Jharkhand High Court

The Union Of India vs Md. Asif Ansari on 23 March, 2021

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    L.P.A. No.520 of 2019
                               ----

1. The Union of India, through the Secretary Ministry of Railways Board, Rail Bhawan, P.O. & P.S. - New Delhi, District-New Delhi.

2. The Director General, Railway Protection Force, Railway Board, Rail Bhawan, P.O., P.S. & District-New Delhi.

3. The Chief Security Commissioner, R.P.S.F. Railway Board, P.O., P.S. & District-New Delhi.

4. The Deputy Inspector General, R.P.S.F. Railway Board, Rail Bhawan, P.O., P.S. & District-New Delhi.

5. The Commandant-cum-disciplinary R.P.S.F., 10th Batallian, Dhanbad, District Dhanbad, E.C. Railway, P.O., P.S. & Dist. - Dhanbad.

6. The Assistant Commandant R.P.S.F., 10th Batallian, Dhanbad, District Dhanbad, E.C. Railway, P.O., P.S. & Dist. - Dhanbad.

7. The Company Commander R.P.S.F., 10th Battalion, Dhanbad, District Dhanbad, E.C. Railway, P.O., P.S. & Dist. - Dhanbad through Ajay Kumar son of Late Brij Nandan Prasad aged about 50 years Adjutant 10 BN RPSF Dhanbad.

                                        ...   ...     Appellants
                             Versus

Md. Asif Ansari, S/O Zia Uddin Ansari, R/O - P.O. Sidula, P.S. Andal, District - Burdwan (W.B.).

                                         ...    ... Respondent
                             -------
CORAM :           HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellants : Mr. Mokhtar Khan, Advocate : Mr. Gautam Rakesh, Advocate

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ORAL JUDGMENT

Order No. 06 : Dated 23rd March, 2021

With the consent of the parties, hearing of the matter

has been done through video conferencing and there is no

complaint whatsoever regarding audio and visual quality.

I.A. No. 1633 of 2021

This interlocutory application has been preferred under

Section 5 of the Limitation Act for condoning the delay of 56

days in preferring this Letters Patent Appeal.

2. Heard parties.

3. Having regard to the averments made in the application

and submissions made on behalf of the appellants, we are of

the view that the appellants were prevented from sufficient

cause in filing the appeal within the period of limitation. As

such, the delay of 56 days in preferring the appeal is hereby

condoned.

4. I.A. No. 1633 of 2021 stands allowed.

L.P.A. No.520 of 2019

5. The instant intra-Court appeal is under Clause 10 of the

Letters Patent directed against the order/judgment dated

30.04.2019 passed by learned Single Judge of this Court in

W.P.(S) No. 2305 of 2017 whereby and whereunder the order

of punishment dated 01.04.2014 for removal of the writ

petitioner from service as also the order dated 30.07.2015

passed by the appellate authority on the appeal filed by the

petitioner and the order dated 26.10.2015 passed by the

revisional authority, have been set aside by remanding the

matter before the disciplinary authority to take a decision on

the quantum of punishment by passing an appropriate order

within stipulated period of eight weeks from the date of

receipt of copy of the order.

6. The brief facts of the case which need to be enumerated

herein, read as under :-

The writ petitioner was appointed as a constable and

was posted at 10th Battalion, R.P.S.F., Dhanbad. Since he

was suffering from some orthopaedic problem since 2008, as

such, he was referred to the Railway Hospital, E.C. Railway at

Dhanbad. As per the medical report, the writ petitioner was

found suffering from instability of right knee for the last five

years and, therefore, recommendation was made by the

doctors to take light work from the petitioner, if possible.

Thereafter, on 10.06.2009, the writ petitioner was declared

unfit for the job of constable in medical category B-1 and was

found fit for sedentary job only. The appellant created a

special supernumerary post temporarily for the said medical

„D‟ categorisation. The petitioner was absorbed in the special

supernumerary post and was allowed to draw the same pay

which he was drawing as constable. The writ petitioner,

thereafter, was directed to report for re-examination to

Jagjeevan Ram Hospital, Mumbai Central where he was

found fit for duty as a constable. It is the case of the writ

petitioner that he resumed the duty but again fell ill for which

he was treated by one Dr. D.P. Bhusan, Assistant Professor,

Department of Orthopaedic, P.M.C.H., Dhanbad from

03.10.2012 till January 2016. It is the further case of the writ

petitioner that he submitted all the medical documents to his

department but ignoring the same the department proceeded

against the petitioner on the charge of unauthorized absence

and to that effect a charge-sheet was issued and served to the

petitioner. The writ petitioner responded to the said allegation

but the reply having been found unsatisfactory, he was

proceeded against departmentally. A regular departmental

enquiry was conducted against him. The writ petitioner

participated in the said enquiry and produced some medical

documents in support of his contention but the enquiry

officer found the charge of unauthorized absence to be

proved.

Second show cause notice was issued to the writ

petitioner which had duly been responded but the

disciplinary authority vide order dated 01.04.2014 finding the

reply furnished by way of second show cause unsatisfactory,

has imposed the punishment of removal from service.

The writ petitioner being aggrieved by the same, filed a

writ petition before this Court being W.P.(S) No. 5095 of 2013

but that writ petition was disposed of on the ground that the

petitioner is already pursuing the statutory appellate remedy

against the order of removal.

Thereafter, the appeal filed by the writ petitioner was

dismissed vide order dated 30.07.2015 against which revision

was preferred which was also dismissed vide order dated

26.10.2015.

The writ petitioner, against the order of dismissal,

appellate as well as revisional order, has preferred writ

petition before this Court being W.P.(S) No. 2305 of 2017 on

the ground that the punishment imposed upon him is

excessive and does not commensurate with the charge.

According to the writ petitioner, he was charged for the

misconduct as enumerated under Rule 146.2 (iii) and 147 (vi)

of the Railway Protection Force Rules, 1987. It has been

submitted by the writ petitioner that the first charge is in

respect of absence without leave and the second one relates

to withdrawing from duty of the service without permission.

According to the writ petitioner, the said absence was

not willful as he was under medical treatment and he was not

in a position to attend the duty. He has further agitated the

point that the enquiry report also suggests that he had

submitted the medical documents before the enquiry officer,

but merely on the ground that he was not an indoor patient

and he did not get himself treated at any railway hospital, his

misconduct was proved.

His further case before the writ court was that as per

the Railway Protection Force Rules there are several other

punishments which could have been inflicted upon the

petitioner but having imposed the punishment of removal

from service is too harsh and does not commensurate with

the charge.

The respondents appeared and defended the order

passed by the disciplinary authority by taking the plea that

all the procedures of departmental proceeding have been

followed by observing the principle of natural justice.

It has been contended that since the writ petitioner was

a member of disciplined force as such the absence without

permission is a gross misconduct and taking into

consideration the aforesaid aspect of the matter, the charge

has been framed which has been found to be proved by the

enquiry officer in course of enquiry and hence, the order of

removal from service is having no illegality.

The writ court, after taking into consideration the rival

submission advanced on behalf of the parties and considering

the fact that the misconduct under Rule 147 (vi) of the

Railway Protection Force Rules, 1987 is wholly not proved as

the party regularly kept informed his hereabouts/self-

sickness to the authority through postal department which

has subsequently been observed by the enquiry officer which

finding, according to the learned Single Judge, shows that the

intention of the writ petitioner was not mala fide as because

he regularly kept on informing the authorities about his

physical position and his inability.

According to the learned Single Judge, the only charge

which stands proved is 146.2(iii) which is of unauthorized

absence. The learned Single Judge was of the view that

although the writ petitioner has proceeded on leave without

permission but for that the writ petitioner has furnished the

plausible explanation for remaining absent which is his

health ground and as such the absence cannot be said to be

willful.

The learned Single Judge is of the view that the

punishment of removal from service is excessive and harsh

and, therefore, the order of punishment as also the appellate

and the revisional orders have been quashed and set aside on

the ground of quantum of punishment which, according to

learned Single Judge, has been found to be excessive and not

in commensurate with the charge levelled with a direction

upon the disciplinary authority to take decision within the

stipulated period of eight weeks from the date of receipt of

copy of the order which is the subject matter of the present

intra-court appeal.

7. Mr. Mokhtar Khan, learned counsel appearing for the

appellant-Railway, has submitted that the learned Single

Judge has committed gross error in remitting the matter

before the authority without taking into consideration the fact

that the charge has been proved by the enquiry officer after

providing due opportunity of defending his case. He further

submits that the writ petitioner has not tried to defend

himself with respect to his ailment and he did not produce

any valid prescriptions of the hospital to suggest that he was

an indoor patient rather he has shown the prescription of

outdoor treatment and taking into consideration the aforesaid

aspect of the matter, the enquiry officer has found the charge

of unauthorized absence proved which has been accepted by

the disciplinary authority by taking into consideration the

fact that the writ petitioner was a member of the disciplined

force and, therefore, the punishment of removal from service

has been inflicted which has been affirmed by the appellate

as well as revisional authorities.

According to the learned counsel, since there is

concurrent finding, therefore, the writ court ought not to have

interfered with the impugned orders on the ground of

quantum of punishment which has been held by the learned

Single Judge as harsh, excessive and not commensurate with

the charge levelled.

8. This Court has heard the learned counsel for the

appellants and gone across the documents available on

record as also the finding recorded by the learned Single

Judge.

9. The undisputed fact in this case is that the writ

petitioner was appointed as constable but while discharging

his duty, he suffered from orthopaedic problem in the year

2008. He was referred to the Railway Hospital, E.C. Railway

at Dhanbad where he was thoroughly checked up and was

declared suffering from instability of right knee vide decision

dated 29.05.2009. The Chief Medical Superintendent, E.C.

Railway, Dhanbad declared the writ petitioner unfit for the

job of constable by declaring the writ petitioner medically

unfit under medical category B-1 and found him fit for

sedentary job only in present medical category i.e., B-1. The

respondent authorities thereafter placed the writ petitioner to

perform the sedentary job by creating supernumerary post

temporarily. The appellant-Railway referred the writ

petitioner to Jagjivan Ram Hospital, Mumbai Central,

Mumbai for his re-examination vide letter dated 17.05.2012

where he was declared to be fit to perform the normal duty of

constable vide report of the Medical Board of Jagjivan Ram

Hospital. Pursuant thereto, the writ petitioner resumed his

duty of constable. The writ petitioner again fell ill and,

therefore, remained absent from duty. A memorandum of

charge along with articles of charge was served upon the writ

petitioner on 23.05.2013. The article of charge reads

as hereunder:-

"ANNEXURE-I

CHARGE SHEET UNDER RULE 153 OF RPF RULES 1987 ISSUED AGAINST MOHD ASIF ANSARI, CONSTABLE/10SF0445512 "C" COY NO. 10Bn/RPSF/DHN.

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CHARGE

Serious misconduct & breach of discipline in that, Mohd. Asif Ansari, Constable/10SF0445512 of C.Coy No.10BN/RPSF/Dhanbad.

Unauthorized absented himself from Battalion Campus, 10BN/RPSF/Dhanbad wef. 20.09.2012 to till date without any authority.

This act of Mohd. Asif Ansari, Constable/10SF0445512 „C Coy No.10BN/RPSF/DHN tantamount to gross misconduct, serious breach of discipline, & disobedience of lawful orders being an enrolled member of the Armed Force of the Union. Thus he has violated the provisions contained in Rule 146.2(iii) & 147(vi) of RPF Rules, 1987 which is punishable as per section 9 of the RPF Act 1957 and modified Act of 1985.

Hence, charged.

Sd/-

(Kiran H. Joshi) Asstt. Commandant No.10BN/RPSF/DHN"

It is evident from the memorandum of charge that the

writ petitioner has been found to be unauthorisedly absent

from duty and as such, the same has been treated to be

misconduct under the provision of Rule 147 (vi) of the

Railway Protection Force Rules, 1987 and he was directed to

put his defence and in pursuance thereto, the defence reply

was submitted but the same having been found

unsatisfactory, a regular departmental proceeding was

initiated in which he participated and defended himself by

producing medical certificates in order to show the reason for

absence.

The enquiry officer found the explanation furnished by

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the writ petitioner unsatisfactory and, therefore, the charge

has been found to be proved which has been accepted by the

disciplinary authority vide order dated 01.04.2014 and in

consequence thereof, the punishment of removal from service

has been imposed. The order of removal from service has

been affirmed by the appellate as also by the revisional

authority.

10. We have gone across the enquiry report more

particularly reason for finding based upon the discussion

made by the enquiry officer. For better appreciation, the same

is being quoted as hereunder :-

"Reason for Finding :-

All possible PW‟s and DW have examined during the Enquiry in presence of Party Charged in different dates and party charged were turned up for all fixed D.E‟s except one sitting. Wherein Party Charged has not pleaded himself Guilty of the charges leveled against him in his Defence Statement. As such DAR proceeding is closed and have come to conclusion. Discussion.

I the undersigned E.O. have come to the conclusion after discussion documents adduced during the proceeding and article charges leveled against the party charge that CT/10SF-0445512, Md. Asif Ansari of „C‟ coy who is unauthorized absenting himself from battalion campus w.e.f. 20/09/2012 to till date without any authority or permission, for which he has been charge sheeted for serious misconduct and breach of discipline due to violation the provisions contained in Rule 146.2(iii) and 147(vi) of RPF Rule 1987. Carefully study of all documents and examined the PW‟s and DW, I being, Enquiry Officer concluded that, the First charge leveled against CT/Md. Asif Ansari i.e. 146.02(iii) of RPF Rule 1987 vide L/No.10BN/C/DAR/153-05/2013-1973 Dated - 23/05/2013 is proved beyond the shadow of doubt as

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he was remained absent w.e.f. - 20/09/2012 to till date from BN/Campus without any proper authority or permission.

The second charge leveled against CT/Md. Asif Ansari i.e. 147(vi) of RPF Rule 1987 vide L/No.10BN/C/DAR/153-05/2013-1973 Dated - 23/05/2013 is in whole not proved as the Party Charged was time to time informed about his whereabouts/self-sickness to his authority through postal.

He submitted in his defense that he was undergoing treatment with Dr. D. P. Bhushan, Assistant Professor, Department of Orthopedic and Dr. B.P. Mahanty, M.S. ortho (Delhi), Orthopedic Surgeon where Dr. D.P. Bhushan who advised him taking rest for only two week from 03/01/2012 and Dr. B.P. Mahanty who also advised to him (PC) to take rest for only 06 week from 18/10/2012 due to his knee pain and further he was continuously taking treatment on 29/11/2012, 06/12/12, 20/11/12, 10/01/12 and 31/01/13 under said Doctor (Dr. B.P. Mohanty) as per only documents produced by party charge with Defence Statement. After about six month, he reported at B.N.Agarwal Memorial Hospital, Raniganj, Bardwan West Bengal and was taking treatment where the concerned doctor advised him for only 15 day‟s rest. In which it is disclosed that, he was took a very long gap between 31/01/2013 to 14/06/13 and in the meanwhile whether he was taking any treatment if any has not been stated anywhere which is established that he was remained absent in that period at his own will. After 14/06/2013, he was only reported at Jyoti Digital X-ray centre, Raniganj for X-ray of RT. Knee JT. A.P./LAT. The said doctors wherever he was undertaking treatment did not mention or disclosed in anywhere that the character of his (PC) illness/disease is very serious which might be took a very long period to recover & become for good health and no any doctors did not declare him in their medical prescription for taking rest such a long period. He also failed to submit/produce any current documents of Medical Treatment his self-sickness which may prove that whether he is still under any medical treatment, as so.

Findings.

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On the basis of documents adduced during enquiry & statements of PW‟s and DW‟s recorded during enquiry, I hold Ct/Asif Ansari is "GUILTY" of the charges leveled against him."

It is evident from the discussion made by the enquiry

officer with respect to the material furnished by the writ

petitioner in his defence that the enquiry officer has come to

a finding that the writ petitioner was undergoing treatment

with Dr. D.P.Bhusan who has advised him to take rest for

two weeks from 03.01.2012 and Dr. B.P.Mahanty also

advised him to take rest for only six weeks from 18.10.2012

due to his knee pain and further, he was continuously taking

treatment under said Dr. B.P.Mahanty. It has been opined

that after about six months he reported at B.N.Agarwal

Momorial Hospital, Raniganj, Bardwan, West Bengal and

shown to have taken treatment where the concerned doctor

advised him for only 15 days‟ rest. The writ petitioner took

very long gap between 31.01.2013 to 14.06.2013 and in the

meanwhile whether he was taking any treatment has not

been stated anywhere which establishes that he remained

absent during that period at his own will.

11. It is settled position of law as has been held by the

Hon'ble Apex Court in Krushnakant B. Parmar v. Union of

India and Another [(2012) 3 SCC 178] laying down the ratio

as under paragraphs 17 and 18 which read as hereunder :-

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"17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.

18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct."

It is evident from the fact involved in the said case that

the delinquent employee therein was also proceeded against

departmentally which was questioned by the delinquent

employee on the ground that the enquiry officer has not come

out with specific finding that the absence which has been

shown to be unauthorized is willful.

The Hon'ble Apex Court, after taking into consideration

the aforesaid aspect of the matter has been please to hold at

paragraph 17 that if the absence is the result of compelling

circumstances under which it was not possible to report or

perform duty, such absence cannot be held to be wilful.

Absence from duty without any application or prior

permission may amount to unauthorised absence, but it does

not always mean wilful. There may be different eventualities

due to which an employee may abstain from duty, including

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compelling circumstances beyond his control like illness,

accident, hospitalisation, etc., but in such case the employee

cannot be held guilty of failure of devotion to duty or

behaviour unbecoming of a government servant.

Further, at paragraph 18 thereof, it has been laid down

that in a departmental proceeding, if allegation of

unauthorised absence from duty is made, the disciplinary

authority is required to prove that the absence is wilful, in

the absence of such finding, the absence will not amount to

misconduct.

Further it has been held by taking into consideration the

factual aspect involved therein that the enquiry officer on

appreciation of evidence though held that the appellant was

unauthorisedly absent from duty but failed to hold that the

absence was wilful. The disciplinary authority as also the

appellate authority failed to appreciate the same and wrongly

held the appellant guilty.

12. We have considered the aforesaid judgment by applying

it in the present facts and circumstances. Herein also it is

evident from the enquiry report, as referred and quoted

hereinabove, that there is no finding to the effect that the

said unauthorized absence is willful.

Therefore, as per the judgment rendered by the Hon'ble

Apex Court, we are of the view that in absence of any finding

to the effect that the unauthorized absence was willful, the

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same will not construe to the misconduct.

Further, the learned Single Judge has considered this

aspect of the matter by taking into consideration the fact that

the writ petitioner had produced the medical certificate

although this Court is coming to such conclusion about not

reaching to the specific finding by the enquiry officer with

respect to the absence found to be willful, however, since we are

sitting in the intra-court appeal and no cross appeal has been

filed by the delinquent employee, therefore, we are proceeding

in order to appreciate the finding recorded by the learned

Single Judge whereby the learned Single Judge has found the

charge pertaining to misconduct under rule 147(vi) of the RPF

Rules of 1987 has not been wholly proved as the delinquent

employee regularly kept informed about his

whereabouts/self-sickness to the authority. The learned

Single Judge has found it to be bonafide approach of the

delinquent employee/writ petitioner. However, the fact about

the finding recorded by the enquiry officer with respect to

charge pertains to Rule 146.2(iii) which is of unauthorized

absence, the writ petitioner has got plausible explanation for

remaining absent which is his health ground which led the

learned Single Judge to reach to the conclusion that the

order of punishment of removal from service is excessive and

needs to be considered by the authorities. This finding,

according to our considered view, does not require any

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interference in view of the fact that even it is the admitted

case of the appellants that at the initial stage the writ

petitioner was found to have suffered from orthopaedic

problem for which he was declared to be medically unfit

temporarily and in consequence thereof, he has been

provided with the sedentary job by creating supernumerary

post, however, he was subsequently found to be medically fit

and was assigned the active Battalion duty. The writ

petitioner again fell ill for which he took treatment and

furnished the medical prescriptions which has not been

doubted by the enquiry officer save and except the fact that

the doctor had advised him to take rest for a certain period

but ignoring the same he has absented from duty for a larger

period and therefore, according to our considered view, if the

reason shown for absence is writ petitioner‟s health issues,

which is also supported by the decision of the Medical Board

constituted by the appellant-Railway, the explanation

furnished by the writ petitioner cannot be said to be

unjustified and concocted. Therefore, if the learned Single

Judge has come to a finding with respect to punishment of

quantum, it cannot be said to suffer from illegality.

13. It is settled position of law that in the order passed by

the administrative authority in the departmental proceeding,

there should not be interference by the writ court sitting

under Article 226 of the Constitution of India but certainly

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the writ court can interfere with the order of punishment if

the punishment inflicted shocks the conscience of the court

as has been held by Hon'ble Apex Court in Union of India

and Others v. P. Gunasekaran, [AIR 2015 SC 545], at

paragraph 13, laying down following guidelines which are self

explanatory:

"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a 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 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;

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h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence.

Under Article 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 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 Apex Court in Management of State Bank

of India v. Smita Sharad Deshmukh and Anr., [(2017) 4

SCC 75], has laid down that it is equally settled position of

law that the High Court sitting under Article 226 of the

Constitution of India can certainly interfere with the quantum

of punishment, if it is found disproportionate to the gravity of

offence

14. So far as the issue of concurrent finding recorded by the

appellate and revisional authorities is concerned, we are of

the considered view that the issue of quantum of punishment

ought to have been taken into consideration by the appellate

or the revisional authority but failed to take into

consideration this aspect of the matter and, therefore, in

such circumstances, if the learned Single Judge has

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interfered with the impugned decisions of the administrative

authorities, the same cannot be said to be unjustified.

15. This Court, after going across the factual aspects

as discussed hereinabove and taking into consideration the