Yashvant Somabhai Brahmbhatt vs State Of Gujarat on 15 June, 2016

[Cites 9, Cited by 1]

Gujarat High Court

Yashvant Somabhai Brahmbhatt vs State Of Gujarat on 15 June, 2016

HC-NIC Page 1 of 13 Created On Sun Jun 19 02:07:17 IST 2016 C/SCA/7656/2001 JUDGMENT 1 By this writ application under Article 226 of the Constitution of India, the petitioner, a former Executive Engineer, has prayed for the following reliefs:

"9 (a) declaring that the impugned order of terminating dated 2642001 at AnnexureN, passed is without following the due procedure of law and the same deserves to be quashed and set aside;

(b) quashing and setting aside the impugned order dated 2642001 and directing the respondent government to reinstate the petitioner forthwith with all the consequential benefits, as if the impugned order dated 2642001 has never been passed;

(c) declaring that the petitioner's request for premature/voluntary requirement had illegally not considered;

(d) any other and further reliefs as deemed just and proper and in the interest of justice, be passed by this Honourable Court."

2 The facts of this case may be summarized as under:

2.1 The petitioner was appointed in the government service in the R & B Department as a 'Junior Engineer' on 12th August 1974.

2.2 He was promoted to the post of the Deputy Engineer (ClassII) on 19th July 1981.

2.3 It is his case that his wife delivered a premature baby with congenital deficiency. He thought fit to take the child to U.S.A. for treatment.

2.4 It is his case that he applied for leave on 15th May 1995.

2.5 The authorities concerned sanctioned the leave for a period between 24th July 1995 and 30th November 1995.



         2.6    It appears that he returned to India in April 1998 i.e. almost after 


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a period of three years. On his return to India, he was served with a departmental chargesheet for having remained absent from duty. An Inquiry Officer was appointed, and at the end of the inquiry, the Inquiry Officer came to the conclusion that the charges were held to be established. The disciplinary authority passed an order terminating the services of the petitioner with all the retiral benefits. When the services of the petitioner came to be terminated, he had put in twenty years of service. He also prayed for voluntary retirement, but his request for voluntary retirement was rejected.

3 Being dissatisfied with the order passed by the disciplinary authority terminating the services of the petitioner, he has come up with this writ application.

4 Mr. Mehta, the learned senior advocate appearing for the petitioner submitted that the impugned order deserves to be quashed.

He submitted that if an employee is proceeded departmentally on the charge of having remained unauthorizedly absent from duty, then the disciplinary authority owes a duty to record a finding that such absence was willful. In the absence of such finding that the absence was willful, the services of the petitioner could not have been terminated.

5 Mr. Mehta has placed reliance on the decision of the Supreme Court in the case of Krushnakant B. Parmar v. Union of India and another [2012 (3) SCC 178].

6 This writ application has been vehemently opposed by Mr. Gautam, the learned Assistant Government Pleader appearing for the respondents - State. He has placed reliance on the following averments made in the affidavitinreply:

"8 I say and submit that the petitioner had applied for leave with a Page 3 of 13 HC-NIC Page 3 of 13 Created On Sun Jun 19 02:07:17 IST 2016 C/SCA/7656/2001 JUDGMENT view to go abroad in the year 1995 between the period of 10.7.95 to 21.10.95 to visit his friends & relatives and not to explore the medical facilities & the possible treatment so as to bring the child of a petitioner to normal life as mentioned in the petition.

9 I say and submit that the petitioner given undertaking/assurance to the authorities that he would not ask any extension to leave beyond the period of 23.10.95. Annexed hereto and marked as AnnexureI is the copy of undertaken given by the petitioner.

10 I say and submit that in spite of having clear cut undertaken that no extension would be sought for, the petitioner requested for extension of leave. I say that the State Government rightly rejected the request of the petitioner and immediately intimated the petitioner that he should resume his duty failing which disciplinary action would be intimated against him. Annexed hereto and marked as AnnexureII is the copy of communication dtd. 16.10.96, 22.7.97 are reflects in the abovementioned facts.

11 I say and submit that in spite of the abovementioned warnings the petitioner chose to remain on unauthorized leave for a period of more than 2 years since 23.10.95. I further say and submit that as if the abovementioned facts are not enough the petitioner had shown negligence and absolute irresponsible behavior and arrogant attitude by not even bothered to communicate with the State Government for either resume or otherwise. It appears that the petitioner had lost interest in the Government Service and therefore had chosen to stay back in USA without even bothered to report back in duty.

12 It would be not out of the place to state that had the petitioner been genuinely in need to leave interalia conduct would have been that of at least applying for the second time for extension after having made a first application for extension for the limited period for 3 months therefore the only reasonable inference which would be drawn was that the petitioner had no reason to continue on leave and has abandoned the service of his own free will.

13 It is respectfully submitted that the ground taken by the petitioner that he was not aware about the orders of rejection passed in application for extension leave is false. Petitioner was aware that his application for extension of leave is rejected.

This is so stated on the basis of the fact that the State received recommendation letter of Chairman Gujarat State Warehousing Corporation dtd. 14, August 1997 recommending that the extension which has been rejected may be reconsidered as a special case. Annexed hereto and marked as AnnexureIII is the copy of the letter dt. 14.8.1997.





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             14      It is respectfully submitted that these documents clearly show that

the petitioner was aware clearly establishes beyond reasonable doubt the petitioner was aware of rejecting of his application for extension of leave and therefore the petitioner made a false statement and on oath and on regarding is being not aware of the same and hence the petition deserves to be dismissed on this ground alone.

15 It is therefore submitted that the Government had no option to initiate departmental inquiry against the petitioner and therefore charge sheet was issued on 12.12.1997 (Ann.IV), in response to this the petitioner wrote a letter on 2.2.98 (Ann.V) after a delay of almost 2 months that he would resume duty soon. As the petitioner did not produce any defence statement for charges levelled against him the communication dtd. 23.3.98 (Ann.VI) was issued reminding him to produce defence statement of the petitioner.

16 I say and submit that the petitioner still chose to remain absent on frivols ground of his wife illness so also asked for voluntarily retirement alternatively. I say that there was no reason much less any violation reasons to accept the unreasonable request of the petitioner and hence, the State Government rejected the same vide communication dtd. 16/6/1998 (Ann.VII).

17 It would not be out of state that the petitioner has a blemish service record and has faced four inquiries on various occasions during his service tenure.

18 I further say and submit that the petitioner requested for remaining present for reporting or for resuming his duty and asked for voluntarily retirement and upon the rejection of the same through the chairman of the Gujarat State, Khadi Gram Udyog Board, got his case recommended of 28.9.98 (Ann.VIII). Thus, the petitioner has once again made a false representation that he was unaware that his application for voluntary retirement has been turned down by the State Government. The petitioner has mislead the Hon'ble Court by making a false statement regarding is not aware of

(a) nonextension of leave

(b) Nonacceptation of his proposal to voluntary retirement for service.

and therefore, the petitioner has not approached this Hon'ble Court with clean hands and hence, no relief much less any discretionary relief deserves to be granted more particularly when no fundamental right of the petitioner has been infringed."

7 Mr. Gautam has placed reliance on the decision of the Supreme Page 5 of 13 HC-NIC Page 5 of 13 Created On Sun Jun 19 02:07:17 IST 2016 C/SCA/7656/2001 JUDGMENT Court in the case of Chennai Metropolitan Water Supply and Sewerage Board and others [2014(4) SCC 108].

8 The following facts are not in dispute:

8.1 The application for leave was not on the ground that the petitioner's wife delivered a premature baby with congenital deficiency.

It appears from the averments made in the reply that the application for leave was on the ground that he wanted to visit his friends and relatives in U.S.A. 8.2 The application seeking leave was also granted on the ground that the petitioner wanted to visit his friends and relatives in U.S.A. 8.3 The petitioner remained in U.S.A. from 1995 to 1998.

9 Let me now consider the decision of the Supreme Court in Krushnakant (supra). In Krushnakant (supra), the Supreme Court observed in paras 15, 16, 17, 19, 20 and 21 as under:

"15. Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a Government servant and reads as follows:

"Rule 3 General.

(1) Every Government servant shall at all times

(i) maintain absolute integrity;

(ii) maintain devotion to duty; and

(iii) do nothing which is unbecoming of a Government servant."

16. In the case of appellant referring to unauthorised absence, the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether 'unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.




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17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.

18. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.

19. In the present case, the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.

20. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani v. Union of India and others reported in (2006) 5 SCC 88 : (AIR 2006 SC 3475 : 2006 AIR SCW 2096) wherein this Court held:

"25.It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasicriminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasijudicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance Page 7 of 13 HC-NIC Page 7 of 13 Created On Sun Jun 19 02:07:17 IST 2016 C/SCA/7656/2001 JUDGMENT register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty."

10 Krushnakant (supra), later on, came to be considered by the Supreme Court in Chennai Metropolitan (supra). The Supreme Court observed in paras 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 as under:

"22. Learned counsel for the respondent has commended us to the decision in Krushnakant B. Parmar v. Union of India and another to highlight that in the absence of a finding returned by the Inquiry Officer or determination by the disciplinary authority that the unauthorized absence was wilful, the charge could not be treated to have been proved. To appreciate the said submission we have carefully perused the said authority. In the said case, the question arose whether "unauthorized absence from duty" did tantamount to "failure of devotion to duty" or "behavior unbecoming of a Government servant" inasmuch as the appellant therein was chargesheeted for failure to maintain devotion to duty and his behaviour was unbecoming of a Government servant. After adverting to the rule position the twoJudge Bench expressed thus: "16. In the case of the appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether "unauthorized absence from duty" amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour Page 8 of 13 HC-NIC Page 8 of 13 Created On Sun Jun 19 02:07:17 IST 2016 C/SCA/7656/2001 JUDGMENT unbecoming of a government servant.

18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct."

23. We have quoted in extenso as we are disposed to think that the Court has, while dealing with the charge of failure of devotion to duty or behaviour unbecoming of a Government servant, expressed the aforestated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is wilful. On an apposite understanding of the judgment we are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record during the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorized absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is wilful even if the employee fails to show the compelling circumstances to remain absent.

24. In this context, it is seemly to refer to certain other authorities relating to unauthorized absence and the view expressed by this Court. In State of Punjab v. Dr. P. L. Singla the Court, dealing with unauthorized absence, has stated thus: "Unauthorised absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorized absence by an employee, two courses are open to the employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which event the misconduct stood condoned. The second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct."

25. Again, while dealing with the concept of punishment the Court ruled as follows: "Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the Page 9 of 13 HC-NIC Page 9 of 13 Created On Sun Jun 19 02:07:17 IST 2016 C/SCA/7656/2001 JUDGMENT employer will take recourse to disciplinary action in regard to the unauthorized absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence."

26. In Tushar D. Bhatt v. State of Gujarat and another, the appellant therein had remained unauthorisedly absent for a period of six months and further had also written threatening letters and conducted some other acts of misconduct. Eventually, the employee was visited with order of dismissal and the High Court had given the stamp of approval to the same. Commenting on the conduct of the appellant the Court stated that he was not justified in remaining unauthorisedly absent from official duty for more than six months because in the interest of discipline of any institution or organization such an approach and attitude of the employee cannot be countenanced.

27. Thus, the unauthorized absence by an employee, as a misconduct, cannot be put into a straightjacket formula for imposition of punishment. It will depend upon many a factor as has been laid down in Dr. P. L. Singla (AIR 2009 SC 1149) (supra).

28. Presently, we shall proceed to scrutinize whether the High Court is justified in applying the doctrine of proportionality. Doctrine of proportionality in the context of imposition of punishment in service law gets attracted when the court on the analysis of material brought on record comes to the conclusion that the punishment imposed by the Disciplinary Authority or the appellate authority shocks the conscience of the court. In this regard a passage from Indian Oil Corporation Ltd. and another v. Ashok Kumar Arora is worth reproducing: "20.At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of nonobservance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee."

29. In Union of India and another v. G. Ganayutham, the Court analysed the conception of proportionality in administrative law in England and Page 10 of 13 HC-NIC Page 10 of 13 Created On Sun Jun 19 02:07:17 IST 2016 C/SCA/7656/2001 JUDGMENT India and thereafter addressed itself with regard to the punishment in disciplinary matters and opined that unless the court/tribunal opines in its secondary role that the administrator was, on the material before him, irrational according to Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. and Council of Civil Service Unions v. Minister for Civil Service norms, the punishment cannot be quashed.

30. In Coal India Limited and another v. Mukul Kumar Choudhuri, the Court, after analyzing the doctrine of proportionality at length, ruled thus: "19. The doctrine of proportionality is, thus, wellrecognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.

20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, 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.

21. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reason for his absence by stating that he did not have intention nor desired to disobey the order of higher authority or violate any of the Company's rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations."

After so stating the twoJudge Bench proceeded to say that one of the tests to be applied while dealing with the question of quantum of punishment is whether any reasonable employer would have imposed such punishment in like circumstances taking into consideration the major, magnitude and degree of misconduct and all other relevant circumstances after excluding Page 11 of 13 HC-NIC Page 11 of 13 Created On Sun Jun 19 02:07:17 IST 2016 C/SCA/7656/2001 JUDGMENT irrelevant matters before imposing punishment.

31 It is apt to note here that in the said case the respondent had remained unauthorisedly absent from duty for six months and admitted his guilt and explained the reasons for his absence by stating that he neither had any intention nor desire to disobey the order of superior authority or violated any of the rules or regulations but the reason was purely personal and beyond his control. Regard being had to the obtaining factual matrix, the Court interfered with the punishment on the ground of proportionality. The facts in the present case are quite different. As has been seen from the analysis made by the High Court, it has given emphasis on past misconduct of absence and first time desertion and thereafter proceeded to apply the doctrine of proportionality. The aforesaid approach is obviously incorrect. It is telltale that the respondent had remained absent for a considerable length of time. He had exhibited adamantine attitude in not responding to the communications from the employer while he was unauthorisedly absent. As it appears, he has chosen his way, possibly nurturing the idea that he can remain absent for any length of time, apply for grant of leave at any time and also knock at the doors of the court at his own will.

32 Learned counsel for the respondent has endeavoured hard to impress upon us that he had not been a habitual absentee. We really fail to fathom the said submission when the respondent had remained absent for almost one year and seven months. The plea of absence of "habitual absenteeism" is absolutely unacceptable and, under the obtaining circumstances, does not commend acceptation. We are disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate.

33 Another aspect needs to be noted. The respondent was a Junior Engineer. Regard being had to his official position, it was expected of him to maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. This kind of conduct cannot be countenanced as it creates a concavity in the work culture and ushers in indiscipline in an organization. In this context, we may fruitfully quote a passage from Government of India and another v. George Philip: "18...In a case involving overstay of leave and absence from duty, granting six months' time to join duty amounts to not only giving Page 12 of 13 HC-NIC Page 12 of 13 Created On Sun Jun 19 02:07:17 IST 2016 C/SCA/7656/2001 JUDGMENT premium to indiscipline but is wholly subversive of the work culture in the organization. Article 51A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IVA of the Constitution have the tendency to negate or destroy the same.""

11 In the facts of the present case, it is difficult for me to find any fault with the order passed by the disciplinary authority terminating the services of the petitioner on the ground of remaining unauthorizedly absent from duty for a period of three years.

12 As a result, this writ application fails and is hereby rejected. Rule is discharged.

13 I take notice of the fact that the disciplinary authority showed some mercy by not imposing any major penalty. The petitioner retired from service with all the retiral benefits.

(J.B.PARDIWALA, J.) chandresh Page 13 of 13 HC-NIC Page 13 of 13 Created On Sun Jun 19 02:07:17 IST 2016

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