Wa 49 /2019 vs The State Of Tripura Represented ...
2021 Latest Caselaw 948 Tri

                             HIGH COURT OF TRIPURA
                                   AGARTALA

                                    WA 49 /2019
09130363 Rifle Man (G.D) Sri Manash Gon, s/o- Late Bikash Gon, R/O-
Vill - Noabadi, P.O.- Birendra Nagar, P.S- Jirania, District - West
Tirpura.
                                                    -----Appellant(s)
                              Versus

1.The State of Tripura   represented by its Secretary, Department of
Home, Government Of Tripura, P/O - Kunjaban, P.S- New Capital
Complex, District - West Tripura.

2.The Director General of Police, Govt. of Tripura, Police Head Quarter,
P.O.- Agartala, P.S.- West Agartala, District- West Tripura.

3.The Commandant, 13th Battalion Tripura State Rifles (Ir-Ix), P.O.-
Kanchanpur, P.S. - Kanchanpur, District- North Tripura.
                                                     -----Respondent(s)

                                     BEFORE

          HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

             HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

For the Appellant(s)            : Mr. Soumyadeep Dey, Adv.
For the Respondent(s)           : Mr. N.Majumder, Adv.
Date of hearing                 : 03.05.2021
Date of delivery of             : 21.09.2021
Judgment & order
Whether fit for reporting       :     Yes   No
                                      

                                    JUDGMENT

[Per S.G.Chattopadhyay. J]

[1] This Writ Appeal has been filed against the judgment and

order dated 04.12.2018 passed by the learned Single Judge in

WP(C)No.141 of 2017.

[2] Factual background of the case is as under:

Appellant was inducted as a rifleman in Tripura State Rifles

(TSR) on 19.10.2009. He was sanctioned casual leave for 02 days from

10.09.2014. While availing the leave, he fell ill for which he could not

return to duty on 12.09.2014. He was admitted in Jirania rural hospital on

15.09.2014 and after treatment he was discharged from the said hospital

on 17.09.2014. He informed the Commandant of his battalion about his

illness and admission in hospital. Since his condition did not improve, he

received treatment from Agartala Government Medical College and GBP

Hospital and also from Tripura Medical College and Hospital, Hapania.

Thereafter, he went to Silchar Medical College and hospital where he

received treatment from 13.02.2015 to 14.02.2015. After recovery from

his illness, he went to resume duty on 25.05.2015. He was asked to wait

in the Head Quarters of his battalion at Kanchanpur till 28.05.2015. But,

no duty was assigned to him during the said period. On 28.05.2015 he

was advised to go back home and wait for the joining order. Subsequent

thereto, he received the order dated 26.08.2015 whereby he was removed

from service. Appellant challenged the said order in departmental appeal

which was dismissed by the Deputy Inspector General of Police, AP

(Adm&Trg) vide order No.9311-14/F.47(8-43)/DAP/TSR/RSV/13dated

07.11.2015. He further challenged the order of the appellate authority in

revision before the Director General of Police (DGP). His revision

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petition was also rejected by the DGP vide order No.17208-90/F.8(329)-

PHQ/TSR/2015 dated 08.04.2016. Aggrieved appellant then filed the

WP(C)141 of 2017 challenging the order of his removal from service as

well as the orders of the departmental appellate authority and revisional

authority whereby his appeal and revision were dismissed.

[3] Respondents filed counter affidavit contending that the

appellant was sanctioned casual leave only for 02 days from 10.09.2014

to 11.09.2014. But he did not resume duty on 12.09.2014. Respondents

received his letter dated 16.09.2014 about his illness and admission in

hospital on 23.09.2014. Since he did not apply for extension of leave and

he did not even submit any medical document with regard to his illness,

no further leave could be sanctioned in favour of him. By a letter dated

03.10.2014 he was asked to submit illness certificate to justify his absence

from duty on the ground of illness. Appellant did not respond to the said

letter immediately. On 18.01.2015 he addressed a letter to the

Commandant of his battalion along with various diagnostic reports and

prescriptions which were received by the Commandant, 13th Battalion

TSR on the same day. The appellant made similar communication with

the Commandant of his battalion by letter dated 26.02.2015 wherein he

stated that he received treatment in AGMC and GBP Hospital, Agartala

and in Silchar Medical College and Hospital, Assam. He never applied for

any kind of leave or extension of leave on medical ground. He did not

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even enclose any medical certificate of illness with the said letters

addressed to the Commandant of his battalion. Since he was

unauthorizedly absenting from duty over a long period of time, several

notices were sent by respondent No.3 to his home address asking him to

resume duties. Despite receiving several notices, appellant neither

resumed duties nor applied for any kind of leave. Thereafter, a

preliminary enquiry was conducted by respondent No.3 in respect of his

unauthorized absence from duty w.e.f 12.09.2014 continuously and the

report of the preliminary enquiry was submitted to the Commandant of

his battalion on 23.12.2014. It was observed in the said preliminary

enquiry report that petitioner was not at all serious in his assignment. He

overstayed leave unauthorizedly and despite receiving notices from the

department, he did not resume duties. He did not also pay his outstanding

dues in the mess for the month of August and September, 2014. In view

of the said preliminary report, disciplinary proceedings were drawn up

against the appellant under Memorandum No.F.DP-No.01-

2015/MG/TSR-13/Estt/2015 dated 07.01.2015 on the charge of

misconduct and it was proposed that departmental proceedings under

Rule 14 of Central Civil Services(Classification, Control and Appeal)

Rules, 1965 read with Rule 40 of the Tripura State Rifles(Discipline,

Control, Service conditions, etc)Rules, 1986 would be carried out against

him on the following charge:

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"STATEMNT OF ARTICLE OF CHARGE FRAMED AGAINST NO.09130363 RFN(GD)MANASH GON OF A COY,13TH BN TSR(IR-IX) Article-I That the said NO.09130363 RFN(GD)MANASH GON OF A COY,13TH BN TSR(IR-IX) proceeded to avail 02(two)days Casual Leave w.e.f 10.09.2014(FN) to 11.09.2014(AN) and supposed to resume his duty on 12.09.2014(FN), but he has not resumed his duty on time and overstayed unauthorizedly w.e.f 12.09.2014(FN) till date, which is an act prejudicial to good order and discipline of the Rifles U/S12(1) of TSR Act,1983."

[4] The statement of imputation of misconduct and misbehavior

in support of the said article of charge was placed as well by the said

memorandum dated 07.01.2015 and the memorandum along with its

enclosures was communicated to the petitioner asking him to submit his

written statement of defence within 10 days.

[5] Despite receipt of the said memorandum, appellant neither

submitted his written statement of defence nor he appeared before the

disciplinary authority to face the enquiry. As a result, the enquiry

proceeded ex parte. The disciplinary authority appointed an Inquiry

Officer by order dated 31.01.2015 who held a full-fledged enquiry and on

completion of enquiry, the said Inquiry Officer submitted his report dated

31.07.2015. Relevant extract of his report is as under:

"Though the charge official did not participate in the enquiry nor any communication was made to me but in the DP file I found two applications along with some medical documents. On perusing the application letter dated 18/01/2015 it was found that the charge official had written to the Commandant, 13th BN TSR(Ir-Ix) stating that he had taken two days casual leave on 10/09/2014 to 11/09/2014 and was admitted in Jirania Rural Hospital from 15/09/2014 to 17/09/2014 as per discharge certificate and some other medical documents of endoscopy , urine and blood test reports are also enclosed. Again another application dated 26/02/2015 addressing to the Commandant, 13th BN TSR(IR-IX) was received in the office on 04/03/2015.

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The application informing to the Commandant, 13th BN TSR(IR -IX) that he was under treatment at Silchar, Assam. Some medical documents like prescription, endoscopy report, blood & urine test report are also enclosed in the application. Thus it may be considered that the charge official is under treatment but no illness certificate or application for any kind of leave was prayed to the authority. Therefore, the charge official is overstaying leave unauthorizedly after the expiry of two days casual leave granted to him."

[6] The disciplinary authority accepted the enquiry report and

provisionally came to the conclusion that charge of misconduct was

proved against the appellant. Therefore, the disciplinary authority

proposed to impose on the appellant punishment of removal from service

which shall not be disqualification for future employment under the

Government. The provisional punishment order along with copy of the

said enquiry report was served on the appellant vide memorandum

No.7888 F.DP No.01-2015/MG/TSR-13/ESTT/2015 dated 06.08.2015.

Relevant extract of the provisional punishment order is as under:

"03.AND WHEREAS, the Enquiry Officer conducted the enquiry observing all formalities giving ample opportunities to the charged official from time to time to defend him. The EO has submitted his enquiry report on 31.07.2015 after completion of the enquiry stating that the article of charge framed against him has been proved. On perusal of the enquiry report it is found that during the course of enquiry, the EO issued several notices through special messenger to the charged official directing him to engage his defense assistant and also to appear before the EO. But after receiving the said notices the charged official has not participated in the enquiry. Finally the EO has conducted ex-parte DP enquiry.

04.AND WHEREAS, on a careful consideration of the inquiry report, the undersigned has provisionally come to the conclusion that the charge framed against the charged official No.09130363 Rfn(GD) Manash Gon of A Coy, 13th BN TSR(ir-ix) is proved beyond any shadow of doubt and therefore in exercise of powers conferred under Section12(1) of TSR Act. 1983, hereby proposes to impose the punishment of "REMOVAL FROM SERVICE" which shall not be disqualification for future employment under the Government under Section 12(1) of TSR Act 1983 upon No.09130363 Rfn(GD) Manash Gon of A Coy, 13th BN TSR(IR-IX).

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05.NOW THEREFORE, No.09130363 Rfn(GD), Manash Gon of A Coy, 13th BN TSR (IR-IX)is hereby given an opportunity of making representation on his defense, if any, or to appear in person before the undersigned within 15(fifteen) days from the issue of this provisional punishment order. The OSL period wef 12.09.2014(FN) to till date will be treated as -'dies-non'. A copy of the findings of the enquiry report is enclosed."

[7] Despite receipt of the enquiry report and the said provisional

order of punishment, the appellant neither submitted any representation

before the disciplinary authority nor appeared before the disciplinary

authority. As a result, respondent No.03 vide final order No.8826-40

F.DP No.01-2015/MG/TSR-13/Estt/2015 dated 26.08.2015 imposed on

him punishment of removal from service and it was stated in the said

punishment order that the punishment of his removal from service shall

not be treated as disqualification for future employment under the

Government and the period of his absence be treated as dies-non and his

name be struck off from 13th Battalion TSR. The relevant extract of the

said order reads as under:

"04.AND WHEREAS, the Enquiry Officer conducted the enquiry observing all formalities giving ample opportunities to the charged official from time to time to defend him. The EO has submitted his enquiry report on 31.07.2015 after completion of the enquiry stating that the article of charge framed against him has been proved. On perusal of the enquiry report it is found that during the course of enquiry, the EO issued several notices through special messenger to the charged official directing him to engage his defense assistant and also to appear before the EO. But after receiving the said notices the charged official has not participated in the entire enquiry. Finally the EO has conducted ex-parte DP enquiry.

05. AND WHEREAS the charged official was given an opportunity by serving the Provisional Order Vide No.7888 F.DP No.01-2015/ TSR-13/ ESTT/ MG/2013 dated 06.08.2015 on 09.08.2015 through special messenger No.92020454 Hav(GD) Biswajit Dey of C Coy, 13th Bn TSR(IR-IX) and also through OC Jirania Police Station, Agartala for submitting representation, if any, within 15(fifteen) days against the provisional order, but the delinquent

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has neither made any representation nor appeared before the undersigned within the prescribed time.

06.NOW THEREFORE, I Shri Nagendra Debbarma TPS Gr-I, Commandant, 13TH Bn TSR(IR-IX) being the deisciplinary authority after careful examination of the case and considering all the facts, in exercising of power conferred upon me under Section 12(1) of TSR Act, 1983, hereby impose the punishment of "REMOVAL FROM SERVICE" which shall not be disqualification for future employment under the Government under section 12(1)(i) of TSR Act 1983 upon No.09130363 Rfn(GD) Manash Gon of A Coy, 13th Bn TSR. The OSL period wef 12.09.2014(FN) to 25.05.2015(AN) and further AWL period wef 28.05.2015 at 1830 hrs i.e. 29.05.2015(FN) to till date is treated as dies-non. He is struck off strength from 13th Bn TSR(IR- IX) on 27.08.2015(FN)."

[8] Having received the said order of his removal from service

from the disciplinary authority, the appellant preferred departmental

appeal before the Deputy Inspector General of Police, AP(Adm& Trg) on

19.05.2015. His appeal was disposed of by the departmental appellate

authority vide order No.9311-14/F.47(8-43)/DAP/TSR/RSV/13dated

07.11.2015 observing as under:

"There was no procedural lacunae in conducting of Departmental Proceeding against the said appellant.

(i)Findings of the Inquiry Authority as well as Disciplinary Authority are warranted by the evidence on record.

(ii)Penalty 'Removal from Service' as was imposed upon the said appellant is commensurate with the nature of offense of above appellant.

(iii)Before and after initiation of DP against, the said appellant was given reasonable opportunities to defend himself but failed.

(iv)The instant appeal petition of the appellant Ex-Rfn(GD)No.09130363 'Manash Gon of 13th Bn TSR has been entertained and examined but the appeal petition has no merit in view of facts stated above.

03.In view of facts and circumstances stated above, the instant appeal petition of Ex-Rfn(GD) No.09130363 Manash Gon of 13th Bn TSR to set aside the penalty 'Removal from Service' imposed upon him by the CO,13th Bn TSR (Disciplinary Authority) vide order No.8826-40/F.DP No.01-2015/MG/TSR-

13/Estt/2015 dated 26.08.2015 is rejected . The undersigned is concurred with

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the Disciplinary Authority with regard to penalty imposed upon the said appellant vide order under reference.

04.The instant appeal of the appellant Ex.Rfn(GD) No.09130363 Manash Gon of 13th Bn TSR stands disposed of."

[9] The appellant then challenged the said order of the

departmental appellate authority in revision before the Director General

of Police by filing a petition on 20.11.2015 which was also rejected by the

said revisional authority vide order No.17208-90 F.8(329)-

PHQ/TSR/2015 dated 08.04.2016 holding as under:

"AND WHEREAS, it is found that the DP was conducted as per procedure and no anomaly was seen in the conduct of the proceedings. The petitioner was given reasonable opportunities to resume duties and to defend himself during the course of enquiry. The petitioner had neither defended himself in person at the time of enquiry, nor had given any defence statement in writing to the EO intimating the reasons for his un-authorized absence for more than 10(ten) months. After duly conducting the ex-parte enquiry, the EO submitted his findings stating that the charge framed against him is proved beyond doubt. The Disciplinary Authority, Commandant 13th Bn TSR found the offence of long absence without permission of the competent authority in respect of the charged official and awarded the punishment of 'removal from service'.

AND WHEREAS, the Appellate Authority upheld the order of the Disciplinary Authority and rejected the appeal made to him vide order No.9311-14/F.47(8-43)/DAP/TSR/RSV/13dated 07.11.2015, by stating that the penalty of 'removal from service' as was imposed upon the said Ex- Rfn(GD) Manash Gon of TSR 13th Bn is commensurate to the gravity of the misconduct.

And Whereas, Ex-Rfn(GD)No.09130363 Manash Gon of TSR 13th BN submitted his revision petition, addressed to the DGP Tripura.

Now, therefore, considering all the facts and circumstances on record, as per provisions laid down in Rule 29(1)(iv) read with sub- clause(a)&(b) of CCS (CCA)Rules, 1965, I being the revisional authority, find that the punishment imposed by the Disciplinary Authority, vide final order under reference, is commensurate with the misconduct committed by the charged official. The order of Disciplinary Authority appears reasonable and it is not a fit case for re-instatement in service. In view of above, the undersigned is not inclined to interfere with the order passed by the Disciplinary Authority and the Appellate Authority. The Revision Petition is rejected being devoid of merit."

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[10] As discussed, the appellant challenged the said order of the

Disciplinary Authority as well as the orders of the departmental appellate

authority and the revisional authority by filing the WP(C)141 of 2017

which was dismissed by the learned Single Judge observing as under:

"13. This court has scrutinized the records thoroughly and does find that it is not a fit case where this court should intervene the impugned orders by exercising it extra- ordinary power of judicial review, inasmuch as reasonable opportunity has been provided to the petitioner for defending himself, but the petitioner has consciously avoided attending the disciplinary proceeding and finally, did not contest any of the findings, and prayed for empathy of the authority. As such, this court is unable to accept the submission of Mr. C. S. Sinha, learned counsel appearing for the petitioner. That apart, the petitioner is a member of the disciplined force and the way he has behaved, this court does not even find that the penalty as imposed on him is disproportionate.

Having observed thus the writ petition stands dismissed.

However, there shall be no order as to costs."

[11] The appellant has challenged the judgment of the learned

Single Judge by means of filing this appeal mainly on the following

grounds:

(i)Learned Single Judge did not appreciate the fact that the appellant was prevented by his serious illness from resuming duty on expiry of the period of his casual leave (CL).

(ii)Learned Single Judge did not also appreciate the fact that the appellant came to know about the disciplinary proceedings against him only after the provisional order of punishment along with the copy of the enquiry report was served on him.

(iii)Learned Single Judge did not also appreciate that the documents relied upon by the disciplinary authority in

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support of the article of charge were never served on him which amounted to violation of principles of natural justice.

(iv)Learned Single Judge did not consider the fact that the appellant had an unblemished service record. Therefore removal from service for a few days' absence on genuine ground did not commensurate with the alleged misconduct.

[12] Mr.Soumyadeep Dey, learned counsel appearing for the

appellant argued that the appellant informed the respondent about his

illness immediately after he was admitted in hospital and admittedly the

respondent received the said information. Counsel further contends that

after recovery from illness, the appellant also reported at his Head

Quarters at Kanchanpur to resume duty. But he was sent back home with

an assurance that he would be called to resume duty after some days. But,

after few days, the provisional punishment of removal from service was

communicated to him followed by the final order of punishment. His

appeal against the punishment order dated 26.08.2015 was dismissed

without consideration. Subsequently, his revision against the order of the

departmental appellate authority was also dismissed by the revisional

authority without assigning sufficient reason.

[13] According to learned counsel, his dismissal from service for

few days' absence without considering the genuine ground of illness is

not commensurate with the alleged delinquency. Counsel has relied on the

decision of the Apex Court in CENTRAL INDUSTRIAL SECURITY

FORCE AND OTHERS VERSUS ABRAR ALI reported in (2017) 4

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SCC 507 wherein the respondent, a constable of the CISF, was dismissed

from service pursuant to an order passed in the disciplinary proceedings

for desertion of the force for a period of 5 days. In an appeal filed by the

delinquent officer, high court interfered with the order of the disciplinary

authority and directed for his reinstatement. The department preferred

appeal in the Apex Court and the Apex Court held as under:

"19. Though we are of the view that the High Court ought not to have interfered with the order passed by the disciplinary authority, the penalty of dismissal from service is not commensurate with delinquency. The respondent was found guilty of desertion of the Force for a period of five days and not improving his conduct in spite of imposition of penalties on three occasions earlier. For the above delinquencies, the penalty of dismissal from service is excessive and harsh. In our view, the penalty of compulsory retirement would meet the ends of justice. We are informed by the counsel for the appellants that the respondent is entitled for pension as he has completed 10 years of service. In order to avoid any controversy, we direct that the respondent shall be entitled for notional continuity of service till the date of completion of minimum service required to make him eligible for pension. He will not be entitled for payment of salary and allowances for that period."

[14] Counsel submits that in view of the identical circumstances

of this case, penalty of dismissal imposed on the appellant may also be

reduced to compulsory retirement. Counsel has also relied on the

judgment dated 16.11.2017 of this high court in WP(C)315 of 2013

wherein disciplinary proceedings were drawn up against the petitioner, a

rifleman in TSR, for his involvement in a criminal case on the charge of

rape. Petitioner was dismissed from service pursuant to the said

disciplinary proceedings. In departmental appeal, the punishment was

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reduced to lowering of the scale of pay with cumulative effect for 5 years

and in a revision preferred against the said order, it was further modified

to lowering of the scale of pay without cumulative effect for 3 years.

[15] Counsel submits that the charge in that case was graver than

the charge against the present petitioner. But the high court held that the

misconduct attributed to the petitioner would only attract minor

punishment under Section 12(1) of the TSR Act,1983. Counsel relied on

para 23 of the said judgment which reads as under:

23. There was no collation of the charge under Article-I proposed by the memorandum dated 22.04.2011 [Annexure P/1 to the writ petition] and the charge that was framed in the criminal proceeding. As such, the contention of Mr. Kar Bhowmik, learned counsel appearing for the petitioner that the departmental proceeding cannot survive on the said article of charge. The inquiry report, the order of the disciplinary authority dated 19.08.2011 [Annexure P/8 to the writ petition], the order of the appellate authority dated 21.09.2011 [Annexure P/10 to the writ petition], the reinstatement order dated 12.08.2011 [Annexure P/11 to the writ petition] so far it relates to the decision of declaring the period of absence from 20.08.2011 to 01.10.2011 as dies- non and the order of the revisional authority dated 19.08.2013 [Annexure P/13 to the writ petition] stand quashed. But the charge under Article-I is not quashed.

The departmental authority is permitted, if they are so persuaded, to conduct a fresh enquiry after providing all the safeguards as provided under the rules and on observing the principles of natural justice. But it is made clear that the misconduct as attributed under Article-I of the said memorandum [Annexure P/1 to the writ petition] will only attract the minor punishment as provided under Section 12(1) of the TSR Act, 1983. It is upon the disciplinary authority to decide whether they would proceed for a fresh enquiry or not. The departmental authority shall decide on pay and allowances on the period of suspension if it is not decided by now. The departmental authority however shall decide afresh for

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the period from 20.08.2011 to 01.10.2011 [for 43 days]. Such decision shall invariably be taken after the decision is taken on the disciplinary proceeding in the wake of this judgment. Whether the respondent No.2 shall continue with the disciplinary proceeding on Article-I of the memorandum [Annexure-1] or not, shall be decided within a period of 2(two) months from the date of receiving this order. If the disciplinary proceeding is initiated by the respondent No.4, that shall be completed by the next 3(three) months. In the event, as contemplated, the petitioner is asked to cooperate with the process.

Having observed thus, this petition stands allowed to the extent as indicated above..."

[16] Counsel of the appellant submits that the circumstances of

these cases being identical with the circumstances of the present case, the

punishment for removal from service inflicted on the appellant may be

modified and reduced to any other punishment by applying the ratio

decided in these cases.

[17] Mr.N.Majumder, learned counsel appearing for the

respondent on the other hand has argued that despite having reasonable

opportunity the appellant consciously avoided the disciplinary

proceedings. There was no procedural lapse on the part of the disciplinary

authority. Therefore, the judgment of the learned Single Judge does not

call for any interference in appeal. Counsel therefore, urges for dismissal

of the appeal.

[18] The scope of judicial review in service matters has been

circumscribed by the Apex Court in a catena of decisions.

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                [19]         In STATE OF ANDHRA PRADESH AND OTHERS VS. S.

SREE RAMA RAO reported in AIR 1963 SC 1723, the Apex Court has

succinctly held that the High Court is not a court of appeal over the

decision of the authority holding disciplinary proceedings against a public

servant. Observation of the Apex Court in the said judgment is as under:

"7....The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence...... ".

[20] In the case of B.C.CHATURVEDI VS. UNION OF INDIA

AND OTHERS reported in (1995) 6 SCC 749:(AIR 1996 SC 484), the

Apex Court held that in disciplinary proceedings, when the conclusion

arrived at by the disciplinary authority receives support from the

evidence, the disciplinary authority can hold the charged officer guilty

and the court / tribunal cannot sit over the decision of the disciplinary

authority as an appellate authority to re-appreciate the evidence and arrive

at its own findings on such evidence. In the said judgment, the Apex

Court observed as under:

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of

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judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13.The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718: AIR 1964 SC 364 (1964)1 LLJ 38], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."

[21] Similarly, in STATE BANK OF BIKANER AND JAIPUR VS.

NEMI CHAND NALWAYA reported in (2011) 4 SCC 584: (AIR 2011 SC

1931) Apex Court held that question whether evidence against the

charged officer was adequate or reliable in the departmental proceeding

would not be a ground for interfering with the findings of the disciplinary

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authority if it is seen that enquiry has been fairly conducted and the

findings are also based on evidence. Observation of the Apex Court is as

under:

"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry 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. 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."

[22] In UNION OF INDIA VS. P.GUNASEKARAN reported in

(2015) 2 SCC 610 : (AIR 2015 SC 545), the Apex Court laid down the

following parameters for the High Courts while exercising power under

Article 226/227 of the Constitution would be exercised by High Court in a

matter concerning disciplinary proceedings:

"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;

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(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."

[23] Same ratio has been reiterated by the Apex Court in the case

of PRAVIN KUMAR VS. UNION OF INDIA AND OTHERS reported in

(2020) 9SCC 471 wherein the Apex Court held as under:

"28. It is thus well settled that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority."

[24] We have examined the case in the light of the judgments

cited to supra. In the given context, learned Single Judge after scrutiny of

the record has held that the enquiry proceeding was conducted by the

respondent in accordance with law and reasonable opportunity was

provided to the petitioner to defend himself. But, the appellant

consciously avoided the disciplinary proceedings and finally without

contesting the findings of the disciplinary authority he prayed for empathy

of the authority. Learned Single Judge held that the misconduct proved

against the appellant was unbecoming of a member of the disciplined

force and on these grounds he declined to interfere with the order of the

disciplinary authority.

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[25] The factual context of the case of Central Industrial

Security Force and Others (supra) is distinguishable from the facts of

the present case. The respondent of that case had intentionally disobeyed

the orders of his superior and deserted the force for a period of 5 days.

The Apex Court held that desertion was an act of gross misconduct and

since the respondent was member of an armed force, the Apex Court was

in agreement with the findings of the disciplinary authority that

indiscipline on his part should be viewed seriously and he deserved to be

punished suitably. Since he was guilty of desertion of the force for a

period of 5 days only, Apex Court held that penalty of dismissal from

service was excessive and harsh. In the said case respondent joined the

service on 10.09.1990. By an order dated 28.11.2000, he was found guilty

of misconduct and he was dismissed from service. It was, therefore,

submitted on behalf of the respondent that the respondent acquired

eligibility for pension as he completed 10 years of service. In view of such

facts and circumstances, Hon'ble Apex Court reduced the penalty of

dismissal to penalty of compulsory retirement.

[26] In the given case, the appellant entered into service on

19.10.2009 and for his misconduct he was removed from service by the

order dated 26.08.2015. Till the date of his removal, he had a qualifying

service only for six years. He was absent from duty unauthorizedly for a

period of almost 8 months. During this period, he was asked to resume

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duties several times. Despite receiving the communications from his

department, he neither resumed duties nor responded to the

communications received from his department. He could not also

convince the department that his illness was of such nature that prevented

him from performing duty. He never filed any certificate of illness or

prayed for any kind of leave on the ground of illness. He did not even

appear before the disciplinary authority despite receiving the

memorandum under which the departmental proceedings was initiated

against him.

[27] Thus the facts of the two cases are distinguishable and in

view of the conduct of the appellant, he cannot be treated at par with the

respondent of the case in Central Industrial Security Force and

Others(supra).

[28] In the case of Tejendra Barui vs. State of Tripura and

Ors.(supra), relied on by the counsel of the appellant, the charge of

misconduct which was proved against the accused was that the delinquent

officer who was a rifleman in Tripura State Rifles(TSR) left his post at the

Head Quarters with the permission of the Officer in charge of the

company Head Quarters for official purpose. But instead of attending the

official work, he went to another place. When the matter came before this

court, it was found that there were serious procedural lapses in the enquiry

proceedings and also in the process of consideration by the disciplinary

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authority. Moreover, it was observed by this court that the misconduct

which was attributed to the petitioner, would only attract minor

punishment as provided under Section 12(1) of the TSR Act, 1983.

Therefore, the high court permitted the disciplinary authority to conduct

fresh enquiry in accordance with relevant rules and the principles of

natural justice. Facts of both the cases are completely distinguishable for

which the appellant cannot derive any benefit from the said judgment of

the High Court.

[29] In this case, the learned Single Judge rightly held that the

proceedings against the appellant was fairly and properly conducted and

there was no procedural lapse in the said disciplinary proceedings. It was

also observed by the learned Single Judge that the appellant consciously

avoided his participation in the departmental proceedings. In the

judgments cited to supra, the Apex Court has succinctly held that it is not

the function of the high court in a petition under Article 226 of the

Constitution to re-evaluate the evidence recorded by the disciplinary

authority and arrive at an independent finding on the basis of such

evidence. In its power of judicial review, high court can interfere only

when the prescribed procedure has not been followed by the departmental

authority and / or the process of natural justice has been violated or the

finding reached by the disciplinary authority is based on no evidence at

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all. No such ground is available in the present case to call for interference

with the findings of the disciplinary authority.

[30] For the reasons stated above, the appeal stands dismissed.

In terms of the above, the case is disposed of.

As a sequel, miscellaneous petition(s), if any, shall stand

closed.

                                  (S.G.CHATTOPADHYAY) J                    (AKIL KURESHI) CJ




  Saikat Sarma, P.A




WA 49 of 2019