Madhya Pradesh High Court
Surendra Singh Tomar vs The Union Of India on 15 March, 2018
Bench: Sanjay Yadav, Ashok Kumar Joshi
1 WA.245.2007
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
Hon'ble Shri Justice Sanjay Yadav
&
Hon'ble Shri Justice Ashok Kumar Joshi
WRIT APPEAL NO.245 OF 2007
Surendra Singh Tomar
Vs.
The Union of India & Ors
******************
Shri Sarvesh Singh Chouhan, learned counsel for the
appellant.
Shri Vivek Khedkar, learned Assistant Solicitor General
for respondents/UOI.
********************
Whether approved for reporting: Yes/No
ORDER
(15/03/2018) Per Justice Sanjay Yadav:
This appeal under Section 2(1) of Madhya Pradesh Uchcha Nayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against the order dated 02/03/2007 passed in Writ Petition No.302/2001; whereby learned Single Judge negatived the challenge to an order of dismissal dated 03/07/2000 and its affirmation in Appeal dismissed on 30/11/2000. (2) The appellant Constable, Central Industrial Security Force (CISF), while posted at Gas Authority of
2 WA.245.2007 India Ltd (GAIL), unit Vijaypur, District District Guna (M.P.) was charge-sheeted on 21/05/1999 whereby following charges were levelled against him:
vkjksi ua0&01 cy Ø893090029 vkj{kd ,l ,l rksej us fnukad 21-05-99 dks le; yxHkx 1730 cts mi dek.MsUV ds vnZyh :e esa mRRksftr gksdj o /kedh Hkjs Loj esa mi dek.MsUV ls rqjUr NqV~Vh eatjw djus ds fy, dgkA ,d vuq'kkflr l'kL= cy dk lnL; gksrs gq, Hkh vkj{kd ,l0,l0 rksej }kjk fd;k x;k mDr d`R; ?kksj vuq'kklughurk ,oa xEHkhj nqjkpj.k dk izrhd gSA vkjksi ua0&02 fnukad 21-5-99 dks le; yxHkx 1732 cts cy Øekad 893090029 vkj{kd ,l0,l0 rksej gkFk esa yksgs ds NM ysdj tcju mi dek.MsUV ds dk;kZy; esa ?kqlk rFkk mi dekMsUV tks dk;kZy; esa mifLFkr Fks ds Åij yksgs ds NM ls izgkj djus dh dksf'k'k dh ysfdu yksgs dh NM dk;kZy; Vscy ds mij j[ks gq, 'kh'ks rFkk lkbZM jSd ij yxh ftlls dk;kZy; Vscy dk 'kh'kk VwVdj pdukpwj gks x;k o lkbZM jSd esa MsUV iM x;kA ,d vuq'kkflr l'kL= cy dk lnL; gksrs gq, Hkh vkj{kd ,l0,l0rksej }kjk fd;k x;k mDr d`R; ?kksj vuq'kklughurk ,oa xEHkhj nqjkpj.k dk izrhd gSA (3) That the charge-sheet was served on the appellant departmentally through Inspector K.S. Saman and two Sub-Inspectors S/Shri Ganshyam Prasad and V.K. Chahal and Head Constable Manku Ram and constable Dhruv Singh, but as recorded in Rojnamcha Sanha at Sr. No.566 dated 13/07/1999, the appellant refused to accept the charge-sheet stating that being on medical leave he will not accept any letter.
(4) Enquiry Officer was appointed by order dated 27/03/2000. That before appointment of Enquiry Officer the appellant along with four other CISF personnel was transferred to CISF unit UTPS Ulkai. The appellant did not carry out the same.
(5) Meanwhile with the appointment Enquiry Officer,
3 WA.245.2007 the departmental enquiry proceedings were initiated on 3/4/2000. On 5/4/2000, notice was sent to the appellant for his appearance on 17/04/2000. As the appellant did not appear on 17/04/2000, another notice on 17/04/2000 was issued for 24/04/2000. The appellant did not appear on 24/04/2000 whereon notice was sent on 08/05/2000 for his appearance on 12/05/2000 (Appellant has tried to take an advantage of the date put underneath the signature in notice dated 08/05/2000; however careful reading of the notice reveals that it is issued on 08/05/2000 and not on 08/06/2000 as alleged).
(6) As the appellant did not appear before the Enquiry Officer, he was proceeded ex parte. The prosecution witnesses were examined. The Enquiry Officer furnished the Enquiry Report which was forwarded to the appellant on 03/06/2000. The appellant submitted the reply. The Disciplinary Authority after taking into consideration the reply and after analyzing the evidence on record found the appellant guilty of charges and by order dated 03/07/2000 dismissed the appellant from service. An appeal preferred thereagainst was also dismissed on 30/11/2000.
(7) Appellant challenged the order in Writ Petition on the ground that he was not afforded reasonable opportunity of hearing and that the findings arrived by the Enquiry Officer and the Disciplinary Authority are perverse and that the punishment was disproportionate. The appellant also raised a ground that he was not given the subsistence allowance.
(8) Learned Single Judge found no merit in the contentions raised and declined to cause any 4 WA.245.2007 indulgence, by recording the following findings:
"11. From the facts stated above it is clear that the respondents have tried their best to serve the petitioner but the petitioner deliberately did not receive the notices. The petitioner was residing in the same premises. He had the knowledge with regard to appointment of Enquiry Officer. In such circumstances, it cannot be held that the petitioner was not served the notices by the respondents with regard to Departmental Enquiry. Contrary from the conduct of the petitioner, it appears that he did not want to participate in the enquiry proceedings. Hence, in my opinion, holding the ex parte enquiry against the petitioner was just and proper.
12. The charge against the petitioner with regard to trying to inflict injury on Deputy Commandant by an iron rod was serious in nature. Aforesaid charge and aforesaid misconduct has been found proved by the Enquiry Officer on the basis of the evidence of the persons who were present at the time of the incident. A FIR of the incident and the report to the higher Authority was also lodged. Hence, the finding of the Enquiry Officer, cannot be said to be arbitrary and illegal. The Disciplinary Authority and appellate Authority have also reappreciated the evidence and found no illegality in the findings of facts recorded by the Enquiry Officer.
14. The conduct of the petitioner was also not good. He was punished earlier also with four minor and one major punishments. The details have been mentioned in para 3 of the return filed by the respondents."
(9) The appellant reiterated the submissions made in the writ petition.
(10) Perusal of the Enquiry report reveals that the Enquiry Officer had threadbare analyzed the evidence led by the prosecution qua the charges levelled against 5 WA.245.2007 the appellant found each of the witnesses credible. No part of the evidence of the witnesses is shown to be out of context as would lend any support to the contention that the findings are perverse.
(11) Furthermore, the contention that the appellant was not given reasonable opportunity of hearing is belied from the facts on record that though aware of that a departmental enquiry is initiated against him and instead of participating therein filed a suit in the Court of Civil Judge, Raghogarh, on 20/02/2001 seeking permanent injunction in the following terms:
^^11& lgk;rk %%& vLrq lgk;rkFkZ fuosnu gS fd oknh ds fgr esa rFkk izfroknhx.k ds foijhr] fuEu vk'k; dh vkKkfIr ikfjr dh tkos& v&izfroknhx.k ds foijhr bl vk'k; dh LFkk;h fu"ks/kkKk tkjh dh tkos fd oknh }kjk] izfroknhx.k ds }kjk dh x;h foHkkxh; dk;Zokgh ds foijhr ekuuh; mPp U;k;ky; ds le{k izLrqr ;kfpdk Øekad1863@1999 ,oa 855@1999 iquLFkkZfir ;kfpdk Øekad 56@2000 ,oa c[kkZLrxh vkns'k fnukad 3&7&2000 ds fo:) ofj"B foHkkxh; vf/kdkjh dks dh xbZ vihy ds vafre fujkdj.k i;ZUr rd oknh }kjk fuokflr DokVZj Øekad ,@137 dsvkSlqc bdkbZ foTk;iqj ls csn[ky u rks Lo;a djsa vkSj u fdlh ls djkosaA c&izfroknhx.k ds foijhr bl vk'k; dh vLFkk;h fu"ks/kkKk tkjh dh tkos fd izdj.k ds fujkdj.k i;Zar rd oknh dks okn xzLr DokVZj Øekad ,@137 dsvkSlqc bdkbZ foTk;iqj ls csn[ky u djsa vkSj u fdlh vU; ls djk;saA l& vU; lgk;rk tks ekuuh; U;k;ky; oknh ds fgrkFkZ mfpr o vko';d gks iznku dh tkosA bl okn dk O;; fnyk;k tkosA^^ (12) Trite it is that the judicial review is not against the
6 WA.245.2007 decision. It is against the decision making process. [Bank of India and others Vs. T. Jogram {(2007)7 SCC 236}]. And unless established that there has been "(i) a violation of principle of natural justice or (ii) the proceedings have been held in violation of statutory regulation prescribing mode of such enquiry, (iii) the decision is vitiated by consideration extraneous to the evidence and merits of the case or (iv) if the conclusion made by the authority is ex-facie arbitrary or capricious that no reasonable person could have arrived at such conclusion [please see High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil and another {(2000) 1 SCC 716}].
(13) In Chairman & Managing Director, V.S.P and others v. Goparaju Sri Prabhakara Hari Babu [(2008) 5 SCC 569] it is held:
"20 The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well known factors. It cannot set aside a well reasoned order only on sympathy or sentiments. [See Maruti Udyod Ltd. v. Ram Lal and Others [(2005) 2 SCC 638]; State of Bihar & Ors. v. Amrendra Kumar Mishra [(2006) 12 SCC 561]; SBI v. Mahatma Mishra [(2006) 13 SCC 727; State of Karnataka v. Ameerbi & Ors. [(2007) 11 SCC 681]; State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors. [(2008) 1 SCC 456] and Uttar Haryana Bijli Vitran Nigam Ltd. & Ors. v. Surji Devi [(2008) 2 SCC 310].
21. Once it is found that all the procedural requirements have been complied with, the Courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The Superior Courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the
7 WA.245.2007 jurisdiction would ordinarily not be invoked when the misconduct stands proved. {[See Sangeroid Remedies Ltd. v. Union of India & Ors. [(1999) 1 SCC 259]}.
(14) Their Lordships in Chairman and Managing Director, United Commercial Bank and others v. P.C. Kakkar [(2003) 4 SCC 364] further pleased to hold that:
"11. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision."
(15) That serious charges were levelled against the appellant which stood proved in the departmental enquiry establishing the conduct of the appellant unbecoming of the disciplined force. (16) In "Secretary to Government, Home Deptt. and others Vs. Srivaikundathan [(1998) 9 SCC 553]", it is held:
"4. The Tribunal was also not justified in interfering with the punishment which was imposed on the respondent. It is for the disciplinary authority to consider the punishment which should be imposed. The disciplinary authority in the present case, looking to the gravity of charges, and looking to the fact that both the respondent as well as Joseph were entrusted with the custody of
8 WA.245.2007 the two prisoners and had been guilty of total dereliction of duty, as a result of which a life convict escaped, has imposed a somewhat lessor punishment of removal from service on the respondent. The Tribunal was wrong in saying that since respondent had served only for a short period, he should be given another chance. The Tribunal, in a serious matter involving proper discharge of duty by a member of the Police Force, ought not to have interfered in this wholly unwarranted manner with the punishment imposed. Nor was there any occasion to direct that a second chance be given to the respondent and that he should not be removed from service. Not only is the order beyond the jurisdiction of the Tribunal but is also grossly improper in a case like this."
(17) Even the subsistence allowance was offered to the appellant which he refused as is evident from the counter affidavit wherein it is stated:
"5.6 As to Para 5.6:
The contention raised by the Petitioner that he had not been paid subsistence allowance during his suspension is not correct. The fact is that the subsistence allowance for the period from 21.05.99 to 30.06.99 of petitioner was claimed and drawn vide Bill No.117/99- 2000 (Annexure-XXVIII). Petitioner was informed by Inspector/Exe K.S. Saman along with two other at his Quarter No.A-137 to receive payment of subsistence allowance from payment counter but the petitioner had refused to receive the above payment. (Annexure R/XXIX). In the meantime, the petitioner was ordered to be posted to CISF unit UTPS Ukai on administrative ground along with four others to give natural justice to the petitioner and to maintain peace/Discipline in the unit vide CISF WZ HQrs Mumbai SO No.51/99 dt.07/07/99 (Annexure.R/XVII). Accordingly the petitioner was issued movement order to proceed on regular posting to CISF unit UTPS Ukai vide
9 WA.245.2007 this office letter No.E-
37015/CISF/GAIL/M.O./99/1147 dated 13.07.1999 (Annexure. R/XVIII) but he refused to receive the said movement order, vide General diary No.126 dt. 10.08.99 (Annexure R/XXX). However, the Petitioner was struck of strength from the unit w.e.f. 14.07.99 (FN) vide this unit order referred above. Accordingly the LPC paid up to 30.06.99 was forwarded to Dy. Commandant, UTPS, Ukai vide this office letter No.(1184) dated 20.07.99 and even No.(2428) dated 30.10.99 (Annexure/XXXI). It is also pertinent to mention here that a bank draft bearing machine number TTT 00076-251032 dated 30.10.99 for Rs.2080/- (Rupees two thousand eighty only) pertains to petitioner subsistence allowance was forwarded to Dy. Comdt. UTPS Ukai through Reg./AD Post vide this office letter No.F-20013/(3)/CISF/GAIL/BD- Out/99/2513 dt. 30.10.99 with a request that while disbursing the above subsistence allowance to the petitioner, necessary certificate as per FR-53 (R) regarding non engagement in any other employment, Business, profession etc. may be obtained from the petitioner (Annexure R/XXXII). But the petitioner had not reported to CISF unit, UTPS Ukai. Hence the last pay certificate and subsistence allowance amounting to Rs.2080/- which were forwarded to the petitioner's new place of posting vide this office letter No. (1184) dated 20.07.99 and even No.(24,28) dt. 30.10.99 received back by this unit from Dy. Commandant CISF Unit, UTPS Ukai vide his letter No.(166) dt. 02.12.99. Since the petitioner refused to receive the subsistence allowance through this office and undisbursed pay and allowance of a Government servant could not be kept more than three months under Receipt and Payment rule -92 sub rule (2) of Central Government Account, hence the amount in question was deposited in to Government account through challan No.81 dated 24.02.2000 (Annexure-R/XXXIII). From the above it may be seen that the petitioner has deliberately not taken the subsistence 10 WA.245.2007 allowance and has never produced non engagement/non employment certificate to the competent authority hence, the averment raised by the petitioner are far from the truth and petitioner tried to mislead the Hon'ble High Court."
(18) In view whereof, we find no merit in the appeal as would warrant any interference.
(19) Consequently, appeal fails and is dismissed. No costs.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
(15/03/2018) (15/03/2018)
pd
Digitally signed by
PAWAN DHARKAR
Date: 2018.03.21
17:56:02 -07'00'