Gujarat High Court
Harshaben B. Patel vs State Of Gujarat & 2 on 29 August, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/9424/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9424 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
HARSHABEN B. PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MR BP GUPTA, ADVOCATE for the Petitioner(s) No. 1
MR. GOUTAM, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1
-3
RULE SERVED BY DS for the Respondent(s) No. 1 - 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 29/08/2016
ORAL JUDGMENT
Page 1 of 35
HC-NIC Page 1 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicant, serving as a Food Inspector, has prayed for the following reliefs;
"(A) Your Lordships may be pleased to admit this petition.
(B) This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 30.6.2003 passed by respondent No.2 and further be pleased to direct the respondents, their agents, servants and subordinate officers to reinstate the petitioner with all consequential and incidental benefits.
(C ) Pending admission, hearing and final disposal of the petition, this Hon'ble Court may be pleased to stay the operation, implementation and execution of the impugned order of dismissal dated 30.6.2003 at Annexure-A to this petition passed by the respondent No.2 and further be pleased to direct the respondents, their agents, servants and subordinate officers to permit the petitioner to discharge her duties as Food Inspector.
(D) YOUR LORDSHIPS may be pleased to pass any other and further reliefs as may be deemed fit and proper in the interest of justice."
2. The case of the writ applicant may be summarized as under;
2.1 The writ applicant joined the services of the State Government as the Food Inspector on 7th February, 1991. It is her case that she preferred an application dated 19 th May, 1993 addressed to the Assistant Commissioner, Food & Drugs Control Administration, seeking leave for the period between 20th May, 1993 and 11th June, 1993. The leave was prayed for on the ground of social problems. It appears that in the year Page 2 of 35 HC-NIC Page 2 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT 1992, the writ applicant got married. After the marriage, the husband left for U.K. On 2nd June, 1993, the writ applicant left for London as her matrimonial life was disturbed. It also appears that in U.K., the marriage was dissolved with the consent of each other. After the dissolution of the marriage in the U.K., she returned to India and joined the service at the Amreli office on 31st May, 1994.
2.2 It appears that a show-cause notice was issued dated 22nd August, 1994, calling upon the writ applicant to explain her unauthorized absence from the duty for the period between 20th June, 1993 and 30th May, 1994. The writ applicant replied to the show-cause notice on 14th September, 1994. Considering the reply to the show-cause notice, the Commissioner passed an order dated 16th January, 1996 warning the writ applicant that in future she should be careful and should not go on leave without the prior permission or sanction. It also appears that the leave for the period between 18th August, 1993 and 14th May, 1994 was sanctioned vide order dated 16th October, 1996 passed by the Commissioner which is at page-34, Annexure-L to this petition.
2.3 After a period of almost five years, i.e., by an order dated 13th February, 2001, the leave for the period of 270 days, which was sanctioned ex post facto by the Commissioner, was cancelled.
2.4 It appears that the State Government, thereafter, decided that a regular departmental inquiry should be initiated against the writ applicant for the alleged misconduct of remaining absent unauthorizedly and also for leaving India Page 3 of 35 HC-NIC Page 3 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT without the prior permission of the authority concerned.
2.5 Accordingly, a departmental charge-sheet dated 2nd February, 2002 was issued containing the two charges; (i) the writ applicant should have sought prior approval of the HOD before leaving for abroad, and the failure to do so, amounted to misconduct and (ii) without obtaining the No Objection Certificate from the Government, the writ applicant applied for the passport and obtained the same.
2.6 An Inquiry Officer was appointed for the purpose of conducting the inquiry. At the end of the inquiry, he reached to the conclusion that out of the two charges, one stood established, i.e, remaining unauthorizedly absent, whereas the second charge of having not obtained the No Objection Certificate from the Government before applying for the passport, was not found to be established.
2.7 The State Government, however, believed the second charge, i.e., failure to obtain the No Objection Certificate from the authority for the purpose of obtaining the passport also as established and without assigning any reasons for disagreement with the findings recorded by the Inquiry Officer in that regard, issued a show-cause notice dated 3rd January, 2003, which is at page-58, calling upon the writ applicant why she should not be punished appropriately under the provisions of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971.
2.8 The writ applicant replied to the said show-cause notice on 21st January, 2003. Thereafter, on 30th June, 2003, the final order came to be passed by the Commissioner, dismissing the Page 4 of 35 HC-NIC Page 4 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT writ applicant from the service. Being dissatisfied, the writ applicant has come up with this writ application.
2.9 I take notice of the fact that on 9th July, 2003, a learned Single Judge of this Court passed a reasoned order, running in 11 pages, and stayed the operation of the order of dismissal from the service passed by the Commissioner. The order reads thus;
"Heard learned Senior advocate Mr. Yatin N Oza with learned advocate Mr. B.P.Gupta on behalf of the petitioner. On behalf of State Government caveat has been filed and copy of the present petition has been served to the learned AGP Mr. R.V.Desai today who is appearing on behalf of the respondents on caveat.
2. I have considered the submissions made by both the learned advocates. Certain facts are not in dispute considering the record as it is, that, the present petitioner joined the services with the respondent on 7.2.1991 as a Food Inspector at Bhavnagar. She remained absent without prior permission for the period from 20.5.1993 to 30.5.1994, that was considered unauthorised absence. The fact of visit to London (abroad) by the petitioner is disclosed in her letter dated 22.6.1994 with a clarification that she came back in March, 1994 and resumed the duty on 31.5.1994. From 31.5.1994, after resuming the duty at Amreli she was continued in service up to the date of termination dated 30.6.2003. For unauthorised leave or absence, a show cause notice dated 22.8.1994 was served to the petitioner where the period of unauthorised absence from 20.5.1993 to 30.5.1994 was mentioned. Explanation was given by the petitioner on 14.9.1994 which is at page 25. Thereafter, on 16.10.1994, in respect to the show cause notice dated 22.8.1994 the respondent Commissioner has accepted the explanation from the petitioner but was not satisfied and, a warning was given by the Commissioner to the petitioner now in future not to remain absent without prior permission of the authority. Page 28, letter dated 20.7.1995 where the suggestion was given to the petitioner that for absence Page 5 of 35 HC-NIC Page 5 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT from 20.5.1993 to 25.6.1993, total 37 days leave has been sanctioned by the respondent and for rest of the 53 days leave, separate application is required to be filed by the petitioner. Accordingly, a separate application to that effect was submitted by the petitioner which is at page 29 dated 7.8.1995. On 28.9.1995, the leave for the period from 26.6.1993 to 17.8.1993 was sanctioned by the respondent which is at page 30. Thereafter, the request was made by the petitioner on 13.5.1996 to sanction the entire unauthorised leave for the period from 18.8.1993 to 14.5.1994, i.e. for a period of 270 days. Considering her request, an order to that effect was passed by the respondent Commissioner on 16.10.1995 sanctioning the unauthorised leave for 270 days being an extraordinary leave and petitioner was transferred to Amreli. Thereafter, on 18.9.2001, a show cause notice was issued by the respondent for the allegation that the she visited London (abroad) without prior permission from the department and applied for the passport without obtaining NOC from the department and while applying passport it was not disclosed by her that she is a government employee. Thereafter, a departmental inquiry was held against the present petitioner and inquiry officer has submitted his report. The inquiry officer has come to the conclusion that charge no.1; without prior permission she visited abroad, has been found to be proved. In respect to the second charge; not to obtain NOC from the department for applying the passport has not been proved. Thereafter, the respondent has served a show cause notice dated 3.1.2003 and along with that the copy of the inquiry report has been supplied to the petitioner wherein it is mentioned that first charge which is proved is beyond reasonable doubt and second charge is not proved. According to the report of the inquiry officer. Against that, a reply was submitted by the petitioner on 27.1.2003 to the respondent Commissioner. The report of the Inquiry Officer is dated 27.9.2002 supplied to the petitioner along with the show cause notice dated 3.1.2003. Thereafter the petitioner was personally heard by the competent authority and punishment order dated 30.6.2003 has been passed which has been received by the petitioner on 4.7.2003 as stated by the learned Senior advocate Mr. Yatin Oza before this Court on having the instructions from the petitioner.
Page 6 of 35
HC-NIC Page 6 of 35 Created On Wed Aug 31 00:53:11 IST 2016
C/SCA/9424/2003 JUDGMENT
3. It is necessary to note that without expressing any opinion by this Court from the record itself, the unauthorised absence for the entire period from 20.5.1993 to 30.5.1994 has been sanctioned by the respondent with a warning to the petitioner and last order of sanctioning unauthorised absence of 270 days was passed by order dated 16.10.1995 being an extra ordinary leave. Two legal aspects are very important. From 16.10.1995 the unauthorised leave or absent has been sanctioned by the respondent being an extraordinary leave on 16.10.1995. Prior to that petitioner has already resumed at Amreli on 31.5.1994. Thereafter the respondent department remained silent, though the fact was disclosed in the earlier application that she had already visited abroad. On that occasion no question was asked to the petitioner whether she has taken any prior permission from the department and before submitting application to the passport officer NOC was obtained by her or not. The respondent waited up to 18.9.2001, that is, for more than 5 years without any justification and, on 18.9.2001 first show cause notice has been served to the petitioner in respect to the two charges which are referred above. The second legal aspect is that the inquiry officer has exonerated the petitioner in respect to the second charge. The disciplinary authority who has passed the termination order has disagreed with the finding of the inquiry officer in respect to the second charge. Specific question was asked to the the learned AGP Mr. Desai that in respect to the finding of the inquiry officer for second charge, any show cause notice or opportunity has been given by the disciplinary authority to the petitioner or not. He is not able to answer this question. It is also settled that when the disciplinary authority is disagreed with the finding of the inquiry officer, then opportunity must have to be given to the concerned employee prior to passing the punishment order against such disagreeing by the disciplinary authority. A show cause notice dated 3.1.2003 issued by the disciplinary authority to the petitioner wherein it is not mentioned by the disciplinary authority that the disciplinary authority is not agreed with the finding in respect to the charge no.2 given by the inquiry officer. Second show cause notice at page 58 dated 3.1.2003, where the copy of the report of inquiry officer has been supplied to the petitioner. In entire notice, no where it is mentioned that the disciplinary Page 7 of 35 HC-NIC Page 7 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT authority is disagreed with the finding given by the inquiry officer in respect to the charge no.2. Only explanation has been called for in respect to the finding supplied to the petitioner. These are the undisputed facts which are on record and two legal aspects are there.
4. In respect to the first legal contention raised in the present petition that the disciplinary authority when not agreed or to differ from the finding given by the inquiry officer then at that occasion it is duty of the disciplinary authority to give reasonable opportunity to the employee about his disagreement or differ with the finding given by the inquiry officer. From the record of petition no such opportunity was given to the petitioner when disciplinary authority is not agreed or differ with he finding of inquiry officer in respect to charge no.2. This aspect has been examined by the Apex Court in the case of PUNJAB NATIONAL BANK AND OTHERS V. KUNJ BEHARI MISRA, 1998 SCC (L&S) 1783. The relevant observations made by the Apex Court in paragraph 17 are as under:
"These observations are clearly in tune with the observations in Bimal Kumar Pandit case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority Page 8 of 35 HC-NIC Page 8 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority."
Recently in case of of STATE BANK OF INDIA AND OTHERS V. K.P.NARAYANANKUTTY, 2003 SCC (L&S) 185, the decision in case of Punjab National Bank referred above has been relied upon and referred by the Apex Court. The Apex Court has also observed that there is no need to show that any prejudice was caused to the employee by not giving any opportunity to him by the disciplinary authority. Paragraph 6 & 7 are quoted as under:
"It was also contended on behalf of the appellants that the High Court committed an error in setting aside the order of dismissal when it was not shown that any prejudice was caused to the respondent by not giving an opportunity to him by the disciplinary authority. In this regard the learned counsel cited a decision of this Court in Union Bank of India v. Vishwa Mohan. As alreadynoticed above, before the High Court both the parties concentrated only on one point, namely, the effect of not providing an opportunity by the disciplinary authority when the disciplinary authority disagreed with some findings of the enquiry officer. It was also not shown by the appellants before the High Court that no prejudice was caused to the respondent in the absence of providing any opportunity by the disciplinary authority. The aforementioned case of Vishwa Mohan is of no help to the appellants. The learned counsel invited our attention to para 9 of the said judgement. As is evident from the said paragraph, this Court having regard to the facts of that case, taking note of the various acts of serious misconduct, found that no prejudice was caused to the delinquent officer. In para 19 of the judgement in Punjab National Bank case extracted above, when it is clearly stated that the principles of natural justice have to be read into Regulation 7(2) Rule 50(3)(ii) of the State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case and the delinquent officer will have to be given an opportunity to persuade the disciplinary authority to accept the Page 9 of 35 HC-NIC Page 9 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT favourable conclusion of the enquiry officer, we find it difficult to accept the contention advanced on behalf of the appellants that unless it is shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside by the High Court.
Therefore, we are in respectful agreement with the decision of this Court in Punjab National Bank case being directly on the point. Moreover, in this case the High Court has given liberty to the appellants to proceed with the case in accordance with law. Under these circumstances and in view of liberty given, as stated above, we do not find any good reason to upset the impugned order. Consequently, the same is affirmed and the appeal is dismissed with no order as to costs."
5. Learned AGP Mr. R.V.Desai raised contention that the petitioner having an alternative remedy to file appeal before the Gujarat State Civil Services Tribunal. I have considered this submission also from record itself. The proceedings which have been initiated against the petitioner is prima facie contrary to the settled law and, looking to the charge and, in light of the fact that entire period of unauthorised absence has been sanctioned being extraordinary leave by the respondent Commissioner who is the authority to pass termination order, according to my opinion the contention about alternative remedy which has been raised by the learned AGP Mr. Desai, cannot be accepted.
6. In respect to the contention raised by learned AGP Mr. Desai that the petitioner having alternative effective remedy by way of appeal to the Tribunal. Ordinarily, it is true that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where the party invoking the jurisdiction has an effective adequate alternative remedy. The rule which require the exhaustment of alternative remedy is a rule of convenience and discretion rather than rule of law. At any date it does not oust the jurisdiction of the Court where the order complaint against is alleged to be illegal or invalid as being contrary to law or contrary to the principle of natural justice. A petition at the instance of a person adversely affected by it would lie to this Court under Article 226 and such petition cannot be rejected only on the ground that appeal is lies to the Tribunal or to Page 10 of 35 HC-NIC Page 10 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT the State Government. Therefore, the contention raised by learned AGP Mr. Desai cannot be accepted because order of dismissal itself is primafacie contrary to principle of natural justice.
7. Considering these facts which are on record, prima facie, this matter require detailed examination by this Court and also require detailed examination in respect to the question which has been raised in the present petition, hence RULE returnable in the second week of of August, 2003.
8. While considering the prima facie case of the petitioner and balance of convenience which is found in favour of the petitioner, in case, if interim relief is not granted, it will adversely affect the social status and responsibility of the petitioner and it also amounts to irreparable loss caused to the petitioner and, therefore, according to my opinion, petitioner is entitled for interim relief. Therefore, by way of interim relief, it is directed to the respondent to stay the further operation, implementation and execution of the impugned order of dismissal dated 30.6.2003 which is at Annexure-A to the petition during the pendency and up to final disposal of the present petition.
Direct service is permitted."
2.10 Thus, it appears that by virtue of the interim order passed by this Court, the services were protected and the writ applicant continued in service.
3. Mr. Oza, the learned senior advocate appearing for the writ applicant vehemently submitted that the impugned order could be termed as unreasonable and erroneous in law. He submitted that his client had to leave India all of a sudden as she had serious matrimonial problems. The husband, after the marriage, had left for London and was residing at London since then. He submitted that after reaching London, the writ applicant as well as her husband decided to dissolve the Page 11 of 35 HC-NIC Page 11 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT marriage with mutual consent. Accordingly, they applied for dissolution of the marriage before a County Court in London and by virtue of the decree drawn by the Court concerned in London, the marriage was dissolved. Mr. Oza submitted that no sooner the marriage was dissolved, then the writ applicant returned to India and resumed her service. She was permitted to resume her service without any objection. He pointed out that the issue was concluded by a warning which could be termed as censure. He pointed out that the leave for the period between 18th August, 1993 and 14th May, 1994 was also sanctioned ex post facto without pay. Five years thereafter, under the instructions of the State Government, the Commissioner thought fit to cancel the order, sanctioning the leave ex post facto in the year 1996. Mr. Oza vehemently submitted that for a period of five years, the Government didn't do anything and permitted the writ applicant to work.
4. Mr. Oza submitted that out of the two charges levelled against the writ applicant, one was found to have been not established. If the Disciplinary Authority wanted to disagree with the findings recorded by the Inquiry Officer in that regard then he should have recorded his own reasons for the disagreement and called upon the writ applicant to show-cause in that regard. Having failed to do so, the Commissioner committed a serious error in passing the impugned order. He submitted that although his client might not have preferred any application, seeking leave before she left for U.K., yet after reaching U.K., she did prefer the applications and few of those were preferred through her family members but of no avail. No orders were passed at the relevant point of time. According to Mr. Oza, this Court, way back in the year 2003, thought fit to Page 12 of 35 HC-NIC Page 12 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT stay the operation of the order of dismissal, which is in the rarest of rare cases.
5. He pointed out that the interim order passed by this Court dated 9th July, 2003 was challenged by the State of Gujarat by filing the Letters Patent Appeal No.1323 of 2003, which came to be dismissed at the admission stage by a Division Bench of this Court vide order dated 9th December, 2003. The order reads thus;
"By reasoned order dated 09.7.2003, the learned Single Judge has granted interim relief to the petitioner and stayed the operation, implementation and execution of the impugned order of dismissal dated 30.6.2003. The matter is pending for consideration on merits. Obviously, the appellants will have the liberty to advance submissions before the learned Single Judge when the matter is heard finally including the points raised in this appeal. However, we are not inclined to interfere with the discretion granting the interim relief to the petitioner by the learned Single Judge. The appeal is dismissed. Civil Application is also dismissed accordingly."
6. In such circumstances referred to above, he prays that there being merit in this writ application, the same may be allowed and the impugned order be quashed.
7. In support of his submissions, he has placed reliance on the decision of the Supreme Court in the case of P.V. Mahadevan vs. Managing Director, T.N,. Housing Board, (2005) 6 SCC 636. A Division Bench decision of this Court, to which I was a party, in the case of Jasubhai S. Parmar vs. Dist. Superintendent of Police & Ors., 2013 (3) GLR 2729. S.P. Malhotra vs. Punjab National Bank, 2013 (7) SCC
251. A decision of this Court dated 15th June, 2016 rendered in Page 13 of 35 HC-NIC Page 13 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT the Special Civil Application No.7656 of 2001.
8. On the other hand, this writ application has been vehemently opposed by Mr. Goutam, the learned AGP appearing for the State-respondents. He submitted that no error, not to speak of any error of law could be said to have been committed in passing the impugned order. He submitted that indisputably, the writ applicant left the India for London without applying for leave or waiting for the sanction of such leave. He submitted that whatever may be the problem in the matrimonial life of the writ applicant, she owed a duty to seek the permission before going on leave and that too for the purpose of visiting her husband at London. He would submit that the unauthorized absence was willful and the charge could be treated as have been proved.
9. The learned AGP, however, very fairly conceded that the Disciplinary Authority failed to record his reasons of disagreement with the findings recorded by the Inquiry Officer so far as the charge of having not obtained the No Objection Certificate from the HOD for the purpose of applying for the passport. Without recording such reasons for disagreement, the Disciplinary Authority believed such charge also to have been established and without giving any opportunity to the writ applicant in that regard, the impugned order was passed. However, according to the learned AGP, that by itself, would not vitiate the impugned order of dismissal from the service. He submitted that it is true that it took five years for the State Government to take an appropriate decision to initiate the departmental action, but mere delay, by itself, would not vitiate the final order of dismissal from the service. He tried to Page 14 of 35 HC-NIC Page 14 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT explain, in his own way, that at times, the process may consume lot of time on account of administrative exigencies.
10. He also submitted that in the facts of the case, the doctrine of proportionality will have no application. The punishment imposed is not shockingly disproportionate so as to invoke the doctrine of proportionality.
11. In such circumstances referred to above, he prays that there being no merit in this writ application, the same be rejected.
12. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the State Government committed any error in passing the impugned order.
13. In my view, the error is apparent on the face of the order. As noted above, there were two charges levelled against the writ applicant. First of unauthorized absence for the period between 20th May, 1993 and 25th June, 1994, and secondly, applying for the passport for the purpose of visiting London without obtaining the No Objection Certificate from the head of the department. So far as the second charge is concerned, the Inquiry Officer found the same to have been established. If the Disciplinary Authority wanted to disagree with the findings recorded by the Inquiry Officer in this regard, then he should have recorded reasons for such disagreement and should have conveyed such reasons to the writ applicant with a view to give her an opportunity to meet with the same. Having failed to do Page 15 of 35 HC-NIC Page 15 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT so, the same has rendered the impugned order vulnerable and illegal. In this regard, I may profitably refer to the decision of the Supreme Court in the case of Yoginath D. Bagde v. State of Maharashtra reported in AIR 1999 SC 3734 where the Supreme Court in the light of rule 9 of the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979, made the following observations;
"What action would be taken on this report and in what manner will this report be dealt with is indicated in Rule
9. Relevant portions of this Rule are quoted below :
"9. Action on the inquiry report -- (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report, and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of rule 8 of these rules as far as may be.
(2) The disciplinary authority shall if it is not the inquiring authority, consider the record of the inquiry and record its findings on each charge. If it disagrees with the findings of the inquiring authority on any article of charge, it shall record its reasons for such disagreement.
(3) ................................
(4) (i) If the disciplinary authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the major penalties should be imposed on the Government servant, it shall--
(a) furnish to the Government servant, a copy of the report of the inquiry held by it and its findings on each article of charge, or, where the inquiry has been held by an inquiring authority appointed by it, a copy of the report of such authority and a statement of its Page 16 of 35 HC-NIC Page 16 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT findings on each article of charge expressly stating whether or not it agrees with the findings of the inquiry authority, together with brief reasons for its disagreement, if any, with the findings of the inquiring authority; and
(b) give to the Government servant a notice stating the penalty proposed to be imposed on him and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days, as may be allowed, such representation as he may wish to make on the proposed penalty on the basis of the evidence adduced during the inquiry held under rule 8 of these rules.
(ii) (a) .................................
(b) .................................
(iii) Where it is not necessary to consult the Commission, the disciplinary authority shall consider the representation, if any, made by the Government servant in pursuance of the notice given to him under clause (i)(b) of this sub-rule and determine what penalty, if any, should be imposed on him on the basis of the evidence adduced during the inquiry held under rule 8 and make such order as it may deem fit."
28. In view of the provisions contained in the statutory Rule extracted above, it is open to the Disciplinary Authority either to agree with the findings recorded by the Inquiring Authority or disagree with those findings. If it does not agree with the findings of the Inquiring Authority, it may record its own findings. Where the Inquiring Authority has found the delinquent officer guilty of the charges framed against him and the Disciplinary Authority agrees with those findings, there would arise no difficulty. So also, if the Inquiring Authority has held the charges proved, but the Disciplinary Authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the Inquiring Authority has recorded a positive finding that the charges were not established and the delinquent Page 17 of 35 HC-NIC Page 17 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT officer was recommended to be exonerated, but the Disciplinary Authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the Rules made under Article 309 of the Constitution or the Disciplinary Authority may, of its own, provide such an opportunity. Where the Rules are in this regard silent and the Disciplinary Authority also does not give an opportunity of hearing to the delinquent officer and records findings, different from those of the Inquiring Authority that the charges were established, "an opportunity of hearing" may have to be read into the Rule by which the procedure for dealing with the Inquiring Authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be `not guilty' by the Inquiring Authority, is found `guilty' without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded.
29. We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979 which enables the Disciplinary Authority to disagree with the findings of the Inquiring Authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The Rule does not specifically provide that before recording its own findings, the Disciplinary Authority will give an opportunity of hearing to a delinquent officer. But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to Page 18 of 35 HC-NIC Page 18 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with.
30. Recently, a three-Judge Bench of this Court in Punjab National Bank & Ors. vs. Kunj Behari Mishra (1998) 7 SCC 84 = AIR 1998 SC 2713, relying upon the earlier decisions of this Court in State of Assam vs. Bimal Kumar Pandit (1964) 2 SCR 1 = AIR 1963 SC 1612; Institute of Chartered Accountants of India vs. L.K. Ratna & Ors. (1986) 4 SCC 537 as also the Constitution Bench decision in Managing Director, ECIL, Hyderabad & Ors. vs. B. Karunakar & Ors. (1993) 4 SCC 727 and the decision in Ram Kishan vs. Union of India (1995) 6 SCC 157, has held that :
"It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority."Page 19 of 35
HC-NIC Page 19 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT
31. The Court further observed as under :
"When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry office and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and inequitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed."
32. The Court further held that the contrary view expressed by this Court in State Bank of India vs. S.S. Koshal 1994 Supp.(2) SCC 468 and State of Rajasthan vs. M.C. Saxena (1998) 3 SCC 385 was not correct.
33. In view of the above, a delinquent employee has the right of hearing not only during during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee Page 20 of 35 HC-NIC Page 20 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution.
34. Applying the above principles to the facts of this case, it would be noticed that in the instant case the District Judge (Enquiry Officer) had recorded the findings that the charges were not proved. These findings were submitted to the Disciplinary Committee which disagreed with those findings and issued a notice to the appellant requiring him to show-cause why he should not be dismissed from service. It is true that along with the show-cause notice, the reasons on the basis of which the Disciplinary Committee had disagreed with the findings of the District Judge were communicated to the appellant but the Disciplinary Committee instead of forming a tentative opinion had come to a final conclusion that the charges against the appellant were established. The Disciplinary Committee, in fact, had acted in accordance with the statutory provisions contained in Rule 9(4)(i)
(a)&(b). He was called upon to show-cause against the proposed punishment of dismissal as will be evident from Page 21 of 35 HC-NIC Page 21 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT the minutes of the Disciplinary Committee dated 21st June, 1993 which provide as under:-
"Decision : Discussed. For the reasons recorded in Annexure "A" hereto, the Committee disagrees with the finding of the Enquiry Officer and finds that the charges levelled against the delinquent Judicial Officer have been proved.
It was, therefore, tentatively decided to impose upon the Judicial Officer penalty of dismissal from service.
Let notice, therefore, issue to the delinquent Judicial Officer calling upon him to show cause why penalty of dismissal from service as prescribed in Rule 5(1)
(ix) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 should not be imposed upon him.
Show cause notice will be accompanied by a copy of the Report of the Inquiring Authority and the reasons recorded by this Committee."
These minutes were recorded after the Disciplinary Committee had considered the Enquiry Report and differed with the findings and recorded its final opinion in para 10 of its reasons as under:-
"10. The Disciplinary Committee is of the opinion that the findings recorded by the Enquiry Officer on both the charges cannot be sustained. The Committee, after going through the oral and documentary evidence on record, is of the opinion that both the charges against the delinquent are proved. The delinquent is a Judicial Officer who has failed to maintain the absolute integrity in discharge of his judicial duties."
35. Pursuant to the above minutes, a notice dated 24.6.93 was issued to the appellant which after reproducing the minutes of the Meeting of the Disciplinary Committee proceeded to say as under:-
"As required by the Disciplinary Committee I issue this notice calling upon you to show-cause why the penalty of dismissal from service should not be Page 22 of 35 HC-NIC Page 22 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT imposed upon you in view of the charges held established. Time of 15 days, from the date of receipt of this notice, is given to you for submitting your reply, failing which it shall be presumed that you do not wish to make any representation regarding the penalty.
A copy of the report of the Enquiry Officer dated 21.12.92 and a copy of Annexure `A' are enclosed herewith for ready reference.
Yours faithfully, Sd/-
Registrar"
36. Along with the show-cause notice, a copy of the findings recorded by the Enquiry Officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show-cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a tentative decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee.
37. Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to findings on the two charges framed against him, the principles of natural justice, as laid down by a Three-Judge Bench of this Court in Punjab National Bank & Ors. vs. Kunj Behari Mishra, (1998) 7 SCC 84 = AIR 1998 SC 2713, referred to above, were violated.
[emphasis supplied by us]
14. Applying the above principle to the facts of the present case, it is apparent that the Disciplinary Authority not having formed a tentative opinion regarding its findings disclosing Page 23 of 35 HC-NIC Page 23 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT reasons for disagreement with the view adopted by the inquiring authority on the charge No.2 and having simply issued a notice to show-cause why the delinquent should not be dismissed from the service, on the basis of such show-cause notice, the writ applicant herein could not have been dismissed from the service.
15. The contention as regards the delay in initiating the departmental proceedings has also appealed to me. It is true that mere delay may not be sufficient to render the order of dismissal from the service as illegal. It would all depend on the facts and circumstances of each case as also the nature of the misconduct alleged. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is a delay in not only initiating the departmental action but also delay in concluding the disciplinary proceedings. As noted by me above, it took almost five years for the State Government to take the decision to initiate the departmental action against the writ applicant. In fact, the entire matter was closed in the year 1996 with issue of warning. The leave was also sanctioned ex post facto. However, the action of the Commissioner was not approved by the State Government and it appears that under the instructions of the State Government, the Commissioner had to cancel his earlier order, sanctioning the leave ex post facto.
16. In the affidavit-in-reply, the State Government has tried to explain the delay, but I am not at all convinced with the explanation offered. Its a very stereotype explanation.
17. In the case of Krushnakant B. Parmar vs. Union of Page 24 of 35 HC-NIC Page 24 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT India & Anr., 2012 (3) SCC 178, the Supreme Court considered the question whether "unauthorized absence from duty" amounts to failure of devotion to duty or behaviour unbecoming of a Government servant. The Supreme Court took the view that if the absence was the result of the compelling circumstances under which it was not possible to report or perform duty, such absence could not be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful.
18. I am dealing with a writ application filed by a lady who got married in the year 1992, and in the year 1994, her marriage came to be dissolved by mutual consent by a decree passed by a county court in London. She had her own matrimonial problems, and for resolving the same, it appears that she had rushed to U.K. It appears that she could not save her marriage and, ultimately, thought fit to put an end to the same by giving her consent. Let me quote the observations made by the Supreme Court in paragraphs-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."Page 25 of 35
HC-NIC Page 25 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT
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.
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:
Page 26 of 35HC-NIC Page 26 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT "25.It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal 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 quasi-
judicial 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 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."
19. Krushnakant (supra), later on, came to be considered by the Supreme Court in the case of Chennai Metropolitan Water Supply and Sewerage Board & Ors., 2014 (4) SCC
108. The Supreme Court observed in paragraphs- 22, 23, 24, Page 27 of 35 HC-NIC Page 27 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT 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 charge-sheeted for failure to maintain devotion to duty and his behaviour was unbecoming of a Government servant. After adverting to the rule position the two-Judge 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 Page 28 of 35 HC-NIC Page 28 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT 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 afore-stated 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:-
Page 29 of 35HC-NIC Page 29 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT "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 Page 30 of 35 HC-NIC Page 30 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT attitude of the employee cannot be countenanced.
27. 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 (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.
Page 31 of 35
HC-NIC Page 31 of 35 Created On Wed Aug 31 00:53:11 IST 2016
C/SCA/9424/2003 JUDGMENT
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, well-recognised 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 Page 32 of 35 HC-NIC Page 32 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT 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 two-Judge 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 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 tell-tale 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 Page 33 of 35 HC-NIC Page 33 of 35 Created On Wed Aug 31 00:53:11 IST 2016 C/SCA/9424/2003 JUDGMENT 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:-
22. "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 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."
Page 34 of 35
HC-NIC Page 34 of 35 Created On Wed Aug 31 00:53:11 IST 2016
C/SCA/9424/2003 JUDGMENT
20. For the foregoing reasons, I have reached to the conclusion that the impugned order of dismissal deserves to be quashed and set aside. I could have remitted the matter in view of the decision of the Supreme Court in the case of Yoginath D. Bagde (supra), but in the peculiar facts and circumstances of the case and the time period which has passed, and also considering the plight of a helpless lady, I am not inclined to do so. In such circumstances, I need not even go into the issue as regards the doctrine of proportionality.
21. The writ applicant was appointed in the year 1991. She has continued in service till this date. Her service record, otherwise, is quite clean. As observed by me, considering this case as one of those falling within the ambit of rarest of rare cases, the order of dismissal was stayed from its operation. The writ applicant has about eight years of service left and is also due for promotion to the post of the Senior Food Inspector. In such circumstances, this writ application succeeds and is hereby allowed. The impugned order of dismissal from the service is hereby ordered to be quashed. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 35 of 35 HC-NIC Page 35 of 35 Created On Wed Aug 31 00:53:11 IST 2016