Gauhati High Court
Dulal Chandra Sarma vs State Of Mizoram And Ors. on 18 February, 2002
Author: A.K. Patnaik
Bench: A.K. Patnaik
JUDGMENT A.K. Patnaik, J.
1. This is an appeal against the judgment and order dated 23.1.1996 passed by the learned Single Judge in Civil Rule No 13/90 filed by the appellant.
2. The facts briefly are that the appellant was working as Accountant under the Director of Supply and Transport, Government of Mizoram. By order dated 10.1.1974, the Director of Supply and Transport, Government of Mizoram placed the appellant under suspension pending drawal of departmental proceeding against him for continuous unauthorised absence from duty. The said disciplinary authority issued a memorandum dated 2.3.1974 wherein it was mentioned that the disciplinary authority proposed to hold an enquiry under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Along with the said memorandum, article of charge was annexed wherein it was alleged that the appellant while functioning as Accountant during the period from 10.1.1970 to 9.1.1974 was absent from duty without any authority from 20.6.1973 to 9.1.1974. By the said memorandum, the appellant was directed to submit his written statement in defence. The appellant submitted his written statement but the same was not accepted by the said disciplinary authority. Instead by order dated 17.8.1974, the said disciplinary authority appointed Shri T. Gohain, the Accounts Officer, as Enquiry Officer to enquire into the charge framed against the "appellant. The said Enquiry Officer held the enquiry and submitted the report dated 31.7.1975. In the report the Enquiry Officer came to the conclusion that the appellant was suffering from the disease of lungs as indicated in the medical certificate dated 11.12.1974. However, the Enquiry Officer was of the view that the appellant had committed misconduct but was liable to be dealt with leniently. The relevant portion of the said enquiry report is extracted hereinbelow :
"The charge against Shri Dulal Chandra Sharmah, Accountant was that the was absent from duties from 30.6.1973 till 9.1.1974.
On 29.6.1973 he sent an application for one month's leave on medical ground with effect from 20.6.1973 (vide 41 of File No ZANV. 1 / 73). The leave application was not supported by any medical certificate and therefore he was directed to furnish a certificate, (vide letter at Sl. 43c of File ZANV. 1/73). He again applied for an extension of leave for a further period of one month vide his application at 42c of file No ZANV. 1/73.
The leave account at page 6 of the Register of earned leave shows that the said Dulal Sharmah was granted 86 days leave with effect from 5.12.1972 to 28.2.1973 on the ground of his illness.
In his written statement at SI. 14c (file No ZANV. 4/73) he submitted that he was infected by some disease of lungs, requiring him to remain in isolated ward at the Durtlang Hospital for treatment of Pulmonary kocks.
He submitted bills of his medical treatment which was returned to him for obtaining countersignature of the Civil Surgeon.
That the said Shri Dulal Sharmah was suffering from a disease of the lungs is indicated in the medical certificate furnished on 11.12.1974 (which may be seen at Sl. 18c of file ZANZ. 4/ 73).
By not responding to the office directives till 9.1.74 constitutes an offence under the CCSfCCA) Rules, 1965.
But considering the delicate nature of the case, the case deserved to be dealt leniently.
I have consulted the Revised Leave Rules, 1971. There are provisions for special treatment of patients suffering from pulmonary tuberculosis or plerisisy of tuberculosis origin.
For the charges brought against Shri Dulal Sharmah stoppage of 3 (three) annual increments may be considered sufficient.".
The disciplinary authority instead of imposing punishment of stoppage of three annual increments as indicated in the report of the Enquiry Officer, above, imposed the punishment of dismissal from service by order dated 20.10.1975. Aggrieved by the said order of dismissal from service dated 20.10.1975, the appellant filed a representation dated 12.11.1975 before the Secretary to the Government of Mizoram, Department of Supply and Transport and another representation dated 9.7.1977 before the Chief Secretary to the Government of Mizoram. When aforesaid representations were not disposed of by the aforesaid authorities, the appellant filed Civil Rule No. 342/78 before this Court and the said Civil Rule was disposed of by a Division Bench of this Court on 8.11.1983 with a direction to appellate authorities to consider the appeals filed by the appellant on 12.11.1975 and 9.7.1977 after giving due opportunities of hearing to the appellant. Pursuant to the said direction of this Court, the appellate authority rejected the appeal of the appellant and the Secretary to the Government of Mizoram, Department of Supply and Transport, communicated the said order of rejection to the appellant on 1.10.85. Aggrieved, the appellant filed Civil Rule No 1107/87 (13/90) before this Court but by the impugned judgment dated 23.1.1996 the learned Single Judge held that while the order of appellate authority was passed on 1.10.1985, the appellant had filed the Civil Rule in the year 1987 and at such belated stage no effective relief can be granted. Aggrieved by the said judgement dated 23.1.1996 of the learned Single Judge, the appellant has preferred this appeal.
3. Mr. G. Raju, learned counsel for the appellant, has submitted that it would be clear from the Enquiry Report that in fact the appellant was suffering from TB and for this reason, the Enquiry Officer has recommended to the authorities to deal with the case of the appellant leniently and to impose punishment of stoppage of three annual increments. He submitted that in view of clear evidence before the Enquiry Officer that the appellant was suffering from TB, the disciplinary authority could not have come to a finding that the absence of the appellant from duties was totally without any cause and that the alleged misconduct on the part of the appellant was wilful. Mr. Raju further submitted that the order of the appellate authority also does not disclose the reason for which the appeal of the appellant was rejected. Mr. Raju further submitted that after dismissal from service, the appellant was staying in a remote place of the Stale of Assam and, therefore, he could not possibly approach the Court immediately by filing a writ petition under Article 220 of the Constitution and in the peculiar facts and circumstances of the case the delay of about 2 years in filing the writ petition should not have weighed with the learned Single Judge for dismissing the writ petition.
4. In reply to the aforesaid submissions of Mr. Raju, Mr. T. Vaiphei, learned Additional Advocate General, Mizoram, relied on the decision of the Supreme Court in State of Punjab and others v. Surinder Kumar & Co. and others, (1997) 9 SCC 66, for the proposition that in a writ petition, the High Court cannot go into the question of mala fides and record any finding. He also relied on the decision of the Supreme Court in P.N. Subrainanyam Reddy v. A.P. State Road Transport Corporation and others (1992) 1 SCC 63, in which a Division Bench of the High Court after setting aside the order of the learned Single Judge held that the appellant in that case was not entitled to pay scale of Rs. 700 - Rs.1200 which the A.P. State Road Transport Corporation had granted to Assistant Director Printing (Technical), but the Supreme Court set aside the Judgment of the Division Bench and directed that the appellant in that case should be placed in the scale of Rs. 700 - 1200 with effect from 10th August, 1975 and his pay should be revised accordingly Mr. Vaiphei also cited the decision of the Division Bench in ASEB v. Surya Kanta Roy, (1994) 1 GLR 383, for the proposition that in Writ Appeal the appellate court will not interfere with the exercise of discretion of the Court of the first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perverse or where the court has ignored the settled principles of law.
5. In the case of Assam State Electricity Board (supra) cited by Mr. Vaiphei, learned Additional Advocate General, Mizoram, the Division Bench of this Court has made it clear that where the learned Single Judge had ignored the settle principles of law, the appellate Court can interfere with the judgment in a writ appeal. In the present case it will be patently clear from the findings of the Enquiry Officer quoted above that the appellant had been submitting applications from time to time for leave on medical ground and the appellant was also granted leave for some period. The aforesaid enquiry report also made it clear that the defence of the appellant against the charge of unauthorised absence from duty with effect from 30.6.1973 till 9.1.1974 was that he was infected by some disease requiring him to be admitted in Durtlang Hospital for treatment of Pulmonary kocks and that a medical certificate dated 11.12.1974 certifying that the appellant had been suffering from disease of lungs was also furnished. This is, therefore, not a case where the appellant had wilfully not reported for duty contrary to directives of the superior authorities and remained absent and yet the disciplinary by impugned order dated 20.10.1975 has held that the appellant had acted in gross disobedience and was guilty of wilful absence from duty and has dismissed him from service.
6. In State of Andra Pradesh and others v. Sree Rama Rao, AIR 1963 SC 1723, the Supreme Court has held that the High Court in a proceeding under Article 226 of the Constitution is not a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant and where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 of the Constitution to review the evidence and to arrive at an independent finding on the evidence, but the High Court may interfere where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. In the present case as discussed above, there was clear evidence that the appellant was suffering from disease of lungs and on the basis of such evidence, the Enquiry Officer had come to a clear conclusion that the appellant was in fact suffering from disease of lungs during the period in which he was alleged to have been absent from duty. If this be the evidence clearly accepted by the Enquiry Officer, we fail to appreciate as to why the disciplinary authorities came to the conclusion that the appellant had remained absent from duty wilfully and disobeyed the directions of the superior authorities. As per the law laid down by the Supreme Court in State of Andra Pradcsh and others (supra) this is a fit case in which the learned Single Judge should have interfered with the findings of the disciplinary authority holding the appellant guilty of charge of wilful absence from duty as the said findings of the disciplinary authority on the face of it is so wholly arbitrary and capricious that no reasonable person could have arrived at such finding on the basis of the evidence before the Enquiry Officer. Further, it clearly appears from the order of the appellate authority that the appellate authority has not considered the aforesaid evidence in the enquiry. The appeal under the Central Civil Services (Classification, Control and Appeal) Rules, 1965, is not an empty formality and Rule 27(2)(b) of the Central Civil Services (Classification, Control and Appeal) rules, 1965, casts an obligation on the appellate authority to consider whether the findings of the disciplinary authority are warranted by evidence and the said obligation laid down by Rule 27 was disregarded by the appellate authority. The decisions of the Supreme Court in State of Punjab and others (supra) and P.N. Subramanyan Reddy (supra) cited by Mr. Veiphei were rendered on the facts of those cases and do not apply to the facts of the present case. The present case is not (sic) one where the learned Single Judge has not exercised the jurisdiction under Article 226 of the Constitution though such jurisdiction should have been exercised as per settled principles of law.
7. This is not to say that the appellant should not suffer some disability on account of the fact that there was delay in filing (lie writ petition. The appellate order was passed in October, 1985 and was duly communicated to the appellant but the appellant has approach this Court almost 2 years after in the year 1987. For this reason we are not inclined to grant any back wages to the appellant for the period he remained out of service due to the impugned order of dismissal.
8. For the reasons stated above, we set aside the impugned judgment of the learned Single Judge and allow the writ appeal and quash the impugned order of dismissal as well as the appellate order rejecting the appear of the appellant. The appellant has attained the age of superannuation and would have retired from service had he been in service and in view of this judgment he shall be granted his all pensionery and other terminal benefits by treating him to be in service for the period he remained out of service on account of order of dismissal from service. But considering the facts and circumstances of the case there shall be no order as to cost.