Sumi Devi Vs Heavy Engineering Corporation

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 504 of 2011

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Sumi Devi wife of Mahavir Mahto, resident of Q. No. B-328, Sector II, H.E.C., PO PS Dhurwa, District Ranchi.

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… Petitioner

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-versus- 1. Heavy Engineering Corporation Ltd., through its C.M.D., having its Office at H.E.C. Ltd., PO PS Dhurwa, District Ranchi.

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Senior D.G.M., Engineering and Maintenance / FPP, having its Office at H.E.C. Ltd., Foundry and Forge Plant, PO PS Dhurwa, District Ranchi.

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Manager, Shop No.3/FFP-cum-Inquiry Officer, having its Office at H.E.C. Ltd., Foundry and Forge Plant, PO PS Dhurwa, District Ranchi.

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… Respondents

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CORAM : SRI ANANDA SEN, J.

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---For the Petitioner : Mr. Rahul Kumar Mishra, Advocate Ms. Neha Agarwal, Advocate For the Respondents: Mr. Sushant Kumar, Advocate

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10/ 15.01.2025 Heard learned counsel for the petitioner and learned counsel for the respondents.

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2. By filing this writ petition, petitioner has prayed for quashing the entire departmental proceeding including order dated 19.06.2010 contained in Memo No.FF/CMG/09-334, issued by the respondent No.2, whereby and whereunder husband of the petitioner, namely, Mahavir Mahto, P. No.82396, Mazdoor, Civil Maintenance/FFP, HEC was removed from the services of the Corporation with immediate effect with a direction to deposit / surrender all the properties of the Corporation, which are under his possession including Medical Record Book, Quarter, Identity Card etc. Petitioner has further prayed for a direction to the respondents not to withdraw the facilities and amenities including medical facilities available to the dependants of the husband of the petitioner.

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3. The husband of the petitioner was working as Mazdoor, Civil Maintenance, FFP in HEC Ltd. On 27.04.2007 he left his home for attending his duties at HEC Plant, but thereafter he never returned to his home. It is the case of the petitioner that her husband was missing since 27.04.2007, whereafter she tried to find the whereabouts of her husband and subsequently she lodged information with the Officer In-charge, Dhurwa Police Station on 06.05.2007, which was registered as Sanha No.148 of 2007 dated 06.05.2007.

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The missing report of the husband of the petitioner was published in the daily newspaper by the Office of the Superintendent of Police, Ranchi on 14.05.2007. It is further case of the of the petitioner that amidst tremendous mental agony on account of missing of her husband, all of a sudden the petitioner was served with memorandum of charge dated 11^th June, 2009 issued by the Senior D.G.M., Engineering and Maintenance/FPP. Thereafter the petitioner filed a representation on 03.07.2009 before the Senior D.G.M. In-charge, Engineering and Maintenance, HEC stating all the facts. The respondents issued letter No.13.09.2009, whereby the respondents informed about their intention to proceed ex-parte in the departmental proceeding against her husband. The petitioner again filed a representation on 18.09.2009 before the Senior D.G.M., Engineering and Maintenance In-charge, Foundry Forge Plant, HEC. Despite the representation filed by the petitioner, the respondents continued with the Departmental Proceeding initiated against the husband of the petitioner ex-parte and thereafter, order dated 19.06.2010 contained in Memo No. FF/CMG/09-334 was served upon the petitioner, whereby the husband of the petitioner was removed from the services of the respondents with a direction to deposit / surrender all the properties of the respondents including Medical Book, Quarter, Identity Card etc. Learned counsel for the petitioner submits that the action of the respondents is absolutely bad and usustainable in the eyes of law. Proceeding against the husband of the petitioner, who was admittedly, missing since 27.04.2007 lacks any reasons to stand in the eyes of law. He submits that in the light of the representations filed by the petitioner, the respondents ought not to have proceeded against the missing husband of the petitioner in the departmental proceeding and ought not to have awarded such punishment of removal from service.

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4. In counter, the case of the respondents is that the husband of the petitioner absented from duty on 28.04.2007 without any information and he continued to remain absent from duty, therefore a letter was issued on 09.05.2007 to join duty otherwise action would be taken. He neither reported for duty nor gave any information. On 06.09.2007, the petitioner informed that her husband was missing since 27.04.2007 as he left for duty and did not return. She also had lodged FIR in Dhurwa Police Station on 06.05.2007 mentioning her address as Qr. No. ST 593 Dhurwa whereas husband of the petitioner was allotted Qr. No. B 328, Sector 2, Dhurwa, which falls within the -: 2 :-

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jurisdiction of Jagarnathpur Police Station. It is further case of the respondents that when the husband of the petitioner did not report for duty nor did send any information for two years, a memorandum of charge was issued on 11.06.2009 vide No. FF/CM/09729 dated 11.06.2009 regarding his unauthorized long absence and neglecting duties. As no response to the charges leveled was received, an enquiry officer was appointed. Notices were issued to the husband of the petitioner, but he did not turn up and accordingly the enquiry proceeded ex-parte. In the month of September, 2009 the petitioner informed that her husband is traceless, therefore, it is not possible for him to participate in the domestic enquiry, but on this plea alone enquiry could not have been stopped. The enquiry officer proceeded exparte and concluded the enquiry proceeding. An enquiry report was submitted holding the husband of the petitioner guilty of charges of misconduct of neglect of duties and unauthorized absence. Enquiry report was sent vide letter No. FF/Engg/2010-31 dated 16.01.2010 at his local address as well as his permanent home address by registered post with Acknowledgement Due to give him opportunity to submit his representation in the matter. To the said letter also neither the writ petitioner nor her husband made any submission / representation. With a view to give further opportunity to the husband of the petitioner, a notice was published in the daily local newspaper “Prabhat Khabar” on 20.03.2010 with a direction to him to present himself in the office and submit his statement against the enquiry within ten days, but neither did he presented himself in the office nor sent any information. Therefore, the Chairman-cum-Managing Director of the respondent held and decided to dispense with the services of the husband of the petitioner and he was removed from the services of the respondent company with immediate effect vide No. FF/CMG/09-334 dated 19.06.2010. It was also held that as per the Rules of the company, the delinquent ex-employee was liable to return all the properties of HEC like surrender / return of quarter, Identity Card, Medical Record Books and tools etc.

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Learned counsel for the respondents submits that the petitioner is not entitled to any relief whatsoever inasmuch as the husband of the petitioner was removed from services after following the due process giving ample opportunity to the husband of the petitioner. He further submits that withdrawing of medical facilities and directing to surrender the properties of HEC is as per rules and there is no illegality in the same.

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4. I have heard learned counsel for the parties and have gone through the records. I find that the husband of the petitioner was absent from duty from 28.04.2009 without any information. It is the case of the petitioner that her husband went missing since 27.04.2007 when he left for his duties and never returned for which she also filed a Sanha (Station Diary Entry) and informed the respondents also. The petitioner remained unauthorisedly absent from 28.04.2007 and did not report for duty for two years. Thereafter having no other alternative, the respondents issued a memorandum of charge and since no response was given, Enquiry Officer was appointed and notices were issued, but he did not turn up and the enquiry proceeded ex-parte and the same was concluded holding the husband of the petitioner guilty of unauthorized absence.

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5. The jurisdiction under Article 226 of the Constitution of India while considering a departmental proceeding is very limited. The Hon’ble Supreme Court, in the case of Director General of Police, Railway Protection Force and Others versus Rajendra Kumar Dubey reported in 2020 SCC OnLine SC 954 at paragraph 37 thereof has held that it is well settled that High Court cannot act as an Appellate Authority and re-appreciate the evidence, which was led before the enquiry officer. By referring to judgment in the case of State of Andhra Pradesh versus S. Sree Rama Rao , the Hon’ble Supreme Court has held that it is not the function of the High Court to review the findings and arrive at a different finding. In a departmental proceeding, scope is very limited and it is well settled that the High Court can interfere where the departmental authority has acted against the principles of natural justice or where the findings are based on no evidence or in violation of the statutory rules provided. Further, if the punishment imposed is excessive, the Court can interfere. It has also been held by the Hon’ble Supreme Court that under Article 226 and 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 enquiry, in the case the same has

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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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7. In the case of Aureliano Fernandes versus State of Goa

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reported in (2024) 1 SCC 632 at paragraph 63 thereof, the Hon’ble Supreme Court has held as under: -

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“63. It may be clarified at the outset that to satisfy itself that no injustice has been meted out to the appellant, the High Court was required to examine the decision-making process and not just the final outcome. In other words, in exercise of powers of judicial review, the High Court does not sit as an appellate authority over the factual findings recorded in the departmental proceedings as long as those findings are reasonably supported by evidence and have been arrived at through proceedings that cannot be faulted on account of procedural illegalities or irregularities that may have vitiated the process by which the decision was arrived at.”

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8. Taking into consideration the judgment of the Hon’ble Supreme Court and applying the same to the facts of this case, I find that the procedure adopted by the respondents is fair as opportunity of hearing was provided and there are no lapses in the departmental proceeding. Thus, in the light the judgment of the Hon’ble Supreme Court, I hold that the procedure adopted by the respondents cannot be said to be contrary to the established procedure of law. However, when I go through the punishment order, I find that the same appear to be too harsh, taking into consideration the facts of this case.

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9. The Hon’ble Supreme Court in the case of State of Meghalaya versus Mecken Singh N. Marak reported in (2008) 7 SCC 580, at paragraph 14 thereof has held as under: -

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“14. In the matter of imposition of sentence, the scope for 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 imposed by the disciplinary authority or the appellant 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

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been indicated as 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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10. In this case, I find that the husband of the petitioner remained unauthorisedly absent for a considerable period, but it is also a fact that the husband of the petitioner is not a habitual absentee. Further, it is also not clear that he is dead or alive. He is missing. The petitioner lodged the missing report and informed the department timely. Thus, no fault also can be found on her part. She should not be burdened for the deeds of her husband, who is still missing. Thus, the order of punishment awarded to the husband of the petitioner in the departmental proceeding seems to be harsh.

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11. The Supreme Court in the case of S.R. Tewari versus Union of India reported in (2013) 6 SCC 602, at paragraph 25 thereof has held as under: -

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“25. In B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44 : AIR 1196 SC 484], this Court after examining its various earlier decisions observed that in exercise of the power of judicial review, the court cannot “normally” substitute its own conclusion or penalty. However, if the penalty imposed by an authority “shocks the conscience” of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, the court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority.”

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12. Weighing the prevailing facts and circumstances of the present -: 6 :-

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departmental proceeding in the light of the aforesaid guidelines and decisions of the Hon’ble Supreme Court, I find that admittedly, the husband of the petitioner is missing and it was well informed by the petitioner to the respondents whereas, as held earlier, there are no lapses on the part of the respondents in conducting the departmental proceeding. I also find that no purpose will be served in relegating the matter to the respondents to reconsider the quantum of punishment, inasmuch as the husband of the petitioner is missing since 27.04.2007 and if the matter is relegated, it would further amount to burdening the petitioner unnecessarily. This is an extraordinary circumstance to substitute the punishment by this Court, as the punishment is too harsh and does not commensurate with the proved misconduct. Thus, I am inclined to modify the punishment awarded by the disciplinary authority to the husband of the petitioner. Accordingly, the punishment awarded vide order dated 19.06.2010 contained in Memo No. FF/CMG/09-334 is hereby modified to that of “compulsory retirement”. The respondents are, accordingly, directed to pay all the monetary benefits consequent to the aforesaid modification of punishment within twelve weeks from today, on furnishing “No Dues Certificate”, if any.

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13. This writ petition is, accordingly, disposed of with the aforesaid modification in the punishment order and with the directions as above. Pending interlocutory applications, if any, stand disposed of.

(Ananda Sen, J.)

AFR

Kumar/Cp-02

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Sumi Devi v. Heavy Engineering Corporation

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Sumi Devi v. Heavy Engineering Corporation

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