Remanded

Shakuntala Devi v. the State of Jharkhand

Jharkhand HC7 Sept 2021LPA/539/2019

Case brief

AI extract

What is this about?

In an intra-court appeal, the single bench held that despite the employee's death and lack of appearance violating natural justice, the quantum of dismissal punishment was harsh given his 30+ years of unimpeachable service without habitual absenteeism. The matter was remitted to the appellate authority for reconsideration of punishment quantum.

What did the court decide?

The matter is remitted before the appellate authority to take a decision afresh on the quantum of punishment within eight weeks of receipt of the order.

Shakuntala Devi Vs the State of Jharkhand — Property and Title | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A. No.539 of 2019

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Shakuntala Devi aged about 67 yrs. Wife of Late Dinesh Prasad Singh,

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resident of Nawada Basti, P.O. & P.S.-Jhumri Telaya, District-Koderma

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.... …. Appellant

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Versus

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1. The State of Jharkhand

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2. The Director General of Police, Govt. of Jharkhand, P.O. & P.S.-

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Dhurwa, District-Ranchi

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3. The Deputy Inspector General of Police, Coal Range, Bokaro, P.O. & P.S.-Bokaro Steel City, District-Bokaro

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4. The Superintendent of Police, Dhanbad, P.O. & P.S.-Dhanbad, DistrictDhanbad

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…… .…. Respondents

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CORAM : HON’BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Mr. Rajiv Nandan Prasad, Advocate For the Respondents : Mrs. Vandana Singh, Sr. SC-III

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ORAL JUDGMENT 08/Dated: 07.09.2021

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The matter has been heard with the consent of learned counsel for the parties through video conferencing. There is no complaint about any audio and visual quality.

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2. The instant intra-court appeal is under Clause-10 of Letters Patent of Patna High Court directed against the order/judgment dated 17.07.2019 passed by the learned Single Judge of this Court in W.P.(S) No.3863 of 2008, whereby and whereunder, by dismissing the writ petition, the orders dated 21.03.2003 and 27.12.2008 have been refused to be interfered with, whereby, the husband of the writ petitioner was dismissed from service having been affirmed by the appellate authority.

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3. The brief facts of the case as per the pleading made in the writ petition required to be enumerated which reads as hereunder:-

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The husband of the writ petitioner while working as Assistant Sub Inspector at Dhanbad, remained absent from duty for the period from 26.10.1999 to 30.06.2007. The unauthorized absence has been considered by the concerned respondent as a gross misconduct and therefore, departmental proceeding has been initiated against the husband of the writ petitioner and after examining the witnesses, the enquiry officer came to the conclusion that the charges levelled against the husband of the writ petitioner have been proved, basing upon such finding, the disciplinary authority has passed an order of punishment on 21.03.2003 dismissing the husband of the writ petitioner from service.

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The husband of the writ petitioner had preferred an appeal before the appellate authority but the same has also been rejected vide order dated 27.12.2008.

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The husband of the writ petitioner has filed a writ petition challenging the order of dismissal being W.P.(S) No.3863 of 2008, however, during the pendency of the writ petition, the husband of the writ petitioner since has died, therefore, the writ petitioner, in the capacity of the widow of the deceased employee, has been substituted as would appear from the order dated 01.02.2019, by which, an interlocutory application being I.A. No.4590 of 2017, filed for substitution, has been allowed.

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The writ Court has decided the writ petition by not interfering with the impugned decision, which is the subject of the present intra-court appeal.

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4. Mr. Rajiv Nandan Prasad, learned counsel appearing for the writ petitioner has raised the plea of violation of principle of natural justice, since according to him, the husband of the writ petitioner has not been

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provided adequate and sufficient opportunity to defend the case as because no notice has been issued by the disciplinary authority.

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He has raised further plea that the issue of quantum of punishment, although, has been agitated before the appellate authority but it has not been considered since no reference to that effect has been made in the order passed by the appellate authority.

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5. Per contra, Mrs. Vandana Singh, learned Sr. SC-III appearing for the respondent-State of Jharkhand has defended the order passed by the learned Single Judge so far as it relates to the argument of violation of principle of natural justice. According to her, the writ petitioner has been provided with an opportunity of hearing but he has chosen not to appear and once he has chosen not to appear before the disciplinary authority and enquiry officer, he cannot be allowed to raise the point of violation of principle of natural justice.

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So far as the issue of non-consideration of quantum of punishment as said to have been agitated before the appellate authority, she submits that there is no consideration to that effect in the order passed by the appellate authority from its bare perusal.

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6. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge.

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7. This Court, after hearing the learned counsel for the parties on the issue of violation of principle of natural justice, has passed an order for calling upon the original record of concerned disciplinary proceedings as would appear from the order dated 05.01.2021 and in pursuant thereto, the original record of the disciplinary proceeding has been produced, which is appended at Flag-‘Y’ of the instant appeal.

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We have perused the original record and found therefrom that notice has been served upon the husband of the writ petitioner and he has also sought time by filing an application for extension of time, which is available on record and this fact has not been disputed by the learned counsel for the writ petitioner also.

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8. This Court, after considering the aforesaid material available on record is of the view that it is not a case where the disciplinary proceeding has been initiated against the husband of the writ petitioner and concluded it behind the back rather the notice has been served, basis upon which, the application has also been submitted by the husband of the writ petitioner before the enquiry officer for extension of time but even then, he has not chosen to appear and in that view of the matter, it is not a case of violation of principle of natural justice and therefore, the argument pertaining to violation of principle of natural justice is having no force, accordingly, rejected.

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So far as the other argument about non-consideration of the plea of quantum of punishment by the appellate authority, our attention has been drawn towards the memorandum of appeal filed by the husband of the writ petitioner as under Annexure-6 to the writ petition, wherein, it has been pleaded to exonerate the husband of the writ petitioner and grant him the benefit of retiral dues.

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9. Learned counsel for the writ petitioner has submitted that the husband of the writ petitioner has joined his service in the year 1969 and rendered unimpeachable service for a period of more than 30 years and due to reason beyond control i.e., the husband of the writ petitioner has suffered from mental disease and therefore, he was advised to take rest, hence, he could not be able to resume his duty fairly for a period of more

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than three years but save and except, the said unauthorized absence, the writ petitioner has never been absented from duty, as such, for a single offence of unauthorized absence, the period of more than 30 years rendered in service that to without any stigma and even without any show cause during such a long length of service, the consideration should have been made by the appellate authority on quantum of punishment by reversing the order of dismissal to that of the compulsory retirement.

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He submits that however, the appeal has been filed by the husband of the writ petitioner when he was alive but he died on 18.07.2010 and as such, the consideration is required to be made by the appellate authority regarding quantum of punishment taking into consideration the period of more than 30 years of unimpeachable service, so that, at least the widow of the deceased employee and the dependents may get the benefits of retiral dues on account of rendering 30 years of unimpeachable service.

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He further submits that the husband of the writ petitioner since has died, therefore, even accepting that he was the member of discipline force but now he is no more, as such, his wife may not be suffered along with his dependents, therefore, by taking the sympathetic view, the matter may be remitted before the appellate authority to consider this aspect of the matter.

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10. Learned State counsel has, however, admitted that there is nothing on record to suggest that the husband of the writ petitioner was habitual in absenting from duty rather the departmental proceeding has been initiated since he has not reported on duty fairly for a period of more than three years.

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11. We, on appreciation of the aforesaid submissions and considering the power of High Court sitting under Article 226 of the Constitution of

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India so far as the scope of judicial review in the matter of finding recorded by the disciplinary authority and decision of the administrative authority, are conscious of the fact that there is very limited scope to exercise the power of judicial review by reversing the view of the administrative authority but certainly when the question of quantum of punishment is involved, if it shocks the conscience of the Court, there can be exercise of power of judicial review on that count, 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, the following guidelines has been laid down for showing interference in the decision taken by the disciplinary authority and not to interfere with the decision, which reads hereunder as:

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“ 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:

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a. the enquiry is held by a competent authority;

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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;

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d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

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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:

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(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;

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(v). interfere, if there be some legal evidence on which findings can be based.

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(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.”

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The Hon’ble Apex Court in Management of State Bank of India vs.

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Smita Sharad Deshmukh and Anr. , (2017) 4 SCC 75 , has laid down therein 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.

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The Hon’ble Apex Court in Central Industrial Security Force and Ors. vs. Abrar Ali , AIR (2017) SC 200 , has laid down the guidelines at paragraph 8 showing interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, which is being quoted herein below:

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“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

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order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.

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In Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 this Court held as follows:

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"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 inquiry officer. The finding on Charge 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 reappreciation of the evidence. The High Court can only see whether:

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(a) the inquiry is held by a competent authority;

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(b) the inquiry is held according to the procedure prescribed in that behalf;

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(c) there is violation of the principles of natural justice in conducting the proceedings;

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(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

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(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

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(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;

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(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

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(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; 13.(i) the finding of fact is based on no evidence.

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13. Under Article 226/227 of the Constitution of India, the High Court shall not:

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(i) re-appreciate the evidence;

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(ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law;

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(iii) go into the adequacy of the evidence;

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(iv) go into the reliability of the evidence;

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(v) interfere, if there be some legal evidence on which findings can be based.

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(vi) correct the error of fact however grave it may appear to be;

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(vii) go into the proportionality of punishment unless it shocks its conscience."

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. Admittedly the husband of the writ petitioner has joined his service

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on 16.07.1969 and rendered his service without any stigma fairly for a period of more than 30 years and implicated in the departmental proceeding, which is the subject matter of the lis and finally, he has been dismissed and in course of pendency of the writ petition her husband has died.

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The question is that when the list of punishment prescribed as under Rule 824 of the Jharkhand Police Manual, the punishment of compulsory retirement along with order of dismissal or removal etc. and when the husband of the writ petitioner has died on 18.07.2010, will it not be very harsh in depriving the widow of the deceased employee along with his dependents the fruits of service rendered by him for a period of more than 30 years that to without any stigma, as has been admitted by the learned State counsel that there is no such allegation of commission of habitual absence.

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12. Therefore, this Court considering the period of more than 30 years of unimpeachable service rendered by the husband of the writ petitioner and without any allegation of habitual in absenting from duty as also considering the fact that the husband of the writ petitioner has died and now there is no question of coming back in the service, deems it fit and proper that the matter requires consideration by the appellate authority, hence, the matter is remitted before the appellate authority to take decision afresh on the quantum of punishment.

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13. Such exercise be completed within the period of eight weeks’ from the date of receipt of copy of the order.

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14. Accordingly, the order passed by the learned Single Judge is modified to the extent as indicated hereinabove.

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15. In view thereof, the instant appeal stands disposed of with the above directions.

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(Dr. Ravi Ranjan, C.J . )

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(Sujit Narayan Prasad, J.)

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Rohit/-A.F.R.

Shakuntala Devi v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Shakuntala Devi v. the State of Jharkhand

Case brief

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