Gujarat High Court
Harivadan Parshottambhai Patel vs State Of Gujarat on 6 February, 2024
NEUTRAL CITATION
C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3952 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HARIVADAN PARSHOTTAMBHAI PATEL
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
MS DHARITRI PANCHOLI, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 06/02/2024
ORAL JUDGMENT
1. By way of present petition under Article 226 of the Page 1 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined Constitution of India, the petitioner has challenged the order dated 26.08.2009 passed by the respondent No.1 imposing 100% cut in pension and order dated 09.03.2010 rejecting the Appeal preferred by the petitioner. Being aggrieved and dissatisfied with the aforesaid orders, the petitioner has preferred this petition seeking following relief/s :
"(A) That Your Lordships be pleased to issue an order, direction and/or writ in the nature of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 26-8-2009 and 9-3-2010 marked ANN.A&C to this petition, being illegal, arbitrary, discriminatory and against the provisions of law;
(B) That Your Lordships be further pleased to declare and hold that the petitioner is entitled for payment of his regular pension and gratuity as per Rules on reaching the age of retirement i.e. 30 th June, 2005 and be further pleased to direct the respondents to pay the arrears of pension and gratuity alongwith 12% interest;
(C) Any other and such further relief as the Hon'ble Court deems fit and proper in the interest of justice."
2. The brief facts leading to the present petition are as under :
2.1 The petitioner was working as Chief Officer of Dabhoi Nagar Palika. In this present petition, the petitioner has challenged the arbitrary decision of the respondent no.1 by imposing 100% cut in the pension of the petitioner on reaching the age of superannuation.Page 2 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024
NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined 2.2 It is the case of the petitioner that, earlier the petitioner had filed Special Civil Application No.988 of 10 challenging the said order, however, the said petition was withdrawn with a view to prefer an Appeal as provided under the Rules. The petitioner thereafter, preferred an Appeal and the said Appeal was decided against the petitioner vide order dated 9-3-2010.
Being aggrieved by the order passed by the respondent imposing 100% cut in pension and rejecting the Appeal, the petitioner approach this Court.
2.3 It is the case of the petitioner that, the petitioner was appointed in services of the respondent initially on 1 st April, 1978 as Project Officer, Urban Community Development Project under Dabhoi Nagar Palika and subsequently from 18 th October, 1999 the petitioner was selected as Chief Officer.
Thus, the petitioner was working as Chief Officer from October.
1999. It is the case of the petitioner that, the petitioner's family was residing in U.S.A. and he wanted to visit the United States of America and therefore, he had made an application for leave before the President of Dabhoi Nagar Palika seeking No Objection for the same. The No Objection Certificate was Page 3 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined granted vide letter dated 1st May, 1998.
2.4 It is the case of the petitioner that, thereafter, the petitioner made an application before the District Collector, respondent no.2 herein seeking leave and leave for six months from the period 28-2-2000 to 27-6-2000 was granted and direction was issued vide order dated 24 th February, 2000 to handover the charge to the Deputy Mamlatdar. Thereafter, subsequently, vide letter dated 20 th June, 2005, chargesheet was issued to the petitioner for remaining on leave unauthorisedly. Pursuant to the said letter, the petitioner submitted detailed reply on 24th June, 2005.
2.5 Thereafter, the petitioner resumed his duties vide letter dated 29th June, 2005 and on the same day i.e. 29 th June, 2005 letter issued by the Deputy Secretary, respondent no.1 allowing the petitioner to resume the duties and the petitioner accordingly resumed his duties and took over the charge from one Mr. J.B. Chaudhry, Mamlatdar.
2.6 It is the say of the petitioner that, the petitioner reached the age superannuation on 30th June, 2005 and accordingly the Page 4 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined charge was given to Shri J.B. Chaudhry, Mamlatdar and the petitioner stood retired. Thereafter, the inquiry was conducted and the petitioner submitted the list of documents containing 69 documents before the Inquiry Officer on 19 th March, 2009.
At the time of departmental proceedings, the petitioner submitted written arguments vide letter dated 22 nd April,2008 and thereafter, the petitioner straightway received an order dated 26th August, 2009, imposing penalty of forfeiting 100% pension of the petitioner.
2.7 Feeling aggrieved and dissatisfied with the aforesaid order dated 26th august, 2009, the petitioner has preferred this present petition.
3. Heard learned advocate Mr.T.R. Mishra, appearing on behalf of the petitioner and learned Assistant Government Pleader Ms.Dharitri Pancholi, appearing on behalf of the respondent - State Authorities.
4. Learned advocate Mr.T.R. Mishra, appearing for the petitioner, has submitted that the order passed by the respondent No.1 is totally illegal, perverse and contryary to Page 5 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined record and deserves to be quashed and set aside. He has submitted that the petitioner was working as a Chief Officer in respondent Nagarpalika since the year 1999 and he was working with due diligence and with full integrity. He has submitted that the petitioner wanted to visit U.S.A. as his family was residing at U.S.A. and for that purpose, he had obtained 'No Objection Certificate' from the President of Dabhoi Nagarpalika, which was granted to the petitioner vide letter dated 01.05.1998 and therefore, the charge levelled against the petitioner is absolutely illegal and contrary to record. He has further submitted that thereafter, the petitioner had extended his leave by making various applications and the leave was never been rejected and therefore, the petitioner has not committed any misconduct for which the pension can be forfeited. He has submitted that thereafter, on 29.06.2005, the petitioner resumed his duties as he was going to retire on 30.06.2005 and thereafter, the departmental proceedings was initiated by the respondent against the petitioner for unauthorized absent from the duty with malafide intention and therefore, the initiation of departmental proceedings is bad in law and based upon the departmental proceedings, the impugned order of punishment of forfeiting 100% pension was Page 6 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined passed by the respondent authority, which is disproportionate to the charge levelled against the petitioner.
4.1 Learned advocate Mr.Mishra has emphasized upon the fact that every time the petitioner's applications for leave were sanctioned by the respondent authority and therefore, it was not the case that he was on unauthorized leave and therefore, the punishment imposed upon the the petitioner is disproportionate to the the charge levelled against him. He has also further submitted that the complete blotless career and service were put to halt and he was deprived of his retiral benefits also and therefore, learned advocate Mr.Mishra has urged that the present petition be allowed and the impugned order of punishment of forfeiture of 100% pension be quashed and set aside.
5. As against that, Ms.Dharitri Pancholi, the learned Assistant Government Pleader, appearing on behalf of the respondent - State Authorities has objected the present petition. She has referred to the affidavit-in-reply filed on behalf of the respondent No.1 stating as under :
"5. The deponent humbly denied that, the petitioner never ever asked the State Government for any permission for the leave, to Page 7 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined visit U.S.A. In Para No.3, the petitioner has stated that the petitioner had made an application for leave for the first time in 2000 that he has to go to U.S.A. This is the false statement on oath. Petitioner was chief officer of Dabhol Municipality. The petitioner cannot be considered as the employee of the respondent No.3, Dabhoi Municipality in fact the petitioner was the Class-2 State Government officer hence the GCSR rules is applicable to the case of the present petitioner. The petitioner on so called no objection certificate dated 01.05.1998 issued by the Dabhol Nagar Palica visited USA and not resuming the duty for more than 4 years and 9 months. Even said NOC were granted by the respondent No.3 was of 01.05.1998 which had been utilized by the petitioner for the period of 28.02.2000 onwards. It can't consider as if the leave had been sanctioned by the respondent No.3. In fact, Dabhoi Nagarpalika had authority to issue N.O.C. in favor of chief officer, as he is shout Government officer.
6. The deponent humbly submit that the statement made by the petitioner in the Para No. 4 is misleading. The district collector did not grant/ sanctioned the leave for 6 months. The order dated 24.02.2000 is merely stating that the charge of the petitioner to be handed over to the Deputy Mamalatdar. Even if, this application was only for 28.02.2000 to 27.08.2000 i.e. for six months only thus the petitioner trying to mislead this Hon'ble Court by stating that the district collector sanctioned leave and handed over the charge, The said letter is on the page No.21 and by simple reading it becomes clear that there were no sanction of leave of the present petitioner. At the same time in ground No. "C" the petitioner relies upon the Government resolution dated 24.08.2000. The said G.R. is simply not applicable to case of the present petitioner; the said G.R. was prospective in nature. The petitioner leaves India that is prior to the date of the said GR 24.08.2000.
7. The petitioner attained retirement age on 30.06.2005. Just before few days of retirement, (i.e.one day) petitioner joined service at Dabhoi, on return of leave. The service of the petitioner was permitted to join but, the petitioner was conditionally superannuated as the departmental inquiry was pending against the petitioner for unauthorized absence.
8. The petitioner unauthorizedly remained on leave for more than 4 years and 9 months. The petitioner had been Class-2 officer of the state Govt. He misinterpreted the Government Provision and made communication to the Collector as if the leave permission was granted. In fact there were no permission had been granted either Page 8 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined by the respondent No.1 and respondent No.2 for leave for foreign visit. The deponent once more clarified issues that the petitioner made an application to respondent No.2 on 21.02.2000 for the leave. Even at that time the respondent No.2 was not empowered to sanctioned the leave of any chief officer who are working as the class-2 officer. The petitioner ought to have taken permission from the department. Being the experienced employee, it must be in knowledge of the petitioner.
9. The department before issuing the punishment order, followed department inquiry proceedings as per the Gujarat Discipline & Conducts Rules. GCSR. The department think it deem fit to punish the petitioner for the misconduct for remaining unauthorized absence for such a long period without any justifiable reason. After giving all the possible opportunity to the petitioner the department passed the 100% pension cut ordered on 26.08.2009. Before issuing the punishment ordered, the rule No.9 & 10 of GCS (Discipline & Appeal] rules, 1972 were followed. Looking to the gross negligence approach of the petitioner, the punishment imposed by the department is just and proper.
10. Extension application made by the petitioner was without any justifiable reason or evidence and hence none of the extension applications were considered. The first leave of the petitioner were never sanctioned, so there could not be any question for extension of said leave.
11. The department issued the first show caused notice on 04.06.2005 to the power of attorney holder. The power of attorney holder of the petitioner replied the said notice by connection dated 09.06.2005."
5.1 In support of her submissions, learned AGP Ms.Pancholi has referred and relied upon the decision of the Hon'ble Apex Court in case of Chennai Metropolitan Water Supply and Sewerage Board and Others Vs. T T Murali Babu, reported in 2014 LawSuit(SC) 83. She has also referred and relied upon the decision of the Hon'ble Apex Court in case Page 9 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined of Tushar D. Bhatt Vs. State of Gujarat and Anr., reported in 2009 LawSuit(SC) 200 and submitted that it has been held by the Hon'ble Apex Court that the absence from duty without proper intimation is indicated to be a grave offence warranting removal from service. Thus, she has urged that the present petition may not be entertained for the relief prayed for by the petitioner and the same may be dismissed.
6. I have heard the learned advocates appearing for the respective parties and perused the material placed on record.
It comes to the analysis of this Court that whether the punishment imposed by the respondent authority is disproportionate to the charge levelled against the petitioner or not and whether this Court can interfere in the order of punishment while exercising jurisdiction under Article 226 of the Constitution of India or not. It emerges from the facts and submissions that though the petitioner was appointed as a Chief Officer and being an administrative head of the Municipality, he ought to have acted in due diligence and he was highly responsible for all the administrative actions to be taken on behalf of the Municipality. It also emerges from the record that the petitioner was on leave from May, 1998 to Page 10 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined June, 2005 and resumed his duties just one day prior to his reaching the age of superannuation, though he was aware of the fact that his leave was not sanctioned by the competent authority. Not only that, he had applied for extension of leave from U.S.A. which was granted by the President of the Municipality, who infact, was not the competent authority to sanction the leave of a Chief Officer. Thus, it appears that the petitioner has acted carelessly and performed his duties without due diligence and therefore, the disciplinary authority has rightly passed the impugned order of punishment after considering the defence raised by the petitioner before the disciplinary authority, which is in consonance with the provisions of law.
6.1 While exercising jurisdiction under Article 226 of the Constitution of India, whether this Court should interfere in the departmental proceedings / punishment imposed by the disciplinary authority or not, is well described by the Hon'ble Apex Court in case of Chennai Metropolitan (Supra), which is pressed into service by the learned AGP Ms.Pancholi, wherein the Hon'ble Apex Court has clearly considered absenteeism as a grave misconduct. The Hon'ble Apex Court Page 11 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined has observed and held as under :
"22. 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 behavior 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 willful. 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 willful even if the employee fails to show the compelling circumstances to remain absent.
23. 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[11] 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."
26. Thus, the unauthorized absence by an employee, as a misconduct, cannot be put into a straight-jacket formula for imposition of punishment. It will depend upon many a factor as has been laid down in Dr. P.L. Singla (supra).
30. After so stating the two-Judge Bench proceeded to say that one Page 12 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined 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 irrelevant matters before imposing punishment. 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. 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.
31. 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 Page 13 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined 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, 2006 13 SCC 1 : -
"In a case involving overstay of leave and absence from duty, granting six months' time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the work culture in the organization. Article 51-A(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 IV-A of the Constitution have the tendency to negate or destroy the same."
32. We respectfully reiterate the said feeling and re-state with the hope that employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development.
33. Judged on the anvil of the aforesaid premises, the irresistible conclusion is that the interference by the High Court with the punishment is totally unwarranted and unsustainable, and further the High Court was wholly unjustified in entertaining the writ petition after a lapse of four years. The result of aforesaid analysis would entail overturning the judgments and orders passed by the learned single Judge and the Division Bench of the High Court and, accordingly, we so do.
34. Consequently, the appeal is allowed and the judgments and orders passed by the High Court are set aside leaving the parties to bear their respective costs."
6.2 So far as the scope of interference by this Court is Page 14 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined concerned, it would be appropriate to refer to the decision of this Court in case of Harilal Harjibhai Vaselia Vs. State of Gujarat & 2, reported in [2016] SCC OnLine Guj 2951, wherein, this Court has observed and held as under :
"11. 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 Page 15 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined 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 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 Page 16 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined 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 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 Page 17 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined 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 non- observance 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 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:
Page 18 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined "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 decisionmaker 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, Page 19 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined magnitude and degree of misconduct and all other relevant circumstances after excluding 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.
Page 20 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined 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 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."
12. Having regard to the peculiar facts and circumstances of the case, I am inclined to quash the impugned order with a view to give one opportunity to the writ applicant to put forward his case before the authority. The authority concerned shall hear the writ applicant and thereafter take an appropriate decision in this regard. I may only say having regard to the length of service put in by the writ applicant that the authority concerned may also look into the Rule 10 of the Gujarat Civil Services (Pension) Rules 2002 which provides for premature retirement.
13. In the result, this writ application succeeds in part. The impugned order is hereby ordered to be quashed. The authority concerned shall hear the writ applicant at the earliest and pass an appropriate order thereafter in accordance with law. If the writ applicant is dissatisfied in any manner with the fresh order that may be passed by the authority concerned, then it shall be open for him to avail of an appropriate legal remedy before the appropriate forum in accordance with law.
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14. The authority concerned shall issue notice to the writ applicant informing him the date of hearing and the place, and on that date, the writ applicant shall appear and make his submissions.
15. With the above, this writ application is disposed of. Direct service is permitted."
6.3 In State Bank of India Vs. A.G.D. Reddy, reported in [2023] 11 SCC 530, the Hon'ble Apex Court has observed and held as under :
"35. Shri Sanjay Kapur, learned counsel for the Bank relies on State Bank of India vs. Ram Lal Bhaskar and Another, (2011) 10 SCC 249. In that judgment the scope of judicial review of departmental proceedings was set out and the principle laid down in State of A.P. vs. S. Sree Rama Rao, AIR 1963 SC 1723, was reiterated, which reads as follows:-
"This Court has held in State of A.P. and Others v. S. Sree Rama Rao (AIR 1963 SC 1723, para 7):
"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. 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 to review the evidence and to arrive at an independent finding on the evidence."
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13. Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re- appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has reappreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled against the respondent no.1 do not constitute any misconduct and that the respondent no.1 was not guilty of any misconduct."
36. It is now well settled that the scope of judicial review against a departmental enquiry proceeding is very limited. It is not in the nature of an appeal and a review on merits of the decision is not permissible. The scope of the enquiry is to examine whether the decision-taking process is legitimate and to ensure that the findings are not bereft of any evidence. If the records reveal that the findings are based on some evidence, it is not the function of the court in a judicial review to re-appreciate the same and arrive at an independent finding on the evidence. This lakshman rekha has been recognized and reiterated in a long line of judgments of this Court.
37. In the present case, it could certainly not be said that the report is based on no evidence or that it is perverse. The learned Single Judge transgressed the limits of judicial review in setting aside the enquiry proceedings and the punishment imposed. The Division Bench, in a short order has, after extracting a part of the learned Page 23 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined Single Judge's judgment, gone on to hold that having perused the records of the enquiry they do not find that the charges have been dealt with in any manner of specificity. Thereafter they conclude that the learned Single Judge was justified in arriving at its conclusion. We are not able to sustain the orders of the learned Single Judge and the Division Bench."
7. In view of the above referred facts and circumstances and the law laid down by the Hon'ble Apex Court, I am of the opinion that this Court is not sitting in appeal over the decision of the disciplinary authority and considering the seriousness of charge, the punishment imposed by the authority is not disproportionate to the charge which was proved against the petitioner and therefore, the present petition being devoid of any merits, is required to be dismissed and it is accordingly dismissed. Rule is discharged.
7.1 However, at this stage, learned advocate Mr.Mishra, appearing for the petitioner, has submitted that the petitioner is entitled for gratuity and provident fund which is his legitimate right, which is withheld by the respondent authority, to which the learned AGP Ms.Pancholi has no objection.
7.2 In view of above submission, the respondent authority is Page 24 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024 NEUTRAL CITATION C/SCA/3952/2010 JUDGMENT DATED: 06/02/2024 undefined directed to release the retiral benefits of the petitioner with 6% interest from the date of his retirement till the actual payment is made. This exercise is to be carried out by the respondent authority within a period of eight weeks from the date of receipt of writ of this order.
(HEMANT M. PRACHCHHAK,J) Dolly Page 25 of 25 Downloaded on : Fri Feb 16 21:09:48 IST 2024