Himachal Pradesh High Court
Hemant Kumar vs Rajendra Kumar on 13 August, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 13th DAY OF AUGUST, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
LETTERS PATENT APPEAL No.37 of 2021
Between:-
HEMANT KUMAR,
S/O SH. KARAM DASS,
R/O VILLAGE GADHERI,
TEHSIL SUNNI,
DISTRICT SHIMLA, H.P.,
AGE ABOUT 58 YEARS.
......APPELLANT/PETITIONER
(BY MS. SHALINI THAKUR, ADVOCATE)
AND
1. STATE OF H.P.,
THROUGH SECRETARY HEALTH
TO THE GOVERNMENT SECRETARIAT
SHIMLA.
2. THE DIRECTOR OF HEALTH SERVICES
HIMACHAL PRADESH AT SHIMLA.
......RESPONDENTS
(SH. RAJINDER DOGRA, SENIOR ADDITIONAL ADVOCATE
GENERAL WITH SH. SHIV PAL MANHANS, SH. HEMANSHU
MISRA, ADDITIONAL ADVOCATE GENERALS AND SH.
BHUPINDER THAKUR, DEPUTY ADVOCATE GENERAL, FOR
RESPONDENTS NO. 1 AND 2)
::: Downloaded on - 31/01/2022 22:52:50 :::CIS
2
RESERVED ON : 10.08.2021.
DECIDED ON : 13.08.2021
.
This appeal coming on for orders this day,
Hon'ble Mr. Justice Tarlok Singh Chauhan, delivered
the following:
JUDGMENT
This Letters Patent Appeal is directed against
the order of the learned Writ Court, whereby the petition
filed by the petitioner/appellant (hereinafter to be referred
as the appellant), assailing the order of dismissal from
service, has been dismissed.
2. Appellant joined the Health Department as a
Medical Officer in the year 1989 and while he was posted at
MGMSC Khaneri, Rampur Bushahar, he made a request to
the competent authority to consider his case for grant of
Extraordinary Leave for five years vide application dated
28.05.2005 ( Annexure P-2). This was followed by another
communication dated 02.08.2005 (Annexure P-4) in which
it was stated by the appellant that he could not continue
to serve as a Government servant in the prevailing
circumstances and was proceeding on leave with effect
from 02.08.2005 afternoon. It was further mentioned in the
aforesaid communication that he presumed that as leave
was under consideration for sanction, his departure be
.
deemed to be as proceeded on Extraordinary Leave with
effect from 02.08.2005. Lastly, it was mentioned that in
the alternative, the appellant was requesting to allow him
to proceed on pre-mature retirement.
3. The Government rejected the request of the
appellant for pre-mature retirement in view of the fact that
neither Extraordinary Leave stood granted in favour of the
appellant nor his request for pre-mature retirement stood
accepted by the competent authority in terms of Clause VII
of the Office Memorandum dated 22.03.2001 (Annexure
P-1).
4. Since, the appellant was willfully absenting
himself from duty with effect from 02.08.2005, a
Memorandum dated 07.04.2006 was issued to him vide
which he was called upon to submit his response within
two days to the Article of Charges which were appended
with the Memorandum. The appellant was informed that
an inquiry was proposed to be held against him under
Rule 14 of the CCS (CCA) Rules, 1965. The Article of
Charges framed against the appellant were inter alia to the
effect that while working as a Medical Officer in MGMSC,
Khaneri (Rampur), he willfully absented himself from duty
.
with effect from 03.08.2005 without prior
permission/sanction of the competent authority which
amounted to unbecoming of a Government servant and
was in violation of Rule 3 of the CCS (Conduct) Rules, 1964.
Another charge against the appellant was that while
working as a Medical Officer in MGMSC, Khaneri (Rampur),
he was indulging in private practice at Rampur which also
amounted to unbecoming of a Government servant.
5. The appellant filed his response to the said
Memorandum, however, the Disciplinary Authority was not
satisfied with such response and accordingly an Inquiry
Officer was appointed, who submitted his report
(Annexure P-10), the relevant portion whereof reads as
under:-
"....BOTH THE ARTICLE OF CHARGES AS MENTIONED
ABOVE WHICH HAVE BEEN FRAMED AGAINST THE
CHARGED OFFICER Dr. Hemant Kumar MO MGMSC
Khaneri, Rampur ARE TRUE AND CORRECT and I
have arrived on this conclusion due to the following
facts:-
Though Dr. Hemant Kumar applied for
the Extra Ordinary Leave/Premature
retirement on some personal (Domestic)
circumstances on 28.05.2005 but without
.
waiting for the approval/sanction of these, he
proceeded on leave and submitted his
departure report to the SMO I/C MGMSC
Khaneri (Rampur) in anticipation of sanction
of E.O.L./Premature retirement and when the
CO was asked to join back after he was
conveyed the rejection of his Premature
retirement request he never reported back
for his duties in MGMSC Khaneri (Rampur)
presuming that his request for E.O.L. is still
under the consideration of the Government.
Thus the CO has erred by proceeding on
E.O.L. without the prior approval/sanction of
the competent authority.
The charged officer himself has
admitted in the statement recorded during
and in the written statement submitted by
the CO to the Principal Secretary (Health)
H.P. on dated 15.08.2006 annexed at Sr. No.
8 that he is doing Private Practice at Rampur
presuming that His E.O.L. request to the H.P.
Government is under the Government
consideration and it is certain to be
sanctioned in his favour and in the meantime
he has got every right to do Private Practice
to earn his Livelihood. Also the Inquiry
conducted by Dr. Rajinder Singh Bist SMO
MGMSC Khaneri Rampur indicates that Dr.
Hemant Kumar is doing Private practice in
Deep Medical Center Rampur. Here also the
.
Charge of indulgence in the Private Practice
by the CO is proved because unless the
request of grant of E.O.L. has been accorded
by the competent authority the officer will be
considered as on duty and not on E.O.L. and
while on duty a Government Medical Officer
cannot indulge in Private Practice."
r to
The petitioner was given an opportunity to
respond to the inquiry report vide Annexure
P-11 and he submitted his response vide
Annexure P-12. Being dissatisfied with the
response so submitted by him, the
Disciplinary Authority, vide order dated 14 th
August, 2008 (Annexure P-13), imposed the
penalty of dismissal from service with
immediate effect upon the petitioner."
6. The appellant was given an opportunity to
respond to the inquiry report vide Annexure P-11 and he
submitted the same vide Annexure P-12 and being dis-
satisfied with the response, the Disciplinary Authority vide
order dated 14.08.2008 (Annexure P-13) imposed penalty
of dismissal from service upon the appellant with
immediate effect.
7. This led filing of an appeal by the appellant,
however, the same was also dismissed by the Appellate
.
Authority on 27.11.2008, constraining him to approach the
erstwhile Tribunal for grant of the following substantive
reliefs:
"(1) A writ of certiorari may kindly be issued for
quashing Annexure P-8 dated 7.8.2006, Annexure P-
10 dated Oct., 2007, Annexure P-13 dated 14.8.2008
and Annexure P-15 dated 27.11.2008.
(2) A writ of mandamus may kindly be issued to the
respondents to grant Extraordinary Leave to the
petitioner as prayed for by him vide Annexure P-2
dated 28.5.2007.
(3)A writ of mandamus may kindly be issued to the
respondents for reinstating the petitioner in service
with all consequential benefits.
Or in the alternative
A writ of mandamus may kindly be issued to
the respondents to give all financial and other
benefits to the petitioner for service rendered by
him with the respondents w.e.f. 3.8.1989 till
2.8.2005 after setting aside the penalty of dismissal
imposed upon the petitioner, in order to enable the
petitioner to get his pension and other financial
benefits due to him on account of service rendered
and for this purpose grant extraordinary leave to
the petitioner for the period required.
(4) For a writ of mandamus to the respondents to
produce entire relevant record before this Hon'ble
Court including the complete record of Annexure
P-16 i.e., the noting sheets dealing with the case of
.
the petitioner and other similarly situated doctors
viz. Dr. Hemant Sharma."
8. On abolition of the learned Tribunal, the petition
was transferred to this Court.
9. The learned Writ Court vide order dated
10.09.2020 dismissed the petition constraining the
appellant to file the instant appeal.
10. Apart from impugning the order of penalty, one
of the main contentions raised by the appellant is that the
order of dismissal is totally disproportionate and thus
deserves to be quashed and set aside.
11. We have heard the learned counsel for the
parties and have gone through the records of the case.
12. At the outset, the Court is required to
determine the scope of interference by this Court in
exercise of its jurisdiction with respect to disciplinary
proceedings.
13. Our task is made easy by a recent judgment
rendered by the three-Judge Bench of the Hon'ble Supreme
Court in Director General of Police, Railway
Protection Force and Ors. vs. Rajendra Kumar
Dubey, AIR 2021 SC 91 wherein it was observed as
.
under:-
"12. Discussion and Analysis
We have heard learned Counsel for the parties, and
perused the record, and written submissions filed
on their behalf.
12.1 We will first discuss the scope of interference
by the High Court in exercise of its writ jurisdiction
with respect to disciplinary proceedings. It is well
settled that the High Court must not act as an
appellate authority, and re- appreciate the evidence
led before the enquiry officer.
We will advert to some of the decisions of this Court
with respect to interference by the High Courts with
findings in a departmental enquiry against a public
servant.
In State of Andhra Pradesh v S.Sree Rama Rao, AIR
1963 SC 1723, a three judge bench of this Court
held that the High Court under Article 226 of the
Constitution is not a court of appeal over the
decision of the authorities holding a departmental
enquiry against a public servant. It is not the
function of the High Court under its writ jurisdiction
to review the evidence, and arrive at an
independent finding on the evidence. The High
Court may, however interfere where the
departmental authority which has held the
proceedings against the delinquent officer are
inconsistent with the principles of natural justice,
where the findings are based on no evidence, which
may reasonably support the conclusion that the
delinquent officer is guilty of the charge, or in
violation of the statutory rules prescribing the mode
of enquiry, or the authorities were actuated by
some extraneous considerations and failed to reach
a fair decision, or allowed themselves to be
.
influenced by irrelevant considerations, or where
the conclusion on the very face of it is so wholly
arbitrary and capricious that no reasonable person
could ever have arrived at that conclusion. If
however the enquiry is properly held, the
departmental authority is the sole judge of facts,
and if there is some legal evidence on which the
findings can be based, the adequacy or reliability of
that evidence is not a matter which can be
permitted to be canvassed before the High Court in
a writ petition.
These principles were further reiterated in the State
of Andhra Pradesh v Chitra Venkata Rao (1975) 2
SCC 557. The jurisdiction to issue a writ of certiorari
under Article 226 is a supervisory jurisdiction. The
court exercises the power not as an appellate court.
The findings of fact reached by an inferior court or
tribunal on the appreciation of evidence, are not re-
opened or questioned in writ proceedings. An error
of law which is apparent on the face of the record
can be corrected by a writ court, but not an error of
fact, however grave it may be. A writ can be issued
if it is shown that in recording the finding of fact, the
tribunal has erroneously refused to admit
admissible and material evidence, or had
erroneously admitted inadmissible evidence. A
finding of fact recorded by the tribunal cannot be
challenged on the ground that the material
evidence adduced before the tribunal is insufficient
or inadequate to sustain a finding. The adequacy or
sufficiency of evidence led on a point, and the
inference of fact to be drawn from the said finding
are within the exclusive jurisdiction of the tribunal.
In subsequent decisions of this Court, including
Union of India v. G. Ganayutham (1997) 7 SCC
463,Director General RPF v. Ch. Sai Babu (2003) 4
SCC 331, Chennai Metropolitan Water Supply and
Sewerage Board v T.T. Murali (2014) 4 SCC 108,
.
Union of India v. Manab Kumar Guha (2011) 11 SCC
535,these principles have been consistently
followed.
In a recent judgment delivered by this Court in the
State of Rajasthan &Ors. v. Heem Singh , Judgment
dated 29.10.2020 passed in C.A. N. 3340 of 2020 by
a bench comprising of Justice D.Y. Chandrachud and
Justice Indira Banarjee, this Court has summed up
the law in following words :
"33. In exercising judicial review in
disciplinary matters, there are two ends
r of the spectrum. The first embodies a
rule of restraint. The second defines
when interference is permissible. The
rule of restraint constricts the ambit of
judicial review. This is for a valid reason.
The determination of whether a
misconduct has been committed lies
primarily within the domain of the
disciplinary authority. The judge does not
assume the mantle of the disciplinary
authority. Nor does the judge wear the
hat of an employer. Deference to a
finding of fact by the disciplinary
authority is a recognition of the idea that
it is the employer who is responsible for
the efficient conduct of their service.
Disciplinary enquiries have to abide by
the rules of natural justice. But they are
not governed by strict rules of evidence
which apply to judicial proceedings. The
standard of proof is hence not the strict
standard which governs a criminal trial,
of proof beyond reasonable doubt, but a
civil standard governed by a
preponderance of probabilities. Within
the rule of preponderance, there are
varying approaches based on context
and subject. The first end of the
spectrum is founded on deference and
autonomy - deference to the position of
the disciplinary authority as a fact finding
authority and autonomy of the employer
.
in maintaining discipline and efficiency of
the service. At the other end of the
spectrum is the principle that the court
has the jurisdiction to interfere when the
findings in the enquiry are based on no
evidence or when they suffer from
perversity. A failure to consider vital
evidence is an incident of what the law
regards as a perverse determination of
fact. Proportionality is an entrenched
feature of our jurisprudence. Service
jurisprudence has recognized it for long
years in allowing for the authority of the
court to interfere when the finding or the
r penalty are disproportionate to the
weight of the evidence or misconduct.
Judicial craft lies in maintaining a steady
sail between the banks of these two
shores which have been termed as the
two ends of the spectrum. Judges do not
rest with a mere recitation of the hands-
off mantra when they exercise judicial
review. To determine whether the finding
in a disciplinary enquiry is based on some
evidence an initial or threshold level of
scrutiny is undertaken. That is to satisfy
the conscience of the court that there is
some evidence to support the charge of
misconduct and to guard against
perversity. But this does not allow the
court to re-appreciate evidentiary
findings in a disciplinary enquiry or to
substitute a view which appears to the
judge to be more appropriate. To do so
would offend the first principle which has
been outlined above. The ultimate guide
is the exercise of robust common sense
without which the judges' craft is in
vain."
In Union of India v. P. Gunasekaran (2015) 2 SCC
610, this Court held that the High Court in exercise
of its power under Articles 226 and 227 of the
Constitution of India shall not venture into re-
.
appreciation of the evidence. The High Court would
determine whether : (a) the enquiry is held by the
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
which are 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.
In paragraph 13 of the judgment, the Court held
that :
"13.Under Articles 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 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."
14. Adverting to the facts, it would be noticed that
the appellant was appointed as Medical Officer to serve in
the rural area. However, instead of serving in the said
area, the appellant began to indulge in private practice and
thereafter simply walked away without availing the leave in
accordance with law.
15. On the subject of grant of Extraordinary Leave to
the State Government employees to serve outside
Government, the State Government issued Office
Memorandum dated 22.03.2001. In terms of the said
Memorandum, the employees of the State Government
were given an opportunity to avail Extraordinary Leave
subject to maximum of five years in case they seek
employment outside the Government (within the Country)
on the terms and conditions as stood enumerated in the
said Office Memorandum. Clause-VII of the said
.
Memorandum, inter alia, provided that before allowing an
employee to avail Extraordinary Leave, the concerned
Administrative Secretary was to take a view as to whether
the Department could spare the services of concerned
employee. It further stood mentioned in this Clause that
such leave shall not be allowed in case the Department
feels that services of the concerned employee could not
be spared in exigencies of public service.
16. The appellant being a Government servant was
expected to discharge his duties with complete integrity
which would take in its sweep probity, innocence,
truthfulness, openness, sincerity, blamelessness,
immaculacy, rectitude, uprightness, virtuousness,
righteousness, goodness, cleanness, decency, honour,
reputation, nobility, irreproachability, purity, respectability,
genuineness, moral excellence etc. In short, he should have
depicted sterling character with firm adherence to a code of
moral values. (Refer : Union of India and others vs. P.
Gunasekaran (2015) 2 SCC 610 ).
17. A learned Division Bench of this Court
comprising one of us (Justice Tarlok Singh Chauhan) while
.
dealing with a similar issue in CWP No. 2518 of 2020
titled Sumedha Bhatti vs. State of H.P. and others,
decided on 13.08.2020, observed as under:-
"10. The petitioner thereafter vide letter dated
04.01.2020 and 24.04.2020 was directed to submit
a revised proforma in proper format for availing
earned leave and further remain present in office so
that leave be sanctioned in her favour but the
petitioner has not presented herself in the office
even after the lapse of one year.
11. The petitioner has not filed any counter to these
instructions.
12. Once that be so, we have no doubt in our mind
that the petitioner seems to be riding high on the
fuel of power and has failed to realize that the office
manned by her is sacrosanct and is meant for use
and not for abuse and, in case, the petitioner spoils
the rules, then law is not powerless and would step
in. The petitioner being a government servant
cannot act like a private individual, who is free to
act in a manner whatever he/she likes unless it is
interdicted or prohibited by law.
13. It needs no reiteration that the public servants
have to act strictly in the four corners of the law and
all the activities are governed by rules, regulations,
instructions etc. etc. Discipline is the hall mark of
every employee and in case an employee is not
ready to subject himself/herself to discipline, then
.
obviously, he is to not only invite the wrath of his
employer but is also liable to be proceeded at least
departmentally. Every employee must be loyal and
disciplined towards his employer, which the
petitioner has failed.
14. We observe so, because the petitioner is
educated and working as ACST&E and therefore very
well knew that leave cannot be claimed as a right
and in the present case, much less in a manner as
claimed by the petitioner, the petitioner cannot
dictate terms to respondent by seeking ex post facto
sanction of the earned leave in absence of there
being any provision for the same. As an obedient
government servant the petitioner ought to have
applied for the leave in accordance with law and
only thereafter proceeded on leave.
15.The country governed by rule of law and put it in
the immortal words by 17th century English
Churchman Thomas Fuller "Be you ever so high, law
is above you".
16.Every employee is not only expected but is
mandated by law to maintain good conduct and
discipline and show courtesy and attention to all
persons in the office but here is a case where the
petitioner for no valid rhyme or reason has not
reported for a duty for over a year."
18. Reverting back to the case, we find that the
learned Writ Court has considered the case of the
appellant from all possible angles, as is evident from
paragraph-14 of the order, which reads as under:-
.
"14. Coming to the facts of this case, here the
petitioner happened to be a Medical Officer. In his
capacity as such, he was appointed in the rural area
of the State of Himachal Pradesh. It is not in dispute
that there was an Office Memorandum issued by the
Government of Himachal Pradesh, permitting
employees of the Government of Himachal Pradesh
to go on Extraordinary Leave, but an employee only
had a right of being considered to be granted
Extraordinary Leave in terms of Clause VII of the
Memorandum. In this case, the petitioner, who
happened to be a Class-I Officer and not a novice,
after applying for Extraordinary Leave, mis-
conducted himself by proceeding on leave without
the same being sanctioned in his favour. Not only
this, when in his application, he made an alternative
prayer of being retied prematurely, which was
rejected by the authority concerned, a prudent
person would have immediately re-joined his duties,
which he did not do. This clearly proves the intent of
the petitioner that he was no more interested in
performing his duties as a Medical Officer. The
reasons as to why he was no more interested to
perform the duties of a Medical Officer, are clearly
borne out from the record that he was indeed
having his own private practice and, that too, when
he happened to be a Government employee. This
kind of conduct from a Medical Officer is least
expected. The judgment relied upon by learned
counsel for the petitioner with regard to
.
proportionality of punishment that can be imposed
upon a person, in my considered view, has no
applicability as far as this case is concerned.
Hon'ble Supreme Court in Chairman-cum-Managing
Director, Coal India Limited and another Vs. Mukul
Kumar Choudhuri and others, (2009) 15 Supreme
Court Cases 620 has been pleased to hold as under:
r "19.
concept
The
of judicial
doctrine
proportionality is, thus, well-recognised
review in
of
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 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."
No doubt, the doctrine of proportionality has to be
taken into consideration while imposing punishment
upon an employee in case he is found guilty of
misconduct, but in my considered view, there
cannot be any straitjacket formula in this regard
and the proportionality will depend upon facts of
each and every case. In this case, we are dealing
.
with a Medical Officer. This Court places a Medical
Officer akin to a soldier, who guards our Border. A
Medical Officer cannot be equated with any other
employee and the issue of willful absence from
service in the case of a Medical Officer has serious
and different connotations as compared to any
other employee. In this view of the matter, this
Court is of the view that the punishment which has
been imposed upon the petitioner by the
Disciplinary Authority and which has been upheld by
the Appellate Authority, by no stretch of
imagination, can be said to be harsh or
disproportionate to the misconduct of the
petitioner."
19. While exercising the appellate jurisdiction
mandated by laws, this Court would not ordinarily revisit
the factual aspects. However, each case would depend on
its own facts and we have perused the entire records
including the inquiry report to satisfy ourselves and find no
perversity manifest failure of justice, violation of principles
of natural justice or violation of any law. The doctrine of
proportionality does not get remotely attracted to the
facts of the instant case. The punishment is definitely not
shockingly disproportionate.
20. In view of the aforesaid discussion and reasons
stated, we find no merit in this appeal and the same is
.
accordingly dismissed, so also the pending application, if
any.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya )
Judge
13th August, 2021.
(krt)
