Union of India v. Sudeep Kumar

------- CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD ------- For the Appellants For the Respondent : Mr. Pratyush Kumar, Advocate : Mr. Anuj Burman, Advocate ---------------------------- [2] ORAL JUDGMENT 07/Dated 20th July, 2022 I.A. No. 132 of 2020:

1. With the consent of the parties, the matter has been heard through video conferencing. They have no complaint about any audio and/or video quality.

2. This interlocutory application has been filed for condoning the delay of 74 days, which has occurred in preferring this appeal.

3. Heard the parties.

4. Having heard the learned counsel for the parties and considering the statements made in this application, we are of the view that the appellant was prevented from sufficient cause in preferring this appeal within time.

5. Accordingly, this interlocutory application is allowed and the delay of 74 days in preferring this appeal, is hereby condoned. LPA No. 05 of 2020:

6. The instant intra-court appeal preferred under Clause 10 of the Letters Patent is directed against the order/judgment dated 28.08.2019 passed by the learned Single Judge of this Court in W.P.(S) No. 7788 of 2012, whereby and whereunder, the order dated 20.11.2010 and the appellate order dated 19.12.2012, by which the order of punishment of removal has been passed and affirmed, has been quashed and set aside by remitting the matter before the authority to take decision afresh in quantum of punishment.

7. The brief facts as per the pleading made in the writ petition which require to be enumerated, read as hereunder: [3] The writ petitioner was appointed to the post of Constable (Security Guard) in Central Industrial Security force, Unit Panki, Power House, Kanpur, U.P. on 19.12.2003. The writ petitioner visited his native place for 15 days with sanctioned leave from 07.01.2010 to

21.01.2010. According to the writ petitioner, at the native place, he fell seriously ill and as such, approached to the nearest primary health centre of the State Government wherein doctor had advised to take bed rest during the treatment. The fact about the ailment could not have been communicated to the concerned authority since the writ petitioner was far away from the place of posting. The writ petitioner when became medically fit on the basis of the medical fitness certificate dated 01.04.2010, he reached to the place of duty and reported for joining on 05.04.2010 wherein he was verbally informed that he was no more in service and accordingly the writ petitioner has been removed from service vide order dated

20.11.2010. The case of the writ petitioner is that the order of removal dated

2011.2010 has been passed without giving any reasonable opportunity to defend the case since the writ petitioner was at his native place and was not in a position to move due to his ailment. The writ petitioner preferred an appeal but the same had been dismissed vide order dated

19.12.2012. Being aggrieved, the writ petitioner filed a writ petition being W.P.(S) No. 7788 of 2012 assailing the order passed by the original authority as also by the appellate authority. [4] The writ petitioner has raised the plea of violation of principles of natural justice as also the ground of excessive punishment being commensurate with the charge. The learned Single Judge has interfered with the impugned orders and quashed and set it aside. The matter had been remitted before the disciplinary authority to take a decision afresh on the quantum of punishment, which is the subject matter of the instant intra-court appeal.

8. Mr. Paratyush Kumar, learned counsel for the appellants, the Director General of Central Industrial Security Force has assailed the order passed by the learned Single Judge on the ground that the writ petitioner being the member of the discipline force, as such, absence for 73 days cannot be taken in a lenient manner otherwise the discipline of the discipline force will ultimately be at question. It has been contended that when the writ petitioner has not reported after the period of sanctioned leave, a departmental proceeding had been initiated and even though he was knowing about the initiation of the departmental proceeding, he has not bothered to communicate any letter or any medical prescription of showing his bonafide about his illness rather, he, when the order of punishment of removal from service has been passed, has reported to the office of the concerned authority and has produced the copy of the medical fitness certificate obtained from a primary health centre which cannot be said to be a justified document to condone the unauthorized absence of 73 days. It has further been submitted that the enquiry officer has considered the said document, which is a certificate issued by the concerned hospital, and taking into consideration the fact that there is [5] no advice of treating doctor advising for complete bed rest, as such, the writ petitioner should have reported to the duty but having not done so, he has committed gross misconduct and therefore, a charge-sheet has been submitted considering the unauthorized absence of 73 days to be a gross misconduct. The writ petitioner, even though, was knowing about the pendency of the departmental proceeding but chosen not to appear, hence, the proceeding has proceeded ex-parte and finally charges having proved and accepted by the original authority, order of removal from service has been passed and the said order has been affirmed by the appellate authority. It has been contended that the learned Single Judge while showing interference with the impugned order has failed to appreciate the fact about the nature of allegation of 73 days absence that too by a member of the discipline force. The learned Single Judge has also failed to appreciate the fact that the writ petitioner even though was not confined to bed rest, it was incumbent upon the writ petitioner to report to the duty but chosen not to do so which further shows the conduct of the writ petitioner which is not expected from a member of the disciplined force. It has further been submitted that the learned Single Judge has remitted the matter by quashing the impugned orders for passing the order afresh on the quantum of punishment since the learned Single Judge has come to the conclusion of shocking conscience but in a case where the court comes to the conclusion that the punishment imposed [6] shocks the conscience, there must be a reason as to what led the court in coming to the conclusion of shocking the conscience and it is only thereafter the quantum of punishment is to be interfered with. But, it would be evident from the order passed by the learned Single Judge that merely by recording that the conscience of the court shocks, the order of punishment is required to be considered afresh so far as the quantum of punishment is concerned, therefore, on this ground, the order passed by the learned Single Judge suffers from infirmity.

9. Mr. Anuj Burman, learned counsel for the writ petitioner has defended the order passed by the learned Single Judge by making submission that writ petitioner due to unavoidable circumstances could not be able to report to the duty, as such, the learned Single Judge considering the punishment of removal from service taking the age of the writ petitioner to be 31 years, has remitted the matter before the disciplinary authority for taking decision afresh on quantum of punishment and as such, the same requires no interference. According to the learned counsel, the learned Single Judge after taking into consideration the nature of allegation and considering the fact that there is absence of 73 days which was beyond his control since the writ petitioner fell ill while on sanctioned leave, if in such circumstances, the order of punishment has been interfered with, it cannot be said to suffer from error.

10. This Court has heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge. [7]

11. The fact which is not in dispute in this case is that the writ petitioner joined as Constable (Security Guard) in Central Industrial Security force, Unit Panki, Power House, Kanpur, U.P. on 19.12.2003 and while discharging his duty, he went on sanctioned leave of 15 days from

07.01.2010 to 21.01.2010. The writ petitioner claims that while he was on sanctioned leave, he fell ill and thereafter, he could not be able to report to the duty after completion of the sanctioned leave. The writ petitioner has been issued with a memorandum of charge leveling therein allegation of gross misconduct since without any due permission he had over-stayed for a period of 73 days after completion of the sanctioned leave. Enquiry commenced but the writ petitioner had not participated in the enquiry and ultimately the charges leveled against the writ petitioner has been found to be proved which finally has been accepted by the disciplinary authority basis upon which the order of punishment of removal from service has been passed. The writ petitioner has questioned the order of removal from service dated 20.11.2010 before the appellate authority but the appellate authority has also declined to interfere with the same. The orders passed by the original authority and the appellate authority have been challenged before this Court by filing writ petition being W.P.(S) No. 7788 of 2012 wherein the learned Single Judge has interfered with the impugned orders and remitted the matter before the authority for passing the order afresh on the quantum of punishment on the basis of the observations made in the impugned order. [8]

12. This Court before proceeding to examine the legality and propriety of the impugned order, deems it fit and proper to refer the position of law regarding the scope of judicial review showing interference with the order passed by the disciplinary authority as has been held by the Hon’ble Apex Court in Union of India vs. P. Gunasekaran, AIR 2015 SC 545 wherein at paragraph 13 thereof, following guidelines have been laid down for showing interference in the decision taken by the disciplinary authority and not to interfere with the decision which read as under: “13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under 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 irrelevant or extraneous considerations; 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 admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not: (i). re-appreciate 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. (vi). correct the error of fact however grave it may appear to be; (vii). go into the proportionality of punishment unless it shocks its conscience.” [9] The Hon’ble Apex Court in Management of State Bank of India vs. Smita Sharad Deshmukh and Anr., (2017) 4 SCC 75, has laid down that it is equally settled position of law that the High Court sitting under Article 226 of the Constitution of India can certainly interfere with the quantum of punishment, if it is found disproportionate to the gravity of offence. In Central Industrial Security Force and Ors. vs. Abrar Ali, AIR (2017) SC 200, the following guidelines have been laid down, showing interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, the extract of para 8 thereof, is referred hereinbelow: “8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), this Court held as follows: "7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749: 1996 SCC (LandS) 80: (1996) 32 ATC 44] : (AIR 1996 SC 484) ; Union of India v. G. Ganayutham [(1997) 7 SCC 463: 1997 SCC (LandS) 1806] : (AIR 1997 SC 3387) ; Bank of India v. Degala Suryanar-ayana [(1999) 5 SCC 762: 1999 SCC (LandS) 1036] : (AIR 1999 SC 2407) and High Court of Judicature at Bombay v. Shashikant S. Patil. (AIR 2000 SC 22)".