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Madhya Pradesh High Court

R.D.Yadav (Dead) Through Lrs Smt. Shyam ... vs The State Of Madhya Pradesh on 18 March, 2024

Author: Sanjay Dwivedi

Bench: Sanjay Dwivedi

                               1

      IN THE HIGH COURT OF MADHYA PRADESH
                        AT JABALPUR
                           BEFORE
          HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                 ON THE 18TH OF MARCH, 2024
               WRIT PETITION NO.16667 OF 2005
BETWEEN:-
1.    R.D. YADAV (DEAD) THROUGH LRS:
1A.   SMT. SHYAM BAI YADAV WD/O LATE R.D.
      YADAV, AGED ABOUT 72 YEARS, R/O
      VILLAGE DUMLAY, POST HANDIYA,
      DISTRICT HARDA (M.P.)
1B.   JAI PRAKASH S/O LATE R.D. YADAV, AGED
      ABOUT 53 YEARS, R/O VILLAGE DUMLAY,
      POST HANDIYA, DISTRICT HARDA (M.P.)
1C.   SUSIL YADAV S/O LATE R.D. YADAV, AGED
      ABOUT 47 YEARS, R/O VILLAGE DUMLAY,
      POST HANDIYA, DISTRICT HARDA (M.P.)
1D.   KSHAMA YADAV W/O SHRI BALAKRAM
      YADAV, AGED ABOUT 42 YEARS, R/O
      VILLAGE SUKRAS, TEHSIL KHATEGAON,
      DISTRICT DEWAS (M.P.)
1E.   RAMA W/O SHRI RAMSWAROOP, AGED
      ABOUT 38 YEARS, R/O VILLAGE SAGODA,
      TEHSIL KHATEGAON, DISTRICT DEWAS
      (M.P.)
1F.   ANGOORI YADAV W/O SHRI SURESH
      YADAV, AGED ABOUT 36 YEARS, R/O
      VILLAGE     BAMNIKHURD,       TEHSIL
      KANNOD, DISTRICT DEWAS (M.P.)
1G.   PUSHPA YADAV W/O HARI OM YADAV,
      AGED ABOUT 34 YEARS, R/O VILLAGE
      NANS, TEHSIL KANNOD, DISTRICT
      DEWAS (M.P.)
                                              .....PETITIONERS
(BY SHRI HEMANT KUMAR NAMDEO - ADVOCATE)

AND
1.    STATE  OF    M.P.  THROUGH    ITS
      SECRETARY, DEPARTMENT OF REVENUE,
                                                                      2

            VALLABH BHAWAN, BHOPAL (M.P.)
2.          THE COMMISSIONER, BHOPAL DIVISION,
            BHOPAL (M.P.)

3.          THE COLLECTOR, BHOPAL, DISTRICT
            BHOPAL (M.P.)

                                                                                                         .....RESPONDENTS
(BY SHRI ALOK AGNIHOTRI - GOVERNMENT ADVOCATE)
................................................................................................................................................
Reserved on                : 08.02.2024
Pronounced on : 18.03.2024
................................................................................................................................................
           This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:
                                                                  ORDER

By the instant petition filed under Article 226 of the Constitution of India, the petitioners are questioning the validity of the order passed by the Disciplinary Authority dated 20.12.2004 (Annexure-P/13) and also of Appellate Authority dated 08.06.2005 (Annexure-P/15).

2. By order dated 20.12.2004 (Annexure-P/13), the Disciplinary Authority inflicted punishment of removal from service upon the original petitioner and the period of his unauthorized absence was treated as 'No Work No Pay'. An appeal was preferred against the said order, which was decided vide order dated 08.06.2005 (Annexure-P/15) dismissing the same, affirming the order passed by the Disciplinary Authority.

3. As per facts of the case, the original petitioner entered into service in the year 1968 as Patwari and considering his unblemished services, he was promoted to the post of Revenue Inspector, but unfortunately, he remained absent unauthorizedly for the reason that he was frequently transferred and was also suffering from some ailment. The original 3 petitioner submitted an application along with medical certificate, but the authority did not sanction the leave and his absence from service was treated as a misconduct. As per the petitioners, instead of dismissing the original petitioner from service, the period of unauthorized absence can be declared as 'dies-non' and also he may be granted the leave considering the fact that he is entitled to get at least five years leave.

4. The challenge is founded mainly on the ground that despite moving an application for leave supported by medical certificate, the same were not taken note of by the authorities. The Enquiry Officer without considering the fact that there was no material available and produced by the prosecution to prove the charge, submitted the enquiry report holding him guilty of the charge and as such, the enquiry was one sided because the stand taken by the delinquent was not taken note of.

5. Learned counsel for the petitioners has submitted that the original petitioner as per his date of birth i.e. 19.11.1946, was to be retired w.e.f. 19.11.2006 and had almost two years left to get retired, but still the authority took action against him, inflicted major punishment of dismissal from service, which according to the petitioners, is illegal and the same deserves to be set aside.

6. Counsel for the petitioners has submitted that the original petitioner was posted as Revenue Inspector at Bhopal and the charge- sheet was issued to him on 02.01.2002 containing only one charge alleging therein that the original petitioner was habitual in remaining unauthorized absent from duty and as such, he has committed misconduct. The copy of charge-sheet is Annexure-P/1 containing charge that as per the letter of Commissioner Land Record dated 30.12.1995, the original petitioner submitted his joining on 19.01.1996 4 before Bandobast Adhikari Bhopal. The original petitioner earlier also remained absent w.e.f. 04.04.1988 to 17.01.1996 and thereafter he remained present and attended duties with effect from 19.01.1996 till 31.07.1996. Thereafter, from August, 1996 till 20.11.1996, he had gone on long leave and on 04.12.1997, he submitted his joining but thereafter, again without any notice and without any sanctioned leave, he remained absent from his duty. He remained absent for a long time and on 08.11.2001, he submitted his joining at the office of Collector Bhopal, as such, the irresponsible attitude and for remaining unauthorized absence from duties was found to be a misconduct as per the M.P. Civil Services (Conduct) Rules, 1965 and as such, he was found guilty and was inflicted punishment under Rule 10 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966.

7. On the basis of said charge, the departmental enquiry was conducted and the Enquiry Officer submitted its report on 07.07.2004 (Annexure P/9) giving finding therein that the original petitioner remained absent unauthorizedly from 04.04.1988 to 17.01.1996 and thereafter from 19.01.1996 to 31.07.1996 and again from August, 1996 to 20.11.1997. On 04.12.1997, he submitted his joining and thereafter again remained absent and submitted his joining on 08.11.2001. In the enquiry, the charge was found proved to some extent and thereafter, the Disciplinary Authority has also observed that the charge levelled against the original petitioner was that he was in the habit of remaining unauthorizedly absent from duty and that charge was found proved against him and as such, punishment of dismissal from service was inflicted upon him. The appeal which was preferred by him also got dismissed.

8. The reply has been filed supporting the order passed by the Disciplinary Authority and also the Appellate Authority. It is also stated that in a matter of disciplinary proceeding, the scope of interference is very limited. The charge levelled against the original petitioner and his conduct in remaining unauthorizedly absent from duty in frequent intervals amounts to misconduct and punishment of dismissal according to the respondent/State cannot be said to disproportionate and as such, it is requested that the petition is without any substance and deserves to be dismissed.

9. Considering the submissions made by learned counsel for the parties and perusal of record, this Court is of the opinion that the submissions made by the counsel for the petitioner has no substance. Although, on the basis of material available on record, he tried his best to establish a case that the respondents have not considered the application for grant of leave in proper manner and despite submitting the application along with medical documents, those were not looked into and appropriate decision was not taken by them.

10. Considering the scope of interference in the matter of disciplinary proceeding, I am not inclined to re-appreciate the evidence adduced before the Enquiry Officer by the prosecution. In a matter of disciplinary proceeding, it is a settled position of law that while exercising the jurisdiction under Article 226 of the Constitution, the High Court has to see as to whether in a decision making process, there is any violation of principles of natural justice and if that is there, then interference is permissible and the authority can be directed to conduct the enquiry afresh from that stage from where the principle of natural justice has been violated. But, here in this case, no such argument was advanced by 6 the counsel for the petitioners. The Court can also interfere in the matter when punishment inflicted upon the delinquent is shocking and is not in consonance with the charge levelled. Here in this case, as per the charge levelled against the original petitioner, it is found that he was in a habit of remaining unauthorizedly absent for years together, as such, the punishment of dismissal from service cannot be said to be disproportionate.

11. If a case of no evidence is pleaded and the Court finds that the Disciplinary Authority and the Appellate Authority inflicted punishment without there being any evidence or the material produced by the prosecution, the High Court can interfere in the matter. But, here in this case sufficient material has been produced by the prosecution.

12. In the instant case, the petitioners have failed to substantiate as to on what ground this Court in exercise of jurisdiction under Article 226 of the Constitution can interfere in the order passed by the Disciplinary Authority and the Appellate Authority. Merely because the punishment was inflicted upon the original petitioner prior to one year of his retirement, the same cannot be considered to be illegal.

13. The Supreme Court in a case reported in (2017) 2 SCC 528 (Chief Executive Oficer, Krishna District Cooperative Central Bank Limited and another Vs. K. Hanumantha Rao and another), has observed as under:-

"7.2.1. No doubt, the award of punishment, which is grossly in excess to the allegations, cannot claim immunity and remains open for interference under limited scope for judicial review. This limited power of judicial review to interfere with the penalty is based on the doctrine of proportionality which is a well-recognised concept of judicial review in our jurisprudence. The punishment should appear to be so disproportionate that it shocks the judicial conscience. (See State of Jharkhand v. Kamal Prasad 7 [State of Jharkhand v. Kamal Prasad, (2014) 7 SCC 223 : (2014) 2 SCC (L&S) 386] .) It would also be apt to extract the following observations in this behalf from the judgment of this Court in Kendriya Vidyalaya Sangthan v. J. Hussain [Kendriya Vidyalaya Sangthan v. J. Hussain, (2013) 10 SCC 106 : (2013) 2 SCC (L&S) 833] : (SCC pp. 110-12, paras 8-10) "8. The order of the appellate authority while having a relook at the case would, obviously, examine as to whether the punishment imposed by the disciplinary authority is reasonable or not. If the appellate authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the disciplinary authority. Such a power which vests with the appellate authority departmentally is ordinarily not available to the court or a tribunal. The court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts. (See UT of Dadra & Nagar Haveli v. Gulabhia M. Lad [UT of Dadra & Nagar Haveli v. Gulabhia M. Lad, (2010) 5 SCC 775 : (2010) 2 SCC (L&S) 101] .) In exercise of power of judicial review, however, the court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when the punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities.

9. When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with the doctrine of Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the court and the court is forced to believe that it is totally unreasonable and arbitrary. This principle of proportionality was propounded by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] in the following words: (AC p. 410 D-E) '... Judicial review has, I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads, grounds upon which administrative action is subject to control by judicial 8 review. The first ground I would call "illegality", the second "irrationality" and the third "procedural impropriety". This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of "proportionality".

...'

10. An imprimatur to the aforesaid principle was accorded by this Court as well in Ranjit Thakur v. Union of India [Ranjit Thakur v. Union of India, (1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] . Speaking for the Court, Venkatachaliah, J. (as he then was) emphasising that "all powers have legal limits" invoked the aforesaid doctrine in the following words: (SCC p. 620, para 25) '25. ... The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court Martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.

Irrationality and perversity are recognised grounds of judicial review.'""

14. Considering the aforesaid, I do find any material or reason to exercise the jurisdiction under Article 226 of the Constitution of India in a matter of disciplinary proceeding and to dislodge the well reasoned findings given by both the authorities.

15. The petition being sans merit, is hereby dismissed.

(SANJAY DWIVEDI) JUDGE ac/-