Jharkhand High Court
Somra Majhi vs Union Of India Through The Director ... on 20 March, 2015
Author: Pramath Patnaik
Bench: Pramath Patnaik
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 7578 of 2006
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Somra Majhi, Constable no. 348 of BNDM (RPF) son of late Sundar
Majhi, resident of village-Kendorai (Deojam), P.O. and P.S
Chakradharpur, Dist. Singhbhum West (Jharkhand)
... Petitioner
Versus
1.The Union of India through the Director General (RPF), New Delhi.
2.The Inspector General (RPF), New Delhi.
3.The Additional Inspector General (RPF), New Delhi.
4.The Divisional Security Commissioner, SE Rly, (RPF) At: P.O.
Chakradharpur, Dist Singhbhum West.
5.The Asst. Security Commissioner, S.E. Rly (RPF) At/P.O
Chakradharpur, Dist. Singhbhum West.
6.The Officer-in-Charge (RPF) S.E. Rly. (BNDM), resident of P.O
Chakradharpur, Dist. Singhbhum (W).
7.The Divisional Medical Officer, S.R. Rly, Garden Reach,
Kolkata-43 (West Bengal).
... Respondents
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CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioner : Mrs. M.M. Pal, Sr. Advocate
Mrs. Mahua Palit, Advocate
For the Respondents : Dr. S.N. Pathak, Sr. Advocate
M/s Fayyaz Ahmad & Rakesh Kr. Ray,
Advocates.
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C.A.V. On 27.02.2015 Pronounced on 20/03/2015
Per Pramath Patnaik, J.:
In the accompanied writ application, the petitioner has inter
alia, prayed for issuance of appropriate writ (s)/direction(s) in the
nature of certiorari or mandamus for quashing Office Order No.
233/05 dated 05.06.2005 (Annexure 4) whereby the petitioner,
Constable No. 348 of Railway Protection Force, was removed from
services with immediate effect.
2. The factual matrix, as described in the writ application, is
that the petitioner was appointed as constable and was serving
the Railway Protection Force w.e.f. 03.09.1990 and he was given
Constable No. 348 (BNDM). It has been stated that the petitioner
has rendered unblemished services to the utmost satisfaction of
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the authorities. But, to the utter surprise of the petitioner, a copy
of memorandum of charge-sheet vide no. DA/10-04/153/6152
dated 02.05/6.2004 was issued by respondent no. 5 and Article of
Charge, have been served upon the petitioner. The copy of
memorandum of charge-sheet and article of charge, by which the
petitioner was informed that the petitioner is a habitual absentee,
have been annexed as Annexures 1 and 1/A to the writ application.
It has been stated that since the petitioner was ailing, he had to
remain on leave. It has further been stated that the statement of
the petitioner finds support when the respondent no. 7 called a
report of last two years from the department to decide the fitness
of the petitioner for duties vide certificate dated 20.09.2004, as
per Annexure 3 of the writ application. The petitioner has
contended that after issuance of charge-sheet, the petitioner has
never been allowed to inspect the records nor has been allowed to
cross-examine the witnesses and the enquiry was taken place
behind the back of the petitioner and the respondents have
decided the proceeding in violation of Article 311 (2) of the
Constitution of India by inflicting major penalty i.e. removal from
services without even issuing second show cause notice.
3. The impugned order dated 5.06.2004 at Annexure 4 has
been challenged in this writ application mainly on the following
grounds:
(I).That the impugned order dated 05.06.2005 under Annexure
4 has been passed by respondent no. 4, who is sub-ordinate to
the appointing authority, the impugned order is unsustainable
in the eye of law.
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(II). That the impugned order has been passed in violation of
principles of natural justice, therefore, Article 311(2) of the
Constitution of India has been violated.
4. Counter affidavit has been filed on behalf of respondents,
repelling the contentions raised in the writ application. It has been
stated in paragraph 7 of the counter affidavit that the petitioner
having been held guilty of the charges of absence from duty from
04.01.2003to 14.08.2003, 16.10.2003 to 08.02.2004, 22.02.2004 to 23.03.2004 and from 28.04.2004 till the date of issuance of charge-sheet without intimation or authority. It has been contended that though the petitioner was extended ample opportunity by the enquiry officer through letters and all letters were served either upon him or his wife, the petitioner only attended one sitting of departmental enquiry and thereafter he never attended the enquiry proceeding. Hence, the enquiry officer started ex-parte enquiry and as per the evidence adduced during the course of enquiry, the enquiry officer held the petitioner guilty of the charges. After findings were received, a copy of the same was made available to the petitioner for his representation within seven days, which he acknowledged on 27.02.2005, but, he did not make any representation that establishes charges on the part of the petitioner. It has been stated in paragraph 10 of the counter affidavit that evidences warrant effective punishment proportionate to the gravity of misconduct and accordingly the impugned order has been passed i.e. removal from services in terms of serial No. 3 of Schedule III of the 'Disciplinary Authorities and Their Powers' of Railway Protection Force, Rules, 1987, as per Annexure A to the counter affidavit.
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5. In the counter affidavit at paragraph 13 it has been stated that regarding private medical certificate issued on 05.02.2004, for sick list from 27.01.2003 to 10.08.2003, the petitioner was directed to appear before Railway Medical Officer for further examination, who declared him fit to join duty and accordingly the petitioner resumed his duty on 15.08.2003, as reported by Controlling Officer vide letter dated 19.08.2003 (Annexure B). In paragraph 14, it has been stated that regarding private medical certificate issued on 05.02.2004, for sick list from 15.01.2003 to 07.02.2004, the petitioner came to post on 09.02.2004 and submitted the medical certificate along with explanation and accordingly, he was taken on duty on 09.02.2004, as per report of Controlling Officer dated 09.02.2004 (Annexure C). Regarding Private Medical Certificate issued on 23.03.2004 for sick list from 24.02.2004 to 23.03.2004, the petitioner came to post on 09.02.2004 and submitted the said certificate and accordingly he was taken on duty on 24.03.2004, as per report of Controlling Officer dated 25.03.2004 (Annexure D). Regarding private medical certificate issued on 15.09.2004, for sick list from 30.04.2004 to 15.09.2004, it is submitted that the petitioner came to the post on 15.09.2004 and submitted the certificate along with explanation and accordingly he was taken on duty on 24.03.2004 and he was directed to Sr. DMO/TATA for further examination, but, the petitioner was discharged from sick list on 23.10.2004 due to non- attendance vide certificate dated 02.11.2004. The respondents have denied the plea of the petitioner that in spite of aforesaid medical certificates, the respondents have not allowed the petitioner to join in service.
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6. It has also been submitted in the counter affidavit that the petitioner has been extended ample opportunity by the enquiry officer but he did not appear before enquiry officer for departmental enquiry except one date i.e. on 08.06.2004, despite several notices/letters. After receipt of the findings of the enquiry report, a copy of the same was made available to the petitioner vide letter dated 09.02.2005 for his representation within seven days, which he acknowledged on 27.02.2005 but he did not submit any representation while major penalty was going to be imposed. Hence, the plea that ample opportunity has not been given, is not tenable in the eyes of law. Therefore, it is submitted that just and proper punishment has been imposed on the petitioner, which is in commensurate with the gravity of charges and findings of the Enquiry Officer.
7. Heard Mrs. M.M. Pal, learned senior counsel for the petitioner and Dr. S.N. Pathak, learned senior counsel for the respondents.
8. The learned senior counsel for the petitioner has strenuously urged before this Court that:
(I). The alleged memo of charge under Annexure-1 and Article of Charge and Imputation of allegation under Annexure-1/A are thoroughly vague and misconceived in view of the statement made in paragraphs 13 to 17 of the counter affidavit.
(ii). The second thrust of the argument advanced by learned senior counsel for the petitioner is that there is a procedural irregularity and adequate opportunity has not been given to the petitioner violating Article 311(2) of the Constitution of India.
(iii). The third ground of challenge in the writ application, as has been vehemently canvassed by learned senior counsel, is 6 that since the charges on which the proceeding has been initiated appears to be vague and baseless and the so-called period of absence has been adjusted, therefore, the consequential impugned order of punishment under Annexure 4 is not legally sustainable.
9. Learned senior counsel for the petitioner further submitted that apart from aforesaid submissions, the impugned order of punishment is harsh and shockingly disproportionate to the alleged charges. In support of her argument, learned senior counsel for the petitioner has referred to the judgment rendered in the case of B.C. Chaturvedi Vs. Union of India and others as reported in A.I.R 1996 S.C. 484 and Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and others as reported in 2004(3) ATJ 555.
10. Learned senior counsel for the respondents has forcefully submitted that the writ application is not maintainable since without exhausting the available statutory remedy, the petitioner has approached this Court by filing writ petition. The second contention raised by learned senior counsel for the respondents is that there has been no procedural irregularity and the petitioner has been found guilty by the enquiry officer, who has opined that the petitioner is habitual offender of remaining on unauthorized absence and it was the habit of the petitioner to remain unauthorizedly absent from duty, that too in a disciplined force and the the petitioner was found guilty of the charges, therefore, it has been submitted that the just and appropriate punishment has been imposed on the petitioner.
11. On the point of quantum of punishment, learned senior counsel for the respondents has relied upon the judgment 7 rendered in the case of State of U.P. and others vs. Raj Kishore and Another as reported in (2006) 5 SCC 673, specially paragraphs 3 and 4; Krushnakant B. Parmar Vs. Union of India and Another as reported in (2012) 3 SCC 178; Union of India & Anr. Vs. G. Ganayutham as reported in (1997) 7 SCC 463; Apparel Export Promotion Council Vs. A.K. Chopra as reported in (1999) 1 SCC 759 and M.P. Electricity Board vs. Jagdish Chandra Sharma as reported in (2005) 3 SCC 401.
12. On perusal of the records, it is quite evident that there has been no procedural irregularity from the initiation of disciplinary proceeding till its culmination as the petitioner has been found guilty of the charges by the enquiry officer. The Hon'ble Apex Court in the case of State of U.P. and others Vs Raj Kishore Yadav and Another as reported in (2006) 5 SCC 673 at paragraph 4 has held that:
"4. ........ It is a settled law that the High Court has limited scope of interference in the administrative action of the State in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, and, therefore, the findings recorded by the enquriy officer and the consequent order of punishment of dismissal from service should not be disturbed..........".
The Hon'ble Apex Court further in the case of Krushnakant B. Parmar Vs. Union of India and Another as reported in (2012) 3 SCC 178 has held that High Court under Article 226 cannot disturb the facts and findings given by the disciplinary authority.
13. After having heard learned senior counsels for the parties at length and on perusing the entire materials available on record, the moot question which falls for determination by this Court is as 8 to whether the impugned order of punishment can be interfered with by this Court on the ground of doctrine of proportionality or in other words on the question of quantum of punishment.
14. The Hon'ble Apex Court in the case of Union of India & Anr. Vs. G. Ganayutham as reported in (1997) 7 SCC 463 held that in the matter of penalty imposed in a disciplinary case, unless the Court/Tribunal opines in its secondary role, that the administrator was, on the material before him, irrational, the punishment cannot be quashed.
15. The Hon'ble Apex Court in the case of Apparel Export Promotion Council Vs. A.K. Chopra as reported in (1999) 1 SCC 759 in paragraph 22 held as under:
"............ The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone"................
16. The Hon'ble Apex Court further in the case of B.C. Chaturvedi Vs. Union of India & Others as reported in (1995) 6 SCC 749 has held that the Court will not interfere with the order, unless the punishment order is one which shocks the conscience of the Court. Similar view has been expressed by the Hon'ble Apex Court in the case of M.P. Electricity Board Vs. Jagdish Chandra Sharma as reported in (2005) 3 SCC 401.
17. The Hon'ble Apex Court in the case of Bhagat Ram Vs. State of Himachal Pradesh and Others as reported in (1983) 2 SCC 442 has held that it is equally true that the punishment 9 imposed must be commensurate with the gravity of the misconduct and any penalty disproportionate to the gravity of the misconduct will be violative of Article 14.
18. In the case at hand, in view of the seriousness of allegation and misconduct committed by the petitioner, the power of judicial review cannot be applied and moreover the fact finding given by the enquiry officer based upon the materials on record cannot be interfered with, as has been held by Hon'ble Supreme Court in the case of State of Uttar Pradesh and Another Vs. Man Mohan Nath Sinha & Another as reported in (2009) 8 SCC 310, specially at paragraph 15, which is quoted herein below:
" 15.The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. .............. "
Applying the aforesaid principles of Hon'ble Apex Court, as indicated herein above, I find no reason to interfere with the impugned order.
19. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, I am of the opinion that the petitioner has not been able to make out a case for interference by this Court. Accordingly, the writ petition is dismissed, being devoid of any merit.
(Pramath Patnaik, J.) Alankar/-