(BY SHRI RAVINANDAN DWIVEDI - ADVOCATE ) v. REWA (MADHYA PRADESH)

Judgment

3. MANNIYA UCHCH NYAYALAY MADHYA PRADESH PRADHAN PEETH JABALPUR THROUGH SHRIMAN REGISTRAR GENERAL DISTRICT-JABALPUR (MADHYA PRADESH)

SHRIMAN REGISTRAR MAHODAYA, CIVIL COURT, REWA DISTRICT REWA (MADHYA PRADESH) SHRIMAN ADHIKARI, JANCHKARTA KUTUMB NIYAYALAYA, REWA DISTRICT REWA (MADHYA PRADESH) .....RESPONDENTS ----------------------------------------------------------------------------------------- This petition coming on for hearing this day, Hon'ble Shri Justice Vishal Mishra, passed the following: Signature Not Verified SAN JHARIYA 2 ORDER The present writ petition under Article 226 of the Constitution of India has been filed assailing the order dated 07.11.2020 (Annexure P/3) passed by the respondent No.2, whereby, the services of the petitioner has been terminated. It is alleged the petitioner was in service respondent/department on the post of Sweeper (Peon) since 2018. It is stated that due to death of his father-in-law (Chachiya Sasur), an application was filed by the petitioner for leave with effect from

06.07.2018 to 11.07.2018 to attend the last rites. The petitioner went on leave. During the aforesaid period, he felt ill and did not report back to the respondent/department. He was under continuous treatment upto the March, 2022. After recovery from illness, when he reported back to the respondent/department on 26.03.2022, he was not permitted to join and it was informed that due to his long unauthorized absence, departmental proceedings were initiated against him under Rule 10(9) of the Civil Services (Classification, Control and Appeal) Rules, 1966 and after a regular departmental enquiry into the matter, a decision was taken to terminate his service vide impugned order dated 07.11.2020. It is argued that the petitioner remained under continuance treatment during the aforesaid period, the medical documents were filed to the aforesaid effect, no opportunity of hearing was extended to the petitioner and due to his illness, he could not participate in the departmental proceedings. The aforesaid aspect was never taken into consideration by the authority. Therefore, the impugned order terminating the services of the petitioner is perse illegal and liable to be set aside. Signature Not Verified SAN JHARIYA 3 Heard learned counsel for the petitioner and perused the record. From a perusal of the record, it is clear that the petitioner remained absent unauthorizedly for a period of four years. He has submitted an application for leave with effect from 06.07.2018 to 11.07.2018 and after completion of aforesaid leave period, he has never reported back to the department for a period of four years. A show cause notice dated

10.06.2019 was issued to the petitioner. Neither the petitioner appears in person nor did he file any reply to the show cause notice. An Enquiry Officer as well as Presenting Officer were appointed vide order dated

17.07.2019 and after completion of the departmental enquiry, the enquiry report was submitted on 18.09.2019. The charges leveled against the petitioner were found to be proved. Neither the petitioner nor any of the family members have reported to the department regarding his illness during this four years’ period. From the record, it is revealed that wife and other family members have regularly taking him for treatment to Nagpur. Once the petitioner’s family members have taken him to Nagpur for treatment then there was no reason for not reporting the same to the department for such a long period. When the petitioner has not reported to the department, a show cause notice was issued to him and when no reply was filed, a decision has been taken to initiate departmental enquiry, for which, a charge-sheet dated 10.06.2019 was issued to him leveling the following charges:- “1. ;g fd vki dqVqEc U;k;ky;] jhok esa Hk`R; ds in ij infLFkfr ds nkSjku vki fnukad 06-07-18 dks **llqj dk nsgkUr gks tkus dk dkj.k nf’kZr djrs gq;s** fnukad 06-07-18 ls 11-07-18 rd vodk’k ,oa eq[;ky; NksM+us dh vuqefr dk vkosnu i= izsf"kr dj fnukad 06-07-18 ls yxkrkj vkt fnukad rd vius inh; dRrZO; ls vuqifLFkr gSaA Signature Not Verified SAN JHARIYA 4

2. ;g fd fcUnq dzekad&1 esa vf/kjksfir vkjksi ds lEcU/k esa iz/kku U;k;k/kh’k] dqVqEc U;k;ky;] jhok }kjk dkj.k crkvksa lwpuk&i= dzekad 204@,d&16&06@03 fnukad 11-07-18 ,oa dzekad 256@,d&16&06@03 fnukad 01-08-18 tkjh dj vkils Li"Vhdj.k fy;s tkus ij] vkids }kjk dksbZ Li"Vhdj.k izLrqr ugha fd;k x;k ,oa u gh vki dRrZO; ij gh mifLFkr gq;sA” No reply to the charge-sheet was filed by the petitioner. The departmental proceedings were completed by the authority and the charges leveled against the petitioner were found to be proved. The enquiry report was submitted and a final decision was taken by the authorities to terminate the services of the petitioner. The law is well settled with respect to departmental proceedings as scope of interference in the case of departmental proceedings is very limited. Hon’ble Supreme Court in the case of Union of India and others vs. Managobinda Samantaray (Civil Appeal Nos.1622-1623 of 2022 decided on 24.02.2022) has held as under: “9. Impugned judgment by the Division Bench is difficult to sustain as it equates appellate power under Rule 52 of the CISF Rules, 2001, with power of judicial review exercised by constitutional courts. Rule 523 of the CISF Rules, 2001 empowers the appellate authority to examine whether the penalty imposed is excessive, adequate or inadequate and pass consequential order confirming, enhancing, reducing or setting aside the penalty. Rule 52 - Consideration of appeals - (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 33 and having regard circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. Signature Not Verified SAN JHARIYA 5 (2) In the case of an appeal against the order imposing any of the penalties specified in rule 34, or enhancing any penalty imposed under the said rules, the appellate authority shall consider – (a) Whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) Whether the findings of the disciplinary authority are warranted on the basis of the evidence on the record ; and (c) whether the penalty or the enhanced penalty imposed is excessive, or adequate, or inadequate and pass orders; (i) Confirming, enhancing, reducing or setting aside the penalty; or (ii) Remitting the case to the authority which imposed or enhanced the penalty, or to any other authority with such direction as it may deem fit in the circumstances of the case. (iii) No order imposing enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity as far as may be in accordance with the provisions of rule 37, of making a representation against such enhanced penalty. Provided that - (i) If such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (i) to (v) of rule 34 and an inquiry under rule 36 has not already been held in the case, the appellate authority shall, subject provisions of rule 39, itself hold such an inquiry or direct that such inquiry be held in accordance with rule 36 and thereafter on a consideration of the proceedings of such inquiry make such orders as it may deem fit; and (ii) If the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clause (i) to (v) of rule 34 and an inquiry under rule 36 has already been held in the case, the appellate authority shall make such orders as it may deem fit. In the present case, the procedure requiring issue of show-cause notice and compliance with the principles of Signature Not Verified SAN JHARIYA 6 the role of natural justice is made. Quantum of punishment is within the discretionary domain and the sole power of the decision-making authority once the charge of misconduct stands proved. Such discretionary power is exposed to judicial interference if exercised in a manner which is grossly disproportionate to the fault, as the constitutional courts while exercising the power of judicial review do not assume the appellate authority. Writ jurisdiction is circumscribed by limits of correcting errors of law, procedural error leading to manifest injustice or violation of principles of natural justice. The decision are also disturbed when it is found to be ailing with perversity. On the question of quantum of punishment, the court exercising the power of judicial review can examine whether the authority has been a reasonable employer and has taken into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and excluded irrelevant matters. In the context of quantum of punishment these aspects are examined to consider whether there is any error in decision making process. On merits of the quantum of punishment imposed, the courts would not interfere unless the exercise of discretion in awarding punishment punishment imposed is grossly disproportionate.” is perverse the sense In the case of Pravin Kumar vs. Union of India reported in (2020) 9 SCC 471, the Hon’ble Supreme Court has held as under: “28. It is thus well settled that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority”. Signature Not Verified SAN JHARIYA 7 In the case of Union of India and others vs. P. Gunasekaran reported in (2015) 2 SCC 610, the Hon’ble Supreme Court has held as under: “12. 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. I 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 re- appreciation 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 extraneous irrelevant 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. 13. Under Article 226/227 of the Constitution of India, the High Court shall not: Signature Not Verified SAN JHARIYA 8 (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.” From the aforesaid settled proposition of law, it is apparently clear that scope of interference in the cases of departmental enquiry proceedings is very limited and it virtually amounts to judicial review which can only be made in cases where jurisdictional error or malafide on the part of the authority is shown. In view of the aforesaid facts and circumstances of the case, no relief can be extended to the petitioner. The authority has rightly considered the case of the petitioner. There are no allegations leveled by the petitioner regarding jurisdictional error, incompetency of the authority nor any malafide has been alleged against any of the authority. In absence of any of the aforesaid, this Court is unable to interfere with the order of the authority. The petition sans merit and is accordingly dismissed. (RAVI MALIMATH) CHIEF JUSTICE (VISHAL MISHRA) JUDGE Signature Not Verified Signature Not Verified SAN SAN JHARIYA JHARIYA SJ/-