Allahabad High Court
Mahendra Nath Verma vs U.P. State Public Services Tribunal ... on 4 September, 2018
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Case :- SERVICE BENCH No. - 30143 of 2016 Petitioner :- Mahendra Nath Verma Respondent :- U.P. State Public Services Tribunal Indira Bhawan Lko. Counsel for Petitioner :- Ajai Kumar Singh,Prerna Singh,Sheshnath Bhardwaj 'Advoc Counsel for Respondent :- C.S.C. Hon'ble Anil Kumar,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Virendra Kumar-II,J.)
1. Heard Mr. Shesh Nath Bhardwaj, learned counsel for petitioner and learned Standing Counsel for the respondents.
2. This writ petition has been instituted by the petitioner assailing judgment and order dated 31.8.2016 passed by the learned State Public Services Tribunal, Lucknow (hereinafter referred to as 'Tribunal') dismissing Claim Petition No. 2248 of 2010 and orders dated 07.08.2009 passed by respondent no. 3, 30.12.2009 passed by respondent no. 4 and order dated 19.06.2010 passed by respondent no. 3.
3. It is pleaded in the grounds of writ petition that the petitioner was appointed on the post of 'Constable' in the year 1998. When the petitioner was posted on 17.04.2008 at district Sitapur. He went to his home town along with his family. Due to certain adverse family circumstances in which the petitioner was evicted from his house. His household items were kept in a room, where his elder brother resided. Consequently, family partition took place and accordingly the petitioner brought all these articles to his government house/accommodation. The petitioner could not report on his duties and he joined the duties on 21.5.2008. The petitioner was placed under suspension vide order dated 16.05.2008 passed by respondent no. 5.
4. A preliminary inquiry was conducted by Dal Nayak, C Dal, Dewetiey Vahini, P.A.C., Sitapur. The petitioner was held guilty. The Inquiry Officer recorded finding that there was no chance of improvement of the petitioner. The Inquiry Officer in his preliminary inquiry report dated 24.05.2008 had not discussed problem explained by the petitioner due to which he remained absent. The Inquiry Officer ignoring his explanation recorded finding that the petitioner was habitual of absenting himself and indisciplined as he has been earlier awarded punishment. The petitioner further pleaded that during course of preliminary inquiry, the copies of the statements of witnesses were not supplied to him nor any witness was examined in his presence. The petitioner was not allowed to cross examine the witness. He was never called upon during course of inquiry so that he could not put his version during the course of inquiry. The petitioner was not afforded opportunity of hearing although the statement of the petitioner was recorded by the inquiry officer.
5. It is further contended by the petitioner that he had in his explanation mentioned the name of witness Sri Ajay Munshi Ji, Chairman Nagar Palika and Sri Pradeep Kumar Swarnkar, who were not examined by the inquiry officer. No independent witness was examined to prove the version of the petitioner incorrect. The inquiry officer relied upon the statement of persons, who were the personnel of the department, therefore the preliminary inquiry is bad in the eyes of law. It is mentioned in the grounds of writ petition that on the basis of preliminary report dated 24.05.2008, the departmental proceedings were initiated against the petitioner and a charge sheet dated 05.06.2008 was served upon him. The petitioner has submitted his reply on 25.06.2008 against the charge sheet served upon him.
6. The perusal of aforesaid charge sheet itself reveals that apart from the charge of absence from duty for about 35 days w.e.f. 17.04.2008, there is another charge of being habitual of remaining absent from the duty as well as of indiscipline, which was not permissible during the departmental proceedings against him. The petitioner has further contended that during course of departmental inquiry, the petitioner was not afforded opportunity of hearing. Neither any witness was examined in presence of the petitioner nor the copies of the statement of witnesses were supplied to him. The witnesses mentioned in his explanation to the charge sheet were not examined. The Inquiry Officer relied upon the statements of the persons, who were the personnel of the department. The petitioner was not allowed to cross examine the witness at all and he was never called upon during the inquiry. The inquiry officer submitted inquiry report dated 06.06.2009 finding the petitioner guilty of unauthorized absence from duties for 35 days w.e.f. 17.04.2008 upto 21.05.2008 and punishment of removal form the services was proposed. The petitioner was given fifteen days time to show cause as to why the said proposed punishment might not be awarded to him.
7. The petitioner has further pleaded that since the copy of the enquiry report had not been supplied to the petitioner despite of the requests made by him in this regard. The petitioner could not reply to the same properly and the respondent no. 5 passed punishment order dated 07.08.2009 removing the petitioner from his services in a very haste and arbitrary manner. The petitioner has further pleaded that though the aforesaid show cause notice dated 26.6.2009 was admittedly served upon him on 27.06.2009 and fifteen days time granted was expiring on 12.07.2009, but a bare perusal of the impugned punishment order itself shows that it was typed and got prepared on 07.07.2009 i.e. prior to the time period, so granted by the show cause notice and such act of waiting for the reply of th show cause notice was only the formality and as such after a lapse of certain time period, it was signed by the competent authority, in order to give it authenticity. Which shows that the authority concerned had make up his mind to remove the petitioner from his services. Accordingly the petitioner was removed vide order dated 07.08.2009.
It is further contended by the petitioner that inquiry officer had not considered the reply of the charge sheet submitted by the petitioner nor defence witnesses were examined. The charge of willful absence from duty could not be proved against the petitioner for imposing the punishment of removal from services, which itself is disproportionate for the charge of absence of duty. There does not exist any material whatsoever before the authorities concerned for holding the petitioner guilty of the charge of absence from duty, as neither it was proved that the absence from duty was willful and was not because of compelling circumstances, and the version/case of the petitioner was incorrect and proved to be fake. The impugned order of punishment had been passed in utter violation of Article 311 of the Constitution of India as well as against the provisions of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as Rules, 1991).
8. The petitioner preferred an appeal under Rule 20 of the Rules, 1991 before respondent no. 4 against the aforesaid punishment order dated 07.08.2009. His appeal was dismissed vide order dated 30.12.2009 without looking into the matter and considering the grievance of the petitioner. Thereafter the petitioner being aggrieved by the aforesaid order dated 30.12.2009 passed by respondent no. 4, the petitioner preferred a revision petition under Rule 23 of the Rules, 1991 before respondent no. 3, which was rejected vide order dated 19.06.2010.
9. It is further pleaded that the petitioner filed a Claim Petition No. 2248 of 2010, which was dismissed vide judgment and order dated 31.08.2016 passed by the learned Tribunal. The Tribunal failed to consider the facts and circumstances, therefore, impugned judgment and order dated 31.08.2016 is not sustainable in eyes of law and is liable to be quashed. The Tribunal has failed to appreciate the fact that there does not exist any material, whatsoever before the authorities concerned for holding the petitioner guilty of the charge of absence from duty, as it was not proved that the absence from duty was willful.
10. On the basis of aforesaid circumstances, following reliefs have been sought by the petitioner in the instant writ petition:-
"a. issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 31.08.2016 passed by the opposite party no. 1, and contained as Annexure No. 1 to the writ petition.
b. issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 7.8.2009, 30.12.2009 and 19.6.2010, passed by the opposite party no. 5, 4 and 3 respectively and contained as Annexure No. 6, 7 and 8 to the writ petition respectively.
c. issue a writ, order or direction in the nature of mandamus commanding the opposite parties to reinstate the petitioner with all the consequential benefits, which have been denied on the basis of impugned orders."
11. Counter affidavit has been filed on behalf of opposite parties by submitting that the petitioner while he was posted as Constable, absented from duties for continuous 35 days without informing the respondents and without taking any leave. Thereafter, a preliminary enquiry was conducted by the officers against the petitioner and a report was submitted and prima facie, it was found that the petitioner was guilty of unauthorized absence. Thereafter regular inquiry was initiated under the provisions of Ruile 14 of the Rules, 1991 and the charge sheet was issued to the petitioner and his reply has been filed. A detailed inquiry was conducted and inquiry officer submitted his inquiry report proposing punishment of removal of the petitioner from service.
12. It is further submitted that a show cause notice along with inquiry report was submitted to the petitioner but in response thereof, the petitioner did not submit any reply to the show cause notice and as such vide order dated 07.08.2009, punishment order was passed against the petitioner, by which he was removed from the service. The petitioner preferred an appeal and the same was dismissed vide order dated 30.12.2009. Thereafter a revision was also preferred, which was also dismissed vide order dated 16.09.2010. It is further mentioned that the petitioner filed Claim Petition No. 2248 of 2010 before the learned Tribunal challenging the aforesaid three orders by the respondents. By means of order dated 31.08.2016, claim petitioner filed by the petitioner was dismissed.
13. It is further contended in the counter affidavit that during the course of preliminary inquiry, the statement of the petitioner was recorded on 22.05.2008 in which he has accepted that he was unauthorizedly absent for 35 days, which was annexed as Annexure No. 3 with written statement filed before the Tribunal. It is further mentioned that during the course of departmental inquiry, statement of the petitioner was recorded on 20.10.2008 in which he has accepted that he did not want any document. This statement was annexed as Annexure No. 5 along with written statement.
14. The respondents have further contended that the petitioner was not removed from the services merely on the ground of 35 days unauthorized absence, but when the entire record was examined and considered then it was found that during short span of period of ten years, the petitioner was absented from duties for 24 times. The inquiry officer recorded a finding that the petitioner is not fit to be continued in the police department which is a disciplined force and as such he recommended for his removal. He behaved like indiscipline person. He was also awarded various punishment in short period of ten years of his service. The petitioner never changed his behaviour therefore preliminary inquiry was conducted and final inquiry was also conducted in accordance with law and thereafter punishment order was passed against the petitioner.
15. It is further mentioned by the respondents that the petitioner while posted as Constable at Sitapur on 17.04.2008 he went away without taking any leave and returned back on 21.05.2008. Meanwhile a registered letter was sent at the residence of the petitioner, but despite issuance of the aforesaid letter, the petitioner never appeared and behaved like a dictator. The respondents have mentioned in paragraph no. 11 of the counter affidavit that during short period of ten years of services, the petitioner has been awarded various punishments i.e. four times fine has been imposed upon him and 24 times, he was absented from duties without any leave and adverse entry was also awarded to the petitioner in the year 2006-07. After considering the entire record of the petitioner, the aforesaid punishment has been passed against the him.
16. It is further mentioned in the counter affidavit that punishment order has been passed after recording his statement on 22.5.2008 and after providing full opportunity of hearing. The preliminary inquiry has been conducted only to find out that whether regular enquiry against the employee required to be conducted or not? After conducting the regular inquiry, the importance of preliminary inquiry has not relevance.
17. It is further submitted that charge sheet dated 05.06.2008 was issued to the petitioner under Rule 14 (1) of the Rules, 1991. The petitioner had submitted reply during the course of regular inquiry and he was afforded full opportunity of hearing. The petitioner himself in his statement dated 20.10.2008 has stated that he does not require any document. He was also given opportunity for cross examination. The statements of the witnesses were also recorded in presence of the petitioner, but the petitioner has not utilized the opportunity of cross examination of any witnesses and as such, the contention of the petitioner that inquiry conducted ex-parte is wholly illegal invalid and baseless.
18. The respondents have also contended that on 26.06.2008 a show cause notice along with copy of the inquiry report was issued to the petitioner, but the petitioner did not submit any reply to the show cause notice and as such the petitioner deliberately did not file any reply. Therefore, in absence of the reply, the punishment order has been passed against the petitioner on 07.08.2009, which is just, legal and proper. The inquiry officer has recorded finding in preliminary inquiry report dated 24.05.2009 in correct perspective mentioning the earlier punishment awarded to the petitioner. The petitioner never tried to improve his behaviour as well as character and during the punishment period, the petitioner was again absented from duty deliberately for continuous 35 days. The petitioner is a member of disciplined force i.e. P.A.C., but the petitioner has misbehaved with others during short period of ten years.
19. The respondents have further submitted that the petitioner preferred appeal against the punishment order dated 07.08.2009. The appellate authority after considering the material available on record dismissed the appeal vide order dated 30.12.2008. Likewise his revision was also dismissed vide order dated 09.06.2010. The Tribunal after considering the written statement submitted by the petitioner and after hearing counsel for both the parties, dismissed the claim petition filed by the petitioner and as such, the punishment has also been upheld. Therefore, no interference is required under Article 226 of the Constitution of India. The petitioner is not entitled to get any relief as sought by him.
20. The petitioner has filed rejoinder affidavit reiterating his earlier contentions mentioned in the grounds of writ petition.
21. In support of his submission, learned counsel for petitioner has relied upon following judgments. The details of which are given below:-
In the case of Ram Pal Singh Vs. Director of Agriculture, U.P. and others reported in [2012 (30) LCD 843], learned Single Judge has held in paragraph no. 13 as under:-
"In view of the factual matrix of the present case, the first point which is to be adjudicated is whether the action on the part of Inquiry Officer to recommend the punishment after holding the inquiry proceedings is a valid action on his part or not. The answer to this question finds place in the judgment rendered by Hon'ble Apex Court in the case of State of Uttaranchal and others Vs. Kharak Singh (2008) 8 SCC 236, held as under:-
"In regard to the question whether an enquiry officer can indicate the proposed punishment in his report, this Court, in a series of decisions has pointed out that it is for the punishing/disciplinary authority to impose appropriate punishment and enquiry officer has no role in awarding punishment. It is useful to refer to the decision of this Court in A.N.D'Silva vs. Union of India, AIR 1962 SC 130wherein it was held: (AIR 1134 para 6) "In the communication addressed by the Enquiry Officer the punishment proposed to be imposed upon the appellant if he was found guilty of the charges could not properly be set out. The question of imposing punishment can only arise after enquiry is made and the report of the Enquiry Officer is received. It is for the punishing authority to propose the punishment and not for the enquiring authority."
In the case of State of Uttaranchal and others Vs. Kharak Singh reported in (2008) 8 SCC 236 Hon'ble Apex Court has held in paragraph nos. 18 and 19 as under:-
18. Another infirmity in the report of the enquiry officer is that he concluded the enquiry holding that all the charges have been proved and he recommended for dismissal of the delinquent from service. The last paragraph of his report dated 16-11-1985 reads as under:
"During the course of above inquiry, such facts have come into light from which it is proved that the employee who has doubtful character and does not obey the order, does not have the right to continue in the government service and it is recommended to dismiss him from the service with immediate effect."
(emphasis supplied) Though there is no specific bar in offering views by the enquiry officer, in the case on hand, the enquiry officer exceeded his limit by saying that the officer has no right to continue in the government service and he has to be dismissed from service with immediate effect.
19. As pointed out above, awarding appropriate punishment is the exclusive jurisdiction of the punishing/disciplinary authority and it depends upon the nature and gravity of the proved charge/charges and other attended circumstances. It is clear from the materials, the officer, who inspected and noted the shortfall of trees, himself conducted the enquiry, arrived at a conclusion holding the charges proved and also strongly recommended severe punishment of dismissal from service. The entire action and the course adopted by the enquiry officer cannot be accepted and is contrary to the well-known principles enunciated by this Court.
Hon'ble the Apex Court in the case of Krushnakant B. Parmar Vs. Union of India and another reported in [2012 (30) LCD 519] has held in paragraph nos. 16 to 20 as under:-
"16. The question whether 'unauthorized absence from duty' amounts to failure of devotion to duty or behavior unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful 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 willful.
18. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a Government servant.
19. In a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct.
20. 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 willful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the Appellant guilty."
In the case of Hardwari Lal Vs. State of U.P. and others reported in (1999) 8 SCC 582 Hon'ble Apex Court has held in paragraph no. 3 as under:
3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material, In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant.
A Division Bench of this Court in the case of Masood Asghar Vs. Uttar Pradesh State Public Service Tribunal, Indira Bhawan, Lucknow and others reported in [2018 (36) LCD 1250] has held in paragraph nos. 9 and 10 as under:-
"9. A Division Bench of this Court at Allahabad in Yash Pal Singh's case supra has treated the recommendation of the Inquiry Officer, on the point of punishment, as an irregularity and has relegated the matter to the disciplinary authority to reconsider the award of punishment, applying his own mind to the facts of the case. The aforesaid facts are not disputed by the Standing Counsel.
10. We are further of the view that in terms of Appendix-1 to the Rules, 1991 the Inquiry Officer cannot and should not refer to the proposed punishment in the inquiry report itself, and he may at the most submit his recommendation on a separate paper to the disciplinary authority."
Hon'ble the Apex Court in the case of Indu Bhushan Dwivedi Vs. State of Jharkhand and another reported in (2010) 11 SCC 278 has held in paragraph nos. 23 and 28 as under:-
23. When it comes to taking of disciplinary action against a delinquent employee, the employer is not only required to make the employee aware of the specific imputations of misconduct but also to disclose the material sought to be used against him and give him a reasonable opportunity of explaining his position or defending himself. If the employer uses some material adverse to the employee about which the latter is not given notice, the final decision gets vitiated on the ground of the violation of the rule of audi alteram partem. Even if there are no statutory rules which regulate holding of disciplinary enquiry against a delinquent employee, the employer is duty-bound to act in consonance with the rules of natural justice--U.P. Warehousing Corpn. v. Vijay Narayan Vajpayee [(1980) 3 SCC 459 : 1980 SCC (L&S) 453].
28. An analysis of the two judgments shows that while recommending or imposing punishment on an employee, who is found guilty of misconduct, the disciplinary/ competent authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. However, such an opportunity is not required to be given if the final punishment is lesser than the proposed punishment."
Hon'ble the Apex Court in the case of Mohd. Yunus Khan Vs. State of Uttar Pradesh and others reported in (2010) 10 SCC 539 has held in paragraph nos. 34 and 37 (x) as under:-
"34. The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show-cause notice, before imposing the punishment.
37. ...................
(X). The appellate authority could not consider the past conduct of the appellant to justify the order of punishment passed by the disciplinary authority without bringing it to the notice of the appellant."
In the case of Chairman Cum Managing Director, Coal India Ltd. and another Vs. Mukul Kumar Choudhuri and others reported in (2009) 15 SCC 620 Hon'ble Apex Court has held in paragraph no. 21 as under:-
"21. In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations."
22. We have perused record on the basis of exposition of law relied upon by learned counsel for petitioner.
23. The Commandant P.A.C. Battalion II, Sitapur vide order dated 16.5.2008 had suspended the petitioner on the basis of his unauthorized absence from the "Dalel Parade" without sanction of leave since 17.4.2008. Sri Tara Chand Verma, Dal Nayak, C Dal, P.A.C. Battalion II, Sitapur was appointed as inquiry officer to conduct preliminary inquiry. He submitted his preliminary inquiry report dated 24.5.2008 to the Commandant of the aforesaid P.A.C. Battalion. The inquiry officer during the course of preliminary inquiry recorded the statement of witness Constable Shri Dinesh Kumar Verma, who maintained character rolls of the employees of the battalion, H.C.L.P. Mohd. Masauddin, Subedar Harpal Singh, Constable Kamlesh Kumar Rai and perused the character roll of the petitioner. The statement of the petitioner-Mahendra Nath Verma was also recorded by the inquiry officer.
24. Preliminary inquiry officer has mentioned details of punishments awarded to the petitioner and his earlier unauthorized absence.
25. Witness Sri Dinesh Kumar Verma proved the entire record of earlier absence and punishment awarded to the petitioner during the course of preliminary inquiry. The inquiry officer has recorded finding regarding occasion/conduct of indiscipline committed by the petitioner. The petitioner awarded punishment of censure also.
26. Constable Waseem Ahmad has proved this fact that on 19.4.2008 vide G.D. No. 11 time 12:20 the petitioner joined on 21.5.2008 after remaining absent for 34 days, 12 hours and 20 minutes. He absented himself from "Dalel Parade" (kind of punishment) without any rhyme or reason and without sanction of leave. Constable Kamlesh Kumar Rai proved this fact that on 17.04.2008 H.C. L.P. Mohd. Masauddin handed over a written letter to him that the petitioner had to perform "Dalel Parade" at 10:00 on the basis of directions given by Subedar, but he absented himself from Dalel Parade and he recorded this fact in G.D. No. 8 at 10:00. Witness H.C.L.P. Mohd. Masauddin and Haripal Singh Subedar corroborated the statement of Constable Kamlesh Kumar Rai regarding absence of the petitioner from Dalel Parade.
27. The inquiry officer has also recorded statement of the petitioner during the course of preliminary inquiry and considered the explanation given by him regarding his absence. The petitioner in this statement has accepted that he did not perform Dalel Parade on 17.04.2008. He remained at his village during the period from 18.4.2008 up to 18.5.2008. Witness Dinesh Kumar Verma has also proved this fact that registered letter dated 26.04.2008 was sent to the petitioner for joining the duties. This registered letter No. R-611-2008 was received back on 8.5.2008 with endorsement of employee of postal department that the petitioner was not available on the given address.
28. The petitioner also accepted this fact that he did not return at his government accommodation and remained in his village during the aforesaid period. Neither he applied for leave during his period of absence nor he informed any superior authority regarding eventualities faced by him on 17.4.2008.
29. The petitioner has stated in his statement before preliminary inquiry officer that there was dispute between the petitioner and his family members and he stored/dumped his household good in a room, where his elder brother Pradeep Kumar Swarnkar resided. He has not disclosed this fact that on which date he brought his household goods at his government residence. The petitioner did not produce Ajay Munshi Ji, Chairman of Nagar Palika and his neighbour Pappu, who gave him information on 17.4.2008 at 21:00 hours to prove his defence regarding absence since 17.4.2008 up to 21.05.2008. During the course of preliminary inquiry, he has not applied before the inquiry officer to afford opportunity of cross examination of the witnesses examined on behalf of the department.
30. On perusal of preliminary inquiry report submitted by inquiry officer Sri Tara Chandra Verma, it revealed that entries of character roll of earlier punishment imposed on the petitioner was considered. After perusal of his character roll and evidence of witness Dinesh Kumar Verma, he was given opportunity to explain the absence during the period from 17.4.2008 upto 21.5.2008. Moreover, during the period from 3.5.2003 up to 27.6.2007, the petitioner absented himself unauthorizedly from duty for 399 days. The details have been mentioned by the inquiry officer in his preliminary inquiry report. Leave without pay was sanctioned for this period of 399 days.
31. The preliminary inquiry officer vide his report dated 24.5.2008 has reported to the Commandant of Battalion II, Sitapur, on perusal of his character roll earlier punishments awarded to the petitioner and his earlier unauthorised absence.
32. The Commandant, PAC Battalion-II, Sitapur vide order dated 30.05.2008 initiated departmental inquiry under Section 14 (1) of Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (herein after referred to as "Rules, 1991) on the basis of Preliminary Inquiry Report and his suspension was revoked. The Assistant Commandant was appointed as Inquiry Officer.
33. The Inquiry Officer Sri Amit Mishra was initially appointed and thereafter on his transfer the departmental inquiry was nominated on 28.07.2008 to Sri Zalim Singh, on 08.08.2008 to Sri Gajraj Singh Sirohi and on 05.12.2018 to Sri Sanjay Kumar Yadav. The Inquiry Officer supplied copy of the preliminary inquiry report dated 24.04.2008, copies of statements of witnesses recorded during the preliminary inquiry, copies of G.D. Total 18 documents were supplied on 05.06.2008 to the petitioner.
34. Charge-sheet No. 2/2008 dated 05.06.2008 was served on the petitioner, who denied the charges. The following charge was framed against the petitioner during the course of departmental inquiry.
"o"kZ&2008 esa tc vki lh ny f}rh; okfguh ih,lh] lhrkiqj esa fu;qDr Fks rks fnukad 17-04-08 dks tc vki ,d vU; vuq'kklughurk ds ekeys esa crkSj ltk nysy@ijsM dj jgs Fks] fcuk fdlh vuqefr ;k vodk'k ds vuqifLFkr gks x;s rFkk fnukad 21-05-08 dks 35 fnol vuqifLFkr gksdj drZO; ij okil vk;sA vkids lsok vfHkys[kksa ls ik;k x;k fd LosPNk ls vuqifLFkr jgus ds vknh o vuq'kklughu gSa] ftlds fy, vkidks le;≤ ij nf.Mr fd;k x;k gS] fdUrq fQj Hkh vkiesa dksbZ lq/kkj ugha gSA vkidk ;g d`R; izekn] vuq'kklughurk ,oa LosPNkpkfjrk dk ifjpk;d gSA"
35. The Inquiry Officer recorded statements of witnesses Kamlesh Kumar Rai, Mohd. MosimuddinHC, Constable Sri Waseem Ahmad Ansari, Sri Hari Pal Singh, Platoon Commander, the then Subedar. Opportunity for cross-examination of these witnesses was afforded to the petitioner. The petitioner did not avail this opportunity for witnesses Kamlesh Kumar Rai, Mohd. Mosimuddin and Waseem Ahmad, who reiterated their statements regarding absence of the petitioner since 17.04.2008 to 21.05.2008.They have also proved this fact that the petitioner absented himself from "Dalel Parade".
36. PW-4 Hari Pal Singh, the then Subedar was cross-examined by the petitioner. This witness has refuted this suggestion that he (petitioner) went to get recorded his statement before Bhalla Sahab. He has specifically stated that the petitioner did not obtain any permission for this purpose and he passed order regarding his absence on the basis of report submitted by L.P. Hawaldar. He has also stated the he has no knowledge, when the petitioner submitted his joining report at 14.30 hours. He complied with the orders of the Commandant after his joining, when he came to him for his joining.
37. Therefore, no material fact was elicited during the course of cross-examination of witness Hari Pal Singh. Witness Dinesh Kumar Verma, who maintained Character Rolls of employee of PAC Battalion II, Sitapur was also examined by the Inquiry Officer, who has proved that during period of unauthorized absence of the petitioner, letter dated 26.04.2008 was sent to the petitioner asking him to join. This witness was not cross-examined by the petitioner, even then opportunity was afforded to him.
38. The Inquiry Officer has also examined Sri Tara Chandra Verma, who conducted the preliminary inquiry against the petitioner, who has proved his preliminary report dated 24.05.2008 and further proved this fact that he found the petitioner guilty of unauthorized absence from "Dalel Parade". Opportunity of cross-examination was afforded to the petitioner, but he did not avail this opportunity. The witness Ghisiyawan Ram, P.C. employee of Battalion also proved this fact that Raju Sweeper made a complaint before him, when he inspected the Gard Room of the company/battalion and apprised him that Mahendra Nath Verma assaulted his child. In the meanwhile petitioner arrived along with his wife at Gard Room and stated that he was going to the Commandant. The petitioner has cross-examined this witness also, in which, he has clarified this fact that wife of Raju did not try to attack the petitioner with her sleeper in his presence, when the petitioner came to get recorded his statement before Sri Bhalla.
39. The Inquiry Officer has recorded statement of the petitioner also. He has reiterated his statement as mentioned in the preliminary inquiry report. He has accepted that he did not attend "Dalel Parade" on 17.04.2008 at 10.00 a.m. and he remained at his native/village during the period 18.04.2018 to 18.05.2018. He has also accepted that he had not applied for leave and he never reported the family dispute/problem to his higher authorities.
40. The Inquiry Officer has perused explanation along with 70 annexures submitted by the petitioner before Sri Amit Mishra, Assistant Commandant, who was initially appointed as Inquiry Officer. He explained his earlier absence and contended that the department without any rhyme and reason sanctioned his leave without salary. The Character Roll of the petitioner was produced during the course of preliminary inquiry as well as departmental inquiry by the witness Constable Shri Dinesh Kumar Verma, which was also perused by the Inquiry Officer and recorded the earlier punishment awarded to the petitioner and detail his unauthorized absence, which are as follows:
"fuUnk ys[k%& o"kZ& 2004 esa ,d ifjfuUnk ys[k fZM;wVh ls euk djus ds ,oa xkMZ dek.Mj ds lkFk vHknzrk djus ds lEcU/k esaA vFkZ n.M %& 1& o"kZ 2005 esa 08 fnol fcuk vuqefr@vodk'k ls vuqifLFkr jgus ds lEcU/k esa 01 fnol osru ds cjkcj vFkZn.M ls nf.Mr fd;k x;kA 2& o"kZ 2006 esa yM+kbZ&>xM+k djus ds lEcU/k esa 15 fnol osru ds cjkcj vFkZn.M ls nf.Mr fd;k x;kA 3& o"kZ 2007 esa 105 fnol vuqifLFkr jgus ds lEcU/k esa 15 fnol osru ds cjkcj vFkZn.M ls nf.Mr fd;k x;kA 4& o"kZ 2007 esa 89 fnol vuifLFkr jgus ds lEcU/k esa 30 osru ds cjkcj vFkZn.M ls nf.Mr fd;k x;kA nysy ijsM %& 1& o"kZ 2003 esa 50 fnol vuqifLFkr ds lEcU/k esa 10 fnol nysy@ijsM ls nf.Mr fd;k x;kA 2& o"kZ 2004 es 02 fnol vuqifLFkr ds lEcU/k esa 07 fnol nysy@ijsM ls nf.Mr fd;k x;kA 3& o"kZ 2004 esa 07 fnol vuqifLFkr ds lEcU/k esa 07 fnol nysy@ijsM ls nf.Mr fd;k x;kA 4& o"kZ 2004 esa fM;wVh ls xSjgkftj gksus ds lEcU/k esa 03 fnol nysy@ijsM ls nf.Mr fd;k x;kA 5& o"kZ 2005 esa fM;wVh gsrq jokuk fd;s x;k Fkk] vuqifLFkr gks x;k 24 fnol vuqifLFkr gksdj okil vk;k] ds lEcU/k esa 14 fnol nysy@ijsM ls nf.Mr fd;k x;kA 6& o"kZ 2005 esa 14 fnol fcuk vuqefr@ vodk'k ls vuqifLFkr ds lEcU/k esa 10 fnol nysy@ijsM ls nf.Mr fd;k x;kA 7& o"kZ 2005 esa 46 fnol fcuk vodk'k@vuqefr dss vuqifLFkr ds lEcU/k esa 14 fnol nysy@ijsM ls nf.Mr fd;k x;kA 8& o"kZ 2005 esa iksLV ij fM;wVh gsrq u tkdj 13 fnu vuqifLFkr gksus ij 10 fnol nysy@ijsM ls nf.Mr fd;k x;kA 9& o"kZ 2006 esa okfguh ls ny eq[;ky; gsrq izLFkkukns'k fn;k x;k rks vuqifLFkr gksus ij 10 fnol nysy@ijsM ls nf.Mr fd;k x;kA 10& o"kZ 2008 esa DokZVj xknZ fM;wVh ls vuqifLFkr gksus ij 07 fnol nysy@ijsM ls nf.Mr fd;k x;kA izfrdwy okf"kZd eUrO; dk fooj.k%& o"kZ&2003 ßvPNk LokLF; okyk u;k vkj{khA drZO;ksa ds izfr ykijokg ,oa fu:RlkfgrA O;ogkfjdrk vHknzA dk;Z ,oa vkpj.k v'kksHkuh; lR;fu"Bk izekf.kr Js.kh vlarks"ktudAß o"kZ&2004 ßvkyksP; vof/k esa vkj{kh dk dk;[email protected] ek= larks"ktud jgk gS] fM;wVh ds izfr ykijokg ,oa xSj ftEesnkj gS rFkk vodk'k ls vuqifLFkr gksus dk vknh gS] blfy;s vkyksP; vof/k esa ,d nq"pfj= ys[k ,oa rhu ckj nysy@ijsM ls nf.Mr gqvk gSA dqN papy LokHkko dk Hkh gS] lq/kkj dh vko';drk gS] lR;fu"Bk izekf.kr dh tkrh gSA Js.kh larks"ktud ek=Aß o"kZ 2005& ßvkyksP; vof/k esa vkj{kh dk dk;Z ,oa vkpj.k cgqr gh [kjkc jgk gS] ;g vkj{kh vius drZO; ds izfr ?kksj ykijokg gSA o"kZ esa dqy 06 ckj esa 148 fnol drZO; ls vuf/kd`r :i ls xSjgkftj jgk gS] blds vfrfjDr vkdfLed vodk'k&30 fnol] mikftZr vodk'k&30 fnol] esfMdy vodk'k&35 fnol dk miHkksx fd;k gS rFkk xSjgkftj jgus ij fofHkUu n.Mksa ls nf.Mr Hkh gqvk gSA fQj Hkh bl vkj{kh dh xSjgkftj jgus ds vknr esa foxr o"kksZa dh HkkWfr fyf[kr :i ls ckj&ckj lpsr fd;s tkus ds ckotwn Hkh dksbZ lq/kkj ugha vk jgk gS] vkSj fdlh u fdlh cgkus ls okfguh eq[;ky; esa gh :duk ilUn djrk gSA lR;fu"Bk izekf.kr dh tkrh gS] Js.kh cgqr gh [kjkcAß o"kZ 2006& ßo"kZ esa ;g vkj{kh fn0 10-05-06 dks bZ ny ls LFkkukUrj.k ij lh ny esa vk;k gSA rc ls 78 fnol vodk'k ls vuqifLFkr jgk gSA o"kZ&2005 esa lsukuk;d] Jh y[ku yky vfgjokj }kjk foijhr earO; iznku djus ds mijkUr Hkh vkj{kh ds xSjgkftj gksus esa dksbZ lq/kkj ugha gSA lR;fu"Bk izekf.kr Js.kh larks"ktudAß o"kZ 2007& ßdk;Z ,oa vkpj.k larks"ktud jgkA vkj{kh vodk'k ls vuqifLFkr jgus dk vknh gSA o"kZ esa ,d mRre izfof"V ls iq:Ld`r fd;k x;k gSAß o"kZ 2008& ßdk;Z ,oa vkpj.k larks"ktud jgk gSA vkj{kh ds fo:) mRrj&izns'k v/khuLFk deZpkjh Js.kh fu;ekoyh ¼foHkkxh; dk;Zokgh½ 14¼1½ izpfyr gS ,oa lR;fu"Bk izekf.kr gSA Js.kh larks"ktudAÞ fcuk osru vodk'k %& 1& 49 fnol fcuk osru vodk'k fnukad 03-05-03 2& 07 fnol fcuk osru vodk'k fnukad 08-04-04 3& 03 fnol fcuk osru vodk'k fnukad 02-11-03 4& 43 fnol fcuk osru vodk'k fnukad 12-10-04 5& 24 fnol fcuk osru vodk'k fnukad 18-03-05 6& 08 fnol fcuk osru vodk'k fnukad 31-05-05 7& 14 fnol fcuk osru vodk'k fnukad 10-10-05 8& 46 fnol fcuk osru vodk'k fnukad 16-08-05 9& 13 fnol fcuk osru vodk'k fnukad 07-11-05 10& 31 fnol fcuk osru vodk'k fnukad 24-11-04 11& 01 fnol fcuk osru vodk'k fnukad 03-01-06 12& 03 fnol fcuk osru vodk'k fnukad 10-05-06 13& 03 fnol fcuk osru vodk'k fnukad 20-11-06 14& 105 fnol fcuk osru vodk'k fnukad 18-07-06 15& 89 fnol fcuk osru vodk'k fnukad 22-02-07 16& 02 fnol fcuk osru vodk'k fnukad 02-06-07 17& 51 fnol fcuk osru vodk'k fnukad 27-06-07 18& 06 fnol fcuk osru vodk'k fnukad 26-10-07 19& 14 fnol fcuk osru vodk'k fnukad 26-01-08 20& 01 fnol fcuk osru vodk'k fnukad 03-03-08 21& 02 fnol fcuk osru vodk'k fnukad 07-06-08 22& 01 fnol fcuk osru vodk'k fnukad 02-02-09 23& 01 fnol fcuk osru vodk'k fnukad 24-03-09 24& 02 fnol fcuk osru vodk'k fnukad 10-02-08"
41. Thus during period from 03.05.2003 up to 24.03.2009 leave without pay was sanctioned for 519 days by the competent authority. The Inquiry Officer after conclusion of departmental inquiry has recorded findings, which is as follows:
"fu"d"kZ%& vkjksih vkj{kh 980441552 egsUnz ukFk oekZ lh ny fnukad 17-04-08 dks nysy ijsM ls fcuk vuqefr@ vodk'k ds 35 fnol vuf/kd`r :i ls vuqifLFkr jgus dk nks"kh ik;k tkrk gSA pfj=iath ds vuqlkj dqy 11 o"kZ ds lsokdky esa vkjksih vkj{kh egsUnz ukFk oekZ dks fM;wVh ls euk djus ,oa xknZ dek.Mj ds lkFk vHkznrk djus ds lEcU/k esa o"kZ&2004 esa ifjfuUnkys[k iznku fd;k x;k FkkA bl vkj{kh dks o"kZ&2005 esa 01 fnol] o"kZ&2006 esa 15 fnol o"kZ&2007 esa 45 fnol ,oa 30 fnol osru ds cjkcj vFkZ n.M ls nf.Mr fd;k x;k gSA bl vkj{kh dks o"kZ &2003 esa 10 fnol] o"kZ&2004 esa 07 fnol] iqu% 07 fnol] 03 fnol] o"kZ&2005 esa 14 fnol] 10 fnol] 14 fnol] 10 fnol] o"kZ&2006 esa 10 fnol] o"kZ&2008 esa 07 fnol nysy@ijsM ds n.M ls nf.Mr fd;k x;k gSA bl vkj{kh dks vc rd 24 ckj esa dqy 519 fnol vuqifLFkfr dk fcuk osru vodk'k iznku fd;k x;k gSA bl vkj{kh ij o"kZ&2003] o"kZ&2004] o"kZ&2005] o"kZ&2006] o"kZ&2007 ,oa o"kZ&2008 ds okf"kZd eUrO; esa izfrdwy fVIi.kh dh x;h gS vkSj bls xSjgkftj gksus dk vH;Lr ik;k x;k gSA xokgks ds c;ku ,oa vfHkys[kksa ds voyksdu ls esjk ;g iw.kZr;k lek/kku gks x;k gS fd vkjksih vkj{kh 980441552 egsUnz ukFk oekZ iw.kZr;k vuq'kklughu] ykijokg] vdeZ.;] fcuk vodk'k vuqefr gksus dk vH;Lr gSA ;g l{ke vf/kdkfj;ksa ds vkns'k dh vogsyuk djus dk Hkh vH;Lr gSA bl vkj{kh ds vkpj.k esa lq/kkj dh dksbZ xqatkb'k ugha gSA ckj&ckj drZO; ls vuqifLFkr gksus ds dkj.k i=kpkj] tkWp ,oa n.M nsus esa jktdh; le; ,oa /ku O;; gksrk gSA vkjksfir vkj{kh 980441552 egsUnz ukFk oekZ ih,lh cy tSls vuq'kkflr cy dk lnL; jgus ;ksX; ugha gSA nysy@ijsM ls fcuk vodk'k vuqefr ds 35 fnol vuf/kd`r :i ls vuqifLFkr jgus dk nks"kh ik;s tkus ,oa dqy 11 o"kZ dh lsokdky esa vc rd 06 izfrdwy okf"kZd eUrO;] 01 ifjfuUnk ys[k] 04 ckj vFkZ n.M] 10 ckj ijsM nysy ,oa 24 ckj fcuk osru vodk'k dk n.M iznku fd;s tkus ds QyLo:i bldh vR;Ur fuEu dksfV dh lsok gksus ds dkj.k ;g ih,lh cy dh lsok esa j[ks tkus ;ksX; ugha gSA vr% eS ihBklhu vf/kdkjh vkjksfir vkj{kh 980441552 egsUnz ukFk oekZ lh ny dks fnukad 17-04-08 ls 35 fnol nysy ijsM ls vuf/kd`r :i ls vuqifLFkr jgus dk nks"kh ikrk gWw ;g vuf/kd`r :i ls xSjgkftj gksus dk vH;Lr gSA blds vkpj.k esa lq/kkj dh dksbZ lEHkkouk ugha gSA dqy 11 o"kZ ds lsokdky esa bls iznRr n.M rFkk mlds }kjk ckj&ckj dh tk jgh vuq'kklughurk dks ns[krs gq;s bls ih,lh cy ls fu"dkflr djuk vfuok;Z gSA bldh fud`"V lsok] vuq'kklughurk ,oa ykijokgh dk dqizHkko vU; deZpkfj;ksa ij u iMs+] blfy, vkjksfir vkj{kh 980441552 egsUnz ukFk oekZ dks m0iz0 v/khuLFk Js.kh ds iqfyl vf/kdkfj;ksa dh ¼n.M vkSj vihy½ fu;ekoyh&1991 ds fu;e 14 ¼1½ ¼d½ ds vUrxZr lsok esa inP;qr fd;s tkus dk n.M izLrkfor fd;k tkrk gS] fdUrq ;g vkns'k lsukuk;d ds vuqeksnu i'pkr gh izHkkoh ekuk tk;sxkA ;g mikifRr (Finding) vkids voyksdukFkZ ,oa vko';d dk;Zokgh gsrq lknj izsf"kr gSA"
42. Therefore, charge of unauthorized absence of 35 days as well as previous misconduct in this regard was found proved by the Inquiry Officer.
43. There is no substance in the argument of learned Counsel for the petitioner that his earlier misconduct could not be considered by the preliminary inquiry officer or departmental inquiry officer. A specific charge was framed in this regard of misconduct and unauthorized absence of the petitioner. The occasions on which the petitioner committed misconduct of indiscipline also, was mentioned in his report by the preliminary inquiry officer.
44. The inquiry officer, during the course of departmental inquiry, has found that the petitioner unauthorizedly absented himself willfully since 17.4.2008 upto 31.05.2008 for 35 days. On perusal of his character roll, he recorded finding that the petitioner was habitual of unauthorized absence and indulged in quarrel with colleagues.
45. It is relevant to mention here that on the point of moral turpitude, the following Case Law of Apex Court and this Court is relevant:
In the case of Allahabad Bank v. Deepak Kumar Bhola, reported in (1997) 4 SCC 1. The Hon'ble Apex Court has been observe as under:-
9. This Court in Pawan Kumar v. State of Haryana [(1996) 4 SCC 17 : 1996 SCC (Cri) 583] (SCC at p. 21) dealt with the question as to what is the meaning of the expression "moral turpitude" and it was observed as follows:
" ''Moral turpitude' is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity."
This expression has been more elaborately explained in Baleshwar Singh v. Distt. Magistrate and Collector [AIR 1959 All 71] where it was observed as follows:
"The expression ''moral turpitude' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellowmen or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man."
The Division Bench (in which I was also a member) of this Court in the case of State of U.P. and others Vs. Parashuram and another decided on 7.5.2018 in Writ Petition No. 2989 (SB) of 2018 has observed as under:-
........... At this juncture, it would be useful to mention that act of the respondent falls within the definition of "moral turpitude' which means anything done contrary to justice, honesty, modesty of good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. The issue relating to moral turpitude has been also decided by the Apex Court in relation to a government servant in the case of Pawan Kumar Vs. State of Haryana reported in 1996(4)SCC 17 as also in the case of Allahabad Bank Vs. Deepak Kumar Bhola reported in (1997) 4 SCC 1 wherein it was held as follows:-
"25. In view of the above, it is evident that moral turpitude means anything contrary to honesty, modesty or good morals. It means vileness and depravity. In fact, the conviction of a person in a crime involving moral turpitude impeaches credibility as he has been found to have indulged in shameful, wicked and base activities."
46. His conduct comes within the category of moral turpitude as he disclosed vileness and depravity in the doing of his duties being a member of disciplined P.A.C. force. The expression 'moral turpitude' means anything done contrary to justice, honesty, modesty of good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellow men or to the society in general. The expression moral turpitude was explained and held in the case in Baleshwar Singh Vs. District Magistrate and Collector reported in AIR 1959 Allahabad 71, which was considered by Hon'ble Supreme Court in the case of Allahabad Bank Vs. Deepak Kumar Bhola reported in (1997) 4 SCC 1. His conduct was of unbecoming a government servant and member of disciplined P.A.C. force.
47. The petitioner was removed vide order dated 07.08.2009 passed by the Commandant PAC Battalion II Sitapur, after considering the departmental inquiry report submitted by Inquiry Officer on 06.06.2009 and the evidence available on record. A detailed reasoned order has been passed by the disciplinary authority. Likewise, the appeal preferred by the petitioner assailing his removal order dated 07.08.2009 passed by the disciplinary authority was dismissed vide detailed reasoned order dated 30.12.2009. The petitioner preferred revision before the revisional authority, I.G. PAC Madhya Zone, Uttar Pradesh Lucknow. The revisional authority has also passed detailed reasoned order in correct perspectives after considering the evidence on record and facts and circumstances in which the petitioner conducted misconduct of indiscipline/ unauthorized absence.
48. Learned Counsel for the petitioner has vehemently argued that disciplinary authority and Inquiry Officer could not have considered instances of earlier unauthorized absence and punishments awarded to the petitioner. They had to be confined to the present absence of 35 days only. Learned counsel for the petitioner in this regard has relied upon decision Mohd. Yunus Khan Vs. State of Uttar Pradesh and others reported in (2010) 10 SCC 539.
49. It is relevant to mention here that on perusal of charge-sheet and preliminary inquiry report it reveal that the fact of willful earlier unauthorized absence and punishments awarded to the petitioner were well within his knowledge from the initial stage and this fact was mentioned in the charge-sheet itself that service record reveal that the petitioner is habitual to remain absent. He is indisciplined and he was punished on earlier occasions. There is no possibility of his reform. His these conducts reflects that he had conducted indisciplined manner with faults and willful carelessness.
50. The Charge Sheet, preliminary inquiry report dated 24.05.2008 and departmental inquiry report dated 06.06.2009 discloses the earlier punishments awarded to him and his unauthorized absences on different occasions. The inquiry officers, the disciplinary authority, appellate authority and revisional authority were well within their jurisdiction to take notice of his earlier unauthorized willful absences and punishments awarded to him. On perusal of his service records and Character Roll. There was no deficiency or flaw or fault in decision making process. These authorities have considered misconduct/unauthorized absence of the petitioner in correct perspectives. The case law in this regard relied upon by the learned Counsel for the petitioner is of no avail and does not help him in any way.
51. Learned Counsel for the petitioner has vehemently argued that after conclusion of departmental inquiry, Inquiry Officer has submitted his inquiry report and he has included his recommendation to propose punishment itself in the inquiry report, whereas it should have been recommended on separate sheet.
52. Learned counsel for the petitioner has relied upon the case law Ram Pal Singh Vs. Director of Agriculture, U.P. and others 2012 (30) LCD 843 and State of Uttaranchal and others Vs. Kharak Singh (2008) 8 Supreme Court Cases 236.
53. We have perused these Case Laws. Petitioner of this precedent was initially appointed in case Ram Pal Singh Vs. Director of Agriculture, U.P. and others (supra) in the Agricultural department of State of U.P. and in Case Law of State of Uttaranchal and others Vs. Kharak Singh, respondent/employee was temporary Forest Guard. Whereas in the present case, petitioner was appointed on the post of Constable in the P.A.C. department to which Rules, 1991 were applicable and disciplinary proceedings were conducted against him according to Rule 14 (1) of these Rules.
54. We have perused Appendix-1 of Rules 91, which provides as follows:
"PROCEDURE RELATING TO THE CONDUCT OF DEPARTMENTAL PROCEEDINGS AGAINST POLICE OFFICER [See RULE 14(1)] Upon institution of a formal enquiry such police officer against whom the inquiry has been instituted shall be informed in writing of the grounds on which was proposed to take action and shall be afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be used in the form of a definite charge or charges as in Form1 appended to these Rules which shall be communicated to the charged police officer and which shall be so clear and precise as to give sufficient indication to the charged Police Officer, of the facts and circumstances against him. He shall be required, within a reasonable time, to put in, in a written statement of his defence and to state, whether he desires to be heard in person. If he so desires, or if the Inquiry Officer so directs an oral enquiry shall be held in respect of such of the allegation as are not admitted. At that enquiry such oral evidence will be recorded as the Inquiry Officer considers necessary. The charge Police Officer shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called as he may wish:
provided that the Inquiry Officer may, for sufficient reasons to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the finding and the ground thereof. The Inquiry Officer may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged Police Officer.".
55. Appendix-1 Rules, 1991 specifically provide that Inquiry Officer may recommend proposed punishment after concluding the departmental proceedings. Proviso to this Appendix provides that the Inquiry Officer may also separately from this proceedings make his own recommendation regarding the punishment to be imposed on the charged police officer.
56. Thus Inquiry Officer has authority to recommend proposed punishment after conducting proceedings of departmental inquiry. He may, after conclusion of findings, recommend regarding punishment.
Therefore, these Case Laws relied upon by learned Counsel for the petitioner are of no avail for the petitioner.
57. Learned Counsel for the petitioner has also relied upon Case Law Masood Asghar Vs. Uttar Pradesh State Public Service Tribunal, Lucknow and others 2018 (36) LCD 1250. On perusal of para 10, it reveal that Division Bench of this Court of which one us (myself) was the member. It was found that the Inquiry Officer proposed punishment in the inquiry report itself.
58. We have perused impugned judgment and order in this regard and Tribunal has quoted precedent of case Madhav Prasad Sharma Vs. State of U.P. (2015) 1 LBESR 261 (All).
Hon'ble Single Judge relying upon above exposition of law has observed in para 25 as follows:
"25. In the present case merely because the Inquiry Officer has not recorded his opinion as to the punishment required to be imposed against the petitioner on a separate sheet, in my opinion, would not vitiate the enquiry proceedings or the order of the disciplinary authority who has imposed the punishment after a detailed discussion of the entire facts and merits of the case of the petitioner and therefore, it cannot be said that the order of the disciplinary authority is without application of mind."
59. Learned Single Judge in Para 26 has relied upon Case Law Union of India v. H.C. Goel, reported as (AIR 1964 SC 364). Hon'ble Supreme Court has observed as under-
"In it has been observed that unless the statutory rules or the specific order under which an officer is appointed to hold an inquiry so requires, the Enquiry Officer need not make any recommendations as to the punishment which may be imposed on the delinquent officer in case the charges framed against him are held proved at the enquiry; if however, the Enquiry Officer makes any recommendations, the said recommendations, like his findings on the merits, are intended merely to supply appropriate material for the consideration of the Government. Neither the findings, nor the recommendations are binding on the Government. Now although it is correct that the Enquiry Officer is under no obligation or duty to make any recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry is held, and his function merely is to conduct the enquiry in accordance with law and to submit the record along with his findings or conclusions on the various charges which have been preferred against the delinquent servant. But if the Enquiry Officer proceeds to recommend that a particular penalty or punishment should be imposed in the light of his findings or conclusions, the question is whether the officer concerned should be informed about his recommendations. In other words, since such recommendations form part of the record and constitute appropriate material for consideration of the Government, it would be essential that that material should not be withheld from him so that he could, while showing cause against the proposed punishment, make a proper representation. The entire object of supplying a copy of the report of the Enquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved, the punishment proposed to be inflicted is unduly severe. If the Enquiry Officer has also made recommendations in the matter of punishment that is likely to affect the mind of the punishing authority even with regard to penalty or punishment to be imposed on such officer. The requirement of a reasonable opportunity, therefore, would not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment are disclosed to the delinquent servant."
Hon'ble Single Judge relying upon above exposition of law has observed in para 28 as follows:
"In the present case as already noted above after the enquiry officer had submitted his report, a show-cause notice had been given to the petitioner and a copy of the enquiry report had also been provided to the petitioner, to which the petitioner also submitted his reply which has been considered by the disciplinary authority in his order and therefore on that ground also the disciplinary proceedings I cannot be said to be vitiated."
60. Learned Tribunal has recored finding that petitioner was being punished by the "Dalel Parade", he willfully absented being member of discipline force, his misconduct of willful absence was serious one and punishment of removal awarded against the petitioner was not disproportionate in the facts and circumstances of the case.
61. Therefore this Court has held that recommendation of proposed punishment by the inquiry officer is not required to be on separate sheet. The departmental proceedings cannot be vitiated on this ground. This case law was not considered by the Division Bench in Masood Asghar Vs. Uttar Pradesh State Public Service Tribunal, Lucknow and others (supra). After conclusion of departmental proceedings the Inquiry Officer has made commendations for proposed punishment separately after recording finding of guilt of the petitioner. Therefore, this Case Law is also of no avail to extend benefit to the petitioner.
62. We have also perused impugned judgment and order dated 31.08.2016. Learned Tribunal has appreciated and analyzed the material available on record. The orders of disciplinary authority, appellate authority and revisional authority have been considered and evaluated in correct perspectives by the Tribunal.
63. The Tribunal has quoted precedent of Case Nirmala J. Jhala vs State Of Gujarat & Anr 2013 (31) LCD page 762, in which Hon'ble Supreme Court has held as follows:
"22. In Narayan Dattatraya Ramteerathakhar Vs. State of Maharastra & Ors, AIR 1997 SC 2148, this Court dealt with the issue and held as under:
"........a preliminary inquiry has nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary enquiry should be initiated against the delinquent.
Once regular enquiry is held under the Rules, the preliminary enquiry loses its importance and, whether preliminary enquiry was held strictly in accordance with law or by observing principles of natural justice remains of no consequence. (Emphasis added)".
64. The argument of learned Counsel for the petitioner was discarded by the Tribunal regarding the fact that no opportunity was afforded for defence during the course of preliminary inquiry. The Tribunal relied upon the above mentioned case law. Fair and ample opportunity of hearing and cross-examination of witnesses was afforded to the petitioner during the course of preliminary inquiry by the department as well as departmental inquiry. Moreover, statement of petitioner was recorded by the preliminary inquiry officer as well as during departmental inquiry and he never applied before the inquiry officers for adducing any defence. The principles of natural justice were not violated.
65. The learned Tribunal has also considered the statement of petitioner, which has been quoted in the impugned judgment and order regarding the fact that the proceedings of departmental inquiry was conducted in presence of the petitioner. These question and answer relates to the fact that the petitioner did not inform his absence to his higher authorities or about any family dispute and he remained absent from duty unauthorizedly. He never applied for leave to the higher authorities during his period of absence.
66. Learned Tribunal has relied upon precedent of case Union of India and others Vs. Bishamber Das Dogra (2009) 13 SCC 102 of Hon'ble Apex Court regarding the fact that earlier misconduct could be considered by the Inquiry Officer and disciplinary authority regarding his earlier willful absence.
67. Hon'ble Supreme Court has observed in para 22 and 31 to 33 as follows:
"22. In the case of State of Assamv.Bimal Kumar Pandit reported as [AIR 1963 SC 1612], hon'ble supreme court has considered the issue as to whether while imposing the punishment it is permissible to take into consideration the past conduct of an employee if it is not so mentioned in the second show-cause notice.
31.It is settled legal proposition that habitual absenteeism means gross violation of discipline [videBurn & Co. Ltd.v.Workmen[AIR 1959 SC 529] (AIR p. 530, para 5) andL&T Komatsu Ltd.v.N. Udayakumar[(2008) 1 SCC 224 : (2008) 1 SCC (L&S) 164] (SCC p. 226, para 6).]
32.The instant case is required to be examined in the light of the aforesaid settled legal propositions.
33.Admittedly, the respondent employee has not completed the service of six years and had been imposed punishment three times for remaining absent from duty. On the fourth occasion when he remained absent for ten days without leave, the disciplinary proceedings were initiated against him. The show-cause notice could not be served upon him for the reason that he again deserted thelineand returned back after fifty days. Therefore the disciplinary proceedings could not be concluded expeditiously. The respondent submitted the reply to the show-cause notice and the material on record reveal that during the pendency of the enquiry he further deserted thelinefor ten days. There is nothing on record to show any explanation for such repeated misconduct or absenteeism. The court/tribunal must keep in mind that such indiscipline is intolerable so far as the disciplined force is concerned."
Therefore, learned Tribunal has rightly considered that past misconduct of the petitioner could be considered by the disciplinary, appellate and revisional authorities while punished the petitioner.
68. It is relevant to mention here that regarding judicial review under Article 226 of the Constitution of India, the following Case Law of Apex Court is relevant:
Exposition of law laid down by Hon'ble Apex Court on the point of Judicial Review In the case of Kuldip Singh v. State of Punjab, reported in (1996) 10 SCC 659 The Hon'ble Apex Court has been observe as under:-
11. In this sense, if the appellant's confession is relevant, the fact that it was made to the police or while in the custody of the police may not be of much consequence for the reason that strict rules of Evidence Act do not apply to departmental/disciplinary enquiries. In a departmental enquiry, it would perhaps be permissible for the authorities to prove that the appellant did make such a confession/admission during the course of interrogation and it would be for the disciplinary authority to decide whether it is a voluntary confession/admission or not. If the disciplinary authority comes to the conclusion that the statement was indeed voluntary and true, he may well be entitled to act upon the said statement. Here, the authorities say that they were satisfied about the truth of the appellant's confession. There is undoubtedly no other material. There is also the fact that the appellant has been acquitted by the Designated Court. We must say that the facts of this case did present us with a difficult choice. The fact, however, remains that the High Court has opined that there was enough material before the appropriate authority upon which it could come to a reasonable conclusion that it was not reasonably practicable to hold an enquiry as contemplated by clause (2) of Article 311.
...............Moreover, the appellate authority has also agreed with the disciplinary authority that there were good grounds for coming to the conclusion that it was not reasonably practicable to hold a disciplinary enquiry against the appellant and that the appellant was guilty of the crime confessed by him. There is no allegation of mala fides levelled against the appellate authority. The disciplinary and the appellate authorities are the men on the spot and we have no reason to believe that their decision has not been arrived at fairly. The High Court is also satisfied with the reasons for which the disciplinary enquiry was dispensed with. In the face of all these circumstances, it is not possible for us to take a different view at this stage. It is not permissible for us to go into the question whether the confession made by the appellant is voluntary or not, once it has been accepted as voluntary by the disciplinary authority and the appellate authority.
In the case of Indian Rly. Construction Co. Ltd. v. Ajay Kumar, reported in (2003) 4 SCC 579 The Hon'ble Apex Court has been observe as under:-
12. It is fairly well settled that the power to dismiss an employee by dispensing with an enquiry is not to be exercised so as to circumvent the prescribed rules. The satisfaction as to whether the facts exist to justify dispensing with enquiry has to be of the disciplinary authority. Where two views are possible as to whether holding of an enquiry would have been proper or not, it would not be within the domain of the court to substitute its view for that of the disciplinary authority as if the court is sitting as an appellate authority over the disciplinary authority. The contemporaneous circumstances can be duly taken note of in arriving at a decision whether to dispense with an enquiry or not. What the High Court was required to do was to see whether there was any scope for judicial review of the disciplinary authority's order dispensing with the enquiry. The focus was required to be on the impracticability or otherwise of holding the enquiry.
22. Neither learned Single Judge nor the Division Bench has examined the question as to practicability or otherwise of holding the enquiry in the correct perspective. They have proceeded on the footing as if the order was mala fide; even when there was no specific allegation of mala fides and without any specific person against whom mala fides were alleged being impleaded in the proceedings. Except making a bald statement regarding alleged victimization and mala fides, no specific details were given.
24. The approach of the High Court, therefore, was not proper. But at the same time, the reasons which weighed with the disciplinary authority to dispense with enquiry equally do not appear to be proper.
27. We find substance in the plea of learned counsel for the appellant that an employee even if he claims to be a member of the employees' union has to act with a sense of discipline and decorum. Presentation of demands relating to employees cannot be exhibited by muscle power. It must be borne in mind that every employee is a part of a functioning system, which may collapse if its functioning is affected improperly. For smooth functioning, every employer depends upon a disciplined employees' force. In the name of presenting demands they cannot hold the employer to ransom. At the same time the employer has a duty to look into and as far as practicable, obviate the genuine grievances of the employees. The working atmosphere should be cordial, as that would be in the best interest of the establishment. Unless an atmosphere of cordiality exists there is likelihood of inefficient working and that would not be in the interest of the establishment and would be rather destructive of common interest of both employer and employees.
28. If an act or omission of an employee reflects upon his character, reputation, integrity or devotion to duty or is an unbecoming act, certainly the employer can take action against him. In this context, reference may be made to the following observations of Lopes, C.J. inPearce v. Foster [(1886) 17 QBD 536 : (1886-90) All ER Rep Ext 1752 : 55 LJQB 306 : 54 LT 664 (CA)] (QBD p. 542):
"If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.
"This view was reiterated by a three-Judge Bench of this Court in Union of India v. K.K. Dhawan [(1993) 2 SCC 56 : 1993 SCC (L&S) 325 : (1993) 24 ATC 1 : AIR 1993 SC 1478] .
29. Here, the alleged acts have not been disbelieved by the High Court. They are prima facie acts of misconduct. Therefore, the employer can legitimately raise a plea of losing confidence in the employee, warranting his non-continuance in the employment. The time-gap is another significant factor.
In the case of R.R. Parekh v. High Court of Gujarat, reported in (2016)14 SCC 1.The Hon'ble Apex Court has been observe as under:-
20. A disciplinary inquiry, it is well settled, is not governed by the strict rules of evidence which govern a criminal trial. A charge of misconduct in a disciplinary proceeding has to be established on a preponderance of probabilities. The High Court while exercising its power of judicial review under Article 226 has to determine as to whether the charge of misconduct stands established with reference to some legally acceptable evidence. The High Court would not interfere unless the findings are found to be perverse. Unless it is a case of no evidence, the High Court would not exercise its jurisdiction under Article 226. If there is some legal evidence to hold that a charge of misconduct is proved, the sufficiency of the evidence would not fall for re-appreciation or re-evaluation before the High Court. Applying these tests, it is not possible to fault the decision of the Division Bench of the Gujarat High Court on the charge of misconduct. The charge of misconduct was established in Disciplinary Inquiry No. 15 of 2000.
In the case of Allahabad Bank v. Krishna Narayan Tewari, reported in (2017)2 SCC 308.The Hon'ble Apex Court has been observe as under:-
7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the enquiry officer or the disciplinary authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority.
8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand.
In the case of Reliance Telecom Ltd. v. Union of India, reported in (2017) 4 SCC 269.The Hon'ble Apex Court has been observe as under:-
58. ............... Notionally adding up or not adding up, we think, is a matter of policy and that too a commercial policy and in a commercial transaction, a decision has to be taken as prudence would command. In this regard, reference to the decision inAsia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd. [Asia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd., (1997) 1 SCC 738] would be apt. In the said case, the Court referred to the authority in Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651] and thereafter opined that though the principle of judicial review cannot be denied so far as exercise of contractual powers of government bodies are concerned, but it is intended to prevent arbitrariness or favouritism and it is exercised in the larger public interest or if it is brought to the notice of the Court that in the matter of award of a contract power has been exercised for any collateral purpose. In the instant case, we are unable to perceive any arbitrariness or favouritism or exercise of power for any collateral purpose in NIA. In the absence of the same, to exercise the power of judicial review is not warranted. In the case at hand, we think, it is a prudent decision once there is increase of revenue and expansion of the range of service.
In the case of Royal Medical Trust v. Union of India, reported in (2017) 16 SCC 605 the Hon'ble Apex Court has been observe as under:-
43. Dr Rajeev Dhavan would submit that this Court should not exercise appellate jurisdiction which is fundamentally called an error jurisdiction or rectification of errors. We are absolutely conscious of the appellate jurisdiction and the jurisdiction this Court is required to exercise while determining the controversy in exercise of power of judicial review under Article 32 of the Constitution. The principle of judicial review by the constitutional courts has been lucidly stated in many an authority of this Court. In Tata Cellular v. Union of India [Tata Cellular v.Union of India, (1994) 6 SCC 651] , dealing with the concept of judicial review, the Court held: (SCC p. 676, paras 72-74) "72. Lord Scarman in Nottinghamshire County Council v. Secy. of State for the Environment [Nottinghamshire County Council v. Secy. of State for the Environment, 1986 AC 240 : (1986) 2 WLR 1 (HL)] proclaimed:
''"Judicial review" is a great weapon in the hands of the Judges; but the Judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power.' Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say:
''If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. [Butcher v.Petrocorp Exploration Ltd., decided on 18-3-1991 (NZ CA)]'
73. Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action.
74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself."
In the case of Regional Manager, UPSRTC Vs. Hoti Lal reported in (2003) 3 SCC 605, the Hon'ble Apex Court clearly observed as under:
"If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trust-worthiness is must and unexceptionable."
In the case of State Bank of India Vs. Ram Lal Bhaskar and Another reported in (2011) 10 SCC 249, the Hon'ble Apex Court has observed as under:
"Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled against the respondent no.1 do not constitute any misconduct and that the respondent no.1 was not guilty of any misconduct."
The Hon'ble Apex Court in the case of B.C. Chaturvedi v. U.O.I & ors. reported in 1995 (6) SCC 749 again has been pleased to observe that-
"the scope of judicial review in disciplinary proceedings the Court are not competent and cannot appreciate the evidence."
In another case the Hon'ble Apex Court in the case of Union of India v. Upendra Singh reported in 1994 (3) SCC 357 The Hon'ble Apex Court has been pleased to observe as under:-
"In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be."
In the case of State of Rajasthan v. Md. Ayub Naaz reported in 2006 (1) SCC 589. The Hon'ble Apex Court has been pleased to observe as under:-
"This Court in Om Kumar and Ors. v. Union of India, [2001] 2 SCC 386 while considering the quantum of punishment/proportionality has observed that in determining the quantum, role of administrative authority is primary and that of court is secondary, confined to se if discretion exercised by the administrative authority caused excessive infringement of rights. In the instant case, the authorities have not omitted any relevant materials nor any irrelevant fact taken into account nor any illegality committed by the authority nor the punishment awarded was shockingly disproportionate. The punishment was awarded in the instant case, after considering all the relevant material and, therefore, in our view, the interference by the High Court on reduction of punishment of removal is not called for."
69. Therefore, learned Tribunal has delivered judgment and order dated 31.08.2016 after considering material on record in correct perspectives. It cannot be termed as perverse or against evidence on record. Learned Tribunal has not erred in law, as contended by learned Counsel for the petitioner.
70. On the basis of above exposition of law of Hon'ble Supreme Court regarding moral turpitude and scope of judicial review, mentioned by us at proper place, the case law relied upon by learned Counsel for the petitioner, does not help him in any way. Willful absence of indiscipline comes in the category of misconduct and indiscipline committed by the petitioner.
71. On the basis of above discussions and facts and circumstances, this petition devoid of merits and liable to be dismissed.
72. Accordingly, Dismissed.
(Virendra Kumar-II, J.) (Anil Kumar, J.) Order Date :- 4/9/2018 Virendra/Arvind