Allahabad High Court
Vijay Kumar Singh vs State Of U.P. & Others on 9 April, 2014
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Court No. - 29 Case :- WRIT - A No. - 30208 of 2004 Petitioner :- Vijay Kumar Singh Respondent :- State Of U.P. & Others Counsel for Petitioner :- Narendra Deo Upadhyaya,Ap.P. Tiwari Counsel for Respondent :- Tarun Verma,A.Kumar,S.C.,Vivek Singh Hon'ble Vivek Kumar Birla,J.
By means of the present petition the petitioner has challenged the order dated 6.8.2003, passed by the Security Commissioner (RPF), removing the petitioner from service, Annexure 7 A to the amendment application; the order passed by Deputy Chief Security Commissioner (RPF), Gorakhpur dated 21.10.2003 Annexure 9 to the petition and order dated 20.1.2004, passed by Chief Security Commissioner (RPF) NER Gorakhpur Annexure 11 to the petition.
The facts as alleged in the present petition are that the petitioner was appointed as Constable in the Railway Protection Force, (herein after referred to as RPF). He was sent for training and after completing the training period, he joined his service as Constable in RPF Reserved Company No. 26 in the Head Office Gorakhpur North Eastern Railway (NER) on 22.4.1982.
It is admitted fact that the petitioner did not attend the service /duty from 17.11.1982 to 26.12.1996. Allegedly on 2.1.1997 the petitioner moved an application for joining the service and thereafter on 30.10.2002 the petitioner was directed to go for medical examination before the Medical Officer L.N. Mishra Railway Hospital, NER, Gorakhpur. The Medical Report was given on 8.10.2002 and the Director of Railway Hospital granted certificate dated 15.11.2002 to the petitioner that he is able to join the duty in category 'B-1' in the Department.
It is further alleged that on 31.3.2003, the petitioner moved an application for joining the service and he was permitted to join the service on a supernumerary post.
On 1.4.2003 the petitioner was placed under suspension and subsequently he was given a charge sheet dated 29.4.2003. An inquiry proceeded against the petitioner and he was granted full opportunity of hearing. The Inquiry Officer submitted his inquiry report dated 21.6.2003, Annexure-7 to the petition. The Inquiry Officer categorically recorded a finding that the petitioner was absent from service from 17.11.1982 till 26.12.1996. He concluded that the petitioner was absent from service from 17.11.1982 to 17.9.1985 in unauthorised manner and without sanction of leave. He however observed that from 18.9.1985 to 26.12.1996 the petitioner was ill and was under treatment and therefore he had not attended the duty.
After consideration of the aforesaid inquiry report the order dated 6.8.2003, Annexure-7 A to the amendment application was passed. The order of removal from service was passed by Disciplinary Authority noticing the fact that the petitioner had served only from 22.4.1982 to 16.11.1982 i.e. for a period of two months and 5 days only and during the entire career he remained absent in unauthorised matter without sanction of leave. It was also noticed that as a matter of fact because of unauthorised absence of the petitioner he was charge sheeted vide Charge Sheet No. E/T/Pro-5/83 dated 2.7.1983. But since there was no record available of the service of said chargesheet on the petitioner and since much time had expired from the aforesaid date i.e. 2.7.1983, the aforesaid charge sheet dated 2.7.1983 was cancelled and a fresh charge sheet dated 29.4.2003 was given to the petitioner and the inquiry proceeded in accordance with law thereafter. It was clearly noticed in the aforesaid order dated 6.8.2003 that Medical Certificate for the period 17.11.1982 to 17.9.1985 was issued by a Doctor, who was not in service of the Railway Hospital and during this period the petitioner was also under going treatment in Ranchi Mental Hospital and as such the said Certificate issued by Private Doctor was not worth belief. The petitioner was found guilty of unauthorised absence from 17.11.1982 to 17.9.1985 and was removed from service for this reason treating it to be a misconduct as per Railway Protection Force Rules 1957. Rule 146.2 (iii)of the aforesaid Rules of 1957 provides that no member of the force without good and sufficient cause shall be absent without leave or be late for any duty. The order of removal was passed in exercise of power under section 9 of the Railway Protection Force Act 1957.
The petitioner preferred an appeal which was also dismissed on 24.10.2003 by the Deputy Chief Security Commissioner (RPF), Gorakhpur, the Respondent No. 2.
While passing the order dated 21.10.2003 the authority considered all the objections of the petitioner in detail and clearly recorded this fact that the certificate for illness from 17.11.1982 to 17.9.1985 was given by one Dr. Nagina Prasad Yadav holding degree of BAMS (BU) and was a Ayurvedic Doctor posted at Primary Health Centre Harsiddhi and this certificate was dated 17.12.1998, a copy whereof is on record as Annexure CA-3 to the Counter affidavit filed by Respondents No. 1 to 3. This certificate was clearly issued after a long period of 13 years. It was also noticed by the authority that during this period from 17.11.1982 to 17.9.1985 the petitioner was under treatment as indoor patient in Mental Hospital at Ranchi from 30.9.1985 to 11.10.1985. It was noticed that this period clearly falls within the period of which certificate was issued by Dr. Nagina Prasad Yadav, who was also not a specialist for mental diseases. As such the aforesaid certificate dated 17.12.1998 given by Dr. Nagina Prasad Yadav was discarded and the authority agreed with the decision of the Disciplinary Authority regarding the removal of the petitioner from service for the reason indicated above.
Thereafter a Revision was filed by the petitioner before the Chief Security Commissioner (RPF), which too was dismissed by the respondent no. 1 vide order dated 14.1.2004, Annexure 11 to the petition.
A counter affidavit had been filed by Respondent No. 1 to 3 raising objection that the Union of India was not impleaded in the present writ petition, as such the petition was liable to be dismissed for non joinder of necessary party.
In the counter affidavit filed by all the Respondents No. 1 to 3 a categorical stand of the respondents was that the petitioner left on 16.11.1982 without any sanction of leave or permission w.e.f. 17,11,1982 to 26.12.1996. It was further asserted that inquiry proceedings have proceeded in accordance with law and the authorities have rightly concluded on facts and the petitioner was rightly removed from service and he had worked only for two months and 5 days between 22.4.1982 to 16.11.1982 during the entire period of service. It is further asserted that he remained absent from duty from 17.11.1982 to 26.12.1996 without any sanction of leave or permission. It was further asserted that in view of the facts and law as applicable in the disciplinary proceedings no interference in the dismissal order was warranted as admittedly the petitioner was given all opportunity of defence and principles of natural justice were duly followed.
The petitioner filed rejoinder affidavit and denied the allegations made in the counter affidavit.
However, the respondent filed supplementary counter affidavit to assert that the petitioner reported for duty after a long time i.e. from 16.11.1982 to 26.12.1996 after remaining absent for more than 14 years, one month and 10 days. It was also asserted that the allegation of the petitioner made in para 4 of the rejoinder affidavit that he was on duty between 24.4.1982 to 16.11.1982 is totally false. It was again specified that it is only from 24.12.1982 to 17.9.1982 that the petitioner performed his duty for about 2 months and 5 days only and during the remaining period he remained absent from duty unauthorisedly.
I have heard learned counsel for the parties at length. I may also put on record that after the order reserving the judgment was passed on request of the counsel for the petitioner, he was permitted to file short note. He had supplied the same titled as 'Written Argument'. In the interest of justice the same is taken on record and is considered.
From a perusal of grounds of challenge in the present petition it is clearly demonstrate that they are more in nature of challenging the consideration of fact and do not give any challenge to the manner of inquiry proceedings. It is therefore, thus clear that the petitioner was afforded full opportunity of hearing during the disciplinary proceedings and proceedings had been undertaken in accordance with law. In pith and substance only the subjective satisfaction of the respondent authorities is under challenge.
The petitioner asserted that the findings of the Inquiry Officer recorded for unauthorised absence is for the period of 17.11.1982 to 17.11.1985 as recorded by the Inquiry Officer and his absence from 18.9.1985 to 26.12.1996 was duly explained as his father continued to intimate the authorities about his going under medical treatment for mental disease. As such this period can not be considered for counting towards misconduct Under Rule 146.2 (iii) of the Railway Protection Force Rule 1957, and therefore, the order of removal from service is bad in law.
The assertion has been made that in absence of the examination of the Doctor from Ranchi Hospital by the Inquiry Officer, the inquiry is vitiated as inclusion of the period certified by Dr. Nagina Prasad Yadav in his certificate could have occurred due to human error.
The petitioner has placed reliance on the decision of Hon'ble Apex Court in Krushnakant B. Parmar Vs. Union of India and another (2012) 3 SCC 178, (paragraphs 17 and 18) to assert that the allegation of unauthorised absence must be proved to be wilful and in case the absence is due to compelling reason under which it is not possible for the employee to report for or perform duty, such absence cannot be held to be wilful and the employee could not be treated to be guilty of misconduct.
The petitioner also placed reliance on the decision of Hon'ble Apex Court in Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and others (2004) 2 UPLBEC 1294 SC. In this case also the service of the petitioner was terminated on the ground of unauthorised absence from duty.
The petitioner has further placed reliance on the decision of this court in Satya Prakash Vs. State of U.P. and others (2009) (2) ADJ 6. In the present case departmental inquiry was not held and the order of termination was challenged on the ground that no reason was assigned as to why it was not practicable to hold departmental inquiry and as such the order of removal was set aside by this court.
Coming to the case of Krushnakant B. Parmar (supra), I am of the opinion that the same is not applicable in the facts and circumstances of the case as undisputedly the petitioner was absent from duty from 17.11.1982 to 26.12.1996. The fact that the petitioner had worked only for a period of two months and five days during his entire service also can not be ignored and as such negative burden to prove the fact as to whether the absence is wilful on the part of employee can not be placed on the employer as not only the petitioner was absent for long period of 14 years but his certificate dated 17.12.1998, issued by Dr. Nagina Prasad Yadav, who was only Ayurvedic doctor posted in Primary Health Centre and who was not specialist for mental diseases was found to be incorrect or fabricated as during the period of certified the petitioner was under going treatment as indoor patient in Ranchi Hospital. Therefore, in view of the evidence on record before the disciplinary authority and admitted absence of more than 14 years the question of proving the absence as 'wilful' on the part of department does not arise. The evidence on record itself was self explanatory.
Now coming to the case of Bhagwan Lal Arya (supra), I am of the view that the aforesaid case is also distinguishable on the facts and has no application in the present case. In the aforesaid case the employee who has worked as Constable in Delhi Police fell down on parade ground on 7.10.1994 and he was sent to Police Dispensary as ordered by the Chief Drill Inspector of the parade. The competent police authority passed an order on 16.1.1995 sanctioning leave without pay for the period of his illness from 7.10.1994 to 14.12.1994 as no other leave was due to him. On 15.11.1994 notice of termination from service was issued to the employee with effect from the date of expiry of a period of one month from the date of notice received by the employee. The employee resumed his duty on 15.12.1994 after submitting fitness certificate and his services were terminated from 31.12.1994. The other facts of the aforesaid case are not relevant as in the present case undisputedly the petitioner was absent from duty for a period of 14 years one month and ten days as disclosed in para 4 of the supplementary counter affidavit filed by the respondent and in any view of the matter there was no explanation whatsoever for remaining absent from duty from 17.11.1982 to 17.10.1985, as the medical certificate given by Dr. Nagina Prasad Yadav on 17.12.1998 was not believed as already discussed in above paragraphs. Hence, the present case also does not come to any help of the petitioner.
The third case of Satya Prakash (supra) is also of no help in the present case, as it was a case where the reason that as to why it was not practicable to hold departmental inquiry, was not given and on the ground of violation of principles of natural justice, the aforesaid petition was allowed which is not so in the present case. There is no challenge to the inquiry proceedings on the ground of violation of principles of natural justice or even to the procedure of inquiry till passing of the last order by the competent authority.
The scope of judicial review is very limited and the law is settled on this issue. In B.C. Chaturvedi Vs. Union of India and Others (1995) 6 Supreme Court Cases 749, (3Judges Constitutional Bench) the Apex Court in para 12,13 and 14 clearly held that judicial review is not an appeal from a decision but a review of the manner in which the decision is taken. The disciplinary authority is the sole Judge of the facts and that the Court cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary / appellate authority. The relevant paragraphs 12, 13 and 14 of the aforesaid judgement are extracted below:-
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of 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 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 781], 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.
14. In Union of India & Ors. v. S.L. Abbas, when the order of transfer was interfered by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not, in such circumstances, interfere with orders of transfer of a Government servant. In Administrator of Dadra & Nagar Haveli v. H.P. Vora [(1993) Supp. 1 SCC 551], it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant. Recently, in State bank of India & Ors. v. Samarendra Kishore Endow & Anr. [J] (1994) 1 SC 217], a Bench of this Court to which two of us (B.P. Jeevan Reddy & B.L. Hansaria, JJ.) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary/appellate authority.
While considering the case of Constable of Punjab Armed Police, who was dismissed from service after holding a departmental enquiry on the charge of remaining absent from duty for five and a half months without any sanctioned leave or prior intimation, in the case of State of Punjab and others Vs. Mohinder Singh (2005) 12 Supreme Court Cases 182 the Apex Court has held that the the respondent being a member of disciplined force could not be permitted to remain absent without taking leave and that too for such a long period. He cannot be retained in service.
In the case of State of Rajasthan and another Vs. Mond. Ayub Naz (2006) 1 SCC 589 in para 9 and 10, the Apex Court considering the admitted absent for about 3 years held that the impugned order of removal from service is the only proper punishment to be awarded to the employee who was absent for 3 years without intimation to the Government.
In the case of V. Ramana V. A.P. SRTC (2005) 7 SCC 338 the Hon'ble Apex Court in para 11 has held as under:-
"The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case the Court would not go in the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision."
It is thus clear that, as recorded herein above, the petitioner had worked only for a period of two months and 5 days during the entire service and was absent from 17.11.1982 to 26.12.1996. Therefore, the ratio as laid down by the Apex Court squarely applies to the present case and indeed the present case stand on worst footing and does not warrant any interference in decision of the Disciplinary Authority as well as Appellate and Revisional Authority.
Consequently, the petition is held to be devoid of merits and this Court do not find any reason to exercise in its jurisdiction under Article 226 of the Constitution of India. The petition is liable to be dismissed.
The writ petition is dismissed accordingly.
Order Date :- 09.4.2014 SKS/