Kamal Nag, Son of Late Budhram Nag v. Union of India, Ministry of Home Affairs, New Delhi
2025-02-12
ANANDA SEN
body2025
DigiLaw.ai
SRI ANANDA SEN, J. Heard the learned counsel for the parties. 2. By way of filing this writ petition, the petitioner prays for quashing the order dated 20.12.2014 (Annexure-5 to this writ petition), whereby the petitioner has been removed from service for absence without leave with effect from 3.3.2014 to 26.6.2014 and also other penalty was inflicted upon him. It has also been prayed to quash the order dated 25.3.2015 (Annexure-7) whereby the petitioner was reinstated in service but increment of the petitioner was stopped for two years. He further prays for setting aside the entire departmental proceeding and quashing the order of the I.G. and prays for grant of all consequential benefits treating the petitioner to be in service continuously. 3. From the pleading of the parties, I find that Annexure-5 is the order dated 20.12.2014 by which, the petitioner has been removed from service. Annexure-7 is the order passed by the Appellate Authority, whereby, the Appellate Authority considering the entire issue has reinstated the petitioner modifying the punishment to stoppage of two annual increments without cumulative effect and further directed that the petitioner will not get the salary for the period when he was absent unauthorizedly i.e. from 3.3.2014 to 26.6.2014. Further, it has been ordered that for the period between his dismissal and reinstatement, he will not get his salary as the petitioner has not worked. 4. The petitioner, being a constable in CRPF, went on leave for 15 days. This leave was permitted by the higher official. The petitioner overstayed from 3.3.2014 to 26.6.2014 taking a ground that he was ill, thus he could not join. Due to unauthorized absence, he was proceeded against and vide order dated 20.12.2014 (Annexure-5), the Disciplinary Authority passed an order of removal from service. The petitioner challenged the same before the Appellate Authority. The Appellate Authority considering the entire aspect held that the petitioner was unauthorizedly absence from 3.3.2014 to 26.6.2014. The Appellate Authority also gave a finding that inspite of communication, the petitioner did not respond and neither informed his superior about his health condition or the fact that he was undergoing treatment. The Authority further taking into consideration the unblemished career of the petitioner and the fact that the punishment of removal is too harsh, passed an order of reinstatement of the petitioner but modified the punishment.
The Authority further taking into consideration the unblemished career of the petitioner and the fact that the punishment of removal is too harsh, passed an order of reinstatement of the petitioner but modified the punishment. As per the Appellate order, the punishment was modified to the extent that his annual increment for two years will be withheld without cumulative effect and the petitioner will not get the salary for the period which he was absent unauthorizedly i.e. from 3.3.2014 to 26.6.2014. The petitioner also preferred revision against the Appellate Order, which was also dismissed. 5. The jurisdiction of this Court under Article 226 of the Constitution of India while considering a departmental proceeding is very limited. The Hon’ble Supreme Court, in the case of Director General of Police, Railway Protection Force and Others versus Rajendra Kumar Dubey reported in ( 2021) 14 SCC 735 at paragraph 21.1 thereof has held that it is well settled that High Court cannot act as an Appellate Authority and re-appreciate the evidence, which was led before the enquiry officer. By referring to judgment in the case of State of Andhra Pradesh versus S. Sree Rama Rao , the Hon’ble Supreme Court has held that it is not the function of the High Court to review on the findings and arrive at a different finding. In a departmental proceeding, scope is very limited and it is well settled that the High Court can interfere where the departmental authority has acted against the principles of natural justice or where the findings are based on no evidence or in violation of the statutory rules provided. Further, if the punishment imposed is excessive, the Court can interfere. It has also been held by the Hon’ble Supreme Court that under Articles 226 and 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 the 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.
The Hon’ble Supreme Court in its recent judgment in the case of the State of Rajasthan and others vs. Bhupendra Singh , reported in 2024 SCC Online SC 1908 has reiterated the judgment of Hon’ble Supreme Court in the case of S. Sree Rama Rao (Supra) and held that the High Court should not reappreciate evidence lead in the departmental enquiry. Further, in the case of Deputy General Manager (Appellate Authority)and Others versus Ajay Kumar Srivastava , reported in (2021) 2 SCC 612 the Hon’ble Supreme Court at paragraph 24 thereof has held as under:- 24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact. Further, in paragraph 28 of the aforesaid judgment (Ajay Kumar Srivastava) the Hon’ble Supreme Court has held that while exercising jurisdiction under Articles 226 or 136 of the Constitution, the Court will not interfere with the findings of fact arrived at in the departmental enquiry proceeding except in a case of mala fides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. 6.
6. In this case, the Appellate Authority found the punishment of removal was disproportionate to the proved misconduct. The misconduct of the petitioner was that he was absent unauthorizedly from 3.3.2014 to 26.6.2014 and the same was proved. It was also proved that he did not inform his superior official about his health condition nor he replied to the queries and the letters. 7. Considering all these aspects, the Appellate Authority has taken appropriate decision to reinstate the petitioner in service but modified the punishment, as mentioned above. 8. I find no illegality in the aforesaid impugned order. Be it noted that this Court is not an Appellate Court to substitute its view. The view taken by the Appellate Authority is a possible view. When the view taken by the Appellate Authority is possible and is also prudent, it is not proper for this Court to substitute its own view by involving jurisdiction under Article 226 and 227 of the Constitution. 9. Accordingly, this petition is dismissed