Smt. Jamuna Kashyap v. State of Chhattisgarh & Others), whereby
Case Details
1 2025:CGHC:830-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WA No. 887 of 2024 Smt. Jamuna Kashyap W/o Late Chaituram Kashyap Aged About 45 Years R/o Village Farsaguda Post Bhanpuri District - Bastar (C.G.) ... Appellant(s) versus 1. State of Chhattisgarh Through The Secretary Health and Family Welfare Department Mahanadi Bhawan Mantralaya Atal Nagar New Raipur District - Raipur (C.G.) 2. The Director Directorate of Health Services Indravati Bhawan Mantralaya Atal Nagar New Raipur (C.G.) 3. The Joint Director Health Services Bastar Division Jagdalpur District - Bastar (C.G.) 4. The Chief Medical and Health OfÏcer Old District Hospital D.N.K. Colony Kondagaon District - Kondagaon (C.G.) 5. The Collector District - Kondagaon (C.G.) ...Respondents For Appellant For Respondents/State : :
Legal Reasoning
Mr. D.N. Prajapati, Advocate. Mr. Sangharsh Pandey, Government Advocate. BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.01.07 17:57:29 +0530 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 07 . 01 .202 5 1. Heard Mr. D.N. Prajapati, learned counsel for the appellant. Also heard Mr. Sangharsh Pandey, learned Government Advocate, appearing for the respondents/State. 2. The present intra Court appeal has been filed by the appellant against the order dated 20.11.2024 passed by the learned Single Judge in WPS No. 4181 of 2020 (Smt. Jamuna Kashyap vs. State of Chhattisgarh & Others), whereby the learned Single Judge has
Decision
dismissed the writ petition filed by the appellant/writ petitioner herein. 3. Brief facts of the case are that the husband of the appellant, namely, Chaituram Kashyap was working as a Male Health Worker at Sub-Health Center, Mungapadar, District Kondagaon. In the year 2015, he fell sick and was unable to join the duties and remained absent from 01.02.2015 till 18.04.2017. On 18.04.2017, the appellant was permitted to join the services subject to the condition that she would participate in the pending departmental enquiry. Thereafter, an article of charge was issued against the appellant and a show-cause notice was issued inter alia on the ground that the appellant remained unauthorizedly absent from duty from 01.02.2015 to 29.01.2019. It is further pleaded that as the husband of the appellant was not able to join the services on account of his ill health 3 neither show-cause notice was issued nor opportunity of hearing was afforded and behind the back, a departmental enquiry was conducted and punishment of dismissal from service was inflicted vide order dated 29.01.2019. An appeal was preferred and the same was also dismissed vide order dated 30.09.2019. 4. Learned counsel for the appellant submits that the appellant’s husband was dismissed from service without a proper hearing or departmental enquiry, violating Article 311(2) of the Constitution of India and the principle of natural justice. This is a clear breach of the procedures outlined in the Constitution, which requires that a government servant be informed of the charges against them and given a reasonable opportunity to be heard. He also submits that the Hon’ble Supreme Court has clarified that the requirement of holding an inquiry under Article 311(2) of the Constitution of India can be dispensed with only in exceptional situations, such as when the government servant is convicted of a criminal charge or when it is not reasonably practicable to hold an enquiry due to circumstances like violence or intimidation. But, in the present case, the husband of the appellant was not given a show-cause notice, and no evidence was recorded. He was also not given an opportunity to cross-examine witnesses, which is a clear violation of the principles of natural justice. 5. It is further submitted by the learned counsel for the appellant that the State Government had also issued a circular and notification dated 22.03.2018, amending the Chhattisgarh Civil Services (Leave) Rules, 2010 (for short, ‘Rules of 2010’). According to this notification, the period of continuous absence for 03 years cannot be condoned. However, the 4 husband of the appellant was not continuously absent for 03 years, which makes the order of dismissal contrary to the circular and notification issued by the government. He also submits that the learned Single Judge not consider the case of the appellant, the husband of the appellant due to incurable ill-health (kidney problem) not present in duty and he was not continuously absent from duty from 01.02.2015 to 19.01.2019, he was joined the services on 18.04.2017 and the husband of the appellant was received the salary from month of May 2017 and the authorities has deducted Rs. 150/- for group insurance for the month of May 2017, again in the year 2017, the husband of the appellant fell sick and he was admitted for treatment for long time, therefore, again the husband of the appellant remained absent from duty. Therefore, the husband of the appellant, in the departmental enquiry failed to participate, he has not received any show-cause notice, even due to ill-health, not in position to inform the ofÏce, the department without serving the notice to the appellant, without recording any evidence and without given opportunity of cross-examination of the witnesses are to lead evidence, on basis of that enquiry report alleged termination order has been issued, in violation of under Article 311(2) of the Constitution of India was required to be followed and the appellant ought to have given reasonable opportunity of hearing for defense in alleged charges. But, the learned Single Bench dismissed the petition of the appellant. Hence, the order passed by the learned Single Judge dated 20.11.2024 is untenable in the eyes of law and deserves to be quashed. 6. On the other hand, learned State counsel submits that the learned Single Judge after considering all the aspects of the matter has rightly 5 dismissed the writ petition filed by the appellant/writ petitioner, in which no interference is called for. 7. It is further submitted by the learned State counsel that the husband of the appellant remained unauthorizedly absent from duty from 01.02.2015 till 29.01.2019. He would contend that many times show- cause notices were issued to the husband of the appellant, but no response was received. He would also submit that a notice was also published in the daily newspaper on 24.01.2019. He would contend that when the husband of the appellant did not participate in the departmental enquiry, the Enquiry OfÏcer proceeded with the enquiry. The witnesses were examined and the allegations made against the husband of the appellant were found proved. He would further argue that the Enquiry OfÏcer submitted his report and thereafter, the disciplinary authority concurring with the enquiry report inflicted punishment of dismissal from service. He would also argue that the order passed by the disciplinary authority has been afÏrmed by the Appellate Authority. He would state that there is a concurrent finding of facts recorded by the two authorities and the punishment is neither shocking nor disproportionate. He would also submit that the appellant failed to place any application moved before the Enquiry OfÏcer with regard to supply of documents, opportunity to cross- examine witnesses or to lead the evidence. 8. We have heard learned counsel for the parties and perused the impugned judgment and materials available on record. 9. From a perusal of the documents, it appears that the husband of the appellant was working as a Male Health Worker at Sub-Health Centre, 6 Mungapadar, District Kondagaon under the respondents. The husband of the appellant remained absent from 01.02.2015 till 29.01.2019. A show- cause notice was issued, but no reply was filed. The article of charge was issued with the allegations that the husband of the appellant remained unauthorizedly absent from duty and was negligent in the discharge of his duties. The Enquiry OfÏcer and Presenting OfÏcer were appointed by the Disciplinary Authority. The Presenting OfÏcer examined the witnesses to prove the guilt of the husband of the appellant. Inspector Incharge-cum- Assistant Medical OfÏcer, Shri Krishna Kumar Patel, and Sector Supervisor Shri N.R. Sethiya proved the fact that the husband of the appellant was negligent in the discharge of his duties and he remained absent from 01.02.2015 to 29.01.2019. The Ex-Sarpanch Shri Kudiram Korram also supported the case of the prosecution. The Enquiry OfÏcer found all three charges proved against the husband of the appellant. Since the husband of the appellant failed to participate in the departmental enquiry, the witnesses were not cross-examined. The husband of the appellant also failed to produce documents including medical documents before the Enquiry OfÏcer to substantiate that at the relevant time, he was seriously ill. The Disciplinary Authority looking to the period of absence, inflicted punishment of dismissal form services. In appeal, the order passed by the Disciplinary Authority was afÏrmed. 10. The learned Single Judge relied upon the judgment of the Hon’ble Supreme Court in the matter of Life Insurance Corporation of India & Others vs. S.Vasanthi, reported in (2014) 9 SCC 315 wherein it was reiterated that the High Court in the exercise of its powers of judicial review cannot assume the role of sitting as a departmental appellate 7 authority as the same is not permissible under law. It shall be apt to reproduce paragraphs 10 and 11 of the judgment which reads as under: “10. The scope and power of judicial review of the courts while dealing with the validity of quantum of punishment imposed by the disciplinary authority is now well settled. In Kendriya Vidyalaya Sangthan v. J. Hussain (2013) 10 SCC 106, the law on this subject, is recapitulated in the following manner: (SCC pp.110-12, paras 7-10) "7. When the charge is proved, as happened in the instance case, it is the disciplinary authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of charge. The Disciplinary Authority is to decide a particular penalty specified in the relevant Rules. Host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist…. 11. We are of the opinion that the High Court transgressed its limits of judicial review by itself 8 assuming the role of sitting as departmental appellate authority, which is not permissible in law. The principles discussed above have been summed up and summarized as follows in the case of Lucknow Kshetriya Gramin Bank . v. Rajendra Singh, (2013) 12 SCC 372 ( SCC p.382, , para 19):- “19.1. When charge(s) of misconduct is proved in an enquiry, the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. 19.2. The courts cannot assume the function of of disciplinary/ departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent rt authority. 19.3 Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court. 19.4 Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The 9 court by itself cannot mandate as to what should be the penalty in such a case. 19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co- delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co- delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.” 11. The learned Single Judge also relied upon the judgment of the Hon'ble Supreme Court in the matter of Chennai Metropolitan Water Supply and Sewerage Board & Others vs. T.T. Murali Babu, reported in (2014) 4 SCC 108 held as under:- “17. In the case at hand, though there has been four years’ delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to 10 be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remain unauthorizedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others’ ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons -who compete with “Kumbhakarna” or for that matter “Rip Van Winkle” . In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.” 12. While passing the impugned order, learned Single Judge held that the absence of the husband of the appellant was deliberate and unauthorized. No document was produced to demonstrate that on account of some unavoidable circumstances, the husband of the appellant could not join the services. Even in the departmental enquiry, the husband of the appellant failed to participate. No applications were 11 moved either by the appellant or by the husband of the appellant before the Enquiry OfÏcer to provide documents or to provide the opportunity to cross-examine the witnesses or to lead evidence. The prosecution examined witnesses to prove the guilt of the husband of the appellant. Learned Single Judge also held that the scope of interference is limited as held by the Hon’ble Supreme Court in the matter of Life Insurance Corporation of India (supra). Hence, the punishment inflicted on the husband of the appellant is neither disproportionate nor shocking to the conscience of the Court. 13. Considering the pleadings made in writ appeal, submissions advanced by the learned counsel appearing for the parties and also considering the findings recorded by the learned Single Judge while dismissing the writ petition filed by the appellant/writ petitioner, we are of the considered opinion that the learned Single Judge has not committed any illegality, irregularity or jurisdictional error warranting interference by this Court. 14. Accordingly, the present writ appeal being devoid of merit is liable to be and is hereby dismissed. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Chief Justice Judge Brijmohan