Rajasthan High Court - Jodhpur
Shiv Kumar Soni vs State Of Raj. & Ors on 13 March, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 4125 / 2009
Shiv Kumar Soni S/o Shri Bhanwar Lal Soni, aged about 52 years,
By caste Soni, R/o Gali No.17, Panchayati Dharmshala Ke Pass,
Nai Abadi, Hanumangarh Town, District Hanumangarh.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, Revenue
Department, Government of Rajasthan, Jaipur.
2. The Divisional Commissioner, Bikaner.
3. The District Collector, Hanumangarh.
4. The Sub Divisional Officer, Hanumangarh.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. Vipin Makkad
For Respondent(s) :Dr. P Dave
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 13/03/2018
1. Petitioner has preferred this writ petition with the following prayer :-
"1. By an appropriate writ, order or direction, the impugned orders dated 26.11.2005, 28.11.2005, 22.05.2007 and 13.01.2009 may kindly be quashed and set aside. The petitioner may kindly be exonerated from the charges levelled in the memo of charges dated 04.03.2005, the findings of enquiry officer contained in the enquiry report dated 28.04.2005 may kindly be quashed and set aside.
2. By an appropriate writ, order or direction, the respondents may kindly be directed to reinstate the petitioner back in service with all consequential benefits.
(2 of 12) [CW-4125/2009]
3. Any other appropriate order, which deemed fit in the facts and circumstances of the case may kindly be passed in favour of the petitioner."
2. Learned counsel for the petitioner states that the petitioner joined the post of LDC vide order dated 12.12.1984. The petitioner's record except for the absence remained clean. On 11.08.2004, the petitioner fell ill and therefore, sent a telegram seeking leave. The respondents issued a notice to the petitioner under Rule 86(2) of the Rajasthan Service Rules, 1951 for remaining on unauthorize leave without any application from 23.08.2004 to 04.09.2004. The petitioner replied that on account of sudden illness, the petitioner remained absent for such period but he had not willfully neglected the duty. The memo of charges were issued under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 whereby the charge No.1 was to the effect that the petitioner remained absent from his duties from 23.08.2004 to 04.09.2004 and charge No.2 was to the effect that the petitioner remained absent from duties from 28.08.2004 to 04.09.2004. The enquiry was undertaken and enquiry officer found the charges to be proved. The notice of under Rule 14 of the Rules 1958 was given and finally the orders of dismissal were passed on 28.11.2005.
3. Learned counsel for the petitioner does not oppose the impugned order on merits but at the outside makes a limited argument that the petitioner has rendered services from 12.12.1984 to 28.11.2005 and the charge made out against the petitioner is only for a period of 13 days absence, therefore, the (3 of 12) [CW-4125/2009] lenient view may be taken and therefore, the counsel for the petitioner has addressed this Court only on the issue of quantum of punishment.
4. Learned counsel for the petitioner has relied upon the judgment of Jaipur Bench of this Hon'ble Court in Ramesh Chandra Soni Vs. State of Rajasthan & Ors., 2015(1) WLC (Raj.) 522. The judgment reads as under :-
"1. This writ petition has been preferred by petitioner Ramesh Chandra Soni challenging the order of his removal dated 13.01.1999 and the order dated 25.05.1999 thereby dismissing his appeal there against.
2. Petitioner was appointed as Constable with the respondent Police Department on 02.05.1975, he was confirmed on the said post on 02.05.1977. A charge- sheet was issued to him under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 on allegation of willful absence for 179 days on different periods from February, 1994 to August, 1994. Petitioner replied to the charge-sheet contending that it was not a case of willful absence. One Additional Superintendent of Police Shri G.S. Srivastava, was appointed as inquiry officer. He, in his report, found the charges against the petitioner proved. The disciplinary authority i.e. the respondent No. 3 proposed to award a major penalty vide notice dated 05.02.1998. The petitioner submitted a representation against the enquiry report and proposed penalty. The disciplinary authority on being satisfied that the disciplinary enquiry has not been conducted as per the provisions contained in CCA Rules inasmuch as neither any witness has been examined nor any documents exhibited, did not accept the enquiry report and directed conducting de-novo enquiry.
3. Earlier this writ petition was decided by a Single Bench of this Court vide judgment dated 09.12.2002, whereunder the penalty of removal from service of the petitioner was held to be shockingly disproportionate, and substituted the same by the penalty of withholding of six grade increments with future effect. The petitioner was directed to be reinstated with 50% of the back salary by calculating the same as if he was throughout in (4 of 12) [CW-4125/2009] service during the interregnum and was held entitled to all benefits which he would have earned had he been in service. In appeal being D.B. Special Appeal (Writ) No. 101/2003 preferred by the respondents-department, the Division Bench has remanded the matter again to the Single Bench by holding that settled legal position has not been considered by the learned Single Judge in correct perspective, while making interference with the quantum of punishment, with direction that matter needs reconsideration by the learned Single Judge on the quantum of punishment in the light of judgment referred to above.
4. Shri Deepak Sharma, learned counsel for petitioner, submitted that the disciplinary authority has committed serious illegality in rejecting the application of the petitioner for changing of the Enquiry Officer as Shri G.N. Srivastava had already submitted report against the petitioner showing all the charges proved. So he was bound to arrive at the same conclusion again. The Enquiry Officer was thus biased against the petitioner and on that basis the penalty order passed by the disciplinary authority deserves to be set aside. In support of the argument, learned counsel for petitioner has relied on judgment of the Supreme Court in Ranjit Thakur vs. Union of India & Ors., MANU/SC/0691/1987:
AIR 1987 SC 2386. Since the Enquiry Officer Shri G.S. Srivastava had already given his mind in the earlier report by not conducting and had acted illegally by not examining any of the witnesses or receiving any document. He was biased in his petitioner therefore submitted an application dated 14.05.1998 to the disciplinary authority for change of the Enquiry Officer. The disciplinary authority however by order dated 29.05.1998 rejected his application. The petitioner submitted written argument before the Enquiry Officer.
The Enquiry Officer did not afford reasonable opportunity of hearing to the petitioner and concluded the proceedings. He again found the petitioner guilty of the charges. The disciplinary authority concurred with the findings of the Enquiry. Officer and issued a notice dated 25.08.1998 alongwith the enquiry report dated 14.08.1998. Thereafter vide order dated 13.01.1999 the disciplinary authority imposed penalty of removal of petitioner from service. The petitioner filed an appeal. The appellant authority rejected by same vide order dated 25.05.1999.
5. It is argued that the alleged absence of the petitioner (5 of 12) [CW-4125/2009] in different spells, was not willful but owing to bona-fide reasons beyond his control. He remained absent for 179 days on different spells from 07.02.1994 to 27.08.1994. Petitioner had for each of the period submitted application for grant of leaves on the ground of death of his parents, snake bite to his wife, his own accident. The application was submitted not only for this period, but also for the period of absence of 71 days from 05.09.1994 to 14.11.1994. While the leave was sanctioned for this period of 71 days, for grant of leave for the period in question, was not processed because of his personal file was found misplaced. Since the petitioner had submitted valid reasons for his absence, the disciplinary authority was required to apply his mind to such application and pass appropriate order. The absence cannot be held to be willful. In support of his argument, learned counsel for the petitioner has relied on judgment of the Supreme Court in Krushnkant B. Parmar vs. Union of India, MANU/SC/0118/2012 :
(2012) 3 SCC 178.
6. Learned counsel for the petitioner further submitted that the Enquiry Officer has not followed the provisions contained in Rule 16 of the CCA Rules, while conducting enquiry. Proper opportunity has not been granted to the petitioner to defend himself and produce his witnesses. The enquiry report has not been prepared with proper application of mind. Nether the enquiry officer nor the disciplinary authority has recorded charge-wise finding. No discussion whatsoever has been made against the petitioner. Not only the evidence produced by the petitioner has not been discussed and the reply filed by the Department has also not been deliberated upon. The enquiry officer has straightway recorded his finding.
7. Shri Deepak Sharma, learned counsel for the petitioner, lastly submitted that the penalty of removal is disproportionate to the gravity of the charges. The learned counsel for the petitioner submitted that while imposing the penalty of removal the enquiry officer did not correctly analyzed the evidence and other material on record. Learned counsel, reiterating the argument, argued that the penalty of dismissal for absence of 179 days was excessive. In support of his argument, learned counsel for petitioner has relied on judgment of the Supreme Court in Chairman-cum-Managing Director, Coat India Limited vs. Mukul Kumar Choudhari, MANU/SC/1498/2009 : (2009) 15 SCC 620, wherein it has been held that no reasonable employer would have (6 of 12) [CW-4125/2009] imposed such penalty of removal when explanation for absence has been furnished by the delinquent.
8. Dr. A.S. Khangarot, learned Additional Government Counsel appearing on behalf of the respondents, opposed the writ petition and submitted that the remand of the matter by the Division Bench to the Single Bench has been made on limited ground that it needs reconsideration on the quantum of punishment, therefore, other arguments are not open for reconsideration and the matter has to be decided only in that limited sphere.
9. Learned Additional, Government Counsel submitted that the departmental enquiry has been conducted in a proper manner by following the procedure contained in Rule 16 of the CCA Rules. There was no illegality in appointment of Shri G.N. Srivastava as Enquiry Officer. The very fact that the disciplinary authority has acceded to request of the petitioner in regard to earlier enquiry report by directing de novo enquiry, clearly shows that there was no biasness on his part. The Enquiry Officer in his report has thoroughly discussed the evidence and then found the charges proved. He has discussed the statements of each and every witness and thereafter recorded the finding. It cannot therefore be said that the findings have been recorded by him in a cursory manner without going into the evidence and other material available on record. Since the disciplinary authority has concurred with the opinion of the enquiry officer, he was not required to discuss the evidence in detail to concur with the findings recorded by the enquiry officer. It is denied that the petitioner has given satisfactory or reasonable explanation for his willful absence. The petitioner was habitual absentee and merely because for earlier period of 71 days he was granted leaves, does not extend him any right to claim regularization or grant of leave even for subsequent period. He did not support his application by medical evidence nor produce any proof therewith to show snake bite to his wife or to prove his own accident. The assertion that for some time he had to remain absent for his treatment, was also not supported by any evidence. It is therefore prayed that writ petition be dismissed.
10. Having heard learned counsel for the parties and perused the material on record in the light of material on record, it is evident that this writ petition was earlier decided vide judgment dated 09.12.2002. The only argument advanced on behalf of the petitioner before (7 of 12) [CW-4125/2009] the learned Single Judge was that looking to the nature and magnitude of charge, award of extreme penalty of removal is highly disproportionate and deserves to be modified. The Single Bench was of the view that the penalty imposed was excessive and disproportionate to the gravity of the charges. While setting aside the penalty of removal, the Single Bench itself substituted the penalty by that of stoppage of six grade increments and directed petitioner's reinstatement with 50% back salary. The Division Bench after considering the arguments of the parties in the light of various judgments cited before it, remanded the matter by observing that only grievance made was "that the penalty inflicted upon the petitioner respondent was disproportionate to the guilt for which he was charged." The Division Bench has thus made the remand only to reconsider the quantum of punishment in the light of the judgments cited before the Division Bench. Despite all other arguments made on behalf of the petitioner, therefore the matter needs to be decided within limited scope.
11. In Regional Manager & Disciplinary Authority, State Bank of India, Hyderabad and Another vs. S. Mohammed Gaffar, MANU/SC/0683/2002 : 2002 (2) UJ 1240 (SC), it was held by the Supreme Court that in departmental proceedings, in so far as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or appellate authority is either impermissible or such that it shocks the conscience of the High Court, it should not normally interfere with the same or substitute its own opinion and either impose some other punishment or penalty or direct the authority to impose a particular nature or category or punishment of its choice.
12. In State of U.P. vs. Ashok Kumar Singh, MANU/SC/0197/1996 : AIR 1996 SC 736, which too was a case of willful absence, the Supreme Court held that the High Court exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts that the reasons for absence of 251 days was not proved and therefore the penalty was not commensurate with the gravity of the charge, was not upheld.
In Apparel Export Promotion Council vs. A.K. Chopra, MANU/SC/0014/1999 : (1999) 1 SCC 759, it was held by the Supreme Court that the High Court should not have substituted its own discretion for that of the authority.
(8 of 12) [CW-4125/2009] 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.
11. In State of Rajasthan vs. Sujata Malhotra, MANU/SC/0349/2002 : 2002 (II) LLJ 775 (SC), it was held by the Supreme Court that the High Court was not within its power to interfere with the order of punishment in the disciplinary proceedings unless any lacuna noticed or found.
12. Learned counsel for the petitioner cited a judgment of the Supreme Court in Chairman-cum-Managing Director, Coal India Limited and Another vs. Mukul Kumar Choudhari & Ors., 2009 (6) Supreme 349, which too was a case of unauthorized absence from duties for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the company's rules and regulations. He stated that the reason was purely personal and beyond his control and as a matter of fact he sent his resignation which was not accepted. The Supreme Court held that on facts no reasonable employer would have imposed extreme penalty of removal in like circumstances. A reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.
13. A Division Bench of this Court in Rajasthan State Road Transport Corporation & Ors. vs. Shri Ram Yadav, MANU/RH/0367/1995 : 1995 (3) WLC (Raj.) 16, held that it was duty of disciplinary authority to apply mind to various alternative penalties to be imposed on delinquent. He was required to indicate 'good and sufficient reasons' for choosing any particular penalty. While imposing penalty, the nature and magnitude of charge, desirability or undesirability of retaining delinquent in service and adequacy of penalty lesser than dismissal or removal and other aspect constitute vital considerations. Even the appellate authority has been charged with the duty to see whether the procedure laid down in these rules have been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; whether (9 of 12) [CW-4125/2009] the findings of the disciplinary authority are warranted by the evidence on the record; and whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe.
14. Besides, in the present case, the petitioner has been able to show prima facie bias on the part of the enquiry officer in that, the enquiry officer had recorded the finding of guilt against the petitioner in whose enquiry report was not accepted by the disciplinary authority who ordered for de novo enquiry. The judgment of the Supreme Court in Ranjit Thakur vs. Union of India & Ors., MANU/SC/0691/1987 : AIR 1987 SC 2386 has been cited in support of this contention.
15. While therefore this Court may not accept that argument for holding the enquiry report itself bad but it can certainly be considered mitigating circumstances in favour of the delinquent on the question of quantum of penalty. This Court itself may not be justified in substituting the penalty of removal by stoppage of six annual grade increments. The disciplinary authority in passing the order of penalty has not at all examined any of those parameters. Besides, it has not given any reason as to why it has chosen to award extreme nature of penalty of removal out of many penalties provided under Rule 14 of the CCA Rules. The disciplinary authority when it chooses one kind of penalty from amongst many alternatives, it has to inform itself of all the relevant considerations and then decide as to what nature of penalty would be the requirement of the situation. In doing so, the disciplinary authority is required to consider the overall service career of the delinquent vis-a-vis gravity of the charge, nature of its consequence and circumstances in which the misconduct was committed. Even the appellate authority has under
Rule 38 of the CCA Rules been charged with the duty to see whether the procedure laid down in these rules have been complied with and if not, whether such non- compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; whether the findings of the disciplinary authority are warranted by the evidence on the record; and whether the penalty penalty imposed is adequate, inadequate or severe.
16. In the present case, the absence of the petitioner was for 179 days and it can hardly justify so grave and harsh penalty as the order of dismissal is. The Supreme Court in Bhagwan Lal Arya vs. Commissioner of Police (10 of 12) [CW-4125/2009] Delhi & Anr., MANU/SC/0232/2004 : 2004 (2) WLC (SC) Civil 226, noted that it was not the case of respondents that appellant therein was habitual absentee. Their Lordships therefore observed that punishment of dismissal/removal from service should be awarded only for acts of such grave nature, which has cumulative effect of continued misconduct proving incorrigibility or complete unfitness from police service. Mere one incident of absence and that too because of bad health on valid and justified grounds/reasons, cannot become basis for awarding such a harsh punishment. It was observed that appellant in that case did not have any other source of income and will not get any other job at this age and with the stigma attached to him on account of the impugned punishment, as a result of which, not only he but also his entire family, which totally depended on him, will be forced to starve. Thus, the Supreme Court observed that according to the mitigating circumstances, it was warranted that punishment order of the disciplinary authority be set- aside. At the same time, Supreme Court directed that intervening period from the date of dismissal till the delinquent reported back to duty, would not be counted as a period spent on duty. In my considered view, the ratio of the aforesaid case where delinquent was Constable in police force and was dismissed from service on charges for absence from duty for 2 months and 7 days, is fully applicable to the facts situation of the present case where the petitioner was dismissed from services of the police force on charges of having remained absent for 113 days. This Court is of the opinion that the extreme penalty of removal, for absence of 179 days looking to the fact that when such penalty was imposed the petitioner had already completed more than 20 years of service with the respondent Department and that the petitioner has now already reached the age of 58 years and is about to attain the age of superannuation, is found to be shockingly disproportionate to the gravity of the charge. While, therefore, setting aside the aforesaid penalty, the matter is remanded back to the disciplinary authority for awarding any other penalty except the penalty of dismissal, removal or compulsory retirement. Petitioner shall, however, be deemed to be under suspension from the date of penalty of removal dated 13.01.1999 till reinstatement now pursuant to this order. He shall only be paid 50% subsistence allowance for the intervening (11 of 12) [CW-4125/2009] period. The disciplinary authority is directed to make compliance of the judgment within a period of three months from the date its copy is produced before the respondents.
Writ petition accordingly stands disposed of."
5. Learned counsel for the respondent has refuted the submission.
6. After hearing counsel for the parties and perusing the record of the case, this Court finds that there is a limited argument made by the counsel for the petitioner regarding quantum of punishment on account of the penalty of removal for absence of 13 days which seems to be a little harsh upon an employee who has already rendered service from 12.12.1984 to 28.11.2005. The quantum of punishment is only zone where the counsel for the petitioner seeks adjudication. This Court views the delay of 13 days absence as a serious issue particularly in light of the earlier absence but since the absence was on account of illness and also looking into the length of the service rendered by the petitioner, this Court deems it appropriate to modify the impugned orders 26.11.2005, 28.11.2005, 22.05.2007 and 13.01.2009 only to the extent of the punishment of dismissal. This Court further deems it appropriate to substitute the penalty of dismissal with a penalty of compulsory retirement. The petitioner, therefore, stands compulsory retired on 28.11.2005 which is a major punishment but however the petitioner shall be entitled for all consequential benefits arising out of the compulsory retirement. The suspension period shall be treated notionally in favour of the petitioner. The necessary benefits shall be granted (12 of 12) [CW-4125/2009] within a period of three months from today.
(DR. PUSHPENDRA SINGH BHATI)J. sudheer