IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 4152 of 2011 Reserved on: 08.07.2011 Date of decision: 21.07.2011 ________________________________________________________________ Kailash Chand Sharma. .....Petitioner. Versus State of H.P. & another. .....Respondents. Coram The Hon'ble Mr. Justice Kurian Joseph, C.J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the petitioner: Mr. S.R. Sharma, Advocate, vice Mr. B.N. Misra, Advocate. For the respondents: Mr. R.K. Bawa, AG with Mr. J.K. Verma, Dy. AG. V.K. Sharma, J. It shall not be out of place to state at the very outset that this case has a chequered history. On initial appointment as Peon, the petitioner had joined the employment of Municipal Corporation, Shimla, in May, 1978. However, consequent upon abolition of octroi in March, 1982, services of the petitioner alongwith other similarly situate employees of the Municipal Corporation came to be absorbed in different departments of the State Government. The petitioner was allocated to the department of Industries. 2. According to the petitioner, he fell seriously ill and proceeded on medical leave w.e.f. 13.08.1984 to 25.01.1985. 1 Whether reporters of Local Papers may be allowed to see the judgment? -: 2 :- However, per contra, the version of the respondent-department is that the petitioner while working as Process Server in the said department submitted an application dated 13.08.1984 for medical leave without mentioning the period of leave. 3. Against the above backdrop departmental action was initiated against the petitioner and a charge sheet was served upon him vide memo dated 03.12.1985, on the following count: “Statement of articles of charge framed against Sh. Kailash Chand, Process-Server. Shri Kailash Chand while working as Process Server in the Directorate of Industries submitted an application dated 13.8.1984 for medical leave without mentioning the period of leave. Shri Kailash Chand vide letter No. 1-21/84-Ind-I(Estt.) dated 22.11.1984 was asked to resume his duties within a week's time or to furnish medical certificate from the authorised Medical Attendant in support of his illness. In stead of resuming his duties Shri Kailash Chand submitted two applications for leave w.e.f. 14.8.1984 to 24.1.1985 and 25.1.1985 onwards without mentioning the period of leave in his leave applications and also submitted 3 medical certificates from Rtd. Medical Practitioner for the period from 14.8.1984 to 25.5.1985. Shri Kailash Chand was asked to appear before the Chief Medical officer, Shimla District Shimla for medical examination, but report of his medical examination has not been received. Thus he is intentionally evading the medical examination. Therefore, Sh. Kailash Chand is charged for willful absence from duty w.e.f. 13.8.1984 and also violating the provision of Rules 3 of the C.C.S. (Conduct) Rules, 1964.” 4. The petitioner submitted reply, Annexure P-6, to the charge sheet, which is reproduced below in extenso: “To The Dy. Director of Industries (ADMN), Shimla-2, Himachal Pradesh. Sub: Charge Sheet. Sir, Kindly referred to your memo No.I-21/84-Ind.- (Estt.)-nil dated Shimla-2, the 6th January, 1986, on the subject cited above. -: 3 :- 2. In this regard I may submit here that I did report to the Chief Medical Officer, the Chairman of Board Constituted by him, for the purpose of checking myself. 3. The Board did or conduct all tests essential for the purpose and lastly I reported myself before the Board on 7.11.85 (Photostat copy attached). The Board has further advised three month's rest w.e.f. 7.11.1985 to 6.2.86. 4. It will not be advisable if I report myself for duties without obtaining the fitness from the Medical Board referred to above. I may also submit here that I am not receiving treatment from individual Doctor, but Chief Medical Officer for the purpose. 5. It is in emphatically denied that I have not submitted the application for extension of leave without mentioning the period therein. 6. There is no willful absence on my part, but the straightened circumstances circumstances are such which could not be avoided. Had it not been the case, I would have definitely reported myself for duty. I am passing these days in hardship due to paucity of money which is being not paid to me since long and it has become the burden upon my parents to fulfill my requirements and necessities of the life in these hard days, as I have not source of income, apart from the Salaries which I am getting from this Hon'ble Department. 7. In view of the above it is prayed that I may kindly be exonerated from the purposed action, and in case of any doubt, reference could very early be made to the aforesaid Medical authorities, who could apprise you of the factual position of the case. I may further submit here that the salary which ever is kept in abeyance be released forthwith. Keeping in view the deteriorating health of the applicant. I am prepared and willing to be heard in person by the competent authority. In case the reply is construed to be inadequate, I may be given time for submitting detailed facts. Dated 21.1.86. Yours faithfully, Sd/- Encls: Photostat copy (Kailash Chand) of Medical rest as given c/o Shri Nokh Ram Sharma, House by the Medical authority. No. 108, Annadale, Shimla-3 Himachal Pradesh.” 5. Vide Office Order dated 05.12.1987, Annexure P-7, Shri Kewal Ram Chauhan, Tehsildar, H.P. Industries Department, was -: 4 :- appointed as Enquiry Officer, who submitted his report on 08.01.1988 (copy not placed on record), on the basis of which the petitioner was removed from service vide order dated 16.06.1998, Annexure P-8. Being aggrieved, the petitioner filed Original Application (O.A.) No. 1150 of 1995 in the erstwhile H.P. State Administrative Tribunal, which was disposed of vide order dated 17.11.2005, Annexure P-11, with liberty reserved to the petitioner to file statutory appeal and thereafter if need be to approach the Tribunal afresh. Accordingly, the petitioner filed appeal, Annexure P-12, to the Principal Secretary, Department of Industries, Government of Himachal Pradesh. Though the order passed in the appeal has not been brought on record, yet it appears that the same was against the petitioner, but it was neither speaking nor reasoned. Consequently, the petitioner again approached the Administrative Tribunal, which in the meantime was abolished and the matter (O.A. No. 1691 of 2007) transferred to this Court and registered as CWP(T) No. 13659 of 2008, Kailash Chand Sharma vs. State of Himachal Pradesh and others, which was ultimately decided vide judgment dated 07.07.2010, Annexure P-13, operative part whereof contained in para 4 of the judgment is extracted below: “4. Accordingly, in view of the observations made hereinabove, the petition is partly allowed. Annexure A-13, dated 4th may, 2006 is quashed and set aside. The appellate authority is directed to re-hear the appeal preferred by the petitioner on 14.12.2005 on the basis of the grounds taken in the appeal and decide the same by a speaking order.; The needful shall be done within a period of ten weeks after the receipt of the certified copy of this judgment.” -: 5:- 6. The matter was again considered by the Additional Chief Secretary (Inds) to the Government of Himachal Pradesh vide order dated 29.10,2010, Annexure P-14, against the petitioner. 7. It is how, the petitioner is once again before this Court by way of the present petition under Articles 226 and 227 of the Constitution of India on the following prayers: “1. The impugned order dated 29.10.2010 (Annexure P-15) whereby the respondent No. 1 i.e. Appellate Authority has upheld and confirmed the order of removal from service passed by respondent No. 2 on 16.06.1988 (Annexure P8) may kindly be set aside. 2. That appropriate directions/order may kindly be issued to the respondents to reinstate the petitioner in service as Process Server with effect from 13.08.1984 by treating the leave period as leave of the kind due. 3. That appropriate directions may kindly be issued to the respondents to pay to the petitioner his salary and other service benefits due to him with effect from 13.08.1984 till date along with interest @ 10% per annum.” 8. There is no reply as yet. 9. The petitioner was charged under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1964 (in short 'CCS {CCA} Rules') and Rule 3 of the Central Civil Services (Conduct) Rules, 1964 (in short 'CCS {Conduct} Rules') for willful absence from duty w.e.f. 13.08.1984. No other misconduct was alleged against him. There is no denying the fact that the petitioner did not attend duty w.e.f. 13.08.1984 to 25.05.1986, i.e., for a period of one year nine months and ten days. It is alleged by the department that the petitioner submitted an application dated 13.08.1984 for medical leave without mentioning the period of -: 6 :- leave. Vide letter dated 22.11.1984 he was asked to resume duty within a week or to furnish medical certificate from the authorized medical attendant in support of his illness. However, instead of resuming the duty he submitted two applications for leave w.e.f. 14.08.1984 to 24.01.1985 and 25.01.1985 onwards without mentioning the period of leave in his leave applicants and also submitted three medical certificates from retired medical practitioner for the period from 14.08.1984 to 25.05.1985. He was asked to appear before the Chief Medical Officer, Shimla, District Shimla, for medical examination, but report of his medical examination was not received. Thus, allegedly he intentionally evaded the medical examination. 10. In rebuttal, the petitioner has filed a photo copy of letter dated 20.05.1985, Annexure P-15, sent to him by respondent No. 2, Director of Industries, Himachal Pradesh, with a copy to the Chief Medical Officer, Shimla, captioned as 'Medical examination of Shri Kailash Chand Sharma, Process Server, Directorate of Industries, H.P. Shimla', text whereof is as under: “Your attention is invited to this Directorate letter of even number, dated 13.3.1985 addressed to the Chief Medical Officer, Shimla and a copy thereof endorsed to you vide which medical examination immediately. A period of two months has already elapsed but you have not appeared before the Chief Medical Officer, Shimla, District Shimla for medical examination so far. 2. You are once again directed to appear before the Chief Medical Officer, Shimla for medical examination within 15 days from the issue of this communication, failing which disciplinary action will be taken against you as deemed fit under the rules.” 11. The petitioner has also brought on record copy of -: 7 :- medical certificate, Annexure P-16, issued by a Medical Board headed by Chief Medical Officer, Shimla, District Shimla, certifying that the petitioner was suffering from (name of the disease not legible) requiring absence from duty w.e.f. 31.05.1985 to 26.05.1986 and further certifying that he was fit to resume duty w.e.f. 27.5.1986. Soon thereafter the petitioner had submitted joining report on 27.05.1986, a copy of which is placed on record as Annexure P-17. 12. It is a settled proposition of law that scope of judicial review in the matters concerning departmental proceedings and the resultant penalty/punishment is very limited and restricted to exceptional cases, as in the present case. The petitioner was indicted consequent upon enquiry proceedings conducted in accordance with rules. However, in the peculiar facts and circumstances of the present case when the records unerringly go to show that the petitioner was in fact ailing during the relevant period, a part whereof from 31.05.1985 to 25.05.1986, which comes to just less than one year, is also covered under medical certificate, Annexure P-16, issued by a Medical Board headed by Chief Medical Officer, Shimla, District Shimla, the penalty of removal from service imposed upon the petitioner by the disciplinary authority is on the face of it grossly disproportionate to the misconduct established against the petitioner and in a way shocks the judicial conscience, as has been held by the Hon'ble Supreme Court in Dev Singh vs. Punjab Tourism Development -: 8:- Corporation Ltd. and another, (2003) 8 Supreme Court Cases 9 wherein it has been held as under vide para 6 of the judgment: “A perusal of the above judgments clearly shows that a court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty, however, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, then the court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the abovenoted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case.” 13. To the similar effect is the proposition of law propounded by the Hon'ble Apex Court in State of Meghalaya and others vs. Mecken Singh N. Marak, (2008) 7 Supreme Court Cases 580, paras 14 and 15, being relevant, are extracted below: “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 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 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. 15. While considering the question of proportionality of sentence imposed on a delinquent at -: 9:- the conclusion of departmental enquiry, the court should also take into consideration, the mental set-up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision-making process. If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct, in such cases has to be dealt with with iron hands.” 14. In view of the above, the petition succeeds partly and is allowed in part. Consequently, the impugned order dated 16.06.1988, Annexure P-8, as upheld in appeal, vide order dated 29.10.2010, Annexure P-14, is quashed with a direction to the respondents/competent authority to reconsider the matter with regard to quantum of penalty upon the petitioner taking into consideration the proportionality between the misconduct established against the petitioner and the punishment to be imposed upon him for the same in the light of the law laid down by the Hon'ble Apex Court in the judgments referred to hereinabove and the observations made in this judgment and take a final decision in the matter within three months from the date of production of copy of this judgment by the petitioner after affording an opportunity of being heard to him, if so desired. 15. The petition is disposed of in the above terms, so also pending application(s), if any. (Justice Kurian Joseph) Chief Justice (Justice V.K. Sharma) Judge 21st July, 2011 (virender) .K. Sharma, J.