Union Of India Through The ... vs Sudeep Kumar
2022 Latest Caselaw 2760 Jhar

                              [1]


   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        L.P.A. No. 05 of 2020
                                With
                        I.A. No. 132 of 2020

1. Union of India through the Director General of Central Industrial
  Security Force, Block No. CGO Complex, P.O. & P.S.-Lodhi Road,
  Lodhi Road, New Delhi.

2. The Inspector General of Police, East Zone, Head Quarter-Patna,
  Central Industrial Security Force Complex, New Patliputra, P.O. &
  P.S.-Patliputra, Disrict-Patna, Bihar.

3. The Deputy Inspector General, Office of D.I.G. C.I.S.F. Unit,
  B.C.C.L Dhanbad, P.O. Koyla Nagar, P.S. & District-Dhanbad,
  Jharkhand.

4. Commandant, C.I.S.F. Unit, B.C.C.L. Dhanbad, P.O. Koyla Nagar,
  P.S. & District-Dhanbad, Jharkhand.

5. Company Commander, C.I.S.F. Unit, B.C.C.L. Dhanbad, P.O.-Koyla
  Nagar, P.S. & District-Dhanbad, Jharkhand.

  Appellant nos.1 to 3 and 5 are duly represented through the appellant
  no. 4 (Commandant, CISF Unit, C.C.L., Kargali, P.O. Dhori, P.S.
  Bermo, District-Bokaro, having Additional Charge as Commandant,
  C.I.S.F. Unit, B.C.C.L. Dhanbad, P.O.-Koyla Nagar, P.S. & District-
  Dhanbad, Jharkhand)
                                             ... ... Respondents/Appellants
                                    Versus
  Sudeep Kumar, constable Force No. 033190408, s/o Sri Ram Narayan,
  resident of Village-Sajan Talab, Husainganj Maudha, P.O. Ragauli,
  P.S.-Maudha, District-Hamirpur, Uttar Pradesh.
                                              ... ... Petitioner/Respondent
                                 -------

          CORAM:        HON'BLE THE CHIEF JUSTICE
         HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                                 -------

For the Appellants : Mr. Pratyush Kumar, Advocate For the Respondent : Mr. Anuj Burman, Advocate

----------------------------

[2]

ORAL JUDGMENT 07/Dated 20th July, 2022 I.A. No. 132 of 2020:

1. With the consent of the parties, the matter has been heard through video

conferencing. They have no complaint about any audio and/or video

quality.

2. This interlocutory application has been filed for condoning the delay of

74 days, which has occurred in preferring this appeal.

3. Heard the parties.

4. Having heard the learned counsel for the parties and considering the

statements made in this application, we are of the view that the

appellant was prevented from sufficient cause in preferring this appeal

within time.

5. Accordingly, this interlocutory application is allowed and the delay of

74 days in preferring this appeal, is hereby condoned.

LPA No. 05 of 2020:

6. The instant intra-court appeal preferred under Clause 10 of the Letters

Patent is directed against the order/judgment dated 28.08.2019 passed

by the learned Single Judge of this Court in W.P.(S) No. 7788 of 2012,

whereby and whereunder, the order dated 20.11.2010 and the appellate

order dated 19.12.2012, by which the order of punishment of removal

has been passed and affirmed, has been quashed and set aside by

remitting the matter before the authority to take decision afresh in

quantum of punishment.

7. The brief facts as per the pleading made in the writ petition which

require to be enumerated, read as hereunder:

[3]

The writ petitioner was appointed to the post of Constable

(Security Guard) in Central Industrial Security force, Unit Panki, Power

House, Kanpur, U.P. on 19.12.2003. The writ petitioner visited his

native place for 15 days with sanctioned leave from 07.01.2010 to

21.01.2010. According to the writ petitioner, at the native place, he fell

seriously ill and as such, approached to the nearest primary health

centre of the State Government wherein doctor had advised to take bed

rest during the treatment.

The fact about the ailment could not have been communicated

to the concerned authority since the writ petitioner was far away from

the place of posting. The writ petitioner when became medically fit on

the basis of the medical fitness certificate dated 01.04.2010, he reached

to the place of duty and reported for joining on 05.04.2010 wherein he

was verbally informed that he was no more in service and accordingly

the writ petitioner has been removed from service vide order dated

20.11.2010.

The case of the writ petitioner is that the order of removal dated

2011.2010 has been passed without giving any reasonable opportunity

to defend the case since the writ petitioner was at his native place and

was not in a position to move due to his ailment. The writ petitioner

preferred an appeal but the same had been dismissed vide order dated

19.12.2012.

Being aggrieved, the writ petitioner filed a writ petition being

W.P.(S) No. 7788 of 2012 assailing the order passed by the original

authority as also by the appellate authority.

[4]

The writ petitioner has raised the plea of violation of principles

of natural justice as also the ground of excessive punishment being

commensurate with the charge. The learned Single Judge has interfered

with the impugned orders and quashed and set it aside. The matter had

been remitted before the disciplinary authority to take a decision afresh

on the quantum of punishment, which is the subject matter of the instant

intra-court appeal.

8. Mr. Paratyush Kumar, learned counsel for the appellants, the Director

General of Central Industrial Security Force has assailed the order

passed by the learned Single Judge on the ground that the writ petitioner

being the member of the discipline force, as such, absence for 73 days

cannot be taken in a lenient manner otherwise the discipline of the

discipline force will ultimately be at question.

It has been contended that when the writ petitioner has not

reported after the period of sanctioned leave, a departmental proceeding

had been initiated and even though he was knowing about the initiation

of the departmental proceeding, he has not bothered to communicate

any letter or any medical prescription of showing his bonafide about his

illness rather, he, when the order of punishment of removal from service

has been passed, has reported to the office of the concerned authority

and has produced the copy of the medical fitness certificate obtained

from a primary health centre which cannot be said to be a justified

document to condone the unauthorized absence of 73 days.

It has further been submitted that the enquiry officer has

considered the said document, which is a certificate issued by the

concerned hospital, and taking into consideration the fact that there is [5]

no advice of treating doctor advising for complete bed rest, as such, the

writ petitioner should have reported to the duty but having not done so,

he has committed gross misconduct and therefore, a charge-sheet has

been submitted considering the unauthorized absence of 73 days to be a

gross misconduct.

The writ petitioner, even though, was knowing about the

pendency of the departmental proceeding but chosen not to appear,

hence, the proceeding has proceeded ex-parte and finally charges

having proved and accepted by the original authority, order of removal

from service has been passed and the said order has been affirmed by

the appellate authority.

It has been contended that the learned Single Judge while

showing interference with the impugned order has failed to appreciate

the fact about the nature of allegation of 73 days absence that too by a

member of the discipline force.

The learned Single Judge has also failed to appreciate the fact

that the writ petitioner even though was not confined to bed rest, it was

incumbent upon the writ petitioner to report to the duty but chosen not

to do so which further shows the conduct of the writ petitioner which is

not expected from a member of the disciplined force.

It has further been submitted that the learned Single Judge has

remitted the matter by quashing the impugned orders for passing the

order afresh on the quantum of punishment since the learned Single

Judge has come to the conclusion of shocking conscience but in a case

where the court comes to the conclusion that the punishment imposed [6]

shocks the conscience, there must be a reason as to what led the court in

coming to the conclusion of shocking the conscience and it is only

thereafter the quantum of punishment is to be interfered with. But, it

would be evident from the order passed by the learned Single Judge that

merely by recording that the conscience of the court shocks, the order of

punishment is required to be considered afresh so far as the quantum of

punishment is concerned, therefore, on this ground, the order passed by

the learned Single Judge suffers from infirmity.

9. Mr. Anuj Burman, learned counsel for the writ petitioner has defended

the order passed by the learned Single Judge by making submission that

writ petitioner due to unavoidable circumstances could not be able to

report to the duty, as such, the learned Single Judge considering the

punishment of removal from service taking the age of the writ petitioner

to be 31 years, has remitted the matter before the disciplinary authority

for taking decision afresh on quantum of punishment and as such, the

same requires no interference.

According to the learned counsel, the learned Single Judge after

taking into consideration the nature of allegation and considering the

fact that there is absence of 73 days which was beyond his control since

the writ petitioner fell ill while on sanctioned leave, if in such

circumstances, the order of punishment has been interfered with, it

cannot be said to suffer from error.

10. This Court has heard the learned counsel for the parties, perused the

documents available on record as also the finding recorded by the

learned Single Judge.

[7]

11. The fact which is not in dispute in this case is that the writ petitioner

joined as Constable (Security Guard) in Central Industrial Security

force, Unit Panki, Power House, Kanpur, U.P. on 19.12.2003 and while

discharging his duty, he went on sanctioned leave of 15 days from

07.01.2010 to 21.01.2010. The writ petitioner claims that while he was

on sanctioned leave, he fell ill and thereafter, he could not be able to

report to the duty after completion of the sanctioned leave. The writ

petitioner has been issued with a memorandum of charge leveling

therein allegation of gross misconduct since without any due permission

he had over-stayed for a period of 73 days after completion of the

sanctioned leave.

Enquiry commenced but the writ petitioner had not participated

in the enquiry and ultimately the charges leveled against the writ

petitioner has been found to be proved which finally has been accepted

by the disciplinary authority basis upon which the order of punishment

of removal from service has been passed.

The writ petitioner has questioned the order of removal from

service dated 20.11.2010 before the appellate authority but the appellate

authority has also declined to interfere with the same. The orders passed

by the original authority and the appellate authority have been

challenged before this Court by filing writ petition being W.P.(S) No.

7788 of 2012 wherein the learned Single Judge has interfered with the

impugned orders and remitted the matter before the authority for

passing the order afresh on the quantum of punishment on the basis of

the observations made in the impugned order.

[8]

12. This Court before proceeding to examine the legality and propriety of

the impugned order, deems it fit and proper to refer the position of law

regarding the scope of judicial review showing interference with the

order passed by the disciplinary authority as has been held by the

Hon'ble Apex Court in Union of India vs. P. Gunasekaran, AIR 2015

SC 545 wherein at paragraph 13 thereof, following guidelines have

been laid down for showing interference in the decision taken by the

disciplinary authority and not to interfere with the decision which read

as under:

"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;

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."

[9]

The Hon'ble Apex Court in Management of State Bank of

India vs. 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.

In Central Industrial Security Force and Ors. vs. Abrar Ali,

AIR (2017) SC 200, the following guidelines have been laid down,

showing interference by the High Court in the matter of punishment

imposed on conclusion of the departmental proceeding, the extract of

para 8 thereof, is referred hereinbelow:

"8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), this Court held as follows:

"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749: 1996 SCC (LandS) 80: (1996) 32 ATC 44] : (AIR 1996 SC 484) ; Union of India v. G. Ganayutham [(1997) 7 SCC 463: 1997 SCC (LandS) 1806] : (AIR 1997 SC 3387) ; Bank of India v. Degala Suryanar-ayana [(1999) 5 SCC 762: 1999 SCC (LandS) 1036] : (AIR 1999 SC 2407) and High Court of Judicature at Bombay v. Shashikant S. Patil. (AIR 2000 SC 22)".

In Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 : (AIR 2015 SC 545, Para 13), this Court held as follows:

[10]

"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 inquiry officer. The finding on Charge I 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 inquiry is held by a competent authority;

(b) the inquiry 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;

(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 inquiry, 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."

It is, thus, evident from the judgment rendered by the Hon'ble

Apex Court as referred above that the scope of judicial review to

interfere with the order passed by the disciplinary authority is also in a

case where the order of punishment is found to be disproportionate but

while showing interference in the order of punishment on the ground of

quantum of punishment, the Court or Tribunal while dealing with the

quantum of punishment has to record reasons as to why it is felt that the

punishment was not commensurate. The scope for interference is very

limited and restricted to exceptional cases. Failure to give reasons

amounts to denial of justice. A mere statement that it is disproportionate [11]

would not suffice. It is not only the amount involved but the mental set-

up, the type of duty performed and similar relevant circumstances

which go into the decision making process while considering whether

the punishment is proportionate or disproportionate. Paragraph-10 of

the judgment rendered by the Hon'ble Apex Court in Regional

Manager, U.P. SRTC, Etawah and Ors. Vs. Hoti Lal and Anr., (2003)

3 SCC 605 is being reproduced as under:

"10. It needs to be emphasized that the court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court's order would go to show, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taken to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. [See Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120 (NIRC)] .] A mere statement that it is disproportionate would not suffice. A party appearing before a court, as to what it is that the court is addressing its mind. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding the order of dismissal."

13. The principle to record reason while interfering with the order of

punishment on the ground of proportionality has again been considered

by the Hon'ble Apex Court in Director General, RPF and Ors. Vs. Ch.

Sai Babu, (2003) 4 SCC 331 wherein at paragraph-6 it has been

observed that the punishment imposed was extreme was not enough to

disturb or modify the punishment imposed on a delinquent officer since

the learned Single Judge has not recorded reasons to say as to how the

punishment imposed on the respondent was shockingly or grossly [12]

disproportionate to the gravity of charges held proved against the

respondent. Paragraph-6 of the said judgment is being reproduced as

under:

"6. As is evident from the order of the learned Single Judge, there has been no consideration of the facts and circumstances of the case including as to the nature of charges held proved against the respondent to say that penalty of removal from service imposed on the respondent was extreme. Merely because it was felt that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer. The learned Single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. It is not that in every case of imposing a punishment of removal or dismissal from service a High Court can modify such punishment merely by saying that it is shockingly disproportionate. Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works".

14. This Court is now proceeding to examine the finding recorded by the

learned Single Judge which led to come to the conclusion about the

punishment having shown to be disproportionate to the charges leveled.

15. Although the learned Single Judge has come to the conclusion about the

quantum of punishment and on that ground the order of punishment has

been quashed and set aside by remitting it before the disciplinary

authority but the mandatory requirement of assigning the reason as has

been held by the Hon'ble Apex Court in the judgments referred above,

is lacking, and in absence thereof, the conclusion arrived at by the

learned Single Judge to that effect cannot be said to be in accordance

with law.

16. Further, so far as the gravity of charges is concerned, admittedly, the

writ petitioner was a member of discipline force. He was sanctioned

with 15 days of leave from 07.01.2010 to 21.01.2010 but he over-stayed [13]

for a period of 73 days. There might be a situation of medically illness

but the same should be proved by relevant documents. The finding

recorded by the enquiry officer, according to our considered view, the

conduct of the writ petitioner cannot be considered to be bonafide

showing the reason of unauthorized absence since has produced only

the medical certificate issued by the primary health centre and no other

document has been produced.

The authority has issued communication for the presence of the

writ petitioner but no response has been shown by the writ petitioner.

However, the writ petitioner after lapse of 73 days has appeared and

reported on duty on the strength of medical certificate issued by the

OPD of a hospital.

17. It is evident from the order passed by the enquiry officer that the writ

petitioner has not submitted any prescription supported by any cash

memo in support of purchase of medicines to establish his bonafide.

Further, the medical certificate issued by the OPD of a primary health

centre does not indicate anything about the bed rest and as such, the

writ petitioner since was not advised for bed rest, it was incumbent

upon him to report to duty. Even, the report does not show that he was

suffering from serious disease so that he could not have contacted the

authority explained the entire facts but he has chosen not to do so which

shows the conduct of the writ petitioner which is not accepted from a

member of the discipline force.

18. Law is well settled that the member of discipline force is required to be

considered on different pedestal in comparison to that of civilians since

in a case of member of discipline force, discipline is having paramount [14]

importance and once the discipline will go, the entire system will break

and that is the reason the members of the discipline force are to be

considered on different pedestal to that of civilians.

19. Herein, the enquiry proceeded but the writ petitioner has not bothered to

report himself before the enquiry officer by making any communication

by any mode rather he on conclusion of enquiry and when the order of

removal had been passed, reported on duty on the strength of a medical

certificate issued by the OPD of the primary health centre.

The disciplinary authority considering the said conduct of the

writ petitioner of leave for a period of 73 days to be a serious

misconduct as per the applicable conduct rules, passed the order of

punishment of removal from service.

20. It requires to refer herein that the disciplinary authority while passing

the order of removal from service has taken into consideration the age

of the writ petitioner since the removal from service does not amount to

disqualification from future employment.

The writ petitioner approached to this Court but the learned

Single Judge has considered it a case of violation of principles of

natural justice but the learned Single Judge while coming to such

conclusion has not considered the vital aspect of the matter, the very

intention of the writ petitioner in not choosing to appear before the

enquiry officer by not reporting on duty on the alleged ground of illness

but the writ petitioner, save and except, the medical certificate issued by

the OPD of the primary health centre has not produced the prescriptions

of the doctors, the reports and the cash memos in support of purchase of [15]

medicines to establish his bonafide about the illness, therefore, the

conclusion arrived at by the learned Single Judge about the principles of

natural justice in the context of the present case and as per the

discussion made hereinabove, cannot be said to be justified.

Further, the learned Single Judge however has interfered with

the order of punishment since the punishment imposed against the writ

petitioner shocks the conscience of the learned Single Judge but while

coming to such conclusion about shocking the conscience, no reason

has been assigned, therefore, merely by referring the ground that it

shocks the conscience of the court without assigning any reason, cannot

be said to be proper while showing interference.

21. As per the discussion made hereinabove and according to the

considered view of this Court, the order passed by the learned Single

Judge suffers from infirmity, as such, requires interference.

22. Accordingly, the order passed by the learned Single Judge is hereby

quashed and set aside.

23. In the result, the instant appeal stands allowed and the writ petition

stands dismissed.

24. Pending interlocutory application, if any, also stands disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Saurabh/

A.F.R.