Pankaj Bezbaruah Vs the Union of India and 4 Ors.

10-2011 passed by the Disciplinary Authority imposing upon him a penalty of dismissal from service on conclusion of the Departmental Proceeding instituted against him, for having committed misconduct by remaining unauthorisedly absent. Petitioner has also challenged an order dated 09-05-2017, issued by the Appellate Authority, rejecting the appeal submitted by the petitioner and thereby, affirming the order 12-10-2011 passed by the Disciplinary Authority.

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At the outset this Court would note the developments taking place in the matter after the institution of the present writ petition. The present writ petition was taken up for final consideration by a Coordinate Bench of this Court and on a due examination of the

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issues arising in the present writ petition, vide judgment and order dated 17-03-2022 had dismissed the same. Being aggrieved, the petitioner had approached the Division Bench of this Court by way of instituting a writ appeal being W.A. No. 164/2022. The Division Bench of this Court accepting the submission made by the learned counsel for the petitioner, proceeded vide judgment and order dated 27-04-2023, to interfere with the decision passed by the Coordinate Bench of this Court vide judgment and order dated 1703-2022 and remanded the matter for a fresh consideration on merits after adverting to the grounds of challenge to the impugned order of dismissal from service based on procedural irregularities as highlighted by the petitioner. Accordingly, the matter on being remanded was placed before this Court and the learned counsel for the parties were heard at length on 28-04-2026 and the matter is listed today for delivery of order.

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The brief facts, requisite for adjudication of the issues arising in the present writ petition is noticed as under:-

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4.1. The petitioner while working as Constable (GD) with the Central Reserve Police Force (hereinafter referred to as “the Force”), projects that he had met with an accident on 22-12-2009, while being posted at Delhi. The petitioner was granted 30 (thirty) days Earned Leave by the respondent authorities, w.e.f. 06-01-2010 to 04-02-2010 and he was brought to his native village at Nalbari for treatment by his parents. The petitioner not having resumed his services after the lapse of the leave granted to him, the respondent authorities had issued a communication dated 21-02-2010 intimating the petitioner that he had overstayed his leave w.e.f. 05-02-2010 without permission from the competent authority and required him to rejoin his services on receipt of the communication with

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supporting documents, failing which, disciplinary action would be initiated against him. The said communication is found to have been followed by a further communication on the same lines issued on 06-03-2010 by the authorities of the Force. The petitioner contends that he was not in a position to resume his service as he was suffering from mental disorder and was under treatment from the Medical & Health Officer-1, SMK Hospital, Nalbari.

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4.2. The petitioner, thereafter, contends that he had joined his services on 01-07-2010.

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The petitioner after discharging his duties for certain period of time, left his unit without intimation, w.e.f. 14-10-2010.

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4.3. The petitioner having absconded from his unit, w.e.f. 14-10-2010, the Force authorities appointed an Enquiry Officer to enquire into the charges framed against the petitioner. The petitioner not having resumed his service after having absconded w.e.f. 14-10-2010, an FIR came to be lodged by the Force authorities with the SHO, Dwaraka P.S., Sector-16, New Delhi on 15-10-2010, consequently a Warrant of Arrest was issued to

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the Superintendent of Police, Nalbari for apprehending the petitioner on account of his non-reporting in duties. The petitioner is found to have neither apprehended by the civil police nor had he reported for his duties. Accordingly, a Court of Inquiry (CoI) was came to be instituted for ascertaining the reasons for which the petitioner absented from his unit. After completion of the CoI, the petitioner was declared as a deserter w.e.f. 14-102010, i.e. the date of his absence from his unit. Upon conclusion of the CoI, materials having come on record with regard to the commission of misconduct by the petitioner in the matter, a Memorandum of Charge dated 18-04-2011, came to be issued to the

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petitioner and therein, the allegation levelled against him was of deserting from his unit w.e.f. 14-10-2010 and having remained absconding till the date of issuance of the said Memorandum of Charge. The Memorandum of Charge is contended to have been received by the petitioner. However, no written statement was so preferred by the petitioner against the said Memorandum of Charge. Accordingly, a response not being received from the petitioner with regard to the Memorandum of Charge issued to him, the Force authorities proceeded to hold an enquiry in the matter. It is projected that the Enquiry Officer had issued notices to the petitioner for appearing in the enquiry, however, the said notices were not responded to. The Enquiry Officer, thereafter, proceeded with the enquiry ex-parte and submitted his report on 19-09-2011. The petitioner had projected that the petitioner although had received the said notices, on account of mental ailments suffered by him, he was not in a position to understand the consequence of the nonresponding to the said notices. It is to be noted, herein, that the petitioner had appeared before the Enquiry Officer at the initial stages, however, subsequently, he had refrained from appearing before the Enquiry Officer. The Disciplinary Authority had forwarded a copy of the Enquiry Report to the registered address of the petitioner. However, the petitioner had not responded, thereto. Accordingly, the Disciplinary Authority of the petitioner vide order dated 12-10-2011, proceeded to impose upon the petitioner the penalty of dismissal from service w.e.f. the date of issuance of the said order dated 1210-2011. The petitioner, thereafter, submitted an appeal in the matter, however, the Appellate Authority vide order dated 09-05-2017 proceeded to reject the same, thereby, affirming the order of dismissal from service as imposed upon the petitioner vide order

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dated 12-10-2011.

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Being aggrieved, the petitioner has instituted the present writ petition.

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Mr. B.K. Das, learned counsel for the petitioner by reiterating the facts noticed, hereinabove, has fairly submitted that the notices of the Departmental Proceeding initiated against the petitioner including the Memorandum of Charge were so received by the petitioner. He further submitted that on receipt of the communication from the Enquiry Officer for appearing in the enquiry, he had appeared before the Enquiry Officer for the purpose on 01-07-2011. However, on account of the ailments suffered by him, he had not appeared any further after 19-07-2011. Mr. Das further submits that the copy of the Enquiry Report was also furnished to the petitioner, however, he had also not responded to the same.

¶46

Having made the submission, Mr. Das, has submitted that the petitioner at the relevant point of time was suffering from mental disorder and accordingly, was not in a position to comprehend the contents of the Memorandum of Charge, notices as well as the enquiry report forwarded to him and accordingly, the petitioner had not responded to the Memorandum of Charge and other notices issued to him, including the enquiry report. Mr. Das in support of his submission that the petitioner, at the relevant point of time, was suffering from mental disorder has placed reliance on the certificate dated 26-11-2016 issued by the Doctors of LGB Regional Institute of Mental Health and a certificate dated 23-02-2024 issued by the Medical & Health Officer-1, SMK Hospital, Nalbari certifying, therein, that the petitioner was under his treatment w.e.f. 16-10-2010 to 29-06-2011 and 22-07-2011 to 24-10-2011. Accordingly, Mr. Das submits that although the absence of the

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petitioner was unauthorized, the same was on account of reasons beyond the control of the petitioner, which had the effect of restraining the petitioner from resuming his services. He submits that the non-resumption by the petitioner in his duties cannot be called to be wilful and or deliberate. The learned counsel for the petitioner has further submitted that the Enquiry Officer in his enquiry report, while holding the absence of the petitioner to be unauthorized had not held the same to be wilful and/ or deliberate.

¶49

Mr. Das, learned counsel for the petitioner in support of his said submission has placed reliance on the decision of the Hon’ble Supreme Court in the case of Krushnakant B. Parmar Vs. UoI & Ors. reported in (2012) 3 SCC 178 . The learned counsel for the petitioner has further submitted that there was no Presenting Officer appointed in the enquiry and the Enquiry Officer had acted both as the Presenting Officer and the Enquiry Officer and accordingly, the entire enquiry stood vitiated. Mr. Das has made further submission to the effect that the unauthorized absence of the petitioner w.e.f. 14-10-2010 can be so construed till only 30-06-2011, inasmuch as, the petitioner had resumed his services w.e.f. 01-07-2011. The further unauthorized absence of the petitioner w.e.f. 19-07-2011 could not have been taken as part of the same transaction involved starting from 14-10-2010 and a separate Departmental Proceeding in this respect ought to have been initiated against the petitioner.

¶50

Mr. Das has submitted that there being no previous history of the petitioner of remaining unauthorizedly absent, the absence of the petitioner treated to be unauthorized by the respondent authorities being on account of the ailments suffered by him, there being a justifiable explanation for the absence, the penalty as imposed upon the

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petitioner would mandate interference. He submits that even if this Court holds that the petitioner being a member of a disciplined force was found to have acted in the matter in violation of the discipline mandated to be maintained by a member of a disciplined force, this Court would consider that the penalty of dismissal from service as imposed upon the petitioner is disproportionate to the allegation proved against him in the matter.

¶53

Per contra, Mr. R.K.D. Choudhury, learned Sr. counsel/ DSGI appearing for the respondents at the outset has submitted that during the enquiry the petitioner had not furnished any material justifying that his absence was based on reasonable grounds. He submits that the plea that the petitioner was suffering from mental ailments was not placed before the Enquiry Officer. Mr. R.K.D. Choudhury submits that a perusal of the certificate dated 26-11-2016 issued by the LGB Regional Institute of Mental Health, brought on record in the writ petition, would go to show that the petitioner did not suffer from any Psychological ailments during the period the petitioner was under observation in the hospital. Mr. Choudhury further submits that the said certificate reveals that the petitioner did not go up for any follow up treatment from 07-11-2011 to 26-03-2016 and also did not appear before the Medical Board as constituted in the hospital. Mr. Choudhury has submitted that the plea of the petitioner of being suffering from mental ailments not being found to have been supported from any medical documents brought on record by him even in the present writ petition and the medical documents relied upon by the petitioner having demonstrated that the petitioner, at the relevant point of time, to be not suffering from any mental ailments, the claim of the petitioner that the absence was not wilful would not mandate an acceptance from this Court. Mr. Choudhury submits that the

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petitioner was given all due opportunity in the Departmental Proceeding instituted against him, however, he had refrained from utilizing the same. He submits that although the petitioner for a short period had appeared before the Enquiry Officer, however, he had, thereafter, continued with his unauthorized absence.

¶56

Mr. Choudhury submits that the petitioner before the Division Bench of this Court had relied upon a decision of the Hon’ble Supreme Court rendered in the case of Krushnakant B. Parmar (supra) for the proposition that in a Departmental Proceeding involving an allegation of misconduct of remaining unauthorisedly absent, the Enquiry Officer is required to record a finding that the unauthorized absence of a delinquent was also wilful and deliberate. He submits that the decision in the case of Krushnakant B. Parmar (supra) was considered by the Hon’ble Supreme Court subsequently in its decision in the case of Chennai Metropolitan Water Supply and Sewerage Board &

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Ors. Vs. TT Murali Babu , reported in (2014) 4 SCC 108 and had concluded that the decision of the Hon’ble Supreme Court in the case of Krushnakant B. Parmar (supra) has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record during the enquiry. He submits that the Hon’ble Supreme Court had further held that it cannot be stated as an absolute proposition in law that whenever there is a long unauthorised absence, it is obligatory on the part of the disciplinary authority to record a

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finding that the said absence is willful even if the employee fails to show the compelling circumstances to remain absent.

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In the above premises, Mr. Choudhury submits that the penalty of dismissal from

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service as imposed upon the petitioner vide order dated 12-10-2011 would not mandate interference by this Court.

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I have heard the learned counsel for the parties and have also perused the materials available on record.

¶63

At the outset this Court would notice the decision of the Division Bench of this Court rendered in an appeal instituted by the petitioner after the present writ petition was dismissed by a Coordinate Bench of this Court vide judgment and order dated 17-032022. A Division Bench of this Court vide judgment and order dated 27-04-2023 had disposed of the said writ appeal by observing as follows:-

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“9. At the outset, we may note that there is inherent lack of the phraseology “wilful absence” in the article of charges as well as the order imposing penalty. The pertinent ground spelt out from the pleadings in the writ petition is that there was no allegation against the appellant/writ petitioner of being wilful absent from duty. In this regard, we would like to refer to the averments made in paragraph 17 of the writ petition. This argument was raised before the learned Single Judge which has been taken note at paragraph 13 of the impugned judgment but, in a contradictory finding at paragraph 14 of the impugned judgment, the learned Single Judge observed that the petitioner has not made challenge to the dismissal order on the ground of procedural irregularities. The observations appearing in paragraphs 13 and 14 of the impugned judgment are inconsistent to each other.

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In this view of the mater and having regard to the preceding discussion, we are of the opinion that the writ petition filed by the petitioner (appellant herein) deserves fresh consideration on merits after adverting to the pertinent grounds of challenge laid to the impugned order of dismissal from service, based on procedural irregularities as alleged by the petitioner. Hence, the appeal deserves acceptance. The impugned judgment and order dated 17.03.2022 is hereby reversed and the matter is remanded to the learned Single Judge for fresh consideration of WP(C) 6002/2017 which shall be restored to its original number and will be heard and decided afresh as per law.”

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A perusal of the decision of the Division Bench of this Court as noticed, here-in-

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above, would go to reveal that the Division Bench had noticed that there was an inherent

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lack of the phraseology “wilful absence” in the article of charges as well as the order imposing penalty. The Court further went on to notice the averments made by the petitioner in paragraph 17 of the writ petition and found that although an argument based therein was raised before the Single Judge, in the judgment and order dated 17-03-2022, the same although noticed in paragraph 13, a contradictory finding was recorded in paragraph 14. Accordingly, the judgment and order dated 17-03-2022 passed by the Coordinate Bench of this Court in the present writ petition was reversed and the matter was remanded to this Court. The Division Bench having required the consideration of the present writ petition, basing on the pertinent grounds of challenge as raised by the petitioner in the writ petition, more particularly, in paragraph 17, thereof, this Court would now, proceed to consider the issue arising in the present writ petition by keeping in view the directions passed by the Division Bench of this Court and noticed, hereinabove.

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It is admitted by the learned counsel for the petitioner that the absence of the petitioner w.e.f. 14-10-2010 was unauthorized. The further pleas taken by the learned counsel for the petitioner in the matter is that although the said absence was unauthorized, the charge-sheet not having alleged the same to be wilful and also the Enquiry Officer in the enquiry report having not found the absence to be wilful and the Disciplinary Authority in its order dated 12-10-2011 also not having held the unauthorized absence to be wilful, the unauthorized absence of the petitioner would not have mandated imposition of a penalty of dismissal from service upon the petitioner. The further submission of the learned counsel for the petitioner is that the petitioner during the relevant period was receiving treatment for the mental ailments suffered by him.

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Accordingly, it is projected that there being a justifiable reason adduced by the petitioner for having remained unauthorisedly absent, the period of absence of the petitioner, w.e.f.

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14-10-2010 under no circumstances could have been treated to be unauthorized.

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The learned counsel for the petitioner having admitted that the period of absence of the petitioner was unauthorized, this Court would now consider the submission of the learned counsel for the petitioner that no findings having been recorded in the Departmental Proceeding that the absence was wilful, the same was not permissible to be so treated for imposition of any penalty. In paragraph 17 of the writ petition, the petitioner had raised a contention in this connection. The petitioner has based the said submission on the decision of the Hon’ble Supreme Court in the case of Krushnakant B. Parmar (supra). However, this Court finds that the said decision in the case of Krushnakant B. Parmar (supra) was considered by the Hon’ble Supreme Court in the case of Chennai Metropolitan Water Supply and Sewerage Board & Ors. (supra).

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The relevant conclusions drawn by the Hon’ble Supreme Court in this connection in paragraphs 22 and 23 is extracted, here-in-below.

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Learned counsel for the respondent has commended us to the decision in Krushnakant B. Parmar Vs. Union of India to highlight that in the absence of a finding returned by the Inquiry Officer or determination by the disciplinary authority that the unauthorized absence was willful, the charge could not be treated to have been proved. To appreciate the said submission we have carefully perused the said authority. In the said case, the question arose whether “unauthorized absence from duty” did tantamount to “failure of devotion to duty” or “behavior unbecoming of a Government servant” inasmuch as the appellant therein was charge-sheeted for failure to maintain devotion to duty and his behavior was unbecoming of a Government servant. After adverting to the rule position the two-Judge Bench expressed thus: -

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“16. In the case of the appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion to duty

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and his behavior was unbecoming of a government servant. The question whether “unauthorized absence from duty” amounts to failure of devotion to duty or behavior unbecoming of a government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances.

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If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a government servant.

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In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct.”

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We have quoted in extenso as we are disposed to think that the Court in Krushnakant B. Parmar Vs. UoI & Ors. has, while dealing with the charge of failure of devotion to duty or behavior unbecoming of a Government servant, expressed the aforestated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is willful. On an apposite understanding of the judgment Krushnakant B. Parmar case we are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record during the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorized absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is willful even if the employee fails to show the compelling circumstances to remain absent.”

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The Hon’ble Supreme Court on consideration of the decision rendered by it in the case of Krushnakant B. Parmar (supra) having restricted the same to the fact of the

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said case having regard to the fact of rule position, the nature of charge levelled against

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the employee and the material that had come on record during the enquiry, this Court finds that the decision of the Hon’ble Supreme Court in the case of Krushnakant B. Parmar (supra) would not advance the case of the petitioner. Accordingly, there being a clear admission that the petitioner’s absence was unauthorized and the same being reiterated before this Court in the present proceeding by the learned counsel for the petitioner, this Court holds that the absence of the petitioner, w.e.f. 14-10-2010 was admittedly unauthorized. The petitioner being a member of a disciplined force, accordingly, is held to have committed a misconduct in the matter.

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Having drawn the said conclusions, this Court would now examine the further submission made by the learned counsel for the petitioner that the period of absence of the petitioner, w.e.f. 14-10-2010 cannot be held to be unauthorized, inasmuch as, a justification was available in the matter on the part of the petitioner to the effect that he was during the said period of absence, receiving treatment for the mental ailments suffered by him. In support of the said submission, the petitioner had relied on two medical opinions rendered in the matter, one by the Doctors of the LGB Regional Institute of Mental Health and another medical certificate issued by Dr. Gautam Nath, Medical & Health Officer-1, SMK Hospital, Nalbari. This Court has perused the certificate given to the petitioner by the authorities of the LGB Regional Institute of Mental Health. On a perusal of the said certificate, this Court finds that the Doctors in the said Hospital on an examination of the petitioner, had highlighted that the petitioner was admitted in the institute on 28-10-2011 for diagnosis and treatment and he was discharged, on his own request on 07-11-2011. It was further highlighted that on evaluation, no psychiatric

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ailments was found during the period of his observation. It was further highlighted in the certificate, that following discharge he had not come back to the Institute for any follow up till 26-03-2016 and on 26-03-2016 he had attended the OPD for a medical certificate and was then advised to attend the next Medical Board, which he, however, did not attend. The petitioner’s certificate is originally dated 26-03-2016, however, he having lost the said certificate and had made a RTI application before the authorities of the LGB Regional Institute of Mental Health for issuance of a duplicate certificate and as a result, thereof, the certificate dated 26-11-2016 was issued to the petitioner. On a perusal of the said certificate, it would be clear that the petitioner was not suffering from any psychiatric ailments. Mental disorder does not occasion on a single day, it’s a gradual process and the same cannot also be held to have been cured immediately after its onset. In the event, the petitioner as on 14-10-2010 was suffering from any mental ailments, the Experts at the LGB Regional Institute of Mental Health would have detected the same by considering the conduct of the petitioner during his examination. The Experts having held that the petitioner was not found to be suffering from any psychological ailments, the plea taken by the petitioner in the present proceeding of suffering from mental ailments is found by this Court to have been so taken only to justify his unauthorised absence and also for the purpose of assailing the penalty imposed upon, there is not even a single document brought on record by the petitioner which would conclusively establish that the petitioner during the period he had remained absence w.e.f. 14-10-2010, was suffering from mental ailments. The contention of the petitioner that he was not in a position to respond to the Memorandum of Charge and other notices issued to him during the conduct of the

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Departmental Proceeding instituted against him, is found to be false.

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The petitioner not being suffering from any mental disorder as certified by the Medical Officers examining him at his own instance, the non-response given by the petitioner to the notices issued to him in the Departmental Proceeding is found by this Court to be deliberate and wilful.

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The other medical certificate relied upon by the petitioner is dated 23-02-2024. The Doctor issuing the said certificate had certified that the petitioner was under his treatment for the period 16-10-2010 to 29-06-2011 and from 22-07-2011 to 24-10-2011 for the disease of “suffering from his head injury and extracranial hematoma right temporal region”. The Doctor issuing the said certificate is found to be only a General Medicine Practitioner and not a Specialist for dealing with problem arising from a head injury and that too to the extent what has been certified in the said certificate. The said certificate on the face of it would not advance the case of the petitioner.

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At this stage, it is also noted that the certificate issued by the authorities of the LGB Regional Institute of Mental Health as well as the said certificate dated 23-02-2024

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were never produced before the Enquiry Officer. In view of the above position, this Court finds that the petitioner had deliberately remained away from his duties and had taken a false plea of being suffering from mental disorder, however, the medical documents produced does not justify the said contention raised by the petitioner.

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It is settled position of law that unauthorized absence is an act of indiscipline. Whenever, there is an unauthorized absence by an employee, two process are open to the

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employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of unauthorized absence in which event the misconduct would stand condoned. The second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct. Given the materials coming on record, the petitioner not having brought before the respondent authorities any cogent materials basing on which a decision with regard to the condonation of unauthorized absence could have been taken by the respondent authorities, the respondent authorities treating the period of unauthorized absence of the petitioner to be a misconduct is found justified by this Court. This Court further holds that the unauthorized absence of the petitioner not being justified by him, by adducing cogent materials even in the present writ petition, the penalty as imposed upon the petitioner, in the considered view of this Court, would not mandate an interference. Accordingly, this Court is of the considered view that the penalty of dismissal from service as imposed upon the petitioner would mandate to be affirmed.

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The learned counsel for the petitioner had made a submission to the effect that the penalty as imposed upon him vide order dated 12-10-2011 was disproportionate to the allegations established against him in the enquiry. In this connection, this Court would again refer to the decision of the Hon’ble Supreme Court rendered in the case of Chennai Metropolitan Water Supply and Sewerage Board & Ors. (supra). The Hon’ble Supreme Court in the said decision had drawn the following conclusions:

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“28. Presently, we shall proceed to scrutinize whether the High Court is justified in applying the doctrine of proportionality. Doctrine of proportionality in the context of imposition of punishment in service law gets attracted when the

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court on the analysis of material brought on record comes to the conclusion that the punishment imposed by the Disciplinary Authority or the appellate authority shocks the conscience of the court. In this regard a passage from Indian Oil Corporation Ltd. & Anr. Vs. Ashok Kr. Arora is worth reproducing: -

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“20. At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee.”

¶104

In Union of India & Anr. Vs. G. Gnayutham, the Court analysed the conception of proportionality in administrative law in England and India and thereafter addressed itself with regard to the punishment in disciplinary matters and opined that unless the court/tribunal opines in its secondary role that the administrator was, on the material before him, irrational according to Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. and Council of Civil Service Unions v. Minister for Civil Service norms, the punishment cannot be quashed.

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In Coal India Limited v. Mukul Kumar Choudhuri, the Court, after analyzing the doctrine of proportionality at length, ruled thus: -

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“19. The doctrine of proportionality is, thus, well-recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.

¶107

One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.

¶108

In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reason for his absence by stating that he did not have intention nor desired to disobey the order of higher authority or violate any of the Company’s rules and regulations but the reason was purely personal and

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beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.”

¶111

After so stating the two-Judge Bench proceeded to say that one of the tests to be applied while dealing with the question of quantum of punishment is whether any reasonable employer would have imposed such punishment in like circumstances taking into consideration the major, magnitude and degree of misconduct and all other relevant circumstances after excluding irrelevant matters before imposing punishment.

¶112

It is apt to note here that in the said Mukul Kumar Choudhari case the respondent had remained unauthorisedly absent from duty for six months and admitted his guilt and explained the reasons for his absence by stating that he neither had any intention nor desire to disobey the order of superior authority or violated any of the rules or regulations but the reason was purely personal and beyond his control. Regard being had to the obtaining factual matrix, the Court interfered with the punishment on the ground of proportionality. The facts in the present case are quite different. As has been seen from the analysis made by the High Court, it has given emphasis on past misconduct of absence and first time desertion and thereafter proceeded to apply the doctrine of proportionality. The aforesaid approach is obviously incorrect. It is tell-tale that the respondent had remained absent for a considerable length of time. He had exhibited adamantine attitude in not responding to the communications from the employer while he was unauthorisedly absent. As it appears, he has chosen his way, possibly nurturing the idea that he can remain absent for any length of time, apply for grant of leave at any time and also knock at the doors of the court at his own will.

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Learned counsel for the respondent has endeavoured hard to impress upon us that he had not been a habitual absentee. We really fail to fathom the said submission when the respondent had remained absent for almost one year and seven months. The plea of absence of “habitual absenteeism” is absolutely unacceptable and, under the obtaining circumstances, does not commend acceptation. We are disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate.

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Another aspect needs to be noted. The respondent was a Junior Engineer. Regard being had to his official position, it was expected of him to

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maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. This kind of conduct cannot be countenanced as it creates a concavity in the work culture and ushers in indiscipline in an organization. In this context, we may fruitfully quote a passage from Govt. of India Vs. George Philip: -

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“18………In a case involving overstay of leave and absence from duty, granting six months’ time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the work culture in the organization. Article 51-A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution have the tendency to negate or destroy the same.”

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We respectfully reiterate the said feeling and restate with the hope that employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development.”

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Applying the said decision of the Hon’ble Supreme Court to the facts of the present

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case, this Court is of the considered view that the penalty of dismissal from service as

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imposed upon the petitioner vide order dated 12-10-2011 is found to be justified and proportionate to the allegations levelled against him, more so, when the petitioner is a member of the disciplined force.

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In view of the above discussions, the present writ petition is held to be devoid of any merit and the same consequently stands dismissed. However, there would be no order as to cost.

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JUDGE

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Page No.# 21/21

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Comparing Assistant

Pankaj Bezbaruah v. the Union of India and 4 Ors.

Case brief

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Pankaj Bezbaruah v. the Union of India and 4 Ors.

Case brief

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