Himachal Pradesh High Court
Kundan Lal vs Of on 6 October, 2015
Bench: Chief Justice, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 211 of 2014 Reserved on: 23.09.2015 .
Decided on: 06.10.2015
Kundan Lal ...Appellant.
Versus
of
State of Himachal Pradesh and others ...Respondents.
Coram
rt
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice P.S. Rana, Judge. Whether approved for reporting? Yes.
For the appellant: Ms. Sunita Sharma, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Additional Advocate General and Mr. J.K. Verma, Deputy Advocate General.
Mansoor Ahmad Mir, Chief Justice.
Challenge in this Letters Patent Appeal is to the judgment and order, dated 10.09.2014, made by the learned Single Judge/Writ Court in CWP No. 11824 of 2011, titled as Kundan Lal Sharma versus State of H.P. and others, whereby the ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 2 : writ petition filed by the writ petitionerappellant came to be dismissed (for short "the impugned judgment").
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2. The writ petitionerappellant had invoked the jurisdiction of the Writ Court by the medium of CWP No. 11824 of 2011 and sought the following reliefs amongst the others, on of the grounds taken in the memo of writ petition:
"(A) This Hon'ble Court may kindly be pleased to issue a Writ of Certiorari rt quashing Enquiry Report Annexure P 1 dated 10.9.2009, Order dated 26.9.2009 Annexure P 2, Order dated 8.3.2010 Annexure P 4 and Order dated 3.8.2010 Annexure P 6 and order dated 4.11.2011 Annexure P 8.
(B) That this Hon'ble Court may kindly be pleased to issue a Writ of Mandamus directing Respondents to promote the Petitioner to the post of Sub Inspector from the date he was due for the said promotion by invoking the provision of relaxation if so required provided under Rule 13.21 of the Punjab Police Rules without insisting upon the petitioner to undergo necessary training in this regard, with all consequential benefits even in case the petitioner superannuates during the pendency of the petition."
3. The respondents resisted the writ petition on the grounds taken in the memo of reply.
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4. It appears that inquiry was initiated against the writ petitionerappellant. Inquiry Officer submitted the report on .
10.09.2009 (Annexure P1) and held that the charges framed against the writ petitionerappellant were proved. The disciplinary authority made order, dated 26.09.2009 (Annexure P of
2) and imposed the penalty of forfeiture of three years approved service permanently, was questioned by the medium of appeal rt before the appellate authority (Annexure P3), which came to be rejected vide order, dated 08.03.2010 (Annexure P4). Thereafter, the writ petitionerappellant filed a mercy appeal/revision petition on 11.04.2010 (Annexure P5), which was also dismissed on 03.08.2010 (Annexure P6).
5. It also appears that the writ petitionerappellant had invoked the jurisdiction of this Court by the medium of CWP No. 8672 of 2011, titled as Kundan Lal Sharma versus State of H.P. & ors., came to be decided on 30.09.2011 (Annexure P7) with a direction to the respondents to examine the case of the writ petitionerappellant for promotion. While making the said order, the decision of this Court, dated 11.08.2011 in CWP No. 985 of ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 4 : 2011 was relied upon. The case of the writ petitionerappellant came to be rejected by the Director General of Police, Himachal .
Pradesh, vide order, dated 03.11.2011 (Annexure P8).
6. The writ petitionerappellant has questioned the inquiry report, orders made by the disciplinary authority, of appellate authority and revisional authority on the grounds taken in the writ petition.
rt
7. The writ petitionerappellant has questioned the inquiry report and the impugned orders on the following grounds:
(i) That the Inquiry Officer has not conducted the inquiry as per the Police Act and Rules;
(ii) That reasons have not been assigned by the Inquiry Officer as to how the charges have been established against the writ petitionerappellant and no finding has been recorded by the Inquiry Officer;
(iii) That the punishment inflicted upon the writ petitionerappellant is not provided by the Himachal Pradesh Police Act, 2007 (for short " HP Act of 2007).::: Downloaded on - 15/04/2017 19:03:11 :::HCHP
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8. The Writ Court/learned Single Judge has not determined as to whether the findings recorded by the Inquiry .
Officer and the impugned orders were legally sound or otherwise.
9. We have gone through the inquiry report. The Inquiry Officer has reproduced the charges, thereafter the of evidence led and without any discussions and analysis, held that the charges were proved. The findings of the Inquiry Officer are rt bereft of reasons and without any conclusion.
10. It is worthwhile to record herein that the Inquiry Officer, without any discussions, held that the charges framed during the departmental inquiry against the delinquent officer Kundan Lal, i.e. the writ petitionerappellant stand proved in view of the statements of PW1, PW2, PW3, Ex. PW4/B. Ex.PW4/C, Ex. PW4/D, Ex. PW4/E, Ex. PW4/F.
11. The disciplinary authority has accepted the recommendations made by the Inquiry Officer without taking note of the fact that the Inquiry Officer has not returned his findings.
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12. The question is whether the findings of the Inquiry Officer will stand still and whether the impugned orders made by .
the disciplinary authority, dated 26.09.2009 (Annexure P2), appellate authority, dated 08.03.2010 (Annexure P4) and revisional authority, dated 03.08.2010 (Annexure P6) are of sustainable in view of the fact that the said orders came to be made without any foundation.
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13. The Writ Court/learned Single Judge has not determined this issue. On this count alone, the impugned judgment merits to be set aside.
14. Our this view is fortified by the judgment rendered by the Apex Court in the case titled as M/s. Khardah and Co. Ltd.
versus The Workmen, reported in AIR 1964 Supreme Court 719, wherein it has been held that it is the duty of the Inquiry Officer to record clearly and precisely his conclusions and to indicate briefly his reasons for reaching the said conclusions and nonrecording of such findings constitutes a serious infirmity.
It is apt to reproduce para 10 of the judgment herein:
"10. Take the present case where, after the enquiry was held, the Manager who held ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 7 : the enquiry has not recorded any findings, and so, we do not know what reasons weighed in his mind and how he .
appreciated the evidence led before him.
The learned SolicitorGeneral contends that there was hardly any need to record any findings or to make a formal report in the present case, because the Manager who held the enquiry was himself competent to dismiss the employee. We are not impressed by this argument. The whole of object of holding an enquiry is to enable the enquiry officer to decide upon the merits of dispute before him, and so, it would be idle to contend that once rt evidence is recorded, all that the employer is expected to do is to pass an order of dismissal which impliedly indicates that the employer accepted the view that the charges framed against the employee had been proved. One of the tests which the Industrial Tribunal is entitled to apply in dealing with industrial disputes of this character is whether the conclusion of the enquiry officer was perverse or whether there was any basic error in the approach adopted by him. Now, such an enquiry would be impossible in the present case because we do not know how the enquiry officer approached the question and what conclusions he reached before he decided to dismiss Jadav. In our opinion, therefore, the failure of the Manager to record any findings after holding the enquiry constitutes a serious infirmity in the enquiry itself. The learned Solicitor General suggested that we might consider the evidence ourselves and decide whether the dismissal of Jadav is justified or not. We are not prepared to adopt such a course. If industrial adjudication attaches importance to domestic enquiries and the ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 8 : conclusions reached at the end of such enquiries, that necessarily postulates that the enquire would be followed by a .
statement containing the conclusions of the enquiry officer. It may be that the enquiry officer need not writ a very long or elaborate report; but since his findings are likely to lead to the dismissal of the employee, it is his duty to record clearly and precisely his conclusions and to indicate briefly his reasons for reaching of the said conclusions, Unless such a course is adopted, it would be difficult for the Industrial Tribunal to decide whether the rtapproach adopted by the enquiry officer was basically erroneous or whether his conclusions were perverse. Indeed, if the argument urged before us by the learned SolicitorGeneral is accepted, it is likely to impair substantially the value of such domestic enquiries. As we have already observed, we must insist on a proper enquiry being held, and that means that nothing should happen in the enquiry either when it is held or after it is concluded and before the order of dismissal is passed, which would expose the enquiry to the criticism that it was undertaken as an empty formality. Therefore, we are satisfied that the Industrial Tribunal was right in not attaching any importance to the enquiry held by the Manager in dealing with the merits of the dispute itself on the evidence adduced before it."
15. The High Court of Bombay in the case titled as Association of Engineering Workers, Mumbai versus Hindustan Motor Manufacturing Company, Mumbai, ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 9 : reported in 2004 (2) LLJ 790, held that it is necessary for the .
Inquiry Officer to analyze as to how the allegations against the employee are established by the evidence led by the employer and it is not a mere formality on his part but he has to conclude the inquiry by recording specifically that charges are proved. It is of apt to reproduce paras 5 and 7 of the judgment herein:
"5. The Ruling of the Apex Court therefore rt clearly discloses the necessity for analysis of the evidence by the Enquiry Officer before arriving at the finding regarding the misconduct of the workmen. It is necessary for the Enquiry officer to analyse the evidence and to disclose from such analysis as to how the allegations against the workmen are established by the evidence led by the employer. It is not a mere formality on the Enquiry Officer to conclude that allegations are proved by the evidence on record would suffice the requirement of law in that regard but the exercise of analysis of evidence should be disclosed from the application of mind by the Enquiry Officer to the facts brought on record visavis the allegation of misconduct by the workman and such an exercise should be revealed on the face of the record of the report of the Enquiry officer itself. In the absence thereof, as rightly submitted by the advocate for the petitioner, it cannot be said that the Enquiry Officer has applied his mind to the matter in issue nor it can be said that the findings by the Enquiry officer are borne out from the record. On the contrary in the absence of analysis it would have to ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 10 : be concluded that the findings are perverse. It is also to be noted that report of the enquiry Officer is essentially to help .
the tribunal to ascertain whether the approach of the Enquiry Officer in arriving at the findings had been appropriate or erroneous and whether the conclusions are perverse or not, beside being of great help to the workmen to place his contentions before the Disciplinary Authority in the matter of imposition of of punishment, if any.
6. ................
rt
7. As the report in question nowhere discloses analysis of evidence nor any efforts on the part of the Enquiry Officer to link any part of the evidence with the allegation of misconduct on the part of the employee, the findings arrived at by the Enquiry Officer are to be held as perverse.
On that ground alone the Award (part 1) needs to be set aside. Once the finding of the Enquiry officer are held to be perverse, certainly there cannot be any occasion for the Labour Court to confirm the order of termination of service of the workmen and in such circumstances when the employer had prayed for opportunity to lead further evidence in support of the charges, such an opportunity has to be given to the employer. Indisputably in the written statement filed before the Labour Court, the respondent employer had clearly stated that if the Court comes to the conclusion that the enquiry is not fair, proper and justified, then it is prayed that this Hon'ble Court may be pleased to allow the company to lead the evidence to substantiate the charges. . . . Apparently right to lead the evidence in support of ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 11 : charges in case of findings by the Enquiry Officer being found perverse as reserved by the respondent company. While setting .
side the impugned award, the matter will have to be remanded to the Labour Court to give an opportunity to the respondent company to substantiate charges against the petitioner."
16. Applying the test to the instant case, the Inquiry of Officer, in the inquiry report has reproduced the testimonies of the witnesses examined during the course of the inquiry, but rt there is no analysis of the evidence or any reasons for arriving at the conclusion, thus, cannot stand in the eyes of law.
17. The Inquiry Officer had to record as to whether the absence was willful, which he has not done in the present case.
He has also not recorded what were the reasons and grounds for holding that the writ petitionerappellant was absent from duties, was negligent amounting to willful absence, thus, had committed an act of indiscipline and dereliction of duty.
18. The writ petitionerappellant has specifically taken a ground that he had performed his duties, was on the spot and when Naka was over, left because he was not feeling well. Thus, it is not a case of willful absence.
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19. The Apex Court in a case titled as Krushnakant B. .
Parmar versus Union of India and another, reported in (2012) 3 Supreme Court Cases 178, discussed all the aspects and held that in case an employee explains that his absence was beyond his control and due to compelling circumstances, it was of not possible for him to attend the duties, it cannot be said to be willful absence. It is apt to reproduce paras 16 to 24 of the rt judgment herein:
"16. In the case of appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a government servant. The question whether "unauthorised absence from duty"
amounts to failure of devotion to duty or behaviour 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 wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 13 : including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the .
employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is of wilful, in the absence of such finding, the absence will not amount to misconduct.
19. In the present case the Inquiry Officer rt on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.
20. The question relating to jurisdiction of the Court in judicial review in a departmental proceeding fell for consideration before this Court in M.V. Bijlani v. Union of India and others, (2006) 5 SCC 88, wherein this Court held:
(SCC p. 95, para 25) "25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi criminal in nature, there should be some evidence to prove the charge.
Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 14 : sight of the fact that the enquiry officer performs a quasijudicial function, who upon analyzing the .
documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the of relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the rt witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
21. In the present case, the disciplinary authority failed to prove that the absence from duty was willful, no such finding has been given by the inquiry officer or the appellate authority. Though the appellant had taken a specific defence that he as prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty.
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22. Mr. P. Venkateswarlu, DCIO, Palanpur, who was the complainant and against whom appellant alleged bias .
refused to appear before the Inquiry Officer in spite of service of summons. Two other witnesses, Shri Jivrani and Shri L.N. Thakkar made no statement against the appellant, and one of them stated that he had no knowledge about absence of the appellant. Ignoring the aforesaid evidence, on the basis of surmises and conjectures, of the Inquiry Officer held the charge proved.
23. Though the aforesaid facts noticed by rt the appellate authority but ignoring such facts giving reference of extraneous allegations which were not the part of the charge, dismissed the appeal with following uncalled for observation:
"The appellant even avoided the basic training required for the job and asked JAD Ahmedabad to send all the training papers for his training at IB Training School, Shivpuri (Madhya Pradesh) to his residence at Ahmedabad. 'An untrained officer is of no worth to the department'."
24. In the result, the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority, affirmed by the Appellate authority; Central Administrative Tribunal and High Court are set aside. The appellant stands reinstated."
20. Admittedly, the writ petitionerappellant has tendered explanation. It was for the Inquiry Officer to hold that ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 16 : the explanation was not true or correct and the absence was willful.
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21. The Apex Court in its latest judgment in a case titled as Chhel Singh versus MGB Gramin Bank, Pali and others, reported in (2014) 13 Supreme Court Cases 166, held that the of unauthorized absence beyond control cannot be termed as willful absence. It is apt to reproduce paras 10 and 12 of the judgment rt herein:
"10. After giving our careful consideration to the facts and circumstances of the case and the submission made by the learned counsel for the parties, we are of the view that the Division Bench was wrong in setting aside the order of reinstatement. The Division Bench has accepted that the inquiry stood vitiated by disallowing the request of the appellant to summon the rest of the five witnesses. For the said reason, the Division Bench has not interfered with such part of the finding and order passed by the learned Single Judge whereby the impugned order of termination dated 17101994 and the Appellate Authority order dated 2612 1994 were quashed. The order of termination being quashed by the High Court, in absence of any observation and grounds to refuse the reinstatement, the appellant automatically stood reinstated. Without reinstatement in service, the question of further inquiry does not arise. There was no occasion for the Division ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 17 : Bench of the High Court to direct further inquiry, without reinstatement of appellant.
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11. ..........................
12. From a plain reading of the charges we find that the main allegation is absence from duty from 11121989 to 11121989 approximately 10½ months), for which no prior permission was obtained from the of competent authority. In his reply, the appellant has taken the plea that he was seriously ill between 11121989 and 11 rt121989, which was beyond his control; he never intended to contravene any of the provisions of the service regulations. He submitted the copies of medical certificates issued by Doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days. There was no allegation that the appellant's unauthorized absence from duty was willful and deliberate. The Inquiry Officer has also not held that appellant's absence from duty was willful and deliberate. It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay."
22. The Apex Court in the case titled as Union of India and others versus P. Gunasekaran, reported in 2014 AIR ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 18 : SCW 6657, has laid down certain tests as to when findings of the .
disciplinary authority can be interfered with by the High Court.
It is apt to reproduce para 13 of the judgment herein:
"13. Despite the wellsettled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re of appreciating even the evidence before the enquiry officer. The finding on Charge No. I was accepted by the disciplinary rt 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 Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry 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 extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 19 : irrelevant or extraneous considerations;
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f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the of admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible rt evidence which influenced the finding;
i. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). reappreciate the evidence;
(ii). interfere with the conclusions in the enquiry, 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.::: Downloaded on - 15/04/2017 19:03:11 :::HCHP
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(vi). correct the error of fact however grave it may appear to be;
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(vii). go into the proportionality of punishment unless it shocks its conscience."
23. In another case titled as Nirmala J. Jhala versus State of Gujarat and another, reported in 2013 AIR SCW of 1800, the Apex Court held that an order can be set aside when there are no grounds for passing it or when the grounds are such rt that no one can reasonably arrive at the opinion. It is apt to reproduce para 6 (III) of the judgment herein:
"III. Scope of Judicial Review :
(i) It is settled legal proposition that judicial review is not akin to adjudication on merit by reappreciating the evidence as an Appellate Authority. The only consideration the Court/Tribunal has in its judicial review, is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. The adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings. (Vide: State of T.N. & Anr v. S. Subramaniam, AIR 1996 SC 1232; R.S. Saini v. State of Punjab, (1999) 8 SCC 90: (AIR 1999 SC 3579); and Government of Andhra Pradesh & Ors. v.
Mohd. Nasrullah Khan, AIR 2006 SC 1214).
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(ii) In Zora Singh v. J.M. Tandon & Ors., AIR 1971 SC 1537, this Court while dealing with the issue of scope of judicial .
review, held as under:
"The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the of conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that rt whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior Court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari the superior Court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of sufficiency of evidence."
(Emphasis added) ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 22 :
(iii) The decisions referred to hereinabove highlights clearly, the parameter of the Court's power of judicial review of .
administrative action or decision. An order can be setaside if it is based on extraneous grounds, or when there are no grounds at all for passing it or when the grounds are such that, no one can reasonably arrive at the opinion. The Court does not sit as a Court of Appeal but, it merely reviews the manner in which of the decision was made. The Court will not normally exercise its power of judicial review unless it is found that formation of belief by the statutory authority suffers rt from malafides, dishonest/corrupt practice. In other words, the authority must act in good faith. Neither the question as to whether there was sufficient evidence before the authority can be raised/examined, nor the question of re appreciating the evidence to examine the correctness of the order under challenge. If there are sufficient grounds for passing an order, then even if one of them is found to be correct, and on its basis the order impugned can be passed, there is no occasion for the Court to interfere. The jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. This apart, even when some defect is found in the decision making process, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene."
(Emphasis added) ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 23 :
24. It is beaten law of land that Court cannot substitute its own view by reappreciating the evidence led before the .
Inquiry Officer, but the power of judicial review is confined to decision making process.
25. The Apex Court in the case titled as S.R. Tewari of versus Union of India & Anr., with S.R. Tewari versus R.K. Singh & Anr., reported in 2013 AIR SCW 3338, held that the rt scope of judicial review in disciplinary proceedings is very limited but where there is evidence of malpractice, gross irregularity or illegality, interference is permissible. It is apt to reproduce paras 22 and 24 of the judgment herein:
"22. The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide:::: Downloaded on - 15/04/2017 19:03:11 :::HCHP
: 24 : Union of India & Ors. v. Bodupalli Gopalaswami, (2011) 13 SCC 553 : (2011 AIR SCW 5331) and Sanjay Kumar .
Singh v. Union of India & Ors., AIR 2012 SC 1783 : (2012 AIR SCW 2361).
23. ...............
24. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or of excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of rt evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, AIR 1984 SC 1805; Kuldeep Singh v. Commissioner of Police & Ors., AIR 1999 SC 677 : (1999 AIR SCW 129); Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary, AIR 2010 SC 589 : (2009 AIR SCW 7158); and Babu v. State of Kerala, (2010) 9 SCC 189) : (2010 AIR SCW 5105).
Hence, where there is evidence of malpractice, gross irregularity or illegality, interference is permissible."
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26. The Apex Court in the case titled as State of U.P. & .
Anr., versus Man Mohan Nath Sinha & Anr., reported in 2009 AIR SCW 5704, held that the power of judicial review is confined to decision making process. It is apt to reproduce para 12 of the judgment herein:
of "12. The legal position is well settled that the power of judicial review is not directed rt against the decision but is confined to the decision making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to re appreciate and reappraise the evidence led before the Inquiry Officer and examine the findings recorded by the Inquiry Officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court."
27. Applying the test to the instant case, the Inquiry Officer has not marshalled and thrashed out the facts and circumstances, has not even applied his mind. He has also not recorded any reasons, as discussed hereinabove, for holding that ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 26 : the charges were proved and made recommendations for imposing penalty. The same is true with the disciplinary, .
appellate and revisional authorities, which have accepted the inquiry report and imposed the penalty. Viewed thus, the entire exercise suffers from lack of application of mind and the decision of making process is bad.
28. Having said so, the impugned judgment merits to be rt set aside only on this ground.
29. The Writ Court, though, has determined and held that it is a fact that the punishment awarded, i.e. forfeiture of three years approved service, is not contained in Section 7 of the Police Act, 1861 ( for short "Act of 1861") under the head 'major punishment', which is a major penalty, but it flows from Section 7 of the Act of 1861, which contains 'reduce' any police officer of the subordinate ranks as one of the punishments, while relying upon the judgment rendered by this Court in the case titled as Shri Bhagat Ram versus Inspector General of Police, Himachal Pradesh and others, reported in 1979 (3) SLR 256.
30. It is profitable to reproduce Section 7 of the Act of ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 27 : 1861 herein:
"7. Appointment, dismissal, etc., of .
inferior officers. Subject to the provisions of article 311 of the Constitution, and to such rules as the State Government may, from time to time, make under this Act, the Inspector General, Deputy InspectorsGeneral, Assistant InspectorsGeneral and District of Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the rt discharge of his duty, or unfit for the same; or may award any one of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own, shall render himself unfit for the discharge thereof, namely:
(a) fine of any amount not exceeding one month's pay;
(b) confinement to quarters for a term not exceeding fifteen days with or without punishmentdrill, extra guard, fatigue or other duty;
(c) deprivation of goodconduct pay;
(d) removal from any office of distinction or special emolument."
(Emphasis added) ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 28 :
31. In HP Act of 2007, the penalty is prescribed under Section 87. It is apt to reproduce Section 87 of the HP Act of 2007 .
herein:
"87. Breaches of discipline and disciplinary misconduct by a Police Officer.
of (1) Whoever, being a Police Officer
(i) knowingly contravenes or fails to rt follow the provisions of any law or any rule of instruction made thereunder, in the discharge of his official duties, with the intention of giving undue benefit or causing harm to any person; or
(ii) knowingly disobeys a lawful direction of his official superior or of a public servant empowered to issue directions, with the intention of giving undue benefit or causing harm to any person; or
(iii) exhibits cowardice in the line of duty; or
(iv) abdicates duties or withdraws from duty in contravention of the provisions of this Act; or
(v) is grossly insubordinate to a superior Police Officer; or
(vi) engages himself or participates in any demonstration, procession or strike, or resorts to, or in any way abets, any form of strike or ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 29 : coercion to compel any authority to concede anything; or .
(vii)commits any other service misconduct;
shall be deemed to have breached service discipline and shall be liable to be punished for conduct unbecoming of a Police Officer by a disciplinary authority in accordance with the provisions of this of Act and relevant conduct rules.
(2) The State Government, having regard to the nature of misconduct, may by rt notification published in the Official Gazette, classify the "major" and "minor"
misconducts for which any of the following penalties shall respectively be awarded, namely: (I) Major Penalties
(a) Dismissal from service; or
(b) Removal from service; or
(c) Compulsory retirement; or
(d) Reduction in rank; provided that such reduction shall not be to a rank below the rank in which such officer was recruited:
Provided that a Police Officer who has been sentenced by a criminal court of law to imprisonment exceeding one month or whose misconduct is of the gravest nature, including
(i) spying or antinational activities; or ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 30 :
(ii) damaging public infrastructure or public property; or .
(iii) causing indiscipline amongst fellow policemen or going on strike, mass casual leave or resorting to mass abstention; or
(iv) promoting enmity between various classes of society or causing riots; or of
(v) negligence or connivance in escape of a prisoner in lawful custody; or
(vi) corruption or perjury; or rt
(vii) such other major misconduct as the State Government may, having regard to its nature, declare to be misconduct of the graves nature;
shall be awarded the penalty of dismissal from service; and (II) Minor Penalties:
(a) reduction in pay by upto 3 stages in the timescale for a period not exceeding 3 years; or
(b) withholding of increments for upto 3 years; or
(c) fine not exceeding one month's pay; or
(d) reprimand or censure; or
(e) fatigue drill."
(Emphasis added) ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 31 :
32. While going through the said provision of law, the punishment of forfeiture of three years approved service .
permanently is not prescribed and it appears that was the reason, the learned Single Judge/Writ Court relied upon the judgment made by this Court in Bhagat Ram's case (supra).
of In Section 7 of the Act of 1861, the word 'reduce" is used and in Section 87 of HP Act of 2007, the words used are 'reduction in rt rank'.
33. Reduction in rank is from higher rank to lower rank.
The forfeiture of three years approved service permanently is not reduction in rank.
34. No doubt, the judgment of this Court in Bhagat Ram's case (supra) is outcome of the Act of 1861, but the learned Single Judge/Writ Court has lost sight of the judgment made by the Apex Court in the case titled as State of Punjab versus Shri Kishan Das, reported in 1971 (1) Supreme Court Cases 319 and Section 87 of the HP Act of 2007.
::: Downloaded on - 15/04/2017 19:03:11 :::HCHP: 32 :
35. The Apex Court, right from para 3 to 13 of the judgment, has discussed as to what does reduction in rank mean.
.
Incidentally, the said case was from State of Punjab and the Punjab Police Act and Punjab Police Rules have been discussed and their Lordships held that forfeiture of earned increments of affects only the monetary benefits and may be it affects seniority and the chances of promotion also, but that does not amount to rt reduction in rank.
36. The Apex Court in a series of judgments, including, Shalini versus New English High School Association and others, reported in (2013) 16 SCC 526; M.S. Sandhu and another versus State of Punjab and others, reported in (2014) 6 SCC 514; K. Madhava Reddy and others versus State of Andhra Pradesh and others, reported in (2014) 6 SCC 537; Sandhya Educational Society and another versus Union of India and others, reported in (2014) 7 SCC 701; Dashrath Rupsingh Rathod versus State of Maharashtra and another, reported in (2014) 9 SCC 129 and P. Suseela & ors. etc. etc. versus University Grants Commission & ors. etc. etc., reported in 2015 AIR SCW 2769, held that in case ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 33 : there is a clash between the judgments of Apex Court and High Court, the judgment of the Apex Court has to prevail.
.
37. Applying the test in this case, the Division Bench judgment of this Court in Bhagat Ram's case (supra) is in clash with the Apex Court judgment in Kishan Das's case of (supra), thus, it is the judgment in Kishan Das's case (supra), which will hold the water and is binding.
rt
38. The judgment in Bhagat Ram's case (supra) is also distinguishable and not applicable for the following reasons:
39. In the Act of 1861, the word 'reduce' has been used and in the HP Act of 2007, the words 'reduction in rank' have been used. The Division Bench has interpreted the word 'reduce' and has also mentioned that the word 'reduce' and 'reduction in rank' are two different connotations having two different meanings. While interpreting the word 'reduce', it has been held that it includes other punishments also. It has also specifically been said that the words 'reduction in rank' means only reduction in rank and do not include any other punishment. It is apt to reproduce paras 17 to 19 of the judgment in Bhagat Ram's case ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 34 : (supra) herein:
.
"17. On the contrary, we find that such type of punishment would be covered by the punishment of "reduction" of the delinquent officer as contemplated by the first part of Section 7. It may be recalled that this part of Section 7 contemplates three types of punishments. The words used in the first part are "dismiss, of suspend or reduce any police officer of the subordinate rank". The point to be noted is that reduction which is contemplated in rt the above clause is not merely the "reduction in the rank". The use of the word "reduce" is comprehensive enough to suggest reduction in rank as well as other type of reduction. Now, when punishment of stoppage of increment or forfeiture of approved service is inflicted, it results not in the reduction of any rank, but it does result of the period of service and would, therefore, be covered by the comprehensive sense in which the word "reduce" is used in the first part of Section 7. That being the position, it was open to the State Government to frame a rule providing for the punishment of forfeiture of approved service which is nothing but one aspect of reduction contemplated by Section 7. We find support to this particular view from the decision given by a Division Bench of the Rajasthan High Court in Longmal versus Superintendent of Police, reported in A.I.R. 1967 Raj. 214 wherein considering exactly the same point, the court has observed as under:
"It is correct that withholding of increments is not a punishment provided as such in section 7 of the Police Act. The argument of the ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 35 : learned Government Advocate, however, is that the word "reduce" in section 7 is comprehensive enough to .
include the punishment of
withholding of increments. The
language employed in Section 7 is "not reduction of rank" as word used is "reduce". The grammatical meaning of the word "reduce" inter alia is to lesson in any way as in size, weight, amount, value, price etc. to of diminish, to lower as in rank or position, to decrease. (See Webstor's New 20th Century Dictionary).
rt
When the increments of
incumbent are stopped his future an progress is brought to a standstill for a particular length of time. It is the stoppage of his increase which results in a sense in a decrease of his emoluments. In our opinion, therefore, the word "reduce" is wide enough to include the punishment of stoppage of increments. Stoppage of increments with future effect is a permanent reduction in the speed of progress so far as emoluments of an employee are concerned."
18. Learned Advocate of the petitioner had in this connection put reliance upon the decision given by the Punjab and Haryana High Court in State of Punjab v. Inder Sain Sharma, reported in 1968 SLR 519. Facts of this case show that the delinquent officer was awarded the punishment of forfeiture of three years' approved service on permanent basis under Section 7 of the Pepsu Police Act which did not contain the penalty of stoppage of increment as was the case in the former State of Punjab ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 36 : where such a penalty was added to the Police Act, 1861 by virtue of an amendment. The court held that the .
Inspector General of Police in Pepsu could not impose such a penalty under Section 7 of the Pepsu Police Act since such an penalty did not exist in that Section.
According to the High Court, therefore, the penalty imposed was illegal.
of
19. We have perused the above referred decision of the Punjab and Haryana High Court. It is not possible to know from the recorded judgment what were the actual words of Section 7 of the Pepsu Police Act rt which were considered in that case. However, presuming that Section 7 of the Pepsu Police Act was in the same words as Section 7 of the Police Act, we are of the opinion that this decision cannot be accepted as laying down the correct position of law in view of the fact that the High Court's attention in that case was not drawn to the comprehensive meaning of the word "reduce" found in the first part of Section 7 of the Police Act. At any rate, this decision of the Punjab and Haryana High Court is not of much help to the petitioner in this case in view of the fact that there the High Court was concerned only with the provisions of Section 7 of the Pepsu Police Act without the aid of any rule providing for the penalty of forfeiture in question. It was in absence of such a rule that the High court came to the conclusion that there was no statutory provision in the Pepsu Police Act for inflicting the specific punishment of forfeiture of approved service. So far as the case before us is concerned, we have got a specific rule, namely Rule 16 (1) which is referred to above, providing ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 37 : specifically for the punishment of forfeiture of approved service, and unless this rule is shown to be contrary to section .
7, it cannot be struck down as ultra vires the statute. As we have already observed, this rule is not only not contrary to section 7, but is covered by the phraseology of the Section itself, and therefore, it cannot be struck down as going against the provisions of section 7."
(Emphasis added) of
40. The Apex Court in the case titled as Chamba Singh rt versus State of Punjab and others, reported in AIR 1997 Supreme Court 2455, has held that the forfeiture of service for the purpose of increment is equivalent to a reduction in the period of qualifying service and the interpretation recorded in the Bhagat Ram's case (supra) is not correct. It is apt to reproduce para 3 of the judgment herein:
"3. The appellant continued in service throughout this period. His right to receive increments alone was affected. If the period of "forfeited" service under Rule 16.5(2) is to be deducted from qualifying service for compulsory retirement, it would have the paradoxical result of granting longer service to such an employee for compulsory retirement. He would have to be allowed to work for additional years to make up the 'forfeited' years, before he can be compulsorily retired. This is not the intention of Rule 16.5. The appellant placed reliance upon a decision of the ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 38 : Himachal Pradesh High Court in the case of Shri Bhagat Ram v. Inspector General of Police, Himachal Pradesh, (1979) 3 .
Serv LR 256 : (1979 Lab IC NOC 129).
The judgment has proceeded on the assumption that forfeiture of service for the purpose of increment is equivalent to a reduction in the period of qualifying service. For reasons which we have already set out, this is not a correct interpretation of the punishment of of forfeiture of service for the purpose of increments."
41. The Apex Court in the case titled as Nyadar Singh rt versus Union of India and others and M.J. Ninama versus Post Master General, Gujarat, Ahmedabad, reported in (1988) 4 Supreme Court Cases 170, has considered the expression 'reduction in rank'. It is apt to reproduce para 13 of the judgment herein:
"13. The import of the expression 'Reduction in rank has been examined in the context of the constitutional protection afforded to Government servants under Article 311(2) in relation to the three major penalties of 'dismissal', 'removal' and 'reduction in rank' and the constitutional safeguards to be satisfied before the imposition of these three major penalties. In Article 311(2) the penalty of "reduction in rank" is classed along with 'dismissal' and 'removal' for the reason that the penalty of reduction in rank has the effect of removing a Government ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 39 : servant from a class or grade or category of post to a lesser class or grade or category. Though the .
Government servant is retained in service, however, as a result of the penalty he is removed from the post held by him either temporarily or permanently and retained in service in a lesser post. The expression 'rank', in 'reduction in rank' has, for purposes of Article 311(2), an obvious reference to of the stratification of the posts or grades or categories in the official hierarchy. It does not refer to the mere seniority of rt the Government Servant in the same class or grade or category. Though reduction in rank, in one sense, might connote the idea of reversion from a higher post to a lower post, all reversions from a higher post are not necessarily reductions in rank. A person working in a higher post, not substantively, but purely on an officiating basis may, for valid reasons, be reverted to his substantive post. That would not, by itself, be reduction in rank unless circumstances of the reversion disclose a punitiveelement."
42. When the judgment in Bhagat Ram's case (supra) was handed down, i.e. on 03.05.1979, the Act of 1861 was applicable to the State of Himachal Pradesh. State of Himachal Pradesh has made the HP Act of 2007 in the year 2007, as discussed hereinabove, is applicable. Thus, the ratio of the said judgment is not applicable to the present case.
::: Downloaded on - 15/04/2017 19:03:11 :::HCHP: 40 :
43. The Delhi High Court in the case titled as Ram Pat .
versus Union of India and others, reported in 1984 (3) SLR 756, held that the punishment of forfeiture of approved service is not contained in the Act as punishment, thus, cannot be imposed as punishment. It is apt to reproduce para 13 of the judgment of herein:
rt"13. It is admitted at the bar that section 7 of the Police Act, 1861, as applicable in the Union Territory of Delhi, had not been amended so as to incorporate the punishment of forfeiture of approved service. The respondents have not even filed their counteraffidavit. Thus it is to be held that during the relevant period when the said rule was enforced in Delhi the said punishment under Rules 161.1(2) could not be imposed. The result is that I quash the order dated 23rd November, 1970, whereby the punishment in question was imposed on the petitioner."
44. The Apex Court in the case titled as Kunj Behari Lal Butail and others versus State of H.P. and others, reported in (2000) 3 Supreme Court Cases 40, has held that what is not provided by the Act, cannot be added by Rules. It is apt to reproduce paras 8 and 14 of the judgment herein:
"8. Shri Anil Divan, the learned senior counsel for the appellants submitted that ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 41 : lands covered by seven categories as defined in clauses (a) to (g) of Section 5 have been excluded from applicability of .
the provisions of the Act. Section 26 delegates to the State Government the legislative power of making rules which delegation is circumscribed by the expression 'for carrying out the purposes of this Act'. In exercise of such delegated power to legislate, the State Government cannot bring within the net of the rules of what has been excluded by the Act itself. We find merit in the submission so made, Tea estates are excluded from the provisions of the Act by Section 5. 'Tea rt estate' is defined in the interpretation clause of the Act to mean an area under tea plantation and includes within the definition 'such other area necessary for purposes subservient to a tea plantation as may be prescribed'. Rule 3 defines what areas shall be treated as subservient to tea plantation. The amendment made vide notification dated 441986 places an embargo on right to transfer such subservient land though exempted from the operation of the Act. Clearly the impugned proviso is beyond the rule making power of the State Government as conferred by the Act. It is well settled that the Legislature cannot delegate its essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up the details. (See :
Principles of Statutory Interpretation, Justice G.P. Singh, Seventh Edition 1999, at pp. 689690).::: Downloaded on - 15/04/2017 19:03:11 :::HCHP
: 42 :
9. to 13. ..............
14. We are also of the opinion that a .
delegated power to legislate by making rules 'for carrying out the purposes of the Act' is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself."
of
45. Thus, it can be safely held that the ratio laid down by the Delhi High Court in Ram Pat's case (supra) has also been rt laid down by the Apex Court in Kunj Behari Lal Butail's case (supra).
46. The Apex Court in the case titled as Global Energy Limited and another versus Central Electricity Regulatory Commission, reported in (2009) 15 Supreme Court Cases 570, has also laid down the same principle, while relying upon the judgment in Kunj Behari Lal Butail's case (supra).
47. On this ground also, the impugned judgment as well as the penalty imposed needs to be quashed.
48. Learned counsel for the writ petitionerappellant ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 43 : argued that the writ petitionerappellant has retired during the pendency of the lis and has been left in lurch. Further argued .
that the Government has issued instructions/clarification, dated 04.07.2000 and the mandate of the said instructions is how the major penalties are to be made, which include forfeiture of past of service. It is apt to reproduce the relevant portion of the said instructions/clarification herein:
rt "Please refer to this office Memo: No. P.II 93/9912901304B dated 12.1.95 on the subject cited above.
2. As per instructions issued vide this office Memo: referred to above, it was decided that DPCs should not recommend those incumbents who are under currency of punishment. In case of any major punishment including that of forfeiture of past service, the incumbents should not be selected for three years from the date of punishment or during the period of currency of punishment whichever is longer.
It has been observed that difficulties are being faced in the implementation of these instructions as in some cases departmental proceedings remain pending against the delinquents for a long periods and thereafter sometimes a major penalty may also be imposed. The matter has been reexamined and it is suggested that the punishing authority while passing the punishment order in such cases will make it clear as to from which date the ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 44 : punishment will take its effect keeping in view the circumstances of each case and reasons for delay in finalising the .
departmental enquiry."
49. The said instructions/clarifications mandate that it is the duty of the punishing authority to record as to from which date the punishment is to take its effect. Keeping in view the of facts and circumstances of the case, it was mandatory to record as to from which date the punishment was effective, for the rt following reasons:
50. The said penalty to the writ petitionerappellant had been awarded for the period of three years with effect from 26.09.2009. He had to retire in the year 2011 and retired as such.
Therefore, the said punishment remained operational only for two years. Thus, the orders suffer from lack of application of mind. The punishing authority had to fix any earlier date for forfeiture of three years approved service permanently as per the mandate of the instructions (supra).
51. It is also worthwhile to record herein that the respondents have rejected the case of the writ petitioner in terms of order, dated 03.11.2011 (Annexure P8) without discussing as ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 45 : to what was the order made by this Court and without taking into consideration the instructions of 2000, reproduced .
hereinabove.
52. The Director General of Police is the head of the entire police organization in the State. He was examining the of case as revisional authority and could have at least mentioned the date for commencement of the punishment imposed while rt dismissing the revision petition or while considering the case of the writ petitionerappellant in terms of the Court order.
Virtually, he has given a slip to his own instructions.
53. Having glance of the above discussions, the question is what order is to be made and whether it is case of remand to the disciplinary authority?
54. It is apt to record herein that now the writ petitioner appellant has retired and remanding the case, at this stage, though permissible, will add to the agonies of the writ petitioner appellant and will be unfair in the given circumstances of the case.
55. Our this view is fortified by the judgment rendered ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 46 : by the Apex Court in Nyadar Singh's case (supra). It is apt to .
reproduce para 32 of the judgment herein:
"32. The point now is as to what orders are to be made in these appeals. Appellants in the two appeals have been reduced to posts lower than these to which they were initially directly recruited. As these penalties cannot be of sustained in the view we take of the rule, in the normal course the penalties imposed would require to be set aside rt and the disciplinary authority directed to reconsider which other penalty which it would now choose to impose. But, we are of the opinion that it would be somewhat unfair that at this distance of time the matters are reopened. We think, having regard to all the circumstances of the cases the orders that commend themselves appropriate in the two cases are in terms following :
(i) In the first of the appeals, appellantNyadar Singh, has, after the period of the reduction in rank has spent itself out, been restored to the original position.
It would, therefore, be sufficient to set aside the penalty imposed on him and direct that the period of service in the reduced post be treated as service in the post held by him prior to imposition of the penalty, subject to the condition, however, that the appellant shall not be entitled to any difference of salary for and during the period of reduction. In view of this, we think that the proceedings taken against him ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 47 : should come to an end and there is no need to remit the matter to the Disciplinary Authority for .
selection and imposition of a fresh penalty.
(ii) In the case of M. J. Ninama the penalty of reduction in rank is set aside and he shall be restored to the post which he held before the imposition of the penalty.
of However, for the period, if any, served by him in the lower post pursuant to the penalty imposed rt on him, he shall not be entitled to the difference of salary. It will also not be necessary to remit his case for fresh consideration of the choice of the penalty having regard to the lapse of time."
56. Having said so, we deem it proper to direct the respondents to examine the case of the writ petitionerappellant for grant of promotion as per the Rules, which were occupying the field at that point of time read with the fact that he was facing departmental inquiry and in case, consideration order goes in his favour, it is provided that in that eventuality, the writ petitioner appellant is not entitled to any monetary benefits from the date of promotion till retirement, but that period shall qualify for all retiral benefits.
57. Having glance of the above discussions, the impugned ::: Downloaded on - 15/04/2017 19:03:11 :::HCHP : 48 : judgment is set aside and the appeal is disposed of, as indicated hereinabove, alongwith all pending applications.
.
58. Before parting with, we deem it proper to place on record the word of appreciation for the valuable assistance rendered by Mr. Dilip Sharma & Ms. Jyotsna Rewal Dua, Senior of Advocates, and Mr. Ranjan Sharma, Advocate.
rt (Mansoor Ahmad Mir)
Chief Justice
(P.S. Rana)
Judge
October 6, 2015
( rajni )
::: Downloaded on - 15/04/2017 19:03:11 :::HCHP