Madhya Pradesh High Court
Smt. Tara Devi Mawar vs The High Court Of Madhya Pradesh on 4 February, 2016
1
W.P. No.236/2016 (S)
04.02.2016
Shri Parag S. Chaturvedi, Advocate for the petitioner.
Shri Siddharth Seth, Advocate for the respondents.
Heard counsel for the parties.
As short question is involved, petition is proceeded for final disposal, by consent. Counsel for the respondents waives notice for final disposal.
By this writ petition, filed under Article 226 of the Constitution of India, the petitioner is challenging the decision of the Disciplinary Authority dated 18 th December, 2009 and of the Appellate Authority dated 9th September, 2015.
2. The Appellate Authority has non-suited the petitioner, essentially, on the finding that the appeal was barred by limitation. The Disciplinary Authority having found the charges fully proved against the petitioner and even after taking note of the fact that the appointment of the petitioner was on compassionate ground and that the missing files were later on traced and not being a case of corrupt motive, chose to impose punishment of withholding of five increments with cumulative effect.
3. In the context of this punishment, the grievance of the petitioner is that the same is excessive. Moreover, no reason 2 has been given whatsoever by the Disciplinary Authority as to why withholding of five increments with cumulative effect was the only just punishment to be imposed on the petitioner.
4. Counsel for the respondents, on the other hand, submits that the petitioner having failed to challenge the decision of the Disciplinary Authority, with utmost despatch deserves no indulgence and the petition should be dismissed on that count. He submits that the punishment imposed by the Disciplinary Authority, in the fact situation of the present case, is just and proper.
5. Having considered the rival submissions, the only question that arises for consideration, is : whether the punishment imposed by the Disciplinary Authority is excessive or just and proper. In other words, the petitioner has chosen not to challenge the finding of fact recorded by the Disciplinary Authority in relation to the charges on merits. Thus, the limited issue is : whether the Disciplinary Authority was right in imposing punishment of withholding of five increments with cumulative effect, in the fact situation of the present case.
6. Before that, we must advert to the preliminary objection raised by the respondents about the maintainability of the writ petition, as the appeal was dismissed on the ground of delay and no good reason is forthcoming to condone the delay in 3 filing of the appeal. No doubt, the petitioner chose to challenge the decision of the Disciplinary Authority after lapse of five years and the Appellate Authority has taken the view that no sufficient cause has been shown by the petitioner. However, considering the fact that the petitioner has not only challenged the decision of the Appellate Authority but also of the Disciplinary Authority and coupled with the explanation as was given by the petitioner for delay in filing of the appeal and no tangible reason has been assigned in the impugned order for dismissal of the appeal on the ground of limitation, we are inclined to set aside the same. In our opinion, the petitioner has offered good reason for not filing of the appeal within the statutory period. In the interest of justice, therefore, the explanation offered by the petitioner in that behalf, is accepted.
7. That leaves us with the question : whether the punishment imposed, in the fact situation of the present case, is excessive or otherwise. It is well settled that the Court cannot sit over the judgment of the Disciplinary Authority and substitute its own opinion regarding the quantum of punishment. That is a discretionary order passed by the Disciplinary Authority. However, having set aside the order passed by the Appellate Authority, we would deem it appropriate to relegate the petitioner before the Appellate 4 Authority, who would be competent to consider the issue of quantum of punishment, being excessive or otherwise. We may only make note of the submission made by the petitioner that the Disciplinary Authority, itself, having found that the case of petitioner was one of compassionate appointment and that the concerned file was retrieved at a later point of time and more importantly as there was no corrupt motive of the petitioner, decided to take a lenient view of the matter. Having done so, no reason has been assigned by the Disciplinary Authority as to why the extreme punishment of withholding of five increments with cumulative effect would be necessary. This is a issue, which the Appellate Authority must examine on its own merits and in accordance with law.
8. We have no manner of doubt that the Appellate Authority may also keep in mind the fact that the petitioner was working as Assistant Record Keeper in the concerned Court at the relevant time and a woman employee and having served already for 30 years with unblemished record, as is contended.
9. Disposed of accordingly.
(A.M. Khanwilkar) (Sanjay Yadav)
Chief Justice Judge
psm