Jharkhand High Court

Shyamanand Jha Son Of Late ... vs The State Of Jharkhand Through The ... on 6 October, 2023

                       1                       W.P.(S) No.7227/2013



 IN THE HIGH COURT OF JHARKHAND AT RANCHI
             W.P.(S) No.7227 of 2013
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Shyamanand Jha son of Late Ramjeevan Jha, resident of Village- Maubehat, Post Office, Manigachhi and Police Station-Manigachhi, District-Darbhanga, at present working as Personal Assistant (reverted) in the Water Resource Department, State of Jharkhand at Ranchi. .... .... Petitioner Versus

1. The State of Jharkhand through the Chief Secretary, Government of Jharkhand, Office at Ranchi Project Building, Police Station and Post Office-Dhurwa, District-Ranchi.

2. The Principal Secretary Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, at Ranchi Project Building, Police Station and Post Office-Dhurwa, District- Ranchi.

3. The Deputy Secretary Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, at Ranchi Project Building, Police Station and Post Office-Dhurwa, District- Ranchi.

4. The Deputy Secretary cum Conducting Officer, Departmental Enquiry, Department of Urban Development, Government of Jharkhand, at Ranchi Project Building, Police Station and Post Office-Dhurwa, District-Ranchi.

5. The Secretary, Health, Medical Education and Family Welfare Department, Government of Jharkhand, at Ranchi Project Building, Police Station and Post Office-Dhurwa, District-Ranchi.

6. The Joint Secretary, Health, Medical Education and Family Welfare Department, Government of Jharkhand, at Ranchi Project Building, Police Station and Post Office-Dhurwa, District-Ranchi.

7. The Accountant General, Jharkhand, Doranda at Ranchi, Police Station and Post Office-Doranda, Ranchi.

.... .... Respondents

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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         For the Appellant          : Mr. Kaustav Roy, Advocate
         For the State              : Mr. Md. Shahabuddin, SC-VII

For the Accountant General : Mr. Amit Kr. Verma, Advocate

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17/Dated: 06.10.2023

1. This writ petition is under Article 226 of the Constitution of

India, whereby and whereunder, the order as contained in memo

no.99 dated 17.04.2013 passed by the respondent no.2, by which,

the following punishments have been inflicted as has been affirmed

by the appellate authority, have been sought to be quashed:-

(i) Reversing the rank of petitioner from private secretary to

personal assistant;

(ii) Reducing his pay salary to minimum scale of pay for the

post;

(iii) Taking decision of non-payment of salary for the period of

absence and

(iv) Not counting the said period for pensionary benefits.

2. The brief facts of the case, as per the pleading made in the writ

petition, required to be enumerated which read as under:-

3. It is the case of the petitioner that the petitioner is working as

Personal Assistant under the Water Resource Department of the

Government of Jharkhand after reversion.

4. It is the further case that the Nephew (Bhagina) of the

petitioner who was looking after the entire household affairs of the

petitioner as well as his properties was murdered and the petitioner

got the information at 7:00 pm on 31.12.2008, accordingly at 8:00 pm

itself the petitioner went to the Secretary i.e. his controlling authority

and sought leave of one week with effect from 01.01.2009 which was

allowed and thus the petitioner proceeded for his house situated in

the district of Dharbhanga. Since the situation was crucial at his

village after murder of his nephew, as such, before expiry of the

sanctioned leave on 08.01.2009 he sent an application by post to the

secretary (respondent no. 6) concerned to grant earned leave to the

petitioner from 08.01.2009 to 31.01.2009.

5. Thereafter, he again requested the respondent concerned to

grant further leave vide his application dated 01.03.2009, thereafter

also vide application dated 30.03.2009, which are attached hereto

with the application. On 3.7.2009, he again sent the application

through fax to his controlling authority i.e. respondent no. 6 to grant

further leave.

6. It is further stated that the petitioner has been continuously

sending the applications before his controlling officer, i.e. the

respondent no. 6 for grant/extension of the leave regularly, which has

never been refused, such as on 10.12.2009, 10.3.2010, 8.4.2010,

7.6.2010, 11.8.2010 which were duly received and all these

applications were containing the actual address of the petitioner

where he was residing, but never any order has been communicated

by the respondents to the petitioner showing that the respondent no.

6 has ever rejected his leave applications which clearly suggests that

the leave applications submitted by the petitioner were duly

accepted.

7. All of sudden on 18.10.2010, the petitioner came to know

through his friend about a notice said to be published in Hindi daily

'Prabhat Khabar' published in its Ranchi edition on dated 12.10.2010

where in the petitioner was directed to submits his joining on duty

otherwise and cautioned to face the disciplinary actions. The writ

petitioner being dedicated and loyal employee even during severe

pain in his 1-5 Spine, appeared before the Respondent no. 2 and

submitted his joining with an application along with its annexure

containing the earlier communications made by him with the relevant

medical prescriptions and being satisfied with the same the

respondent no. 2 has accepted his joining. It is relevant to submit

here that till then neither the petitioner was suspended nor his prayer

was ever rejected, which may be evident from the aforesaid

document and thus it may be safely said that taking into

consideration of his genuine cause the respondent accepted the

joining which could safely be said that the petitioner has not been

considered as absent from duty.

8. Once again he has appeared before the respondent no. 2 on

21.10.2010 and submitted his application with a prayer to grant him

medical leave for one month since 8:00 pm from 21.10.2010 to

20.11.2010 and the same has been duly accepted by the concerned

authority accordingly, he proceeded to his village home, thereafter

even before expiry of the leave upto 20.11.2010, he submitted the

application on dated 18.11.2010 through the registered post for

extension of the medical leave.

9. The petitioner has already given detailed explanation regarding

his absence as mentioned aforesaid. At one side he was suffering

from chronic disease due to which he was unable to perform his duty

diligently and honestly. On the other hand he was passing through

mental agony, shock and depression on account of ghastly and

brutal murder of his nephew (Bhagina) who was the only person

looking after the household affair of the petitioner.

10. The department concerned never constituted any medical

board to access his health condition and enquire about the

genuineness of all the medical certificates which the petitioner had

submitted with his letter as well as with explanation sought by the

department.

11. On 30.8.2012 the deputy secretary, the respondent no. 3 has

issued a letter vide memo no. 10046 directing the petitioner to submit

his reply within two weeks countering the charges before the

conducting officer otherwise the conducting officer may conclude the

proceeding ex-parte within three months, but it is surprising enough

that no copy of the letter has either been addressed to the petitioner

or communicated to him.

12. The explanation whatsoever was directed to be submitted to

the conducting officer directly but it was never informed to the

petitioner and no copy was sent to him. This shows malafide of the

respondents and when they felt their guilt they have rectified the

same by issuance of memo no. 38 dated 27.09.2012 which

transpires that Smt. Kaveri Ghosh was made the presenting officer

and the author of the letter was made as the conducting officer of the

proceeding and this clearly indicates that prior to the instant memo

neither any preliminary enquiry was initiated against the petitioner

nor he has been provided any opportunity to explain the reasons due

to which he was compelled to remain absent from the duty and of

course this letter/memo is addressed to the petitioner but no such

communication ever served on the petitioner prior to his appearance

before the conducting officer.

13. It is further stated that the respondents have shown that letter

no. 41 dated 12.10.2012 had been issued to the petitioner for

participating in the departmental proceeding but no such

communication has ever been served/ received by the petitioner,

naturally the petitioner could not be able to appear before the

conducting officer nor ever any explanation was sought from the

petitioner by the respondents or the memo of charges were ever

served thereafter the conducting officer has contacted the petitioner

on his mobile phone number and directed the petitioner to appear

before him to participate in the departmental proceeding. In this

regard letter no.45 dated 01.11.2012 has been issued by the

respondent no. 4 which supports contention of the petitioner

regarding non-receipt of any communication earlier.

14. It is further stated that the petitioner appeared before the

respondent no. 4 on 23.11.2012 in compliance of the aforesaid order

dated 01.11.2012 and for the first time the memo of charges under

format K was handed over by the respondent no.4 to the petitioner.

The petitioner astonished to see the same that none of the

application for grant of leave has been considered or taken into

consideration while framing the charges against the petitioner that

shows that they were predetermined to punish the petitioner.

Moreover, the petitioner appeared before the respondent no. 4 on

04.12.2012 and requested to furnish the list of witnesses so that he

may able to cross examine them. But the list was not furnished to the

petitioner as no such list was given on behalf of the presenting officer

and conducting officer directed the petitioner to get the same

procured by meeting the presenting officer Kaveri Ghosh but the

petitioner has been told that on the oral instructions of any authority

she will not provide the same to the petitioner, which has being well

informed to the conducting officer, and this shows enough that there

was proper departmental enquiry going to be initiated so that any

how the petitioner could be punished.

15. On 12.12.2012 the petitioner submitted its reply annexing all

relevant documents/ applications for leave supported with medical

prescriptions/medical certificates and postal receipts and requested

to exonerate him from charges as there was no willful or deliberate

laches on part of the petitioner.

16. After receipt of the enquiry report the second show cause was

issued to the petitioner for explaining the reason as to why he may

not be removed from service in compliance thereof the petitioner

submitted its second reply to the second show cause on 26.02.2013

in which the petitioner has categorically denied the charges and

requested the respondent no. 3 to exonerate him from the charges.

17. It appears from the pleading made hereinabove that the writ

petitioner, while posted as a Private Secretary, was departmentally

proceeded for commission of irregularities for unauthorized absence.

A regular departmental proceeding was initiated. The writ petitioner

was directed to appear in the inquiry proceeding, in terms thereof, he

had appeared and put forth his defence.

18. The inquiry officer has found the charge proved. The said

report was forwarded before the disciplinary authority. The

disciplinary authority while accepting the finding recorded by the

inquiry officer has passed the order of punishment dated 17.04.2013,

whereby and whereunder, the following punishments have been

imposed:-

(i) Reversing the rank of petitioner from private secretary to

personal assistant;

(ii) Reducing his pay salary to minimum scale of pay for the

post;

(iii) Taking decision of non-payment of salary for the period of

absence and

(iv) Not counting the said period for pensionary benefits.

19. The petitioner, being aggrieved with the same, has preferred

an appeal before the appellate authority. The appellate authority has

also declined to interfere with the order passed by the disciplinary

authority vide order dated 06.09.2013.

20. The petitioner, being aggrieved with the same, has filed this

writ petition challenging the order passed by the disciplinary authority

and the appellate authority.

21. Learned counsel for the petitioner has taken the ground that on

31.10.2015, the writ petitioner has retired during the pendency of the

writ petition.

22. The ground has been taken on the quantum of punishment,

since, according to the learned counsel for the petitioner, the

punishments of reversion from private secretary to that of personal

assistant is the punishment which cannot be said to be

commensurate with the offence, as alleged to have committed by the

petitioner.

23. It has been submitted that apart from the aforesaid

punishments, the other punishments have also been imposed by

placing the petitioner in pay-band-II of Rs.9300-34800/-.

24. Further, it has been decided that for the period, for which, the

writ petitioner has not performed his duty, no salary will be given as

also the aforesaid period will not been counted for the purpose of

pensionery benefit. However, the service rendered prior to the

aforesaid period and the post service rendered, will be counted for

the pensionery benefit.

25. Learned counsel for the petitioner has also taken the ground in

addition to the aforesaid ground that the punishment has inflicted

upon the petitioner as under para-5(Kha) & (Ga), of the office order

dated 17.04.2013, is otherwise also without any authority of law,

since, the said punishments are not prescribed in the list of

punishment, as would be evident from Rule 49 of the Civil Services

(Classification, Control and Appeal) Rules, 1930.

26. Per contra, Md. Shahabuddin, SC-VII, learned counsel

appearing for the State has submitted that since the period of

absence is for a long period and hence, it cannot be said that the

punishments, so imposed, are not commensurate with the charge or

the offence committed by the petitioner.

27. It has been submitted that unauthorized absence without

sanction leave is a major misconduct which having been proved by

the inquiry officer and if in that circumstances, the punishment of

reversion from private secretary to that of personal assistant has

been passed, the same cannot be said to be not commensurate with

the charge leveled against the petitioner.

28. Learned counsel for the State, in that view of the matter, has

submitted that it is incorrect on the part of the petitioner to take the

ground that punishment of reversion for the said period is not

commensurate.

29. So far as the ground agitated on behalf of the petitioner that

the punishments as inflicted under Para-5(Kha) & (Ga) of the office

order dated 17.04.2013 are without jurisdiction, since, the same is

not prescribed under the list of punishments are concerned, he is fair

enough to submit that the said punishments are not in the list of

punishments, as per the provision of Rule 49 of the Civil Services

(Classification, Control and Appeal) Rules, 1930.

30. This Court has heard the learned counsel for the parties and

perused the materials available on record as also gone across the

impugned orders of punishment.

31. The admitted fact herein is that the petitioner, while holding the

post of private secretary remained absent, however, for initial period

of one month, his leave was sanctioned but subsequent thereto, he

remained absent without sanction of the leave.

32. However, the plea has been taken that the authority concerned

has been informed periodically for the purpose of sanctioning the

leave.

33. The disciplinary authority having found that the writ petitioner is

absent from duty without any sanctioned leave and hence, decided

to initiate a proceeding, which contains a provision of Rule 55 to

initiate a proceeding for inflicting major punishment.

34. The inquiry officer was appointed. The writ petitioner had

participated and tried to impress upon the inquiry officer that

authorized absence may not be considered to be unauthorized one,

since, the petitioner was facing the situation which was beyond his

control.

35. The inquiry officer has discarded the said plea by giving a

specific finding to that effect that whatever medical certificate has

been produced by the petitioner, has found to be suspicious in

absence of any cash memo of purchasing medicine.

36. Further, the ground of unauthorized absence, i.e., the sickness

of the writ petitioner is also discarded on the ground that the

disciplinary authority has constituted a medical board for his

participation, so as to come to the conclusion, as to whether the

petitioner was medically seek or not. But, the petitioner on one

pretext or the other had not appeared before the medical board.

37. It further appears from the inquiry report that the paper

publication for appearance of the petitioner was also given effect to

along with his appearance before the medical board but even then,

he has not appeared.

38. The inquiry officer based upon the aforesaid fact has found the

charge of unauthorized absence proved against the petitioner.

39. The disciplinary authority, while accepting the said report has

issued second show cause notice. The same was responded too by

the writ petitioner. The reply having not found to be satisfactory by

the disciplinary authority, hence, the order of punishment has been

passed by giving due deliberation of the finding recorded by the

inquiry officer.

40. The said order was challenged before the appellate authority

but the appellate authority has declined to interfere with the same,

therefore, the instant writ petition.

41. The writ petitioner has taken the ground of punishment having

not said to be commensurate with the offence alleged in the list of

punishments.

42. It is settled law that unauthorized absence, if found to be not

willful, then such unauthorized absence from duty is not to be

considered as an unauthorized absence, reference in this regard

may be made to the judgment rendered by the Hon'ble Apex Court in

the case of Krushnakant B. Parmar Vrs. Union of India & Anr.,

reported in (2012) 3 SCC 178, wherein, it has been held at

paragraph-17 to 19 as under:-

"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.

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."

43. The law as has been settled in the case of Krushnakant B.

Parmar vs. Union of India and Another (Supra) that in a case of

unauthorized absence which is a gross misconduct, a finding is

required to be given with respect to the absence said to be willful.

The aforesaid judgment has subsequently been followed in the case

of Chennai Metropolitan Water Supply and Sewarage Board and

Ors. vs. T. T. Murali Babu, (2014) 4 SCC 108 as would appear from

paragraphs-22 and 23 thereof. For ready reference, the said

paragraphs are being referred as under:-

"22. The learned counsel for the respondent has

commended us to the decision in Krushnakant B. Parmar v. Union of India [Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] to highlight that in the absence of a finding returned by the inquiry officer or determination by the disciplinary authority that the unauthorised absence was wilful, the charge could not be treated to have been proved. To appreciate the said submission we have carefully perused the said authority. In the said case, the question arose whether "unauthorised absence from duty" did tantamount to "failure of devotion to duty" or "behaviour unbecoming of a government servant" inasmuch as the appellant therein was chargesheeted for failure to maintain devotion to duty and his behaviour was unbecoming of a government servant. After adverting to the rule position the two Judge Bench expressed thus : (SCC pp. 181-82, paras 16-18) "16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether 'unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of

compelling circumstances.

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."

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."

44. But, it is also equally settled that the judgment laying down the

ratio is to be applied based upon the factual aspects governing the

case.

45. Herein, this Court, on consideration of the inquiry report has

found that the delinquent employee, the writ petitioner has taken the

ground of medical aliment and death of his nephew. However, initially

for one month, the leave was sanctioned.

46. But subsequent thereto, the plea was taken that the petitioner

fell ill and due information was given to the authority concerned, in

support thereof, the documents have also been produced before the

inquiry officer along with the medical prescription.

47. The inquiry officer has taken note of the same along with the

prescription. But, it has not been accepted mainly for the reason that

the petitioner even though, has admitted that he was at the place of

posting, but he has not taken pain to come to the office to give

information.

48. Further, the inquiry officer has also not accepted the same,

since, there is no medical report suggesting the fact that the writ

petitioner was advised to confine to bed.

49. The inquiry officer has also not accepted the said plea on the

ground that the disciplinary authority has constituted a medical board

for the medical examination of the writ petitioner, which was duly

been informed and even it was published in the daily newspaper. But

he has not bothered to participate for his medical examination before

the medical board.

50. It is, thus, evident that the stand which was taken by the writ

petitioner before the inquiry officer in order to prove that the absence

cannot be said to be unauthorized, since, the reason was beyond his

control. But the same was discarded by the inquiry officer, as per the

reason referred by the inquiry officer in the inquiry report

51. The unauthorized absence being a major misconduct and if the

writ petitioner has not discharged his duty without any sanction of

leave, then, it cannot be said that the punishment of reversion is not

commensurate with the charge.

52. The law is well settled, so far as the interference to be shown

by the High Court in exercise of power conferred under Article 226 of

the Constitution of India, as per which, there is limited scope of

judicial review in the order passed by the disciplinary authority,

reference in this regard may be made to the judgment rendered by

the Hon'ble Apex Court in the case of Union of India & Others vs.

P. Gunasekaran, (2015) 2 SSC 610. At paragraphs-12 and 13

thereof, the 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 reads as under:

"12. 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, reappreciating 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.

13. 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."

53. Further, in Central Industrial Security Force and Ors. vs.

Abrar Ali [(2017) 4 SCC 507], following guidelines have been laid

down by the Apex Court for interference by the High Court in the

matter of punishment imposed on conclusion of the departmental

proceeding. The extract of relevant passages, i.e., para 13 and 14,

are referred hereinbelow:

"13. 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.

14. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, [(2011) 4 SCC 584], 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."

54. So far as the position of law regarding interference on the

quantum of punishment is concerned, the law is well settled in the

quantum, the High court in exercise of power conferred under Article

226 of the Constitution of India, can interfere but if the punishment so

imposed shocks the conscience of the Court, it will be bounded duty

of the Court to assign the reason as to what led the Court in

shocking the conscience. Reference in this regard may be made to

the judgment rendered by the Hon'ble Apex Court in the case of

Director General, RPF & Ors. Vrs. Ch. Sai Babu, reported in

(2003) 4 SCC 331, wherein, it has been held at paragraph-6 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."

55. This Court, on consideration of the aforesaid position of law

and while coming back to the fact finding of the inquiry officer which

has been accepted by the disciplinary authority, is of the view that

that the conduct of the writ petitioner reflects by not producing

himself before the medical board that the absence, as per the

allegation said to be unauthorized which has been proved to be

correct, does not shock the conscience of the Court, hence, so far as

the ground, as has been agitated on behalf of the petitioner that

punishment of reversion from Private Secretary to Personal

Assistant, is fit to be quashed, according to the considered view of

this Court, is having no substance, accordingly, the same is rejected.

56. In consequence of the fact that this Court has not interfered

with the order of punishment so far as it relates to the finding

recorded by the inquiry officer, wherein, the charge of the

unauthorized absence has found to be proved, therefore, the

decision by the authority for non-payment of salary for the said

period of absence, in consequence, will also not require any

interference.

57. Accordingly, this Court is not willing to show any interference

with respect to the punishment nos.(i) and (iii) are concerned, since,

the denial of salary for the period of unauthorized absence is the

consequence of charge of unauthorized absence being found to be

proved.

58. So far as the argument advanced on behalf of the learned

counsel for the petitioner pertaining to punishment nos.(ii) and (iv)

are concerned, the same is not prescribed under the list of

punishments.

59. This Court, in order to examine the aforesaid fact, deems it fit

and proper to consider the provision of Rule 49 of the Civil Services

(Classification, Control and Appeal) Rules, 1930 which contains the

list of punishments, for ready reference, Rule 49 is being referred as

under:-

"49. The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in rule 14, namely:-

(i) Censure.

(ii) Withholding of increments or promotion including stoppage at an efficiency bar.

(iii) Reduction to a lower post or time scale, or to a lower stage in a time-scale.

(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders.

(iv-a) Compulsory retirement.

(v) Suspension.

(vi) Removal from the civil service of the Crown, which does not disqualify from further employment.

(vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment."

60. The punishment, if imposed deviating from the list of

punishment, is to be considered without jurisdiction, since, the

disciplinary authority is only required to inflict punishment, as per the

list of punishment, if any punishment, if imposed deviating from the

list of punishments, the same will be without any authority of law,

reference in this regard may be made to the judgment rendered by

the Hon'ble Apex Court in the case of Vijay Singh Vrs. State of

Uttar Pradesh and Ors., reported in (2012) 5 SCC 242. Relevant

paragraph of the said judgment reads as under:

"11. Admittedly, the punishment imposed upon the appellant is not provided for under Rule 4 of the 1991 Rules. Integrity of a person can be withheld for sufficient reasons at the time of filling up the annual confidential report. However, if the statutory rules so prescribe, it can also be withheld as a punishment. The order passed by the disciplinary 6 authority withholding the integrity certificate as a punishment for delinquency is without jurisdiction, not being provided under the 1991 Rules, since the same could not be termed as punishment under the Rules. The Rules do not empower the disciplinary authority to impose "any other" major or minor punishment. It is a settled proposition of law that punishment not prescribed under the Rules as a result of disciplinary proceedings cannot be awarded.

12. This Court in State of U.P. v. Madhav Prasad Sharma [(2011) 2 SCC 212 : (2011) 1 SCC (L&S) 300] dealt with the aforesaid 1991 Rules and after quoting Rule 4 thereof held as under : (SCC p. 216, para 16) "16. We are not concerned about other rule. The perusal of major and minor penalties prescribed in the above Rule makes it clear that „sanctioning leave without pay‟ is not one of the punishments prescribed, though, and under what circumstances leave has been sanctioned without pay is a different aspect with which we are not concerned for the present. However, Rule 4 makes it clear that

sanction of leave without pay is not one of the punishments prescribed. Disciplinary authority is competent to impose appropriate penalty from those provided in Rule 4 of the Rules which deals with the major penalties and minor penalties. Denial of salary on the ground of „no work no pay‟ cannot be treated as a penalty in view of statutory provisions contained in Rule 4 defining the penalties in clear terms."

(emphasis added)

13. The authority has to act or purport to act in pursuance or execution or intended execution of the statute or statutory rules. (See Poona City Municipal Corpn. v. Dattatraya Nagesh Deodhar [AIR 1965 SC 555] ; Municipal Corpn., Indore v. Niyamatullah [(1969) 2 SCC 551 : AIR 1971 SC 97] ; J.N. Ganatra v. Morvi Municipality, Morvi [(1996) 9 SCC 495 : AIR 1996 SC 2520] and Borosil Glass Works Ltd. Employees' Union v. D.D. Bambode [(2001) 1 SCC 350 : 2001 SCC (L&S) 997 : AIR 2001 SC 378] .)

14. The issue involved herein is required to be examined from another angle also. Holding departmental proceedings and recording a finding of guilt against any delinquent and imposing the punishment for the same is a quasi-judicial function and not administrative one. (Vide Bachhittar Singh v. State of Punjab [AIR 1963 SC 395] , Union of India v. H.C. Goel [AIR 1964 SC 364] , Mohd. Yunus Khan v. State of U.P. [(2010) 10 SCC 539 : (2011) 1 SCC (L&S) 180] and Coal India Ltd. v. Ananta Saha [(2011) 5 SCC 142 : (2011) 1 SCC (L&S) 750] .)

15. Imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules. Therefore, while performing the quasijudicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. The disciplinary authority is bound to give strict adherence to the said rules. Thus, the order of punishment being outside the purview of the

statutory rules is a nullity and cannot be enforced against the appellant.

23. Thus, in view of the above, the punishment order is not maintainable in the eye of the law. In the result, the appeal succeeds and is allowed. The impugned order dated 8-7-2010 withholding the integrity certificate for the year 2010 and all subsequent orders in this regard are quashed. The respondents are directed to consider the case of the appellant for all consequential benefits including promotion, etc. if any, afresh taking into consideration the service record of the appellant in accordance with law."

61. Coming back to the facts of the case, herein, punishment

nos.(ii) & (iv) i.e., reducing his pay salary to minimum scale of pay for

the post and not counting the said period for pensionery benefits

respectively, are not prescribed under Rule 49 of the Rule, 1930,

hence, considering the settled position of law, as has been held by

the Hon'ble Apex Court in the case of Vijay Singh Vrs. State of

Uttar Pradesh and Ors. (supra), this Court is of the view that

punishment no.(ii) is held to be unjustified on the ground of

jurisdictional error.

62. Accordingly, punishment nos.(ii) & (iv), i.e., reducing his pay

salary to minimum scale of pay for the post and not counting the said

period for pensionery benefits respectively, are hereby quashed and