts that exercise of power of judicial review does not assume the role of the Appellate Authority and its jurisdiction is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. 25. In the case of State of Bihar & Ors. Vs. Phulpari Kumari (supra), the Hon’ble Supreme Court has propounded that interference with the orders passed pursuant to a departmental enquiry can only be in case of ‘no evidence’ and even sufficiency of evidence does not come within the realm of judicial review. Obviously in view of the record referred here-in-above the instant case of the petitioner, cannot be said to be a case of ‘no evidence’. 26. In the case of State of Karnataka (supra), the Hon’ble Supreme Court has reiterated the principle that the power of judicial review conferred on the constitutional court is not that of an Appellate Authority but is confined only to examination of the decision-making process. 27. In the case of Ex-Const/DVR Mukesh Kumar Reigar Vs. Union of India & Ors. (supra), the Hon’ble Supreme Court has held that the scope in the matter of Disciplinary Enquiry is limited only to the extent of determining whether the enquiry was held by the competent officer or not and as to whether the Rules of natural justice and statutory rules were complied with or not. 28. In the case of Union of India and Ors. Vs. Const. 28. In the case of Union of India and Ors. Vs. Const. Sunil Kumar, 2023 LiveLaw (SC) 49 , the Hon’ble Supreme Court has laid down that merely stating that the punishment of dismissal was disproportionate, is not enough for seeking interference and rather the employee should established that the punishment was not only disproportionate but it was strikingly disproportionate and only in most extreme case, where on the face of it there is perversity or irrationality, judicial review can be sought. 29. In the case of Union of India & Ors. Vs. Managobinda Samantaray, 2022 LiveLaw (SC) 244 , the Hon’ble Supreme Court has held that the Courts would not interfere in the disciplinary proceedings unless the exercise of discretion in awarding punishment is perverse in the sense the punishment imposed is grossly disproportionate. 30. In the light of the above, where the petitioner has utterly failed to point out any manifest arbitrariness, illegality, violation of principles of natural justice or of Statutory Rules and is also unable to establish that the penalty awarded to him was shockingly disproportionate to the guilt, more particularly, looking to the past conduct of the petitioner, this Court finds no reason to interfere with the impugned orders. 31. Hence, under these circumstances, it becomes clear that the present writ petition filed by the petitioner is devoid of any merits and substance. 32. Accordingly, the writ petition is hereby dismissed. 33. Stay application and all pending application(s), if any, also stand disposed of.