WA/253/2022
2022 Latest Caselaw 4795 Gua

 GAHC010142662022




                IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

                       WRIT APPEAL NO.253 OF 2022
                       Shri Arunjyoti Thakuria,
                       Const. Coy-LMG: AT CPK
                       Son of Sri Nilamoni Thakuria,
                       Resident of Village Kumai Kacharigaon,
                       PO: Jagi Bhakat Gaon, District: Morigaon,
                       Assam.
                                               ........Appellant
                                 -Versus-
                       1. The Union of India, represented by
                       the Secretary to the Ministry of Railway,
                       Rail Bhawan, New Delhi.
                       2. The Chief Security Commissioner,
                       Railway Protection Force, Maligaon,
                       Guwahati.
                       3. The Senior Divisional Security
                       Commissioner, Railway Protection Force,
                       N.F. Railway, Lumding.
                       4. The Assistant Security Commissioner,
                       N.F. Railway, Lumding.
                                          ........Respondents

-BEFORE-

HON'BLE THE CHIEF JUSTICE MR. R.M. CHHAYA HON'BLE MR. JUSTICE SOUMITRA SAIKIA

For the Appellant : Mr. S. Nath, Advocate. For the Respondents : Mr. S. Borthakur, Advocate. Date of Judgment & Order ` : 6th December, 2022.

JUDGMENT & ORDER (R.M. Chhaya, CJ.) Feeling aggrieved and dissatisfied by the judgment & order dated 21.06.2022 passed by the learned Single Judge in WP(C) No.8724/2019, the appellant/ original petitioner has preferred this intra-Court appeal.

2. The following facts emerge from the record of the appeal.

The appellant was appointed as Constable in Railway Police Force (hereinafter referred to as "RPF" for the sake of brevity) on 22.05.1999 and was posted at TE- Coy, Lumding. As the record unfolds, the appellant was transferred to 15 RFP at Chaparmukh and again on 07.01.2014, he was transferred to his original place of posting at Lumding and was asked to join the duty on 10.01.2014. It is the case of the appellant that he could not join the duty within the stipulated period of time as he had fallen ill and, therefore, a memorandum of charges dated 04.02.2015 came to be issued. It appears from the record that the appellant appeared in the inquiry twice and could not appear thereafter, which culminated into a report dated 08.09.2015 holding the charges to be proved and the disciplinary authority upon consideration of the inquiry report passed the impugned order of dismissal from service dated 29.12.2015.

3. The appellant preferred a departmental appeal on 27.02.2017 and as the same was not decided, he

approached this Court by way of filing a writ petition being WP(C) No.3176/2017, which came to be disposed of with a direction to dispose of the departmental appeal. The appeal ultimately came to be rejected with an order dated 08.04.2019 and being aggrieved by the same, the present petition came to be filed challenging the aforesaid order of dismissal from service dated 29.12.2015.

4. Three predominant grounds were raised before the learned Single Judge. Firstly, that the infirmity in the procedure followed; secondly that the reasonable opportunity to defend was not granted and thirdly, the punishment inflicted is disproportionate to the charges levelled against him.

5. Heard Mr. S. Nath, learned counsel for the appellant. Also heard Mr. S. Borthakur, learned counsel appearing on behalf of Mr. S.S. Roy, learned standing counsel, NF Railway, appearing for the respondents.

6. Mr. S. Nath, learned counsel appearing for the appellant relied upon the judgment of the Apex Court in the case of Director General, RPF & Ors. -Vs- Ch. Sai Babu, reported in (2003) 4 SCC 331 has contended that unauthorized absence in duty as such does not constitute misconduct. The learned Single Judge considered the contentions raised on behalf of the appellant as well as the respondent and more particularly the fact that the appellant was absent on other 6(six) occasions from 2007 to 2014 onwards and after considering the submissions

made was pleased to dismiss the petition against which the present appeal is filed.

7. Mr. S. Nath, learned counsel appearing for the appellant has taken this Court through the factual matrix arising out of this appeal and has reiterated the contentions raised before the learned Single Judge. Mr. Nath contended that within one day the inquiry was over and neither any notice nor any inquiry report has been submitted and straightway the order of dismissal has been passed. It is certainly contended that the punishment imposed is highly unreasonable and disproportionate.

8. Mr. S. Nath, learned counsel appearing for the appellant lastly contended that the order of dismissal from service may be converted into an order of compulsory retirement in facts of this case. Even that contention does not deserve any merit as the record indicates that without any reasons the appellant has remained absent for a long period of 674 days and that too during a span of 15(fifteen) years of service, the appellant has remained unauthorizedly absent for 6(six) times and hence no lenient view can be taken in the facts of this case.

9. Mr. S. Borthakur, learned counsel appearing for the respondents has supported the impugned judgment & order and has contended that the appeal being meritless, deserves to be dismissed.

10. No other or further submissions, grounds or contentions have been raised by the learned counsels appearing for the respective parties.

11. Having considered the submissions made by the learned counsels appearing for the parties and having gone through the record of the appeal, it is an admitted position that the appellant, who otherwise working in a disciplined force like RPF, remained absent for a long period of 674 days. The record indicates that even before that the appellant was (i) unauthorizedly absent from 13.06.2007 to 25.07.2007 = 43 days; (ii) unauthorized over stay from 18.01.2008 to 04.03.2008 = 47 days, (iii) unauthorized absent from 21.01.2010 to 11.02.2010 = 22 days, (iv) unauthorized absent from 20.10.2011 to 17.11.2011 = 29 days, (v) unauthorized overstay from 19.05.2013 to 01.06.2013 = 14 days and (vi) unauthorized absent from 10.01.2014 till attending the DAR proceeding, and for three occasions of unauthorized absence penalty has been imposed upon the appellant, which has not been denied by the appellant.

12. Considering both the contentions raised which were also raised by the appellant before the learned Single Judge, it clearly transpires that the appellant though working in a disciplined force like RPF is in the habit of remaining absent, that too, in an unauthorized way.

13. Rule 147 of the Railway Protection Force Rules, 1987 clearly provides that absenteeism without proper

intimation to the controlling authority or without sufficient cause of overstaying leave granted to a person working in the force would be an offence relatable to duties. It is also an admitted position that it was not the first instance of unauthorized absence of the appellant but as noted hereinabove, on 6(six) previous occasions, he remained on unauthorized leave. As far as the last unauthorized leave is concerned, the appellant came to be transferred to Lumding and instead of joining, he remained voluntarily unauthorized leave for a long period of 674 days, which cannot be countenanced and no lenient view can be taken as the appellant was serving in RPF which is a disciplined force.

14. The contention that no inquiry was made also deserves to be negated as even considering the decision making process, it transpired that the appellant attended the departmental proceedings on two occasions on 15.02.2015 and 12.03.2015 and thereafter remained absent. It is also a matter of record that during the first sitting of the departmental inquiry, the appellant pleaded his guilt on 15.02.2015 and also signed a memorandum admitting his guilt.

14. Considering the aforesaid, the learned Single Judge has succinctly considered this aspect and has observed thus:-

"20. Before going into the aforesaid issue, it is necessary to remind ourselves that this Court in exercise of powers under Article 226 of the Constitution of India is

only to examine as to whether the decision making process was carried out in accordance with law and there is no requirement, stricto senso to examine the decision as such.

21. In the landmark case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., decided in the year of 1947 by the Kings Bench, Lord Greene, M.R. has held that a decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the Court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. The aforesaid principle which is more popularly known as "Wednesbury Principle of Reasonableness" has been referred to by the Hon'ble Supreme Court in a catena of decisions. In the case of Tata Cellular Vs. Union of India reported in (1994) 6 SCC 651, Hon'ble Supreme Court had laid down two other facets of irrationality:

'(1) It is open to the court to review the decision- maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision- maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld.

(2) A decision would be regarded as unreasonable if it is partial and unequal in its operation as between different classes.'

22. By going through the law laid down on the subject of scope of judicial review, what is required to be examined can be summarized into the following facets-

i. Whether the decision has been taken by the incumbent authorized for the said purpose and having the jurisdiction to do so;

ii. Whether the decision arrived at is a reasonable one;

iii. Whether the relevant factors have been taken into consideration before arriving to the said decision;

iv. Whether the decision is based on irrelevant and extraneous consideration;

v. Whether the decision is vitiated by bias and mala fide.

23. In the backdrop of the law laid down and the principles governing the aspect of judicial review, let us examine the facts of the instant case. Though the scope is only to examine the decision making process, in the instant case the records clearly show that the misconduct has been admitted and as indicated above, even in this proceedings before this Court, there is no denial by the petitioner in the pleadings of such admission of misconduct. In that view of the matter, it is actually not required to go into the merits of the decision. However, to do substantial justice under Article 226 of the Constitution of India, the following aspects would also be relevant.

24. The charge is of unauthorized absence which may appear to be innocuous. However, each charge has to be examined vis-a-vis the employment of the delinquent. In the instant case, the petitioner was serving as a Constable in the Railway Protection Force which is undoubtedly a disciplined service. Apart from the fact that unauthorized absence is a major offence prescribed under Rule 147 of the Rules, even otherwise such indiscipline from a personnel of the Railway Protection Force cannot be overlooked. Moreover, the present case, as indicated above, is not the first instance of unauthorized absence and on many other occasions, the petitioner had indulged in the same misconduct and on three earlier occasions, penalty was imposed upon him. Viewed from this aspect, the impugned penalty does not appear to be unjustified.

25. This Court is now required to deal with the argument regarding proportionality of the penalty imposed vis-a-vis the nature of the charge. There is no manner of doubt that the doctrine of proportionality is a well recognized doctrine which comes into play during exercise of judicial review of an order of penalty imposed in a disciplinary proceeding. The requirement is that the penalty imposed is such that it shakes the judicial conscience juxtaposition the charge levelled even on its face value. In the preceding paragraph, it has already been discussed that the present case is not the first instance of the petitioner being unauthorisedly absent and on three earlier occasions penalty was imposed upon him for such misconduct. Further, the charge is a serious one with respect to the employment of the petitioner which is that of Constable in the RPF, a discipline force. In view of the above, it cannot be said that the penalty

imposed is disproportionate requiring judicial intervention."

15. Considering the nature of charges held to have been proved and the fact that the appellant himself has admitted his guilt, it cannot be said that the order of dismissal is grossly or shockingly disproportionate. In facts of this case, therefore, the ratio laid down by the Apex Court in Ch. Sai Babu (supra) would not take the case of the appellant any further.

16. We are in total agreement with the view taken by the learned Single Judge. No case for interference is made out, the appeal being bereft of any merits deserves to be dismissed and is hereby dismissed. However, there shall be no order as to costs.

        JUDGE                        CHIEF JUSTICE




Comparing Assistant