Jharkhand High Court

Ajay Kumar Binha vs The State Of Jharkhand on 6 February, 2024

Author: Rajesh Shankar

Bench: Rajesh Shankar

                               1

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
               W.P.(S) No. 1389 of 2021
Ajay Kumar Binha                           ...   ...     Petitioner
                                  Versus
1. The State of Jharkhand
2. The Commissioner, South Chhota Nagpur Division, Ranchi
3. The Deputy Commissioner, Khunti
4. The Land Reforms Deputy Collector, Khunti
5. The Circle Officer, Arki, Khunti  ...    ...     Respondents
      CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
                      -----

For the Petitioner : Mr. Sanjeev Thakur, Advocate Mr. Rakesh Kumar, Advocate For the Respondents : Ms. Archna Kumari, AC to AAG-V

-----

Order No. 11 Dated: 06.02.2024 The present writ petition has been filed for quashing

the order dated 02.02.2021 (Annexure-6 to the writ petition)

passed by the respondent no. 2 - the Commissioner, South Chhota

Nagpur Division, Ranchi in Service Appeal No. 08/2021, affirming

the order as contained in memo no. 305(ii) dated 22.10.2020

issued by the respondent no. 3 - the Deputy Commissioner,

Khunti, whereby the petitioner was imposed punishment of

stoppage of one increment with cumulative effect and that he

would get only subsistence allowance during the period of

suspension.

2. Heard learned counsel for the parties and perused the

materials available on record.

3. Learned counsel for the petitioner has primarily argued

with respect to quantum of punishment imposed upon the

petitioner and has submitted that the same is disproportionate to

the charge levelled against him i.e., leaving headquarter without

permission for one day i.e., 11.05.2020 during the period of Covid-

19 pandemic showing negligence to his duty and disobeying order

of superior officials. According to learned counsel for the petitioner,

the major punishment of stoppage of one increment of petitioner

with cumulative effect is not commensurate with the said charge.

It is also submitted that during enquiry, the petitioner had clearly

stated that on 11.05.2020, his health condition got suddenly

deteriorated and he was taken to the hospital by his son in

unconscious condition and due to the said reason, he could not

inform the authorities about his unavailability in the headquarter of

Arki Anchal, Khunti. The absence from headquarter for a single

day is not such a serious lapse on the part of the petitioner for

which a major punishment of stoppage of one increment with

cumulative effect should have been imposed upon him, in addition

to not granting him the salary except the subsistence allowance

paid during the suspension period.

4. On the contrary, Ms. Archna Kumari, AC to AAG-V

appearing on behalf of the respondents, while referring to the

counter affidavit dated 09.03.2022 filed on behalf of the

respondent nos. 3 to 5, submits that the petitioner is a habitual

offender of committing misconduct and hence, the aforesaid

punishment imposed upon him is proportionate to the proved

charge. Earlier also, the petitioner was found guilty of misconduct

as would be evident from letters as contained in memo no. 707

dated 12.06.2017 and memo no. 907 dated 27.07.2017 (Annexure-

A series to the counter affidavit) issued by the Deputy

Development Commissioner, Khunti to the petitioner, whereby his

salary for one day i.e., 10.06.2017 as well as 7 days in the month

of July, 2017 respectively was deducted. Under the said

circumstance, the impugned orders do not require any interference

of this Court.

5. It appears that a departmental proceeding was

initiated against the petitioner and charge was framed that owing

to the situation arising out of coronavirus (Covid-19) pandemic and

keeping in view the lockdown imposed during the said period,

direction was issued by the Deputy Commissioner, Khunti, Sub-

Divisional Officer, Khunti and the Circle Officer, Arki to all the

officers/employees working under the said offices to remain

present in the headquarter, however, in course of surprise

inspection made at the stated address of the petitioner, he was

found absent. It was also alleged that despite oral direction of the

Circle Officer, Arki, the petitioner used to come to the office from

different places which was indicative of his carelessness,

indiscipline and disobedience of the orders of the higher

authorities.

6. During the departmental proceeding, the petitioner

took a defence that he was suffering from high blood pressure and

diabetes. Moreover, on 11.05.2020, he suffered from loose motion

due to which his condition got deteriorated. He was then taken by

his son for treatment in unconscious condition. The reason behind

deterioration of his health condition was that during the lockdown

period, he could not get the medicines for treatment of his

ailments.

7. The enquiry officer, however, found the charge levelled

against the petitioner proved and thereafter, the respondent no. 3

- the Deputy Commissioner, Khunti (the disciplinary authority) vide

impugned order as contained in memo no. 305(ii) dated

22.10.2020, imposed punishment of stoppage of one increment

with cumulative effect upon him. It was also ordered that he

would get only subsistence allowance during the suspension

period.

8. The stand taken in the counter affidavit filed on behalf

of the respondent nos. 3 to 5 that the petitioner is a habitual

offender of committing misconduct and, therefore, the said

punishment imposed upon him is proportionate to the charge. I

have perused the letters dated 12.06.2017 and 27.07.2017 issued

by the Deputy Development Commissioner, Khutni to the

petitioner. On perusal of letter dated 12.06.2017, it appears that

the petitioner allegedly did not take prior approval on 09.06.2017

for availing casual leave on 10.06.2017, rather he sent an

application through some other person on 10.06.2017 itself

seeking casual leave on the said date to attend a marriage

ceremony. The petitioner was asked to submit explanation vide

said letter dated 12.06.2017 on the said aspect, however,

simultaneously his salary of 10.06.2017 i.e., of one day was

ordered to be deducted. Further, it would be evident from letter

dated 27.07.2017 that the petitioner allegedly left the office for 7

days in the month of July, 2017 at 5:00 p.m., whereas the duty

hour in the office was till 5:30 p.m. On 25.07.2017, he was

searched in the office at 4:30 p.m., however, he was found

unauthorizedly absent. He was then directed to submit

explanation, however, simultaneously his salary for 7 days was

withheld. The respondents have not stated in the counter affidavit

as to whether pursuant to issuance of the aforesaid letters, any

disciplinary proceeding was initiated in that regard. Thus,

deduction/withholding of salary of the petitioner by reasons of the

said letters cannot be treated as punishment imposed upon him.

9. So far as the present charge is concerned, the

petitioner was found absent in the headquarter on 11.05.2020 i.e.,

for one day. Perusal of the impugned order dated 22.10.2020

would suggest that the aforesaid defence taken by the petitioner

during the departmental proceeding was not at all dealt with by

the disciplinary authority while imposing major punishment.

Undoubtedly, the disciplinary authority has the power to impose

punishment upon the delinquent so as to maintain discipline in the

office, however, the said punishment should not be shockingly

disproportionate to the charge levelled against him.

10. The Hon'ble Supreme Court in the case of

"Government of India & Anr. Vs. George Philip" reported in

(2006) 13 SCC 1, has held as under: -

11. It is trite that the Tribunal or the High Court exercising jurisdiction under Article 226 of the Constitution are not hearing an appeal against the decision of the disciplinary authority imposing punishment upon the delinquent employee. The jurisdiction exercised by the Tribunal or the High Court is a limited one and while exercising the power of judicial review, they cannot set aside the punishment altogether or impose some other penalty unless they find that there has been a substantial non-compliance with the rules of procedure or a gross violation of rules of natural justice which has caused prejudice to the employee and has resulted in miscarriage of justice or the punishment is shockingly disproportionate to the gravamen of the charge. The scope of judicial review in matters relating to disciplinary action against employees has been settled by a catena of decisions of this Court and reference to only some of them will suffice. In B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749] it was observed as under in para 18 of the Report: (SCC p. 762) "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion

to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."

11. In the case of "S.R. Tewari Vs. Union of India &

Anr." reported in (2013) 6 SCC 602, the Hon'ble Supreme Court

held as under:

24. The question of interference on the quantum of punishment has been considered by this Court in a catena of judgments and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. In [Ranjit Thakur v. Union of India, (1987) 4 SCC 611], this Court observed as under: (SCC pp. 620-21, paras 25 & 27) "25. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. ***

27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." (emphasis supplied) (See also Union of India v. G. Ganayutham [(1997) 7 SCC 463] , State of U.P. v. J.P. Saraswat [(2011) 4 SCC 545] , Chandra Kumar Chopra v. Union of India [(2012) 6 SCC 369] and High Court of Patna v. Pandey Gajendra Prasad [(2012) 6 SCC 357] .)

25. In B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749], this Court after examining its various earlier decisions observed that in exercise of the power of judicial review, the court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, the court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the

quantum of punishment in place of punishment awarded by the competent authority.

26. In V. Ramana v. A.P. SRTC [(2005) 7 SCC 338] , this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the Court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority to reconsider the penalty imposed.

However, in order to shorten the litigation, in exceptional and rare cases, the court itself can impose appropriate punishment by recording cogent reasons in support thereof.

27. In State of Meghalaya v. Mecken Singh N. Marak [(2008) 7 SCC 580] this Court observed that : (SCC p. 584, paras 13-14) "13. ... A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it felt that the punishment is not commensurate with the proved charges.

14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. ... The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review."

(See also A.P. SRTC v. P. Jayaram Reddy [(2009) 2 SCC 681].)

28. The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide Union of India v. Bodupalli Gopalaswami [(2011) 13 SCC 553] and Sanjay Kumar Singh v. Union of India [(2011) 14 SCC 692].)

29. In Union of India v. R.K. Sharma [(2001) 9 SCC 592], this Court explained the observations made in [Ranjit Thakur v. Union of India, (1987) 4 SCC 611] observing that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate it would warrant interference. However, the said observations in [Ranjit Thakur v. Union of India, (1987) 4 SCC 611] are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and courts should not interfere merely on compassionate grounds.

12. Thus, it is well settled principle of law that the High

Court in exercise of jurisdiction under Article 226 of the

Constitution may interfere with the order of punishment passed by

the disciplinary authority if the punishment awarded to any

delinquent is found to be shockingly disproportionate to the charge

levelled against him.

13. In the case in hand, just for one day of absence from

the headquarter that too on medical ground during the period of

Covid-19 pandemic, the petitioner has been awarded major

punishment which appears to be shockingly disproportionate. In

the facts and circumstances of the case, this Court is of the view

that punishment of stoppage of one increment with cumulative