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Shiv Bahadur Singh v. Union Of India And Others - WRIT - A No. 14519 of 2003  RD-AH 11289 (11 July 2006)
Civil Misc. Writ Petition No. 14519 of 2003
Shiv Bahadur Singh
Union of India & others
Hon.Shishir Kumar, J.
By means of the present writ petition the petitioner has approached this Court for issuing a writ of certiorari quashing the order of dismissal dated 29.8.1997 passed by respondent No.2 and order dated 2.3.1998 passed by respondent No.3 (Annexures 7 and 11 to the writ petition).
The facts arising out of the present writ petition are that the petitioner, who was a constable in Railway Protection Force has obtained a leave from 2.7.1995 for three days but he was absent from duty up to 19.1.1996 without sanction of leave. The second charge was against the petitioner for dis-obedience of lawful orders that he was ordered to report the District Medical Officer for fitness certificate but he has not reported and remained unauthorized absent from duty. A charge sheet was given to the petitioner and an enquiry was conducted and subsequently by order dated 29.8.1997, the petitioner has been dismissed from service. The petitioner filed a revision and the revision too has been dismissed. Aggrieved by the aforesaid orders, the petitioner has approached this Court.
It has been submitted on behalf of the petitioner that from the perusal of the order passed by the disciplinary authority dated 29.8.1997, the petitioner was not afforded an opportunity and the disciplinary authority was pre-determined by mentioning "major penalty" which is apparent from the charge sheet dated 30.7.1996 and the enquiry report was submitted on 28.11.1996. It clearly goes to show that the disciplinary authority was predetermined to award the major punishment against the petitioner before the enquiry. The petitioner has clearly submitted that as the only son of the petitioner was kidnapped and the petitioner was not in a position to inform the authority regarding his absence after expiry of the period. In these circumstances the petitioner was not in a position to report for duty and as soon as he became conscious to the fact that his leave has already expired long back, he informed the authorities. The appellate authority has also not considered the said fact.
The further submission raised on behalf of the petitioner is that the petitioner is having unblemished record and the punishment, which has been awarded against the petitioner is highly disproportionate and not commensurate to the offence committed. Therefore, this Court should take a lenient view and substitute some minor punishment against the petitioner. The further submission made on behalf of the petitioner is that from the order passed by the disciplinary authority, it clearly goes to show that the proper opportunity which was necessary under the Rules has not been given to the petitioner. The order passed by the disciplinary authority is against the principle of natural justice. During the course of enquiry, no time, date and place was ever fixed for the purposes of enquiry. The petitioner has not been afforded an opportunity to cross-examine the witnesses.
The reliance has been placed by the petitioner upon a judgment of the Apex Court in State of Rajasthan Vs. Smt. Sujata Mehrotra reported in Judgment Today 2002 (3), 491
In view of the aforesaid decision, Sri Amarjeet Singh, learned advocate, who appeared on behalf of the petitioner has submitted that in the aforesaid case, the long absence from 1983 to 1987 about five years has been set a side and the Court had directed for reinstatement with 50% back wages. The State of Rajasthan approached the Apex Court and the Apex Court had maintained the order of reinstatement but has set aside the order regarding payment of 50% back wages. In such a situation, the counsel for the petitioner submits that the petitioner is entitled for relief and some minor punishment may be awarded.
On the other hand, Sri Govind Saran, learned Advocate, who appeared for the respondents on the direction issued by this Court had produced the original record before this Court. This Court has perused the record and from the record it is clear that the charge-sheet is of dated 30.7.1996. The counsel for the respondents has also submitted that it is totally incorrect to state that the service record of the petitioner or previous performance of the petitioner was unblemished. He has brought to the notice of the Court that on 15.3.1983, 16.3.1985, 3.9.1987, 28.11.1994, the petitioner was awarded withholding of increments, sometimes one year and sometimes two years. In 1977 the petitioner was also awarded punishment.
It has further been submitted on behalf of the respondents that it is not the case of the petitioner that during course of enquiry, the petitioner has not been afforded an opportunity. The charge sheet and date regarding holding the enquiry was informed to the petitioner and as the petitioner was not available at his residence, the same was received by the wife and brother of the petitioner. It has further been submitted on behalf of the respondents that the petitioner was directed to appear before the Divisional Medical Officer, Balapur but instead of going to the Doctor he has absented himself. This clearly amounts to disobedience of the order of superior authority. A finding to this effect has been recorded by the disciplinary authority that the petitioner was afforded full opportunity but deliberately the petitioner has not appeared in the date fixed, therefore, the enquiry officer has submitted a report and a show cause notice was issued and the order of dismissal has been passed by the disciplinary authority.
I have heard Sri Amarjeet Singh, learned counsel for the petitioner and Sri Govind Sararn, Advocate, who appeared for the respondents.
From the original service record of the petitioner, which has been perused by this Court, it clearly appears that the petitioner has been punished several times. The contention of the petitioner to this effect is not accepted that as in the heading word "major punishment chargesheet" has been mentioned, therefore, the disciplinary authority was pre-determined to award the major punishment to the petitioner. The Court has perused the order passed by the disciplinary authority (Annexure 7 to the writ petition).
The Court has also perused the enquiry report. Before commencing the enquiry, the enquiry officer has tried to trace out the whereabouts of the petitioner at his home address but he was not found at his home. His elder brother Sri Lal Bahadur Singh S/o Ram Naresh Singh has given in writing that the petitioner did not turn up at home since last one and half years. A copy of the statement has also been annexed as exhibit-1 to the enquiry report. The further finding recorded by the enquiry officer that on the information the petitioner was traced out at Moradabad where a letter dated 2.10.1996 was served to him and was asked to appear before the enquiry officer on 5.10.1996 at 8.00 p.m. but the petitioner did not turn up. The said letter was received by the petitioner that has been exhibited as exhibit 2. Further letter dated 9.10.1996 was delivered to the petitioner on 10.10.1996 at Moradabad but he again failed to attend the enquiry on 16.10.1996. Again a letter-dated 22.10.1996 was sent to the petitioner through Special Messenger but the petitioner avoided to acknowledge the letter on 23.10.1996. Then again a letter-dated 29.10.1996 was delivered to the petitioner at Moradabad but he did not acknowledge the same neither attended the enquiry on 4.11.1996. It clearly goes to show that the enquiry officer has tried his level best to afford an opportunity to the petitioner to participate in the enquiry and to submit his reply or documents in support thereof but the petitioner deliberately has failed in spite of the knowledge that enquiry is pending and enquiry officer is proceeded with the enquiry against the petitioner. In my view, this cannot be a case were the contention of the petitioner is accepted to the extent that the petitioner has not been informed regarding pendency of the enquiry against the petitioner and an enquiry officer has not afforded an opportunity to the petitioner.
From the order passed by the disciplinary authority, it is clear that the petitioner himself has admitted this fact that he was absent without leave and this fact has been admitted by the petitioner that he was granted leave for 26.7.1995 for a period of three days and he has not joined in spite of the expiry of the aforesaid period. From the record, it is also clear that when the petitioner has not joined after expiry of service, a charge sheet was sent to the permanent address of the petitioner and the charge sheet was served upon the petitioner's wife and brother but subsequently the petitioner was searched and a copy of the charge sheet was served upon the petitioner on 4.10.1996 and a receiving letter is on record. A finding has also been recorded that the petitioner was given full opportunity and notices were sent but he deliberately has not appeared before the enquiry officer. The Enquiry Officer after examining the record as well as the statements of the witness has come to the conclusion that the charges levelled against the petitioner is fully proved and has submitted an enquiry report. It is not the case of the petitioner that the copy of the enquiry report has not been given. The disciplinary authority after receiving the copy of the inquiry report had issued a show cause notice and the petitioner has submitted his reply. In my opinion, there is no illegality in the procedure adopted by the disciplinary authority and while passing the order it is always open to the disciplinary authority to see the past performance and the punishments, which have already been awarded to the petitioner. The contention raised on behalf of the petitioner regarding proportionality of punishment, I am of the view, that in view of the well settled principle by the Apex Court now the scope of power of judicial review by this Court is very limited. Awarding a punishment is a total domain of the disciplinary authority. This Court while exercising the power cannot substitute the punishment.
Admittedly, the petitioner is a member of the disciplinary force and overstail or absent without leave is an offence and this can lead to the punishment of dismissal. In 1988 Supreme Court, 703, Vidya Prakash Vs. Union of India the Apex Court has gone to the extent that if a person is absent without leave and earlier he has also been punished on various occasions, the punishment of dismissal cannot be said to be disproportionate and the Apex Court has confirmed the punishment awarded.
In view of the aforesaid fact, I am of the opinion, that there is no illegality in the order passed by the respondents. The writ petition is devoid of merits and is hereby dismissed.
There shall be no order as to costs.
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