Madhya Pradesh High Court
Subhash Rathore vs State Of M.P. & Ors. on 22 August, 2019
Equivalent citations: AIRONLINE 2019 MP 1808
Author: S.C.Sharma
Bench: S.C.Sharma
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
W.P. No.1222/2009 (s) (-1-)
W.P. No.1222/2009 (s)
(Subhas Rathore Vs. State of Madhya Pradesh and others)
Indore, dated: 22.08.2019
Petitioner present in person.
Shri Sourabh Shrivastava, learned government
advocate for the respondent/State.
The petitioner before this Court has filed this present petition being aggrieved by the order dated 13.12.2007 i.e. charge-sheet issued by the Superintendent, Central Jail, Indore.
The petition is also against the order dated 20.03.2008 passed by the Superintendent, Central Jail, Indore by which the punishment of dismissal has been inflicted upon the petitioner. The petition is also against the order dated 03.07.2008 by which an appeal preferred by the petitioner has been dismissed by the Director General (Prison).
The facts of the case reveal that the petitioner was appointed in the year 1994 on the post of Prahari (rank equivalent to the constable) as stated by him and he has worked with sincerity and devotion. It has been further stated that time to time he was assigned shift duties at MY Hospital, Indore. He was assigned duties along with chief Prahari, meaning thereby, the person who is required to keep an administrative control over all the Praharies (constables). A charge-sheet was issued on 13.12.2007 and as per HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.1222/2009 (s) (-2-) imputation of misconduct, the present petitioner was not found present in the ward where he was assigned the duties during surprise checks. The details of surprise checks find place under the imputation of misconduct.
The petitioner did submit a reply to the charges levelled against him and he has stated that he was always present at MY Hospital, Indore and every time by leaving the jail, he obtained necessary permission at 5.30 a.m. (Bhraman Parchi). It was also stated by him that he has not been allotted quarter in the jail premises and it is certainly true that at some times he has reported on duty with a delay of 10-15 minutes.
An inquiry officer was appointed in the matter and statement of witnesses were also recorded during the enquiry and the inquiry officer has held the charges as proved. It was established that the petitioner was not found present when surprise checks were carried out on certain occasions, when he was assigned duties at MY Hospital. Based upon the enquiry report, punishment order was passed dismissing the petitioner from service and the appeal preferred in the matter has also been dismissed.
A reply has been filed in the matter and it has been stated by the State Government that no irregularity of any kind has taken place in the matter. Proper charge-sheet was issued as provided under Section 14 of Madhya Pradesh HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.1222/2009 (s) (-3-) Civil Services (Classification, Control and Appeal) Rules, 1966 and the petitioner was given time to file a reply to the charge-sheet. It has been further stated that inquiry officer was appointed, presenting officer was appointed and the petitioner was granted an opportunity to defend himself and the inquiry officer based upon the evidence adduced during the enquiry has held the charges as proved. The respondents have also stated that keeping in view the totality of circumstances of the case, punishment of dismissal has been inflicted upon the petitioner.
This Court has carefully gone through the writ petition as well as reply filed by the respondents. It is true that the scope of interference in the departmental enquiry is quite limited and this Court cannot re-appreciate the evidence and the findings arrived at by the inquiry officer.
The charges are required to be proved on the basis of theory of preponderance of probability and in the present case, charges have been proved. The record of the case reveals that it is not a case where the petitioner was continuously absent for the whole day on a particular day. He was assigned duty for four hours on particular dates and during surprise checks he was not found on duty on those dates either at ward No.4, at ward No.2, at ward No.6 or at juvenile ward, meaning thereby, it was not a case of continuous absence and therefore, this Court is of the opinion HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.1222/2009 (s) (-4-) that the punishment awarded in the present case is certainly disproportionate to the guilt of the delinquent employee.
The Apex Court in the case of B. C. Chaturvedi Vs. Union of India reported in (1995) 6 SCC 749 has dealt with the issue of imposition of punishment.
In light of the aforesaid judgment, the punishment awarded is certainly disproportionate to the misconduct. It is not a case where the petitioner has been held guilty of embezzlement, misappropriation or assaulting to his senior officer nor is a case of involvement in a crime. He was not found present during surprise checks on account of unavoidable circumstances, his residence was at a far place and he has fairly admitted that he was late in reporting on duty by 10-15 minutes on various dates.
At the best, the authority could have treated the period as leave without pay or should have awarded lesser punishment keeping in view the misconduct, however, a capital punishment has been awarded to the petitioner. The petitioner does not have any other source of income.
The petitioner, who is present in person has argued his matter and stated that he does not have any source of income. He has two daughters studying in class 10 th and 12th respectively and now, he is at the verge of withdrawing his daughters from the school and he does not have money to pay their fees. He has also stated that his wife is not HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.1222/2009 (s) (-5-) supporting him. He has also stated that he is having a paralyzed mother and he does not have money even to treat her.
In the considered opinion of this Court, the punishment awarded appears to be on higher side and therefore, the same requires interference by this Court. Though, this Court would have remanded the matter back to the disciplinary authority for awarding lesser punishment but, the fact is that the petitioner is out of service since 20.03.2008 and therefore, the matter is being disposed of finally.
The Apex Court in the case of Raghubir Singh Vs. General manager, Haryana, Roadways, reported in 2014 (10 SCC, 301 was dealing with the issue of termination on account of unauthorised absence. In the aforesaid case, the Apex Court in paragraph Nos.29 and 30 has held as under:-
"29. Further, assuming for the sake of argument that the unauthorised absence of the appellant is a fact, the employer is empowered to grant of leave without wages or extraordinary leave. This aspect of the case has not been taken into consideration by the employer at the time of passing the order of termination. Therefore, having regard to the period of unauthorised absence and facts and circumstances of the case, we deem it proper to treat the unauthorised absence period as leave without wages. In our view, the termination order is vitiated since it is disproportionate to the gravity of misconduct alleged against him. The employment of the appellant-workman with the respondent is the source of income for himself and his family members' livelihood, thereby their liberty and livelihood guaranteed under Article 21 of the Constitution of India is denied as per the view of this Court in its Constitution Bench decision in Olga Tellis & HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.1222/2009 (s) (-6-) Ors. v. Bombay Municipal Corporation and Ors.[9] wherein it was held as under:-
"32.....The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be In accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life....."
30. The appellant workman is a conductor in the respondent-statutory body which is an undertaking under the State Government of Haryana thus it is a potential employment. Therefore, his services could not have been dispensed with by passing an order of termination on the alleged ground of unauthorised absence without considering the leave at his credit and further examining whether he is entitled for either leave without wages or extraordinary leave. Therefore, the order of termination passed is against the fundamental rights guaranteed to the workman under Articles 14, 16, 19 and 21 of the Constitution of India and against the statutory rights conferred upon him under the Act as well as against the HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.1222/2009 (s) (-7-) law laid down by this Court in the cases referred to supra. This important aspect of the case has not been considered by the courts below. Therefore, the impugned award of the Labour Court and the judgment & order of the High Court are liable to be set aside.
In light of the aforesaid judgment, this Court is of the opinion that in the case of the petitioner also, leave admissible and due, leave without wages or extraordinary leave or some lesser punishment could have been awarded to the petitioner.
The Apex Court in the case of G. Rajendra Vs. Vikrant Tyres Ltd and others, reported in 2002 (10) SCC, 438 was again dealing with the case of unauthorised absence from service.
In the aforesaid case, the order of dismissal was interfered with by the labour court and punishment of withholding of two increments with cumulative effect and denial of wages was substituted. In light of the aforesaid judgment also, the punishment in the present case is certainly disproportionate to the misconduct.
The Apex Court in the case of B. C. Chaturvedi Vs. Union of India reported in (1995) 6 SCC 749 in paragraphs No.22 to 26 has held as under:-
"22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of long line of decisions of this Court, to HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.1222/2009 (s) (-8-) which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.
23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh's case, AIR 1963 SC 1909, that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. of course, this power is not as wide which this Court has under Article 142. That, however, is a different matter.
24. What has been stated above may be buttressed by putting the matter a little differently. The same is that in a case of dismissal, Article 21 gets attracted. And, in view of the inter-dependence of fundamental rights, which concept was first accepted in the case commonly known as Bank Nationalisation case, 1970 (3) SCR 530, which thinking was extended to cases attracting Article 21 in Maneka Gandhi vs. Union of India. AIR 1978 SC 597, the punishment/penalty awarded has to be reasonable; and if it be unreasonable, Article 14 would be violated. That Article 14 gets attracted in a case of disproportionate punishment was the view of this Court in Bhagat Ram vs. State of Himachal Pradesh, 1983 (2) SCC 442 also. Now if Article 14 were to be violated, it cannot be doubted that a HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.1222/2009 (s) (-9-) High Court can take care of the same by substituting, in appropriate cases, a punishment deemed reasonable by it.
25. No doubt, while exercising power under Article 226 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review. It is because of this that substitution of High Court's view regarding appropriate punishment is not permissible. But for this constraint, I would have thought that the law makers do desire application of judicial mind to the question of even proportionality of punishment/penalty. I have said so because the Industrial Disputes Act, 1947 was amended to insert section 11A in it to confer this power even on a Labour Court/Industrial Tribunal. It may be that this power was conferred on these adjudicating authorities because of the prevalence of unfair labour practice or victimisation by the management. Even so, the power under section 11A is available to be exercised, even if there be no victimisation or taking recourse to unfair labour practice. In this background, I do not think if we would be justified in giving much weight to the decision of the employer on the question of appropriate punishment in service matters relating to Government employees or employees of the public corporations. I have said so because if need for maintenance of office discipline be the reason of our adopting a strict attitude qua the public servants,discipline has to be maintained in the industrial sector also. The availability of appeal etc. to public servants does not make a real difference, as the appellate/revisional authority is known to have taken a different view on the question of sentence only rarely. I would, therefore, think that but for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of judicial mind to the question of proportionately of punishment/penalty. But then, while seized with this question as a writ court interference is permissible HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.1222/2009 (s) (-10-) only when the punishment/penalty is shockingly disproportionate.
26. I had expressed my unhappiness qua the first facet of the case, as Chief Justice of the Orissa High Court in paras 20 and 21 of Krishna Chandra v. Union of India, AIR 1992 Orissa 261 (FB), by asking why the power of doing complete justice has been denied to the High Courts ? I feel happy that I have been able to state, as a Judge of the Apex Court, that the High Courts too are to do complete justice. This is also the result of what has been held in the leading judgment."
In light of the aforesaid judgment, as he petitioner has already suffered a lot and interest of justice would be sub- served by reinstating him in service and by not granting him full salary for the period he was out of job.
Resultantly, the orders dated 20.03.2008 and dated 03.07.2008 are hereby quashed. The respondents are directed to reinstate the petitioner in service forthwith. The petitioner shall be entitled for all consequential benefits by treating him in service for the period he was out of job. So far as back- wages are concerned, the petitioner shall be entitled for 50% of back-wages.
With the aforesaid, present petition stands allowed.
(S.C. Sharma)
N.R. Judge
Digitally signed by
NARENDRA KUMAR RAIPURIA
Date: 2019.08.28 14:15:07
+05'30'