Home Department vs Subhash Rathore
2021 Latest Caselaw 8854 MP

Writ Appeal No.1917/2019                                        1


        HIGH COURT OF MADHYA PRADESH :
                    BENCH AT INDORE
Case Number                  Writ Appeal No.1917/2019
Parties Name            The State of Madhya Pradesh & Others
                                            Vs.
                                   Subhash Rathore
Date of Order          15/12/21
Bench                  Division Bench:
                       Justice Sujoy Paul
                       Justice Pranay Verma
Judgment delivered     Justice Sujoy Paul
by
Whether approved        No
for reporting
Name of counsel for Shri Shrey Raj Saxena, learned Deputy
parties             Advocate General for the appellants /
                    State.
                       Ms.Sudha Shrivastav, learned counsel
                       for the respondent.
                          ORDER

(Passed on 15th December, 2021)

Sujoy Paul, J.:

This intra-court appeal filed under Section 2(1) of the Madhya Pradesh Uchch Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 takes exception to the order dated 22.08.2019 passed in W.P. No.1222/2009, whereby the writ petition filed by the respondent was allowed and punishment order dated 20.03.2008 and appellate order dated 03.07.2008 were set aside by the learned Single Judge. The respondent was directed to be reinstated with 50% backwages.

02. Shri Shrey Raj Saxena, learned Deputy Advocate General for the appellant / State by taking this Court to the charge-sheet

dated 13.12.2007 submits that allegations against the respondent, a Santri in Central Jail, Indore were very serious. He remained absent during night duty on 39 occasions. Considering the nature of duty of respondent, his absence from prison on almost 40 occasions was a very serious matter. The learned Single Judge did not find any fault in the procedural part of the Departmental Enquiry. The findings were not found to be perverse. Indeed, a specific finding was given that charges have been proved. However, the learned Single Judge has erred in giving a finding that punishment awarded is extremely disproportionate in view of the conduct of the delinquent employee. It was held that appellant was not guilty of any embezzlement, misappropriation or assaulting his senior officers. He was not involved in any crime. He was simply not found present during surprise check on account of 'unavoidable circumstances'. The learned Single Judge erred in holding that since respondent's house was at a far of place, he became late in reporting on duty by 10 - 15 minutes on 'various dates'.

03. Shri Shrey Raj Saxena submits that the learned Single Judge erred in holding that in a case of this nature, the authority could have treated the period as leave without pay or could have awarded lesser punishment. It is urged that when charges are found to be proved, the scope of interference on punishment order is very limited. The learned Single Judge has committed an error in holding that respondent came late by 10 - 15 minutes on various dates whereas charges show that he remained absent for few hours on 39 occasions. Thus, the finding of learned Single Judge is perverse. The judgment of Supreme Court in Raghubir Singh v/s General Manager, Haryana Roadways reported in (2014) 10 SCC 301 has no application in the facts and circumstances of the case. Similarly, the judgment of G.

Rajendra v/s Vikrant Tyres Limited & Others reported in (2002) 10 SCC 438 has no application in the facts and circumstances of the case. Santry is a part of disciplined force. His absence from duty in the prison on 39 occasions is a grave misconduct. The learned Single Judge should not have interfered with the punishment and by no stretch of imagination, the said punishment could have been termed as disproportionate or harsh.

04. Learned counsel for the appellant filed written submission in the tune of said oral arguments and placed reliance on the following judgments:-

State of Meghalaya and Ors Vs. Mechen Singh N.Marak reported in (2008) 7 SCC 580, L&T Komastu Ltd. Vs. N.Udayakumar reported in (2008) 1 SCC 442, Delhi Transport Corporation Vs. Sardar Singh reported in AIR 2004 SC 4161, Pandurang Vithal Kevne Vs. Bharat Sanchar Nigam Ltd passed in WP No.2584/2007.

05. Ms. Sudha Shrivastava, learned counsel for the respondent supported the impugned order. Learned counsel for the respondent initially mode attempt to take this Court on the procedural part of the Departmental Enquiry, later on, fairly accepted that in absence of any challenge being made to the impugned order dated 22.08.2019 by the respondent/ employee, in this writ appeal filed by the Department, this Bench is not obliged to go beyond or behind the order dated 22.08.2019 and examine the procedural fairness of domestic enquiry.

06. Learned counsel for the respondent also filed written submission and urged that principle of natural justice were not properly followed during the departmental inquiry. The report of preliminary inquiry was not supplied to the respondent. The relevant register was not produced in the inquiry to show that

the respondent was not on duty. The learned single judge rightly held that the respondent was not absent indeed, he came late on few occasions. The rule 27, 319 and 236 of Jail Manual have no application in the facts and circumstances of the case. In support of these submissions, reliance is placed on State of MP Vs. Ram Ratan reported in 1980 AIR 1650, State of UP Vs. Mohd. Sharif reported in AIR 1982 SC 937, Kashinath Dikshita Vs. Union of India reported in AIR 1986 SC 2118, Prakash Chandra Prasad Vs. State of MP and Ors, Raghubir Singh Vs. General Manager Haryana passed in Civil Appeal No.8434/2014 and B.C Chaturvedi Vs. Union of India passed in Civil Appeal 9830/1995.

07. Parties confined their arguments to the extent indicated above.

08. We have heard the parties at length and perused the record.

09. The pivotal question for our determination is whether after giving the finding that charges are found to be proved, the learned Single Judge was justified in holding that punishment was disproportionate or excessive and whether direction of reinstating him with 50% backwages could have been passed by the learned Single Judge?

10. The respondent although raised eye-brows regarding procedural part of the departmental inquiry. In our opinion, this aspect is no more open to be looked into in this writ appeal. The learned single judge did not find fault in the procedural part of the domestic inquiry. Charges were duly found to be proved. The only interference made was on the quantum of punishment. The respondent employee has not filed any writ appeal assailing the relevant part of the order of learned single judge wherein the inquiry was found to be in order and charges were found to be

proved. In a writ appeal filed by the department in the capacity of respondent, it is not open to the respondent to criticize the decision making process adopted by the department in the enquiry.

11. The Rule 270 of the Jail Manual certainly deals with absence from the jail premises. The allegation against the respondent was regarding absence during the period of duty. As noticed above, the respondent remained absent or came late during night duty on almost 40 occasions. Finding of learned single judge runs contrary to the charges duly proved that the respondent came late or remained absent in entire duty period of about 40 occasions.

12. The respondent cited judgment of Ram Ratan (supra). This judgment has no application because it relates to the procedural part of the inquiry, which cannot be subject matter of this writ appeal.

13. The judgment of the Apex Court in S.K Gambhir (supra) is also inapplicable because it deals with flaw in decision making process. For the same reason, the judgment of the Apex Court in Moh. Sharif (supra) cannot be pressed into service. Interestingly, the judgment of Kashinath Dikshita (supra) is also regarding flaw in following the principle of natural justice. Surprisingly, the respondent has relied on such judgments, which cannot be relied upon in a writ appeal filed by the employer.

14. In the case of Raghubir Singh (supra), the workman was terminated without holding inquiry. This judgment cannot be pressed into service in the factual backdrop of the present matter. The judgment of B.C Chaturvedi (supra) was relied upon by the learned single judge also. In our considered opinion, this Court cannot sit in an appeal and decide the

question of quantum of punishment. Even assuming that the punishment was harsh and excessive, the proper course was to give a finding in this regard and then remit the matter back to the disciplinary authority to take a decision on the quantum of punishment. This is apposite to take into account the legal journey on this aspect in the following judgments of the Apex Court:-

In B.C. Chaturvedi v. Union of India reported in (1995) 6 SCC 749 :-

18.....Disciplinary authority, and on appeals, Appellate Authority 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."

In Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759 :-

22. The High Court in our opinion fell in error in interfering with the punishment, which could be lawfully imposed by the departmental authorities on the respondent for his proven misconduct. To hold that since the respondent had not "actually molested" Miss X and that he had only "tried to molest" her and had "not managed" to make physical contact with her, the punishment of removal from service was not justified, was erroneous. The High Court should not have substituted its own discretion for that of the authority.

What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone. But there is another aspect of the case which is fundamental and goes to the root of the case and concerns the approach of the Court while dealing with cases of sexual harassment at the place of work of female employees.

In State of Meghalaya v. Mecken Singh N. Marak, (2008) 7 SCC 580 :-

14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. 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. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice.

The mere statement that it is disproportionate would not suffice.

In Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) v. Rajendra Singh reported in (2013) 12 SCC 372, which was recently followed in Union of India v. Ram Karan, 2021 SCC OnLine SC 1041, it was held

as under:--

"19.The principles discussed above can be summed up and summarised as follows: 19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. 19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority. 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.

19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.

(emphasis supplied)

15. The judgment cited by Shri S.R Saxena, learned counsel for the respondent/state, are also in the same line.

16. Reverting back to the merits of the case, in our view, the respondent remained absent or came late in a sensitive job of Jail Santri on almost 40 occasions. Such indiscipline in sensitive jobs cannot be tolerated. Punctuality is a basic attribute for member of a discipline force.

17. In our opinion, the interference on quantum of punishment in a case of this nature amounts to "misplaced sympathy". In our view, it is not a case of 'killing a fly by using a sledge hammer'. We are unable to hold that the punishment

imposed was "shockingly harsh"

18. In our considered opinion, the learned Single Judge has gone wrong in holding that the punishment was disproportionate and directed the reinstatement of such employee with 50% backwages.

19. In view of foregoing analysis, the order of learned Single Judge dated 22.08.2019 is set aside. The punishment order challenged before the writ Court is affirmed.

20. The writ appeal stands allowed.

         (SUJOY PAUL)                        (PRANAY VERMA)
           JUDGE                                 JUDGE

       Ravi/sourabh
Digitally signed
by SOURABH
YADAV
Date: 2021.12.15
15:27:42 +05'30'