Rajasthan High Court - Jaipur
Smt. Shakira vs State Of Raj And Ors on 7 December, 2017
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 8812 / 2002
Smt. Shakira W/o Late Shri Mahfooz Khan, Aged About 32 Years,
Ward No.8, Handipura, Amer, Jaipur
----Petitioner
Versus
1. State of Rajasthan Through the Secretary to Government,
Home Department, Secretariat, Jaipur
2. The District Superintendent of Police, Rajsamand
3. The Dy. Inspector General of Police, Udaipur Range, Udaipur
4. The Director General of Police, Rajasthan, Jaipur
----Respondents
_____________________________________________________
For Petitioner(s) : Ms. Gayatri Rathore, Adv.
For Respondent(s) : Mr.Ankur Saxena on behalf of
Dr.A.S.Khangarot, AGC
_____________________________________________________
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Reportable Order
07/12/2017
The present writ petition has been filed by petitioner-
Smt.Shakira against order dated 08.02.1999, by which, husband
of the petitioner was dismissed from service after charges of
absence were found to be proved against him. The petitioner has
further challenged order dated 19.04.2001 passed by the
Appellate Authority and order dated 27.05.2002 passed by the
Reviewing Authority. The petitioner has prayed that direction may
be given to reinstate her late husband Shri Mahfooz Khan in
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service from the date of his dismissal i.e. 08.02.1999 and to treat
him on duty in service uptil his death on 30.09.2001 and
consequential benefits of arrears of pay and family pension etc.
may be conferred in her favour.
The brief facts of the case are that the husband of the
petitioner, Shri Mahfooz Khan, was a Constable, who was working
in Rajasthan Police since 11.04.1988 and he was posted at
different places during his service tenure.
The petitioner has pleaded in the petition that initially, her
husband was posted in Tonk district and subsequently, he was
transferred in Jaipur City and after formation of Rajsamand as a
separate district, he was transferred vide order dated 25.01.1997
from Jaipur to Rajsamand and was posted in Reserve Police Line.
The petitioner has alleged that her husband was discharging
his duties as Constable and also performed the work of driver
from time to time as was directed by the superior officers. It is
alleged that her husband could not keep his good health and he
fell sick and proceeded on leave w.e.f. 02.04.1997.
The petitioner has averred in the petition that her husband
had submitted medical certificate to the Appointing Authority
w.e.f. 02.04.1997 to 01.07.1997 and he was declared medically fit
to join duties on 02.07.1997. There has been further assertion
that after joining duties in the first week of July, 1997, the
husband of the petitioner again fell sick w.e.f. 11.01.1997 and he
remained on leave upto 07.08.1997, for which he is said to have
submitted his application for leave. The petitioner has asserted in
the petition that her husband developed a disease in his index
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finger and he went under a minor operation and as such, he was
not able to carry out the duty assigned to him either as a Wireless
Operator or to discharge his duties in Election also.
The Superintendent of Police, Rajsamand vide memorandum
dated 06.05.1998 initiated disciplinary proceedings against the
husband of the petitioner under Rule 16 of the Rajasthan Civil
Services (Classification, Control & Appeal) Rules, 1958. It is
alleged that due to mental sickness of the petitioner's husband, he
could not file reply to the charge-sheet and as such, the
Disciplinary Authority, in absence of any reply to charge-sheet,
appointed Enquiry Officer, who conducted ex parte enquiry and
submitted his report to the Disciplinary Authority. It is alleged that
Disciplinary Authority issued a show cause notice dated
05.01.1999 to petitioner's husband to submit any explanation of
the said show cause notice but it was only a mere formality as the
respondents had made up their mind their mind to dismiss the
petitioner's husband from service. It is further alleged that
petitioner's husband on account of his mental disorder, could not
give reply to the show cause notice and Disciplinary Authority
imposed a penalty order dated 08.02.1998 dismissing the
petitioner's husband from service.
The husband of the petitioner after receipt of penalty order
got departmental appeal prepared through a counsel and sent it to
the Appellate Authority-Dy. Inspector General of Police, Udaipur
Range, Udaipur. It is alleged that the Appellate Authority without
giving objective consideration to the said appeal and without
dealing with the objection raised by petitioner's husband,
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dismissed the appeal in a cursory manner without proper
application of mind.
The husband of the petitioner died on 30.09.2001 and as
such, the petitioner herself preferred the review petition and
enclosed the necessary medical certificates and death certificates
of her husband. It is alleged by the petitioner that review petition
has also been dismissed on the ground that it was not preferred
by the delinquent officer himself.
The petitioner being aggrieved against penalty order,
appellate order and order of reviewing authority has filed the
present writ petition.
The respondents have filed reply to the writ petition and
have denied the averments made in the writ petition. The
respondents have submitted that order of dismissal has been
passed by the competent authority after due enquiry as per
provisions of law. The Appellate Authority has also taken into
account all the aspects and considered all the pleas raised by the
delinquent-husband of the petitioner and passed the order. It is
further submitted that review petition was also duly considered by
the Authority and the findings of Disciplinary as well as Appellate
Authority were upheld.
The respondents have submitted that the assertion of the
petitioner's husband that he fell sick and proceeded on leave w.e.f.
02.04.1997, was infact not the genuine reason and due to transfer
of petitioner's husband to Rajsamand vide order dated 02.04.1997
and a direction to join his duty on 03.04.1997, petitioner's
husband remained willfully absent upto 03.07.1997 and joined on
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04.07.1997. It is alleged that petitioner's husband willfully left and
remained absent from 11.07.1997 and again joined the duty after
a gap of 27 days on 07.08.1997. It has been submitted that the
averments relating to mental illness was without any substance.
The respondents have submitted that the charge-sheet, which was
given to the petitioner's husband contained four specific charges,
which was with respect to the absence from duty on different
dates and in total, there was an absent of 263 days and as such, it
was considered to be a grave misconduct on the part of the
delinquent officer to remain absent.
The respondents have further submitted that in spite of
service of notice to the petitioner's husband, he did not file any
reply to the charge-sheet nor submitted any documentary
evidence relating to his unfit mental condition. The Enquiry Officer
was appointed and due intimation was sent to petitioner's
husband, yet he remained absent during enquiry and as such, ex
parte enquiry was proceeded. The respondents have further
submitted that after conclusion of enquiry, the Disciplinary
Authority issued a show cause notice dated 05.01.1999 and in
spite of the service of the said show-cause notice, the husband of
the petitioner did not appear and as such, the Disciplinary
Authority considering the gravity of the charge, has passed the
order of dismissal. The respondents have further submitted that
after appeal being preferred by the petitioner's husband, the
Appellate Authority also gave notice of personal hearing to the
petitioner's husband but there also, he did not bother to appear
and as such, the Appellate Authority after considering the entire
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facts, passed the order.
Ms. Gayatri Rathore, learned counsel appearing for the
petitioner has submitted that the very foundation of the order to
treat the absence of the petitioner's husband from duty, is bad in
eye of law. The petitioner's husband never remained willfully
absent and he had sent the medical certificate from time to time,
which have been annexed with the writ petition as Annexure-1 to
4. Ms. Rathore submits that initially, the husband of the petitioner
applied for 28 days medical leave. Thereafter, on 30.04.1997, he
was granted 30 days medical leave and then by certificate dated
30.05.1997, he was granted 33 days medical leave and on
01.07.1997, the medical certificate was issued by the doctor
certifying that the petitioner's husband was fit to join his duties on
02.07.1997. The Counsel submits that these certificates were
issued under Rule 76 of the RSR by competent doctor of Ayurved
and as such, these documents amply proved that petitioner's
husband was not absent from duty and as such, charge no.1 was
not proved. The counsel has submitted that after fitness certificate
being given, the husband of the petitioner immediately joined on
03.07.1997 and as such, it cannot be said that husband of the
petitioner was guilty of remaining willfully absent from duty as per
charge no.1 alleging that petitioner's husband was absent from
duty for a period from 02.04.1997 to 01.07.1997.
Ms. Gayatri Rathore has further submitted that in respect of
charge no.2, the alleged absence from 11.07.1997 to 07.08.1997,
there was an explanation by the husband of the petitioner that he
was suffering from mental illness and as such, he was prevented
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by sufficient cause in not attending the duties and absence of 27
days, could not have been treated as a willful absent from duty.
The counsel submits that absence from 05.09.1997 to
11.11.1997 for 60 days was also on account of injury suffered by
petitioner's husband in his finger and as such, there was
justification in not attending the duty and the intimation was duly
sent to the authority. Ms. Gayatri Rathore submits that fourth
charge relating to absent from duty from 15.02.1998 where
petitioner's husband was assigned duty in election, the petitioner's
husband had also submitted his explanation that he was
prevented from attending the duties due to his ill-health. Ms.
Gayatri Rathore submits that the authorities were required to
consider that since petitioner's husband was suffering from mental
disorder and as such, there was no mens rea on his part to remain
absent from duty and as such, the charge of absence from duty
was not proved against her husband.
Ms. Gayatri Rathore submits that non-participation in enquiry
of the petitioner's husband was justified because of his ill-health
and as such, the person who suffers from mental disorder cannot
be expected to participate in any enquiry nonetheless the
petitioner's husband has tried to convince the authorities by
sending the certificate of his mental health and yet the authorities
have proceeded ex parte in the disciplinary proceedings and
ultimately, punished the petitioner's husband from dismissal.
Ms. Gayatri Rathore further submits that though not
admitting but assuming that charge of absence from duty was
proved, looking to the service rendered of more than 10 years by
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petitioner's husband, the penalty of dismissal is a harsh penalty
and the petitioner's husband could have been visited with some
other minor penalty, which would have saved the family from the
starvation which is being faced by the members of the petitioner's
family. Ms. Gayatri Rathore further submits that the track record
of the petitioner's husband was good and in past he was never
visited with any such kind of penalty which could reflect on his
functioning and integrity and as such, she submits that the
impugned penalty order was not passed after considering the
entire facts.
Ms. Gayatri Rathore submits that the Appellate Authority has
also not considered the various grounds raised by her husband in
appeal and it has upheld the order of Disciplinary Authority
without his independent application of mind and the Appellate
Authority has failed to discharge his obligation to decide the
appeal on objective manner.
Ms. Gayatri Rathore submits that Reviewing Authority has
erroneously held that since the order of Appellate Authority was
delivered to petitioner's husband during his life time, the review
petition could not have been filed by the petitioner and the
Reviewing Authority has also not considered the fact that there
were four children of the deceased and petitioner widow had the
responsibility to look after the ailing inlaws and as such, the
Reviewing Authority committed an illegality in passing the
impugned order.
Per contra, Mr. Mr.Ankur Saxena, Adv. appearing on behalf of
Dr.A.S.Khangarot, AGC submits that the charges levelled against
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the petitioner's husband are of grave nature and by remaining
absent for total 263 days, the husband of the petitioner committed
a major misconduct, for which the Disciplinary Authority has
punished the petitioner's husband by dismissal from service.
Mr. Saxena submits that the so-called certificates, which
have been annexed with the writ petition shows that petitioner's
husband allegedly underwent Ayurvedic treatment and even these
certificates are only in respect of charge no.1 and there is no
explanation with regard to charge nos. 2, 3 & 4 on different dates
where petitioner's husband remained absent without any
justification.
Mr. Saxena submits that there was no regular treatment,
which has been taken by the petitioner's husband against his
alleged mental disorder and it is a cooked up story by the
petitioner's husband to set up a case for avoiding the joining of
duty when he was transferred from Jaipur to Rajsamand.
The counsel has submitted that there has been total non-
cooperation of the petitioner's husband right from the stage of
issuing the charge-sheet. The petitioner's husband never bothered
to file reply to the charge-sheet, never participated in the
departmental enquiry, did not give reply to the show-cause notice,
did not appear before the Appellate Authority and as such, no
indulgence is required to a person who not only remained absent
while in service but also during disciplinary proceedings showed
total apathy and non-cooperation towards the procedure which
was fairly adopted by the respondents.
The counsel submits that the Apex Court time and again has
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laid down the law that in Police Force and Armed Forces, the
delinquents are required to be punctual and they are further
required to discharge their duties in more disciplined manner and
such employee if remained absent, the gravest misconduct is
committed and no indulgence is required by this Court.
The counsel has relied upon the judgment of Apex Court in
the case of Om Prakash Vs. State of Punjab & Ors., reported in
(2012) AIR SCW 3762. The counsel submits that the Apex Court
has held that where a person is habitual absentee without leave,
such person does not deserve any sympathy from the Court. The
counsel has further relied upon judgment of Central Industrial
Security Force & Ors. Vs. Abrar Ali, reported in AIR 2017 SC 200
where the Apex Court has reiterated the powers of the High Court
under Article 226/227 of the Constitution of India to interfere in
the disciplinary matters. The Apex Court has held that High Court
cannot re-appreciate the evidence; interfere with the conclusion in
the enquiry, in case the same has been conducted in accordance
with law; go into adequacy of the evidence; go into the reliability
of the evidence; interfere if there be some legal evidence on which
findings can be based and correct the error of fact however grave
it, may be; and go into the proportionality of punishment unless it
shocks its conscience.
I have heard learned counsel for both the parties.
The relevant portion of the impugned penalty order is
reproduced as hereunder:-
"bl izdkj dqfy;k tk¡p ls ,oa fjdkMZ ls ik;k x;k fd nks"kh
deZpkjh ds fo:) cuk;s x;s vkjksi la[;k 1 ls 7 rd iw.kZr;k izekf.kr gSA
dkfu- dks mifLFkfr nsus gsrq ikcUn djok;k x;kA ikacn gksus ds mijkUr Hkh
(11 of 15)
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u rks tk¡p vf/kdkjh ds le{k mifLFkr gqvk ,oa ugh vk;k gSA ,oa ugh
v/kksgLrk{kkjdrkZ ds le{k mifLFkr gqvk gSA lwfpr gksus ds mijkUr Hkh
M~;wVh ij M;wVh ij ugha vk;k gS] blls ;g Li"V gS fd dkfu- esa viuk
nkf;Ro drZO; ds izfr dksbZ laosnu'khyrk ugha j[kh gSA vkjksi izekf.kr gSA
vr% dkfu- dks lsok j[kuk jkT; fgr esa mfpr ugha gSA
vr% Jh egiwt [kka dkfu- 247 dks jkT; ls izFkd fMlfel Øksl
lfoZl djus ds n.M ls nafMr fd;k tkrk gSA
mDr dkfu- fn- 3@4@97 ih-,e- ls 8@7@97 ih-,e- rd 92 fnu
fn- 11@7@97 ih-,e- ls 7@8@97 ih-,e- rd 27 fnu 3@9@97 ih-,e-
ls 11@11@97 ih-,e- rd 67 fnu fn- 15@2@98 ih-,e- ls fnukad
2@5@98 ih-,e- rd 77 fnu dqy 263 fnu vuqifLFkr jgk gSA vr% mDr
vuqifLFkfr vfo/k 263 fnu voSrfud bŒthŒ,lŒ vodk'k esa lqekj fd;k
tkrk gSA
mDr dkfuΠdks bl dk;kZy; vkns'k vks-ch-349 fnukad 1@5@98
ls fuyfEcr fd;k x;k tks orZeku esa Hkh vuqifLFkr py jgk gS fuyEcu
dky esa mDr dkfuΠfn- 8@5@98 ,-,e- ls 16@6@98 ih-,e- rc 40]
17@7@98 ih-,e- ls 24@12@98 ,-,e- rd 159 fnu rFkk fnukad
29@12@98 ,-,e-ls fu.kZ; fnukad 8@2@99 rd 42 fnu dqy 241 fnu
dks voSrfudn bZŒvksŒ,yŒ vodk'k esa lqekj fd;k tkrk gSA
fuyEcu dky esa dkfu- dks fn;s x;s osru HkRrksa ds vykok cdk;k
osru HkRrs tIr ljdkj fd;s tkrs gSA"
In the opinion of the Court, the impugned order passed by
the Disciplinary Authority has taken into account the enquiry
report and after considering the enquiry report, the Disciplinary
Authority independently examined the each charge and it came to
the conclusion that petitioner's husband had no justification to
remain absent and on different occasions, petitioner's husband
voluntarily did not come forward to attend the duties.
The Disciplinary Authority has recorded a finding that after
transfer of the petitioner's husband from Jaipur to Rajsamnd, he
avoided the transfer order and he sent the medical certificates
from Ayurved doctors. The Disciplinary Authority has taken note of
the fact that not only after transfer, the petitioner's husband also
did not come on three different occasions, of which details have
been given in the charge-sheet. The Disciplinary Authority came to
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conclusion that absence of the petitioner's husband from duty was
willful and as such, he was guilty of misconduct.
The Court does not find the submission of the learned
counsel for the petitioner to be of any substance where the
justification is given that due to mental disorder of the petitioner's
husband, he was prevented from joining the duty. The fact that
petitioner's husband could only produce the medical certificate
upto 01.07.1997, clearly goes to show that he was not interested
at all in joining at the transferred place. The petitioner's husband
joined for few days and again he remained absent on various
dates and in total, there is absence of 263 days. The Court finds
that submission of the learned counsel for the petitioner that there
was enough reason with the petitioner's husband for not attending
the duty due to his mental disorder, cannot be accepted in view of
the fact situation obtaining in the present vase.
The submission of the learned counsel that the Authorities
did not apply their mind and denied the opportunity of hearing to
the petitioner and were pre-determined to punish petitioner's
husband, suffice it to say that petitioner's husband did not
cooperate at any point of time by participating in the enquiry or by
filing the reply to the charge-sheet. The petitioner's husband even
did not take care to appear before the Disciplinary Authority after
he received a show-cause notice before imposition of penalty
order. The submission of the learned counsel for the petitioner
that there were reasons for not appearing and the state of mind of the petitioner's husband was not such, the Court finds that these cannot be correct explanation, which can be taken to avoid the (13 of 15) [CW-8812/2002] participation in the departmental/disciplinary enquiry.
The submission of the learned counsel for the petitioner that the charge of remaining absent should not be treated of grave nature and it should not be treated as a major misconduct, the Court finds that the Apex Court in the case of Om Prakash Vs. State of Punjab & Ors. (supra) has held that absence from duty of police personnel, is a major misconduct and the imposition of penalty of dismissal from service has not been interfered with.
The Court further finds that High Court under Article 226/227 has very limited scope to interfere in the disciplinary proveedings. The relevant portion of the judgment of the Apex Court in the case of Central Industrial Security Force & Ors. Vs. Abrar Ali (supra) is reproduced as hereunder:-
"In Union of india & Ors. v. P. Gunasekaran reported in (2015) 2 SCC 610, this Court held as follows:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
(a) the inquiry is held by a competent authority;
(b) the inquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations (14 of 15) [CW-8812/2002] extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person 13.could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
The Court finds that the quantum of punishment can definitely be interfered by the Court under Article 226 if it shocks the conscience of the Court and on proportionality of the punishment, relief can be granted to a delinquent-employee, if situation warrants.
In the instant case, had it been a case of remaining absent for one particular period of few days, the Court could still think in different term but looking to the different charge for different (15 of 15) [CW-8812/2002] period, the Court finds it difficult to interfere with the punishment awarded by the Disciplinary Authority.
In the result, the writ petition has no force and the same is dismissed.
(ASHOK KUMAR GAUR) J.
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