Madhya Pradesh High Court
The Senior General Manager (Cellular) ... vs Rajat Singh on 26 March, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
MISC. PETITION No. 318 of 2024
THE SENIOR GENERAL MANAGER (CELLULAR) THROUGH ITS
AUTHORIZED OFFICER MR. MRUGESHKUMAR JAYANTILAL
SHAH AND OTHERS
Versus
RAJAT SINGH
.................................................................................................
Appearance:
Shri Vivek Nagar - learned counsel for the petitioners.
Shri L. C. Patne - learned counsel for the respondent.
..........................................................................................
HEARD ON : 29.01.2025
DELIVERED ON : 26.03.2025
..........................................................................................
ORDER
Per : Justice Gajendra Singh
This Misc. Petition under Article 227 of the Constitution of India
is preferred being aggrieved by the order dated 22.09.2023 in Original
Application No.201/00749/2018 by the Central Administrative Tribunal,
Jabalpur Bench Circuit Sittings : Indore (Annexure-P/1) whereby setting
aside the punishment of removal of respondent from service, the matter has
been remitted back to the disciplinary authority for passing the order afresh
in accordance with the leave rules seeking following reliefs:-
"This Hon'ble Court be pleased to issue a writ of
certiorari to call for the record pertaining to the order passed in
O.A. No. 749/2018 passed by Hon'ble Central. Administrative
Tribunal Jabalpur Bench Circuit Sitting At Indore, M.P. and
after perusal of the same be pleased quash the order dt. 22-9-
2023.
Allow this petition with costs.
Any other and further relief, as may be deemed fit may be
granted to the petitioner".
02. Facts of the case in brief are that respondent (applicant before the
Central Administrative Tribunal) was initially appointed as Junior Telecom
Officer in the BSNL in the year 2003. He submitted an application dated
22.01.2007 before Assistant General Manager, Telecom Ahmedabad
seeking permission to join Master of Science Programme in advanced IT
with specialization in advanced networking and Telecommunication from
International Institute of Information Technology, Pune by pursuing MS
course in advance networking and telecommunications scheduled to be
held w.e.f. 26.02.2007 intending to join the course at his own cost and
leave without pay for study period i.e. w.e.f. 26.02.2007 to 30.06.2008.
The application for grant of leave without pay was rejected vide order
dated 24.02.2007 treating the same to be a case of study leave on the
ground that the respondent/applicant had not completed 5 years continuous
service from the date of his appointment with probation period. The
respondent/applicant submitted another application on 30.06.2007 and
proceeded ahead in a bonafide belief of sanctioning of his earlier
application for grant of extra ordinary leave for study purpose in the
institute under full knowledge of his superior authorities. To the utter
surprise, the applicant came to receive a letter dated 19.10.2007 from Sub
Divisional Engineer (NIB), Ahmedabad alleging unauthorized absence
from duty by the respondent/applicant and calling upon him to resume his
duties forthwith failing which disciplinary action shall be taken against
him.
03. The respondent/applicant in response to the letter clarified on
08.01.2008 that before joining the course, he applied for extra ordinary
leave through proper channel for study purpose by furnishing all the
minutes detail of the course to be pursued by him. Again letters were
issued to the respondent/applicant 17.09.2008, and lastly on 13.10.2008
calling upon the respondent/applicant on 02.01.2008, 15.02.2008,
05.08.2008, to resume his duties forthwith failing which he was warned of
disciplinary action, which shall be taken against him for his alleged
unauthorized absence from duty. The respondent/applicant was informed
vide letter dated 18.03.2009 about non-grant of extra ordinary leave for
study purpose by the competent authority. The respondent/applicant
reported for duty on 01.07.2009 at the NIB, Ahmedabad and also
submitted a certificate of Institute communicating the course study by him
during his stay at the institute. Instead of appreciating the effort of
respondent/applicant, he was issued with a memorandum dated 24.06.2009
by the General Manager (O), Ahmedabad proposing to hold a departmental
enquiry against him under Rule 36 of BSNL CDA Rule, 2006 levelling two
charges of unauthorized absence from to 24.06.2009. The Leve 01.10.2007
duty w.e.f. respondent/applicant submitted a detailed and exhaustive reply
to the charge sheet. Being dissatisfied by the explanation so offered by the
respondent/applicant, the disciplinary authority directed for holding of an
enquiry under the provision of BSNL CDS Rules, 2006 by appointing
enquiry officer and presenting officer to conduct the regular departmental
enquiry against the respondent/applicant.
04. The hostile attitude of the enquiry officer resulted in mental illness
at and the applicant got hospitalized for psychiatric treatmentat at the govt
institute of psychiatric science, hospital and research centre, Ahmedabad
wherein he was diagnosed that he had been suffering from Paranoid
Schizophrenia for which he was treated for 20 days i.e. w.e.f. 01.12.2012
to 20.12.2012. After conducting the departmental enquiry in a pre-
determined manner and without affording him reasonable opportunity of
hearing, vide impugned order dated 12.06.2012 (Annexure-P/18), the
Senior General Manager (Cellular), Telecom. Ahmedabad has imposed
upon the applicant major punishment of dismissal from service under Rule
33(B) (j) of BSNL CDA Rules, 2006. The applicant submitted
representations dated 30.05.2016 to the authorities and thereafter on
28.06.2016 making a request for sympathetic consideration of his case for
continuationof his service as JTO, however, vide impugned order dated
25.06.2016 and 22.07.2016 the claim of the applicant for reinstatement in
service has been rejected by the petitioners department without assigning
any reason. After that respondent submitted statutory appeal to the
Principal General Manager, BSNL, Ahmedabad dated 02.08.2016 making
a request for reinstatement in service followed by representation dated
21.02.2017, 28.03.2017 & 17.06.2017 but none of the endeavour made by
the respondent to get himself reinstated at the hands of the petitioners yield
any result. The appeal of the respondent/applicant has also been dismissed
by the Appellate Authority i.e. Chief General Manager, BSNL, Gujrat
Circle, Ahmedabad vide order dated 28.03.2018.
05. Challenging the order of major penalty, an application was filed
before the Central Administrative Tribunal (CAT) on 07.08.2018 that was
07.08.2018 that was registered as O.A.No.201/749/2018.
06. The application was contested by the present petitioners before the
Tribunal by filing a detailed reply wherein they have stated that the present
respondent alongwith other trainees were appointed on 18.12.2003 as JTO
trainee (direct recruitment) and on 19.05.2006 has applied to Assistant
General Manager (Admn) Ahmedabad and requested for permission for
joining the training course at M/s Cranes Software Varsity, Banglore for
six months and along with the application of request respondent has filed
declaration of study and he himself agreed as per clause 4 of the
declaration that, study permission is liable to be withdrawn at any time.
Study leave rules has specifically mentioned, that grant of study leave shall
be subject to a particular study and study tour should be approved by the
competent authority to grant leave. The respondent without prior approval
from petitioners by his own will remained absent from the job and without
approval has left job for specific period. The respondent remained absent
from his duties from 31.07.2007 to 30.06.2009 without prior permission of
the department. Vide request dated 19.05.2006 he has requested for six
months leave for further studies but remained absent for long period of two
years and after absence of continuous two years from his official duties,
respondent has presented letter to SDE for resumption of his duties on
01.07.2009. The petitioners further submitted that request for six months
leave for studies was duly rejected.
07. The respondent remained absent from his duties and resultantly
letter dated 19.10.2007 from SDE (NIB) to join immediately to services
was issued to the respondent. As the respondent did not resume his duties
SDE (NIB) has issued letter to respondent on 05.08.2008 and again asked
him to present the sanction of leave for study otherwise disciplinary action
will be taken against him. Thereafter, dies non letter dated 17.09.2008 was
issued by SDE (NIB) regarding his absence from 01.10.2007 to date of
notice and same was duly intimated to his local address at Ahmedabad and
permanent address of Bhopal and college address of Pune and it was
received by the respondent. SDE (NIB) on 18.03.2009 has issued letter
regarding dies non for unauthorized absence from duty without prior
permission and also sent letter dated 29.01.2009 regarding non granting
permission for study and again letter was written on 22.06.2009 regarding
dies non for unauthorized absence from duty without prior permission and
in reply dated 03.03.2009 respondent mentioned that he failed four papers
of previous semester and he will join in June 2009. The petitioners further
submitted that respondent has got four and a half months' time to take
approval but he has applied with petitioners on 27.06.2007 and he has also
remained absent from hearings and did not cooperate with the petitioners.
After completion of whole disciplinary proceedings against the respondent
major penalty was imposed on respondent on 12.06.2012.
08. Tribunal recorded the findings that absence from duty without any
application or prior permission may amount to unauthorized absence, but it
does not always mean willful and did not consider the fact that prior to his
absence he always applied for the leave, which is leave without pay. The
penalty of removal can be imposed only in cases if grave misconduct and
continued misconduct indicate incorrigibility and complete unfitness for|
service. The respondent here in this case was not willful absentee but
unauthorized absentee. The punishment of dismissal from service becomes
a bar for further employment, which is too harsh to an employee. 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
willful. Absence from duty without any application or prior permission
may amount to unauthorized absence, but it does not always mean willful
and recorded the findings that punishment of removal from service
imposed on the applicant is not only highly excessive but also
disproportionate and setting aside the punishment order and send the
matter back to the disciplinary authority for passing the order afresh in
accordance with the leave rules with direction that the said exercise be
done within a period of 90 days from the date of receipt of a certified copy
of the order.
09. The petition is preferred on the ground that the Central
Administrative Tribunal (CAT) did not consider the fact that the
respondent has approached the Central Administrative Tribunal after the
lapse of six years of passing the order dated 12.06.2012, and the original
application filed by respondent is barred by limitation. The Central
Administrative Tribunal did not consider that permission of study leave
had not been granted to respondent and in spite of no written acceptance of
study leaves, the respondent has remained absent for a period of two years
and has wrongly considered that absence from duty was not willful
although it is settled provision that every absence shall be considered and
presumed as willful in which the person has knowledge of absence of
permission of leaves and respondent was well aware that no prior
permission was given to him and that must be considered as unauthorized
absence. The Central Administrative Tribunal did not consider the
declaration along with application for leaves filed by the respondent, in
which it is specifically mentioned that he himself agreed as per the clause
4 of the declaration that study permission is liable to be withdrawn at any
time, if it to do so in the interest of service and applicant has also declared
in declaration signed by him that in no way study permission will interfere
with my official duties and submitting declaration, applicant himself has
agreed that respondent may withdraw permission if it is not in interest of
service and in no way study permission will interfere with applicants
official duties.
10. It is further submitted that the Tribunal did not consider, CCS Leave
Rules- Rule 50 in which it is mentioned that Study leave is granted to a
government servant (whether gazetted or non-gazetted) who has
satisfactorily completed period of probation and has rendered not less than
five years regular continuous service including period of probation under
the government, to enable him to undergo in or out of India, a special
course of study consisting of higher studies or specialized training in a
professional or technical subject having a direct close connection with
sphere of his duties. It was also not considered by the Tribunal that the
respondent remained absent from his duties from 31-7-2007 to 30-6-2009,
without prior permission of the department and therefore respondent is
liable for major penalties and respondent vide request letter dated 19-5
2006 has requested for six months period leave for further studies but
remained absent for long period of two years and after absence of
continuous two years from his official duties, respondent/applicant has
presented the letter to SDE, NIB, Bhadra Telephone Exchange, AHD for
resumption of his duties on 01.07.2009. Vide letter dated 08.01.2008, the
respondent mentioned the fact that he has joined MS course of networking
at International Institute of Information Technology, Pune in July 2007 and
also submitted his ID card and informed that he will join his duties in the
month of December, 2008 and he has got sanctioned from department,
although, no sanction was granted to him and he bluffed the petitioner, and
remained absent from duties knowingly. The intention of the respondent
from first instance was just to bluff the institution, therefore, the
respondent has got admission letter from the Institute of Information
Technology, Pune on 09.02.2007 and he has got time of four and half
months to take approval but respondent/applicant has applied with the
petitioners on 27.06.2007 and respondent/applicant has also remained
absent from hearings also, as respondent/applicant has appeared in three
hearings out of eight hearings and he remained absent from enquiries and
did not co-operate with the petitioners.
11. Learned counsel for the respondent has supported the order of CAT
referring to the various judgments i.e. Smita Shrivastava vs. State of
Madhya Pradesh and Others; 2024 SCC OnLine SC 764, Shri Bhagwan
Lal Arya vs. Commissioner of Police, Delhi and Others; (2004) 4 SCC
560, Raghubir Singh vs. General Manager, Haryana Roadways, Hissar;
(2014) 10 SCC 301, Krushnakant B. Paramar vs. Union of India and
Another; (2012) 3 SCC 178.
Heard the learned counsel for the parties & perused the record.
12. Reference may be had to the judgment of the Supreme Court in
Krushna Kant B Parmar (supra). The Supreme Court has held as under:
"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."
13. In Krushna Kant B Parmar (supra), the Supreme Court has held
that 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. 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
compelling circumstances beyond his control like illness, accident,
hospitalisation, etc., and in such case the employee cannot be held guilty of
failure of devotion to duty or behaviour unbecoming of a government
servant. 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.
14. Reference may further be had to the Judgment of the Supreme Court
of India in Chennai Metropolitan Water Supply & Sewerage Board v. T.T.
Murali Babu, (2014) 4 SCC 108, wherein the Supreme Court has
explained Krushna Kant B Parmar (supra) and has held as under:
"23. We have quoted in extenso as we are disposed to
think that the Court in Krushnakant B. Parmar case has, while
dealing with the charge of failure of devotion to duty or
behaviour unbecoming of a government servant, expressed the
afore stated 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 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.
24. In this context, it is seemly to refer to certain other
authorities relating to unauthorised absence and the view
expressed by this Court. In State of Punjab v. P.L. Singla ,
(2008) 8 SCC 469 the Court, dealing with unauthorised
absence, has stated thus :
11. Unauthorised absence (or overstaying leave), is
an act of indiscipline. Whenever there is an
unauthorised absence by an employee, two courses
are open to the employer. The first is to condone the
unauthorised absence by accepting the explanation
and sanctioning leave for the period of the
unauthorised absence in which event the misconduct
stood condoned. The second is to treat the
unauthorised absence as a misconduct, hold an
enquiry and impose a punishment for the misconduct.
25. Again, while dealing with the concept of punishment the
Court ruled as follows :
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.
26. In Tushar D. Bhatt v. State of Gujarat (2009) 11 SCC 678,
the appellant therein had remained unauthorisedly absent for a
period of six months and further had also written threatening
letters and conducted some other acts of misconduct.
Eventually, the employee was visited with order of dismissal and
the High Court had given the stamp of approval to the same.
Commenting on the conduct of the appellant the Court stated
that he was not justified in remaining unauthorisedly absent
from official duty for more than six months because in the
interest of discipline of any institution or organisation such an
approach and attitude of the employee cannot be countenanced.
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."
15. The Supreme Court in Chennai Metropolitan Water Supply &
Sewerage Board (supra) after examining Krushna Kant B Parmar (supra)
has held that the view expressed in Krushna Kant B Parmar (supra), that
there may be compelling circumstances which are beyond the control of an
employee and that it is obligatory on the part of the disciplinary authority
to come to a conclusion that the absence is wilful, 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.
16. The Supreme Court thereafter referred to the Judgment in P.L.
Singla (supra) wherein it is held that Unauthorised absence (or overstaying
leave), is an act of indiscipline and whenever there is an unauthorised
absence by an employee, two courses are open to the employer. First is to
condone the unauthorised absence by accepting the explanation and
sanctioning leave for the period of the unauthorised absence in which
event the misconduct stood condoned and the second is to treat the
unauthorised absence as a misconduct, hold an enquiry and impose a
punishment for the misconduct. Where the explanation offered by the
employee is not satisfactory, the employer would 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
would depend upon the nature of service, the position held by the
employee, the period of absence and the cause/explanation for the absence.
17. The Supreme Court held that 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 (supra).
18. Supreme Court has laid down the scope, extent and parameters of
judicial review in disciplinary action. Supreme Court in Railways v.
Rajendra Kumar Dubey, (2021) 14 SCC 735 has held as under:
"21.1. We will first discuss the scope of interference by the
High Court in exercise of its writ jurisdiction with respect to
disciplinary proceedings. It is well settled that the High Court
must not act as an appellate authority, and reappreciate the
evidence led before the enquiry officer. We will advert to some
of the decisions of this Court with respect to interference by
the High Courts with findings in a departmental enquiry
against a public servant.
21.2. In State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723]
, a three-Judge Bench of this Court held that the High Court
under Article 226 of the Constitution is not a court of appeal
over the decision of the authorities holding a departmental
enquiry against a public servant. It is not the function of the
High Court under its writ jurisdiction to review the evidence,
and arrive at an independent finding on the evidence. The
High Court may, however, interfere where the departmental
authority which has held the proceedings against the
delinquent officer are inconsistent with the principles of
natural justice, where the findings are based on no evidence,
which may reasonably support the conclusion that the
delinquent officer is guilty of the charge, or in violation of the
statutory rules prescribing the mode of enquiry, or the
authorities were actuated by some extraneous considerations
and failed to reach a fair decision, or allowed themselves to
be influenced by irrelevant considerations, or where the
conclusion on the very face of it is so wholly arbitrary and
capricious that no reasonable person could ever have arrived
at that conclusion. If, however, the enquiry is properly held,
the departmental authority is the sole judge of facts, and if
there is some legal evidence on which the findings can be
based, the adequacy or reliability of that evidence is not a
matter which can be permitted to be canvassed before the
High Court in a writ petition.
21.3. These principles were further reiterated in State of A.P.
v. Chitra Venkata Rao, (1975) 2 SCC 557. The jurisdiction to
issue a writ of certiorari under Article 226 is a supervisory
jurisdiction. The court exercises the power not as an appellate
court. The findings of fact reached by an inferior court or
tribunal on the appreciation of evidence, are not re-opened or
questioned in writ proceedings. An error of law which is
apparent on the face of the record can be corrected by a writ
court, but not an error of fact, however grave it may be. A
writ can be issued if it is shown that in recording the finding
of fact, the tribunal has erroneously refused to admit
admissible and material evidence, or had erroneously
admitted inadmissible evidence. A finding of fact recorded by
the tribunal cannot be challenged on the ground that the
material evidence adduced before the tribunal is insufficient
or inadequate to sustain a finding. The adequacy or
sufficiency of evidence led on a point, and the inference of fact
to be drawn from the said finding are within the exclusive
jurisdiction of the tribunal.
21.4. In subsequent decisions of this Court, including Union
of India v. G. Ganayutham , (1997) 7 SCC 463, RPF v. Sai
Babu , (2003) 4 SCC 331, Chennai Metropolitan Water
Supply & Sewerage Board v. T.T. MuraliBabu, (2014) 4 SCC
108, Union of India v. Manab Kumar Guha , (2011) 11 SCC
535, these principles have been consistently followed.
21.5. In a recent judgment delivered by this Court in State of
Rajasthan v. Heem Singh , (2021) 12 SCC 569 this Court has
summed up the law in following words:
37. In exercising judicial review in disciplinary
matters, there are two ends of the spectrum. The first
embodies a rule of restraint. The second defines
when interference is permissible. The rule of restraint
constricts the ambit of judicial review. This is for a
valid reason. The determination of whether a
misconduct has been committed lies primarily within
the domain of the disciplinary authority. The judge
does not assume the mantle of the disciplinary
authority. Nor does the judge wear the hat of an
employer. Deference to a finding of fact by the
disciplinary authority is a recognition of the idea that
it is the employer who is responsible for the efficient
conduct of their service. Disciplinary enquiries have
to abide by the rules of natural justice. But they are
not governed by strict rules of evidence which apply
to judicial proceedings. The standard of proof is
hence not the strict standard which governs a
criminal trial, of proof beyond reasonable doubt, but
a civil standard governed by a preponderance of
probabilities. Within the rule of preponderance, there
are varying approaches based on context and
subject. The first end of the spectrum is founded on
deference and autonomy -- deference to the position
of the disciplinary authority as a factfinding
authority and autonomy of the employer in
maintaining discipline and efficiency of the service.
At the other end of the spectrum is the principle that
the court has the jurisdiction to interfere when the
findings in the enquiry are based on no evidence or
when they suffer from perversity. A failure to
consider vital evidence is an incident of what the law
regards as a perverse determination of fact.
Proportionality is an entrenched feature of our
jurisprudence. Service jurisprudence has recognised
it for long years in allowing for the authority of the
court to interfere when the finding or the penalty are
disproportionate to the weight of the evidence
or misconduct. Judicial craft lies in maintaining a
steady sail between the banks of these two shores
which have been termed as the two ends of the
spectrum. Judges do not rest with a mere recitation of
the hands-off mantra when they exercise judicial
review. To determine whether the finding in a
disciplinary enquiry is based on some evidence an
initial or threshold level of scrutiny is undertaken.
That is to satisfy the conscience of the court that
there is some evidence to support the charge of
misconduct and to guard against perversity. But this
does not allow the court to reappreciate evidentiary
findings in a disciplinary enquiry or to substitute a
view which appears to the judge to be more
appropriate. To do so would offend the first principle
which has been outlined above. The ultimate guide is
the exercise of robust common sense without which
the judges' craft is in vain."
19. The Supreme Court in Railways v. Rajendra Kumar Dubey
(supra) after referring to various decisions has laid down principles which
can be summarised as follows:
i. the jurisdiction to issue a writ of certiorari under
Article 226 is a supervisory jurisdiction;
ii. the High Court under Article 226 of the
Constitution is not a court of appeal over the decision of the
authorities holding a departmental enquiry against a public
servant;
iii. it is not the function of the High Court under its
writ jurisdiction to review the evidence, and arrive at an
independent finding on the evidence;
iv. High Court may interfere with the proceedings:
(a) where principles of natural justice has not
been complied with,
(b) where the findings are based on no evidence,
which may reasonably support the conclusion of guilt, or
(c) there is violation of the statutory rules
prescribing the mode of enquiry, or (d) the authorities
were actuated by some extraneous considerations and
failed to reach a fair decision, or
(e) allowed themselves to be influenced by
irrelevant considerations, or
(f) where the conclusion on the very face of it is so
wholly arbitrary and capricious that no reasonable
person could ever have arrived at that conclusion.;
v. if, the enquiry is properly held, the departmental
authority is the sole judge of facts, and if there is some legal
evidence on which the findings can be based, the adequacy or
reliability of that evidence is not a matter which can be
permitted to be canvassed before the High Court in a writ
petition;
vi. findings of fact reached by an inferior court or
tribunal on the appreciation of evidence, are not re-opened or
questioned in writ proceedings; and
vii. an error of law which is apparent on the face of
the record can be corrected by a writ court, but not an error of
fact, however grave it may be.
20. The Supreme Court relying upon State of Rajasthan v. Heem Singh
(supra) held that in exercising judicial review in disciplinary matters, there
are two ends of the spectrum. The first embodies a rule of restraint. The
second defines when interference is permissible.
21. The rule of restraint constricts the ambit of judicial review for the
reason that the determination of whether a misconduct has been committed
lies primarily within the domain of the disciplinary authority. The judge
does not assume the mantle of the disciplinary authority. Nor does the
judge wear the hat of an employer. Deference to a finding of fact by the
disciplinary authority is a recognition of the idea that it is the employer
who is responsible for the efficient conduct of their service. Though
Disciplinary Enquiries have to abide by the rules of natural justice, they
are not governed by strict rules of evidence which apply to judicial
proceedings. The standard of proof is not the strict standard which governs
a criminal trial, of proof beyond reasonable doubt, but a civil standard
governed by a preponderance of probabilities.
22. The Supreme Court further held that at the other end of the spectrum
is the principle that the court has the jurisdiction to interfere when the
findings in the enquiry are based on no evidence or when they suffer from
perversity. A failure to consider vital evidence is an incident of what the
law regards as a perverse determination of fact. Proportionality is an
entrenched feature of our jurisprudence.
Now come to the facts of this case.
23. Looking to the nature of job of the respondent & applying the above
principles, the absence was not for the reasons that can be termed as the
result of compelling circumstances under which it was not possible to
report or perform duty and the Central Administrative Tribunal (CAT) was
not within the jurisdiction to interfere in the penalty because it could not be
said that it was disproportionate. Thus, petitioner succeeds and this Misc.
Petition is allowed and the order dated 22.09.2023 passed in Original
Application No.201/00749/2018 by the Central Administrative Tribunal,
Jabalpur Bench Circuit Sittings : Indore (Annexure-P/1) is set aside and
the order dated 28.03.2018 by the Appellate Authority i.e. Chief General
Manager, BSNL, Gujrat Circle, Ahmedabad is restored.
24. This writ appeal is accordingly, allowed and disposed of.
No order as to costs.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
vs
