Gujarat High Court
M B Raut(Mahendrakumar Bhagwandas ... vs District Development Officer on 25 January, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3852 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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M B RAUT(MAHENDRAKUMAR BHAGWANDAS RAUT)
Versus
DISTRICT DEVELOPMENT OFFICER & 2 other(s)
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Appearance:
MS PRACHI UPADHYAY FOR MR VAIBHAV A VYAS(2896) for the
Petitioner(s) No. 1
MS NIRAL SARDA AGP for the Respondent(s) No. 2
MR RAJESH CHAUHAN FOR MR HS MUNSHAW(495) for the
Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 25/01/2024
ORAL JUDGMENT
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1. By way of present petition, under Articles 14 and 16 of
the Constitution of India, the petitioner has challenged
orders dated 19/21.9.2005, 17.1.2008 and 16.11.2010
passed by the District Development Officer, District
Panchayat, Valsad, Development Commissioner and
Gujarat Civil Services Tribunal, and prayed, inter alia,
that:-
"8 (A)Quash and set aside the punishment order dated
19/21.9.2005 passed by the District Development
Officer, District Panchayat, Valsad, Annexure-A to this
petition, and
(B) Quash and set aside the order dated 17.1.2008
passed by the Development Commissioner, Annexure-B
to this petition, and
(C) Quash and set aside the judgment and order dated
16.11.2010 passed by the Gujarat Civil Services
Tribunal, Annexxure-C to this petition, and further be
pleased to grant all the consequential benefits to the
petitioner, and
(D) Pending admission and final disposal of this petition,
the Honourable Court may be stayed the operation,
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implementation and execution of the impugned orders
dated 19/21.9.2005, 17.1.2008, 16.11.2010, Annexure-A,
B and C, to this petition, and
(E) Award the cost of the present petition, and
(F) Grant any other relief or pass any other order which
the Honourable Court may be considered as just and
proper in the facts and circumstances of the case.
2. The facts giving rise to present petition are that the
petitioner was serving as a 'Junior Clerk' in the Public
Health Centre at Limjar Taluka Vansada, District: Valsad
and was transferred to Public Health Center at Pindval
Taluka, Dharampur by way of promotion to the post of
'Senior Clerk', whereby the petitioner had reported for
duty on 31.12.1980. Thereafter, the petitioner remained
absent from his duty from 1.1.1981 to 1.6.1995, in view of
the criminal complaint lodged against the petitioner
under Section 409 of Indian Penal Code alleging that the
petitioner has misappropriated certain amount of Diwali
Festival advance of certain employees of Limjar, Public
Health Centre. The said case was registered as Criminal
Case No.94 of 1983.
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2.1 Due to the registration of a criminal complaint against
the petitioner, it had affected the moral of the petitioner
and due to which petitioner was under the trauma and
was demoralized. Under these circumstances, the
petitioner could not attend the duties from 1.1.1981. In
the said Criminal Case, after the trial, the competent
Criminal Court acquitted the petitioner of the charges
leveled against him by judgment and order of acquittal
dated 14.2.1995.
2.2 After the acquittal of the petitioner from the criminal
case, the petitioner went to report for duty, but the
petitioner was not permitted to join the duty. Therefore,
on 1.6.1995 the petitioner gave a letter to the authority
and requested that the petitioner may be allowed to
resume his duty and also produced the copy of the
operative portion of the judgment and order of acquittal.
Inspite of that the petitioner was not allowed to resume
his duty. The petitioner thereafter, also continuously
requested the respondent authority to allow him to
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resume his duty by submitting written representations
and the petitioner had visited the office frequently and
had made oral representations with a request to allow
him to resume his duty. Despite repeated requests by
petitioner to allow him to resume duty, as he was not
allowed to resume duty, he had written a little bit
strongly worded letter dated 27.2.2003. Thereafter, the
respondent authority initiated disciplinary proceedings
against petitioner on charges of unauthorized
absenteeism on duty and other charges by issuing a
charge sheet dated 22.7.2003 to the petitioner. The
petitioner replied to the said charge sheet vide defense
statement dated 2.9.2003. Thereafter, inquiry officer
came to be appointed by the Disciplinary Authority, who
conducted the departmental inquiry. Before the inquiry
officer also the petitioner submitted his representation
dated 13.4.2004, 17.4.2004, 19.4.2004 and a detailed
brief dated 8.10.2004. Further, no evidence was recorded
by Inquiry Officer nor any witness was examined during
the departmental inquiry and inspite of that the Inquiry
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Officer submitted his report holding that the charges
leveled against the petitioner are proved. The petitioner
was served with a show-cause-notice dated 3.11.2004
along with the copy of the inquiry report, whereby the
petitioner was called upon to submit his explanation, as
to why punishment should not be awarded to the
petitioner. The petitioner submitted his representation
dated 4.4.2005 to the Disciplinary Authority on 4.4.2005.
Without considering the representation of the petitioner
in its true perspective, the Disciplinary Authority passed
the impugned order dated 19/21.9.2005, whereby the
petitioner came to be dismissed from service. Against the
said order dated 19/21.9.2005, the petitioner preferred a
detailed appeal before Development Commissioner. The
said appeal came to be dismissed vide order dated
17.1.2008. Thereafter, the petitioner preferred an appeal
before Gujarat Civil Services Tribunal against the order of
the Disciplinary Authority as well as the Appellate
Authority. The said Appeal came to be dismissed by the
Tribunal vide judgment and order dated 16.11.2010.
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3. In view of the aforesaid facts, the petitioner has
preferred present petition praying inter alia that the
orders dated 19/21.9.2005, 17.1.2008 and 16.11.2010
passed by the authorities be quashed and set aside.
4. I have heard Ms. Prachi Upadhyay for Mr. Vaibhav
Vyas, learned Counsel for the petitioner and Mr. Rajesh
Chauhan, learned Counsel for Mr. H.S. Munshaw, learned
Counsel for the respondents.
-:SUBMISSIONS ON BEHALF OF THE PETITIONER:-
5. Ms. Prachi Upadhyay, learned Counsel for the
petitioner has submitted that the petitioner was serving
with the respondent authority and he was not reported
for duty from 1.1.1981 to 1.6.1995 because of one
Criminal Case being Criminal Case No. 94 of 1983
registered against the petitioner. Ms. Prachi Upadhyay,
learned Counsel for the petitioner has submitted that the
said case was decided on 14.2.1995, whereby the
petitioner came to be acquitted by the concerned
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competent Trial Court in said criminal case and even
thereafter, the petitioner has reported to the respondent,
but he was not allowed by the respondent to join the duty
and therefore, the impugned order is against the
principles of natural justice and in violation of Article 16
of the Constitution of India and the same deserves to be
quashed and set aside.
5.1 Ms. Prachi Upadhyay, learned Counsel for the
petitioner has submitted that since the petitioner was
acquitted from the charges leveled against him therefore,
he may be considered on duty and he may be paid all the
consequential retiral benefits along with backwages. It is
also contended by Ms. Upadhyay, learned Counsel for the
petitioner that the initiation of the departmental
proceedings is at very belated stage, which is also against
the violation of principles of natural justice.
5.2 Ms. Prachi Upadhyay, learned Counsel for the
petitioner has relied upon the judgment of the Hon'ble
Apex Court in case of Krushnakant B. Parmar vs.
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Union of India and another reported in 2012 (3)
SCC 178 and submitted that the impugned order passed
by the disciplinary authority and confirmed by the first
and second appellate authorities is bad in law and the
same is required to be quashed and set side. Ms. Prachi
Upadhyay, learned Counsel for the petitioner has further
submitted that even in departmental inquiry, no proper
procedure was followed by the authority and no proper
inquiry was conducted against present petitioner and
hence, the impugned order passed by the disciplinary
authority and confirmed by the appellate authority in first
and second appeal preferred by the petitioner, deserves
to be quashed and set aside.
5.3 Ms. Prachi Upadhyay, learned Counsel for the
petitioner has further submitted that so far as the charge
levelled against the petitioner is concerned, the petitioner
has submitted detailed reply to the charges heet issued
by the department but the same was not considered by
the inquiry officer, at the time of departmental inquiry
and without considering the submissions made on behalf
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of the petitioner, the disciplinary authority has passed the
impugned order.
5.4 Ms. Prachi Upadhyay, learned Counsel for the
petitioner has submitted that in view of the aforesaid
facts, present petition deserves to be allowed and the
impugned order passed by the disciplinary authority and
confirmed by both the appellate authorities deserves to
be quashed and set aside and the petitioner may be
entitled for all the consequential benefits along with
retirement benefits.
-:SUBMISSIONS ON BEHALF OF THE RESPONDENT:-
6. As against the same, Mr. Rajesh Chauhan, learned
Counsel for the respondent has objected present petition.
He has referred to and relied upon the Affidavit-in-reply
filed by the respondent and submitted that from 1.1.1981
to 1.6.1995, the petitioner was on unauthorized leave on
account of one criminal case registered against him being
Criminal Case No.94 of 1983 and under the wrong
impression, he did not remain present during this 14
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years.
6.1 Mr. Rajesh Chauhan, learned Counsel for the
respondent has submitted that even thereafter, also the
petitioner did not report for duty and therefore, the
respondent authority has published public notice in the
daily local newspaper i.e. 'Gujarat Samachar' on
31.3.2000. He further submitted that as per the say of the
petitioner in response thereto, the petitioner has
approached the respondent by way of making a written
application however, he has not mentioned true and
correct facts in the application and therefore, the
contention raised by the petitioner is contrary to the facts
of present case.
6.2 Mr. Rajesh Chauhan, learned Counsel for the
respondent has submitted that the inquiry officer was
appointed and after giving proper opportunity to the
delinquent, the inquiry was proceeded and relying upon
the said inquiry report, the disciplinary authority has
passed impugned order, which is in consonance with the
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settled principles of law. He further submitted that
thereafter, both the appellate authorities have found that
the impugned order passed by the disciplinary authority
is in consonance with the settled principle of law and
therefore, no interference was called for by the appellate
authority in the departmental appeal preferred by the
present petitioner.
6.3 Mr. Rajesh Chauhan, learned Counsel for the
respondent has submitted that so far as the contention
raised by the petitioner about the initiation of the
departmental inquiry at belated stage is concerned, the
respondent has denied the said contention in his affidavit-
in-reply and dealt with the said contention. He, relied
upon paragraph Nos. 4 and 5 of the affidavit-in-reply
whereby the respondent authority has stated as under:-
" 4. The respondent no.1 submits that petitioner did not
report for duty after 1.1.81 and even never bothered to
enter in to any correspondence and all of a sudden tried
to report for duty on 14.2.95 with a copy of the last page
of the judgment of the competent Criminal Court at
Vansda delivered in Criminal Case No.94/83. It is
submitted that considering long unauthorized
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absenteeism for a period of 15 years it was thought fit to
address him a letter dated 7.8.96 instructing to remain
present with necessary record and documents but the
said post was returned with an endorsement "left" and a
copy of the letter dated 7.8.96 is annexed as
ANNEXURE-A. The respondent No.1 most respectfully
submits that another attempt was made by way of
addressing a letter dated 14.2.2000 to the petitioner in
that regard but it met with the same fate and a copy of
letter is annexed as ANNEXURE-B. The respondent
No.1 most respectfully submits that the petitioner had
never bothered to enter in to any correspondence or
attend the office of respondent no.1 on his own with
necessary record and material till then.
5. The respondent no.1 submits that considering the
facts it was thought fit to publish an advertisement in
Gujarati daily "Gujarat Samachar" calling upon the
petitioner to remain personally present with explanation
and a copy of advertisement is annexed as ANNEXURE-
C. The respondent No.1 most respectfully submits that
ultimately petitioner remained present on 21.4.2000 but
failed to justify his unauthorized absence of nearly 20
years with any documentary evidence. The respondent
no.1 submits that petitioner thereafter submitted written
explanation on 16.4.03 and a copy thereof is annexed as
ANNEXURE-D. Therefore, the said averment is nothing
but an eye wash and therefore, this court may not
entertain present petition and the same may be
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dismissed."
6.4 Mr. Chauhan, learned Counsel for the respondent has
referred and relied upon the application made by the
petitioner dated 16.4.2003 and emphasized upon the fact
that even from the application and averments made in the
earlier correspondence, the petitioner has admitted that
he has his own not reported to the duty.
6.5 Mr. Chauhan, learned Counsel for the respondent has
submitted that in view of the aforesaid facts and in view
of the fact that the order passed by the disciplinary
authority and confirmed by the appellate authorities is in
consonance with the settled legal principles, no
interference is required to be called for in the present
petition.
7. I have perused the material produced on record along
with the relevant documents as well as the impugned
orders passed by the authorities. As per settled legal
principle, in the order of punishment imposed by the
disciplinary authority by appreciating the documentary
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evidence and which is confirmed by the appellate
authority, on a doctrine of proportionality, this Court has
very limited scope to interfere in the quantum of the
punishment. Now, it is well settled by the number of
judgments by the Hon'ble Apex Court and this Court that
while exercising the power under Article 16, 226 and 227,
this Court has very limited scope to interfere in the
punishment order passed by the authority, after taking
into account the documentary evidence and after hearing
the parties. The Hon'ble Apex Court in the case of case
of Chennai Metropolitan Water Supply and
Sewerage Board and others vs. T.T. Muralibabu
reported in case of (2014) 4 SCC 108 has observed as
under:-
"19. In Shri Bhagwan Lal Arya (supra) this Court opined
that the unauthorized absence was not a grave
misconduct inasmuch as the employee had proceeded on
leave under compulsion because of his grave condition of
health. Be it noted, in the said case, it has also been
observed that no reasonable disciplinary authority would
term absence on medical grounds with proper medical
certificate from Government doctors as a grave
misconduct.
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22. Learned counsel for the respondent has commended
us to the decision in Krushnakant B. Parmar v. Union of
India and another to highlight that in the absence of a
finding returned by the Inquiry Officer or determination
by the disciplinary authority that the unauthorized
absence was willful, the charge could not be treated to
have been proved. To appreciate the said submission we
have carefully perused the said authority. In the said
case, the question arose whether "unauthorized absence
from duty" did tantamount to "failure of devotion to
duty" or "behavior unbecoming of a Government
servant" inasmuch as the appellant therein was charge-
sheeted for failure to maintain devotion to duty and his
behavior was unbecoming of a Government servant.
After adverting to the rule position the two-Judge Bench
expressed thus: -
"16. In the case of the appellant referring to
unauthorized absence the disciplinary authority
alleged that he failed to maintain devotion to duty
and his behavior was unbecoming of a government
servant. The question whether "unauthorized
absence from duty" amounts to failure of devotion
to duty or behavior unbecoming of a government
servant cannot be decided without deciding the
question whether absence is willful or because of
compelling circumstances.
17. If the absence is the result of compelling
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circumstances under which it was not possible to
report or perform duty, such absence cannot be
held to be willful. Absence from duty without any
application or prior permission may amount to
unauthorized absence, but it does not always mean
willful. There may be different eventualities due to
which an employee may abstain from duty,
including compelling circumstances beyond his
control like illness, accident, hospitalization, etc.,
but in such case the employee cannot be held guilty
of failure of devotion to duty or behavior
unbecoming of a government servant.
18. In a departmental proceeding, if allegation of
unauthorized absence from duty is made, the
disciplinary authority is required to prove that the
absence is willful, in the absence of such finding,
the absence will not amount to misconduct."
23. We have quoted in extenso as we are disposed to
think that the Court has, while dealing with the charge
of failure of devotion to duty or behavior unbecoming of
a Government servant, expressed the aforestated view
and further the learned Judges have also opined that
there may be compelling circumstances which are
beyond the control of an employee. That apart, the facts
in the said case were different as the appellant on
certain occasions was prevented to sign the attendance
register and the absence was intermittent. Quite apart
from that, it has been stated therein that it is obligatory
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on the part of the disciplinary authority to come to a
conclusion that the absence is willful. On an apposite
understanding of the judgment we are of the opinion
that the view expressed in the said case has to be
restricted to the facts of the said case regard being had
to the rule position, the nature of the charge levelled
against the employee and the material that had come on
record during the enquiry. It cannot be stated as an
absolute proposition in law that whenever there is a long
unauthorized absence, it is obligatory on the part of the
disciplinary authority to record a finding that the said
absence is willful even if the employee fails to show the
compelling circumstances to remain absent.
24. In this context, it is seemly to refer to certain other
authorities relating to unauthorized absence and the
view expressed by this Court. In State of Punjab v. Dr.
P.L. Singla[11] the Court, dealing with unauthorized
absence, has stated thus: -
"Unauthorised absence (or overstaying leave), is an
act of indiscipline. Whenever there is an
unauthorized absence by an employee, two courses
are open to the employer. The first is to condone
the unauthorized absence by accepting the
explanation and sanctioning leave for the period of
the unauthorized absence in which event the
misconduct stood condoned. The second is to treat
the unauthorized absence as a misconduct, hold an
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enquiry and impose a punishment for the
misconduct."
27. Thus, the unauthorized absence by an employee, as a
misconduct, cannot be put into a straight-jacket formula
for imposition of punishment. It will depend upon many a
factor as has been laid down in Dr. P.L. Singla (supra).
28. Presently, we shall proceed to scrutinize whether the
High Court is justified in applying the doctrine of
proportionality. Doctrine of proportionality in the
context of imposition of punishment in service law gets
attracted when the court on the analysis of material
brought on record comes to the conclusion that the
punishment imposed by the Disciplinary Authority or the
appellate authority shocks the conscience of the court.
In this regard a passage from Indian Oil Corporation Ltd.
and another v. Ashok Kumar Arora[13] is worth
reproducing: -
"At the outset, it needs to be mentioned that the
High Court in such cases of departmental enquiries
and the findings recorded therein does not exercise
the powers of appellate court/authority. The
jurisdiction of the High Court in such cases is very
limited for instance where it is found that the
domestic enquiry is vitiated because of non-
observance of principles of natural justice, denial of
reasonable opportunity; findings are based on no
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evidence, and/or the punishment is totally
disproportionate to the proved misconduct of an
employee."
29. In Union of India and another v. G. Ganayutham, the
Court analysed the conception of proportionality in
administrative law in England and India and thereafter
addressed itself with regard to the punishment in
disciplinary matters and opined that unless the
court/tribunal opines in its secondary role that the
administrator was, on the material before him, irrational
according to Associated Provincial Picture Houses Ltd. v.
Wednesbury Corpn and Council of Civil Service Unions
v. Minister for Civil Service norms, the punishment
cannot be quashed.
30. In Chairman-cum-Managing Director, Coal India
Limited and another v. Mukul Kumar Choudhuri and
others, the Court, after analyzing the doctrine of
proportionality at length, ruled thus: -
"19. The doctrine of proportionality is, thus, well-
recognised concept of judicial review in our
jurisprudence. What is otherwise within the
discretionary domain and sole power of the
decision-maker to quantify punishment once the
charge of misconduct stands proved, such
discretionary power is exposed to judicial
intervention if exercised in a manner which is out
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of proportion to the fault. Award of punishment
which is grossly in excess to the allegations cannot
claim immunity and remains open for interference
under limited scope of judicial review.
20. One of the tests to be applied while dealing
with the question of quantum of punishment would
be: would any reasonable employer have imposed
such punishment in like circumstances? Obviously,
a reasonable employer is expected to take into
consideration measure, magnitude and degree of
misconduct and all other relevant circumstances
and exclude irrelevant matters before imposing
punishment.
21. In a case like the present one where the
misconduct of the delinquent was unauthorized
absence from duty for six months but upon being
charged of such misconduct, he fairly admitted his
guilt and explained the reason for his absence by
stating that he did not have intention nor desired to
disobey the order of higher authority or violate any
of the Company's rules and regulations but the
reason was purely personal and beyond his control
and, as a matter of fact, he sent his resignation
which was not accepted, the order of removal
cannot be held to be justified, since in our
judgment, no reasonable employer would have
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imposed extreme punishment of removal in like
circumstances. The punishment is not only unduly
harsh but grossly in excess to the allegations."
8. The Hon'ble Apex Court has considered both the issue
viz. proportionality of quantum of punishment and also
delay and latches in the said judgment and the said
judgment is referred to and relied upon by this Court in
the case of Bhikhubhai Kamabhai Dabhi vs. Surat
Municipal Corporation reported in 2017 LawSuit
(Guj) 9 and in Special Civil Application No. 5205 of
1995 dated 12.1.2017.
9. In present case, the respondent had tried to call the
petitioner, by addressing a letter twice to remain present,
considering the long unauthorized absenteeism for a
period of 15 years along with necessary record and
documents. The said post was returned and thereafter,
the respondent had also published an advertisement in
'Gujarat Samachar' calling upon the petitioner to remain
personally present with explanation however, when the
petitioner remained present after long period, he has
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failed to justify his unauthorized absence. Hence, I am of
the opinion that present petition, though filed under
Articles 14 and 16 of the Constitution of India but
considering the fact that the petitioner has challenged
the order of disciplinary authority which is confirmed by
both the appellate authorities, so admittedly the petition
is under 227 of the Constitution of India and therefore,
the present petition is devoid of any merit and the same is
required to be dismissed, as for the long period of 14
years absenteeism, there is no satisfactory reason given
by the petitioner before the inquiry officer and also before
the disciplinary authority. Even, in his memo of appeal
also he has admitted that he has given an application but
whether that leave report is approved or disapproved he
is not aware and therefore, the authority has properly
appreciated the contention in its true and proper spirit
and hence, I am not find any fault with the impugned
order passed by the disciplinary authority and confirmed
by both the Appellate Authorities.
10. In view of the aforesaid discussion and observations,
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present petition does not deserve to be entertained and
the same deserves to be dismissed.
Accordingly, present petition is hereby dismissed.
Rule is discharged.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
