Dismissed

Ghasiram Suryawanshi v. South Eastern Coalfields Ltd.

Chhattisgarh HC22 Feb 2023WPS/2293/2012

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh, in a writ petition under Article 226, challenged a dismissal order from South Eastern Coalfields Limited. The Court upheld the impugned orders, holding that the departmental authorities acted regularly. It applied principles that judicial review of discharge from service has limited scope and does not substitute the department's findings unless the punishment is sho

What did the court decide?

Petition dismissed on merits; services of petitioner deemed dismissed.

Ghasiram Suryawanshi Vs South Eastern Coalfields… — Service and Employment | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 2293 of 2012

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Order reserved on : 17.11.2022

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Order delivered on : 22.02.2023

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Ghasiram Suryawanshi, S/o Phulman, aged about 42 years, R/o Village Sendri, Tahsil and District Bilaspur (C.G.)

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---- Petitioner

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Versus

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South Eastern Coalfields Limited, Through the Chief Managing Director, South Eastern Coalfields Limited, Bilaspur, District Bilaspur (C.G.)

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The Director (Personnel) (D.P.), South Eastern Coalfields Limited, Bilaspur, District Bilaspur (C.G.)

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Sub Area Manager, Dhelwadih Singhali, District Korba (C.G.)

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---- Respondents

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For Petitioner Mr. Suresh Kumar Verma, Advocate For Respondents Mr. Rajkumar Gupta, Advocate

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Hon’ble Justice Smt. Rajani Dubey

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C A V Order

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This petition has been preferred under Article 226 of Constitution of India challenging the order dated 28.05.2012 (Annexure-P/10) and further for direction to the respondent authorities to allow the petitioner to work under respondent/department.

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Brief facts of the case are that the petitioner was initially appointed as Electrical Helper (Category-I) on 19.03.1994 at Vishrampur. Subsequently he was promoted in Category-II and thereafter Category-III. It is further the case of the petitioner that he is alleged to have being absent from his duties regularly and the reasons for his absence was given as ‘due to illness’. The petitioner was said to

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have suffering from hernia and was under treatment at Government Hospital, Bilaspur, but when he could not recover from his ailment, he was admitted at the South Eastern Coalfields Limited, Banki & Surakachhar Hospital at Korba, where the hernia operation of the petitioner was done and after the operation, he was given the fitness certificate by the doctors both the hospitals. Subsequently, the petitioner was also advised for 5 to 6 months rest, as a result of which departmental enquiry was initiated against the petitioner. The petitioner filed an application before the Divisional Personnel Manager, SECL, Bilaspur for reallowing him on duties and the concerned authority allowed the petitioner to be taken on duties subject to pending enquiry against him. The show cause notice was also issued to him, to which the petitioner replied as well, but the Disciplinary Authority did not found the reply of the petitioner satisfactory dismissed him from his services. Thereafter, the petitioner filed an appeal before the Appellate Authority, which pending consideration and was not being decided. Therefore, he preferred a writ petition bearing WPS No. 1314/2012 before this Court and this Court Vide order dated 19.03.2012 directed to disposes of the appeal of the petitioner as early as possible. Thereafter, the appeal of the petitioner was considered and stood dismissed affirming the order of the Disciplinary Authority. Hence, this petition.

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Learned counsel for the petitioner submits that the order of the Disciplinary Authority as well as Appellate Authority is bad in law and deserves to be set aside. The petitioner was ill and was suffering from hernia and his treatment was also done at SECL Banki and Surakachhar Hospital, therefore, it was not deliberate on

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his part to remain absent from his duties. The petitioner had already intimated to the respondent Department regarding his illness, but despite the said fact his services have been dismissed. He further submits that the Appellate Authority has erred while deciding the appeal of the petitioner, as he was not afforded any opportunity of hearing and neither any show cause notice was issued to him nor any communication was sent to him on his given address. The petitioner have submitted all those medical documents of his treatment at various hospitals, but the said fact has been ignored and the appeal of the petitioner has been dismissed. Therefore, the petition may kindly be allowed and the order impugned be set aside and the respondent authorities be directed to allow the petitioner to work under their department.

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Learned counsel for the respondents supports the impugned order and submits that the after due enquiry, the petitioner was found guilty of habitual absenteeism. The petitioner after his transfer from Bishrampur to Korba in the year 2005 started remaining absent from his duties and was regularly absent. He was not at all interested to serve at his new place of posting. The petitioner only served 5 days in the year 2005, 64 days in the year 2006, 1 day in January, 2007 and 3 days in February, 2007 and was continuously absent from 06.02.2007 and due to this misconduct of the petitioner, charge sheet was issued to the petitioner and thereafter departmental enquiry was initiated, in which also he was not present on various dates. He further submits that though the petitioner has taken ground of illness in his defence, but the same has not been found satisfactory. The petitioner was also given notices on his given address, thus it cannot be said that he was not afforded proper

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opportunity of hearing while dismissing him from service. The documents in this regard have already been filed before this for kind perusal. He next submits that there are some tie up hospitals in Bilaspur, in which the petitioner could have availed his treatment. To facilitate petitioner to participate in departmental enquiry, he was allowed to join duty on 31.05.2008 on the basis of sickness certificate produced by him issued by Banki and Surakachhar Hospitals for the period 30.01.2008 to 30.05.2008. The Enquiry Officer sent notice to the petitioner to appear on 29.08.2008, which he attended and participated in enquiry. Thereafter just prior to completion of enquiry he came with the sickness certificate issued by B&S Hospital SECL Korba Area only for four months, whereas his total period of absent is for more than one year and three months approximately. So far as the sick period of petitioner is concerned, he was under treatment at Banki and Surakachhar Hospitals from 30.01.2008 to 30.05.2008 and as per the sickness certificate submitted by him, he became fit to resume his duty w.e.f. 31.05.2008. The management considered his case by allowing him to join duty pending enquiry, but he did not perform his duty regularly. The medical certificate issued by the Medical Officer, Government Hospital (CIMS) Bilaspur on 04.02.2007 shows that he was advised for rest. Now the question arises that he if was in Bilaspur, he could have received free treatment at company hospital i.e. Apollo Hospital at Bilaspur, but he did not do so. It is very difficult to accept and it gives rise to suspicion as to why an employee rather than availing free health care facility at Apollo Hospital opted to get treated at CIMS, a Govt. Medical College. It is also suspicious as to why petitioner had not sent the information to

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the Colliery Manager through registered post which could show its authenticity, instead of that he submitted the photocopy of UPC during the enquiry proceedings which did not have any authenticity about the receipt of his sickness information. Therefore, the petition may kindly be dismissed. Learned counsel has placed his reliance on the judgments rendered by the Supreme Court in the matters of B.C. Chaturvedi Versus Union of India reported in (1995) 6 SCC 749 and Lucknow Kshetriya Gramin Bank and another Versus Rajendra Singh, reported in (2013) 12 SCC 372 .

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Heard learned counsel for the parties and perused the documents annexed with the writ petition.

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In order to substantiate its stand, the petitioner has filed documents and raised pleas in his defence. One of the grounds taken by the petitioner is that he was suffering from some illness thats why he was absent from his duties and other ground is that he was not properly intimated about the departmental enquiry proceedings and this conduct of the respondents is against the principles of natural justice. The petitioner filed documents Annexures-P/1, P/2 & P/3. Annexure-P/1 contains fitness certificate issued by the South Eastern Coalfields Banki and Surakachhar, wherein the petitioner is said to have sick from 30.01.2008 to 30.05.2008 and the petitioner was declared fit from 31.05.2008. Annexure-P/2 shows that he was advised ATT for about six months w.e.f. 04.02.2007. As per Annexure-P/3, he was advised ATT for about five to six months w.e.f. 05.08.2007.

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Apart from the above said documents, the respondents have also filed documents in support of their plea. As per enquiry report

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(Annexure-R/6), presence of petitioner is as under:-

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Year	Number of Attendance
2005	5 days
2006	64 days
January 2007	1 day
February 2007	3 days

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The aforesaid report shows that the petitioner was regularly absent from his duties and was also absent in the proceedings of the departmental enquiry. The document (Annexure-R/5) shows that when he was asked about the reason for his absence, the petitioner's reply was ‘due to illness’. Thus, the plea of the petitioner that he was not afforded proper opportunity of hearing or any show cause notice was not issued to him does not appear to be justified, as it is lucid from the above said document that petitioner received notice of departmental enquiry and was appearing before the enquiry committee.

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The Hon'ble Supreme Court held in B.C. Chaturvedi Versus Union

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of India (supra) in para 12 & 13 as under :-

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“12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some

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evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

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The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.”

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The Hon'ble Apex Court in the matter of Lucknow Kshetriya

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Gramin Bank (supra) in Paragraphs 13, 14 & 15 held as under:-

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“13.Indubitably, the well ingrained principle of law is that it is the Disciplinary Authority, or the Appellate Authority in appeal, which is to decide the nature of punishment to be given to a delinquent employee keeping in view the seriousness of the misconduct committed by such an employee. Courts cannot assume and usurp the function of the Disciplinary Authority. In the matter of Apparel Export Promotion Council vs. - A.K.Chopra reported in 1999 (1) SCC 759 this principle was explained in the following manner:

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“22 …….The High Court in our opinion fell in error in interfering with the punishment, which could be lawfully imposed by the departmental authorities on the respondent for his proven misconduct. …..The High Court should not have substituted its

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own discretion for that the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone.”

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Yet again, in the case of State of Meghalaya & Ors. Vs. Mecken Singh N.Marak reported in 2008 (7) SCC 580, this Court reiterated the law by stating: (paras 14 & 17)

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“14. In the matter of imposition of sentence, the scope of interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment mposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice.

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15&16 xxxxxxxxxxxxxxxx

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Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The High Court in this case has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the appellate authority to impose any other punishment short of removal. By fettering the discretion of the appellate authority to impose appropriate punishment for serious misconducts committed by the

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respondent, the High Court totally misdirected itself while exercising jurisdiction under Article 226. Judged in this background the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted.”

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As is clear from the above that the Judicial Review of the quantum of punishment is available with a very limited scope. It is only when the penalty imposed appears to be shocking disproportionate to the nature of misconduct that the Courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/Appellate Authority to take a decision afresh and it is not for the court to substitute its decision by prescribing the quantum of punishment.”

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Adverting to the facts of the case in light of the aforesaid legal proposition, it is unequivocal that in the case in hand, the petitioner filed only two to three documents in support of his plea and the same were not found reliable by the Disciplinary Authority, therefore, it proceeded ahead and charges were found to be proved partly against the petitioner. Subsequently also, the respondent authorities issued show-cause notice to the petitioner vide Annexure-R/7 dated 07.12.2008, but then also the petitioner did not reply to this show-cause notice and ultimately the respondent authorities dismissed the services of the petitioner vide AnnexureR/8 dated 25.12.2008. The petitioner filed appeal against this dismissal order, but the Appellate Authority also dismissed the appeal of the petitioner on the ground that when the petitioner was granted opportunity to join his duties after considering the fitness certificate issued by the Baki Hospital w.e.f 30.05.2008, but then also the petitioner did not join his duties, therefore, the appeal was also dismissed by the Appellate Authority.

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In view of the foregoing discussions, it is clear that before his illness also the petitioner was not regular in his duties and he very much participated in disciplinary enquiry, though on some occasions he was not present, thus the same postulates that he was afforded proper opportunity of hearing and show cause notice was also issued to him before awarding him punishment. After due enquiry and following proper procedure, the respondent authorities has rightly dismissed the services of the petitioner.

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The petition being devoid of any substance deserves to be and is hereby dismissed.

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Sd/- (Rajani Dubey) Judge

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Nirala

Ghasiram Suryawanshi v. South Eastern Coalfields Ltd.

Case brief

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Ghasiram Suryawanshi v. South Eastern Coalfields Ltd.

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