Shanti Devi vs The State Of Jharkhand Through ...
2023 Latest Caselaw 2354 Jhar

                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                      W.P.(S). No. 4366 of 2018
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                 Shanti Devi                                ..........          Petitioner
                                                Versus

1. The State of Jharkhand through Principal Secretary, Department of Home, Govt. of Jharkhand, Ranchi.

2. Director General of Police-cum-Inspector General of Police, Jharkhand, Ranchi.

3. Deputy Inspector General of Police, Jharkhand Armed Police, Ranchi

4. Commandant, Jharkhand Armed Police-6, Jamshedpur, East Singhbhum.

                                                         ..........         Respondents.
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         CORAM: THE HON'BLE DR. JUSTICE S.N.PATHAK
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               For the Petitioner      :       Mr. Rakesh Kumar Sinha, Advocate
               For the Respondents :           Mr. Divyam, AC to SC-IV
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09/ 19.07.2023 Heard the parties.

         Prayers made

2. Petitioner has approached this Court with a prayer for quashing the order dated 12.12.2008 issued by respondent No. 4, whereby the petitioner's husband, Anand Mistri, Police No. 449, was dismissed from service.

Petitioner has further prayed for quashing the appellate order dated 28.06.2010, passed by Deputy Inspector General of Police, Jharkhand Armed Police, Ranchi, whereby the appeal preferred by the husband of the petitioner was dismissed and the order of dismissal was affirmed.

Petitioner has further prayed for quashing the charge-sheet dated 24.09.2008, whereby the husband of the petitioner was issued charge-sheet for abandoning his duty on 28.07.2008 and further for not reporting to the duty despite communication made by the Unit .

Petitioner has further prayed for a direction upon the respondents to pay the death-cum-retiral benefits to the petitioner on account of death of her husband.

Factual Matrix

3. The husband of the petitioner, Anand Mistry joined the Jharkhand Armed Police on 18.02.1988 and while he was posted in Jharkhand Armed Police-6, Jamshedpur, he went to withdrew money from ATM on 28.07.2008 but fell in a ditch and sustained injury in his leg and could not return to his duty. Thereafter, the Commandant sent a letter at the permanent address of petitioner on 06.08.2008 by post and again by personal service on 25.08.2008, which was received by petitioner but since her husband was not at home and she was unaware about his whereabouts, she could not inform him. Since the husband of the petitioner did not report for duty, a charge-sheet was issued to him vide memo dated 24.09.2008, by the Commandant, JAP-6 and it was alleged that he has abandoned his service and did not report for duty despite communication sent to him and further that he was a habitual leave-taker. On 27.10.2008, when the husband of the petitioner reported for his duty, he came to know about initiation of disciplinary proceeding and was asked to submit his reply. Accordingly, he submitted his reply wherein he stated that while going to ATM, he became very ill and was admitted in hospital with the help of locals and has prayed for mercy. However, the petitioner's husband due to his ignorance could not produce medical certificate for the relevant period and instead submitted his previous prescriptions and therefore his explanation was rejected and proceeding was conducted, in which he was found guilty of the misconduct.

4. Thereafter, the Commandant, JAP-6 issued 2nd show-cause notice to petitioner's husband and asked to show-cause as to why he should not be dismissed. It is stated that copy of enquiry report was not furnished to the petitioner's husband. The husband of the petitioner submitted the 2 nd show- cause along with medical certificate and prescriptions. However, being not satisfied with the reply submitted by the husband of the petitioner, the disciplinary authority vide its order dated 12.12.2008, dismissed him from services. Aggrieved by the order of dismissal, the husband of the petitioner preferred appeal which also stood dismissed on 28.06.2010. Thereafter, the

husband of the petitioners, who was suffering from various ailments, died on 25.11.2013.

After death of his husband, the petitioner has been constrained to knock the door of this Court for redressal of her grievances. Submissions of learned counsel for the petitioner

5. Mr. Rajesh Kumar Sinha, learned counsel appearing for the petitioner assiduously argues that the impugned orders are not tenable in the eyes of law since an employee cannot be punished by invoking his past record without specifically mentioning his previous record in the memo of charge. The order of punishment cannot be passed taking into account the previous misconduct which was not specifically mentioned in the memo of charge. Learned counsel further argues that the order of dismissal on the basis of previous misconduct amounts to double jeopardy as earlier the employee was suitably punished for previous misconduct. Learned counsel further argues that the respondents have violated principles of natural justice by not furnishing enquiry report to petitioner's husband. Learned counsel further argues that the appellate authority has failed to exercise jurisdiction by rejecting the appeal of petitioner's husband in a mechanical manner by a non-speaking order. Learned counsel further argues that though the husband of the petitioner served sincerely and diligently for 20 years, the order of dismissal is disproportionate to the charges levelled against him and as such, the order of punishment is fit to be quashed and set aside. Submissions of learned counsel for the Respondents

6. Per contra, counter-affidavit has been filed. Learned counsel for the respondent-State vehemently opposes the contention of learned counsel for the petitioner and submits that the Commandant, JAP-6, Jamshedpur after perusal of entire case record and departmental proceeding as well as explanation which has been given by the petitioner's husband, found that the behavior of the petitioner's husband is against the service rule and discipline of the force. The explanations which have been given by the petitioner's husband were not capable of exonerating him from the allegations levelled against him and hence, the order of dismissal dated

12.12.2008 has been issued by the Commandant, JAP-6 intimating thereby to the petitioner's husband that he has been dismissed from the service vide order dated 12.12.2008. Thereafter, the appellate authority also affirmed the order of punishment which does not require any interference. Learned counsel further argues that law is well settled that this Court sitting under Article 226 of the Constitution cannot reappraise the evidences that too when order of dismissal is affirmed by the Appellate Authority. Learned counsel accordingly submits that for the aforesaid facts and reasons, the writ petition is fit to be dismissed in limine.

Findings of the Court

7. Having heard the parties across the bar and upon perusal of the documents brought on record, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons:

(I) It is an admitted fact that husband of the petitioner was not fit to report for his duties due to injury sustained by him. However, this fact has not been properly appreciated by the respondents.

(II) The respondents have taken consideration the past act of the petitioner's husband which has not been mentioned in the charge memo.

(III) What is not in the charge memo, the same cannot be taken into consideration for inflicting punishment, which is impermissible in the eyes of law.

(IV) Since petitioner's husband died because of the ailment, the widow has approached this Court.

(V) From perusal of the records it is crystal clear that the absenteeism of the petitioner's husband was neither intentional nor deliberate rather it happened due to compelling circumstances and as such, the punishment awarded to the husband of the petitioner is too harsh and disproportionate.

8. The Hon'ble Apex Court in case of Krishnakant B. Parmar Vs. Union of India & Anr. [(2013) 3 SCC 178], has held that:

"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.

19. In the present case the inquiry 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.

20. The question relating to jurisdiction of the court in judicial review in a departmental proceeding fell for consideration before this Court in M.V. Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919] wherein this Court held: (SCC p. 95, para 25) "25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

9. In the instant case nothing has been placed on record to show that the absence was not due to compelling circumstances rather, the Enquiry Officer did not come with any finding on the injury sustained by the husband of the petitioner. Admittedly, in case where the authorities have affirmed the order of punishment, judicial review is not attracted. However,

when the punishment is disproportionate to the gravity of the misconduct and shocks conscience of the Court, the judicial review is attracted and order of punishment can be interfered with by this Court.

10. The Hon'ble Apex Court in case of Coal India Ltd. v. Mukul Kumar Choudhuri, reported in (2009) 15 SCC 620, has held that where delinquent upon being charged of the misconduct fairly admitted his guilt and explained the reasons for his absence, punishment of removal was not only unduly harsh but grossly in excess of allegations and resultantly, the appellants were directed to reinstate the Respondent 1 forthwith.

11. The Hon'ble Apex Court in case of Chennai Metropolitan Water Supply and Sewerage Board and Ors. Vs. T.T. Murali Babu, reported in (2014) 4 SCC 108 has observed that there cannot be any straight jacket formula in the case of unauthorized absenteeism and it will depend upon many factors as has been laid down in P.L Singla's case [(2008) 8 SCC 469] The Hon'ble Apex Court in case of Chennai Metropolitan Water Supply and Sewerage Board and Ors. Vs. T.T. Murali Babu (supra) has held as under:

"23. We have quoted in extenso as we are disposed to think that the Court in Krushnakant B. Parmar case [Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] has, while dealing with the charge of failure of devotion to duty or behaviour 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 on the part of the disciplinary authority to come to a conclusion that the absence is wilful. On an apposite understanding of the judgment Krushnakant B. Parmar case [Krushnakant B.

Parmar v. Union of India, (2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] 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 unauthorised absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is wilful even if the employee fails to show the compelling circumstances to remain absent.

25. Again, while dealing with the concept of punishment the Court ruled as follows : (P.L. Singla case [State of Punjab v. P.L. Singla, (2008) 8 SCC 469 : (2008) 2 SCC (L&S) 719] , SCC pp. 473-74, para 14) "14. Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence."

27. Thus, the unauthorised absence by an employee, as a misconduct, cannot be put into a straitjacket formula for imposition of punishment. It will depend upon many a factor as has been laid down in P.L. Singla [State of Punjab v. P.L. Singla, (2008) 8 SCC 469 : (2008) 2 SCC (L&S) 719] .

28. Presently, we shall proceed to scrutinise whether the High Court is justified in applying the doctrine of proportionality. The 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 Corpn. Ltd. v. Ashok Kumar Arora [(1997) 3 SCC 72 : 1997 SCC (L&S) 636] is worth reproducing : (SCC pp. 77-78, para 20) "20. 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 evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee."

30. In Coal India Ltd. v. Mukul Kumar Choudhuri [Coal India Ltd. v. Mukul Kumar Choudhuri, (2009) 15 SCC 620 : (2010) 2 SCC (L&S) 499] , the Court, after analysing the doctrine of proportionality at length, ruled thus : (SCC p. 634, paras 19-21) "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 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 unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons 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 imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations."

After so stating the two-Judge Bench proceeded to say that one of the tests to be applied while dealing with the question of quantum of punishment is whether any reasonable employer would have imposed such punishment in like circumstances taking into consideration the major, magnitude and degree of misconduct and all other relevant circumstances after excluding irrelevant matters before imposing punishment.

31. It is apt to note here that in the said Mukul Kumar Choudhuri case [Coal India Ltd. v. Mukul Kumar Choudhuri, (2009) 15 SCC 620 : (2010) 2 SCC (L&S) 499] the respondent had remained unauthorisedly absent from duty for six months and admitted his guilt and explained the reasons for his absence by stating that he neither had any intention nor desire to disobey the order of superior authority or violate any of the rules or regulations but the reason was purely personal and beyond his control. Regard being had to the obtaining factual matrix, the Court interfered with the punishment on the ground of proportionality. The facts in the present case are quite different. As has been seen from the analysis made by the High Court, it has given emphasis on past misconduct of absence and first time desertion and thereafter proceeded to apply the doctrine of proportionality. The aforesaid approach is obviously incorrect. It is tell-tale that the respondent had remained absent for a considerable length of time. He had exhibited adamantine attitude in not responding to the communications from the employer while he was unauthorisedly absent. As it appears, he has chosen his way, possibly nurturing the idea that he can remain absent for any length of time, apply for grant of leave at any time and also knock at the doors of the Court at his own will.

12. From the aforesaid observations it can comfortably be inferred that while considering the case of unauthorized absence and while imposing punishment, the Authority has to take into consideration major, magnitude and degree of misconduct and other relevant circumstances after excluding the irrelevant matters before imposing punishment. However, in the instant

case, the respondent-authorities have given a complete go-bye to the law laid by the Hon'ble Apex Court in the aforesaid judgments and illegally and arbitrarily awarded the order of dismissal which was later on affirmed by the Appellate Authority.

13. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncement, the order of punishment dated 12.12.2008 as well as appellate order dated 28.06.2010 and charge-sheet dated 24.09.2008 being not tenable in the eyes of law, are hereby quashed and set aside.

14. The respondents are directed to pay the entire death-cum-retiral benefits to the petitioner on account of death of her husband, in accordance with law. Normally, this Court could not have granted interest on the death- cum-retiral benefits but since the matter relates to a widow of a deceased employee, who has been harassed by the respondent-authorities for no fault of her, this Court is inclined to allow interest @ 6% per annum, in view of judgment rendered by the Hon'ble Supreme Court in State of Andhra Pradesh & Anr. vs. Dinavahi Lakshmi Kameswari [Civil Appeal No. 399 of 2021 (arising out of SLP(C) No. 12553/20200], reported in (2021) 11 SCC 543, wherein it is held that salaries and pensions are "rightful entitlements" of government employees and in case of delay, they should be paid with interest at an appropriate rate.

15. Let the entire exercise be completed and benefits should be extended to the petitioner within a period of eight weeks from the date of receipt/ production of a copy of this order.

16. Resultantly, the writ petition stands allowed.

(Dr. S.N. Pathak, J.) kunal/-