CWP No.15096 of 2011 - 1 - In the High Court of Punjab and Haryana at Chandigarh Date of decision: 18.08.2011 Balbir Singh ... Petitioner Versus The High Court for the States of Punjab and Haryana and another ... Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr. RK Chopra, Senior Advocate, with Ms. Maninder, Advocate, for the petitioner. -- PERMOD KOHLI, J. The petitioner was serving as Stenographer Grade-II in the Sessions Division, Hisar. Vide memorandum dated 09.01.2006, he was served with a Charge-sheet containing as many as nine charges seeking his response to the charges. The petitioner submitted his reply. The District and Session Judge, Hisar, the Disciplinary Authority, on consideration of the response of the petitioner, initiated regular enquiry which was entrusted to Mr. Sandeep Kumar Garg, Additional District and Sessions Judge, Hisar. The petitioner associated himself with the enquiry. On conclusion of the inquiry, the Enquiry Officer submitted his Enquiry Report dated 10.09.2008. On consideration of the Enquiry Report, the Disciplinary CWP No.15096 of 2011 - 2 - Authority, issued a Show Cause Notice dated 12.09.2008 (Annexure P-3) and also served a copy of the Enquiry Report. The petitioner was asked to submit his reply. On consideration of the reply, Show Cause Notice proposing to impose penalty of dismissal from service was served upon the petitioner. The learned District and Sessions Judge, Hisar, vide his order dated 10.12.2008 (Annexure P-4), dismissed the petitioner from service. This order was communicated to the petitioner vide memo dated 12.12.2008. The order of dismissal was challenged by the petitioner in Service Appeal before this Court. The Hon'ble Judge after hearing the appeal, vide his order dated 26.11.2010 (Annexure P-8) dismissed the same upholding the order of dismissal. The petitioner has challenged both the orders i.e. dismissal from service (Annexure P-4) passed by the Disciplinary Authority and the order passed in the Service Appeal (Annexure P-8) by this Court. From the perusal of the charge-sheet, it appears that there were two sets of charges against the petitioner. The first charge against him was that on 06.07.2005, he was given dictation in the open Court by Mr. Kamal Kant, learned Additional District and Sessions Judge, Hisar, in case titled State Vs. Mangled @ Deep. The petitioner, however, typed his own version of the matter. On being confronted by the Presiding Officer, the petitioner answered that he could not work in that Court and threw an application asking for leave from 07.07.2005 to 24.07.2005 on the ground of repair of house and urgent work and left the Court. The petitioner applied for extension of leave for 25.07.2005 and 28.07.2005 on the basis of some medical certificates and thereafter sent telegrams seeking extension of medical leave upto 01.09.2005 and thereafter upto 06.09.2005 without any CWP No.15096 of 2011 - 3 - medical certificates. Even thereafter, the petitioner remained absent from duty on 07.09.2005 and 08.09.2005 without any intimation. He was asked to join his duties vide letter dated 09.09.2005, whereupon the petitioner sent a telegram for medical leave upto 15.09.2005, again without medical certificate. He, however, joined duties on 16.09.2005. Even though, the petitioner was asked to submit his explanation, but he did not submit his explanation and only stated that he was suffering from hepatitis. One of the charges was also about absent from duty from 13.10.2005 to 23.10.2005 and on subsequent dates as well. Mr. RK Chopra, learned Senior Counsel appearing for the petitioner has raised two contentions ; (i) that the charge against the petitioner that he typed a different version than what was dictated to him by the Presiding Officer, has not been established in the enquiry and that (ii) the charge of remaining absent is not of a serious nature and later produced his medical certificates to justify the absence from duty. Both the contentions are liable to be rejected. In so far as the first contention is concerned, the Enquiry Officer specifically recorded a finding that the petitioner is guilty of the first charge. It is pertinent to note that the enquiry report is not under challenge. Thus, the findings recorded by the Enquiry Officer are not open to challenge. The Presiding Officer had also reported that the petitioner did not type the dictated version and this fact has also come in the enquiry. As regards the second contention is concerned, the absent from duty is not disputed. The petitioner remained absent for various spells, though he has tried to justify his absence on the basis of some medical certificates. However, the facts remained that the CWP No.15096 of 2011 - 4 - petitioner could have conveniently applied for leave, he, however, did not do so and sought extension of leave through telegrams even without medical certificates. It is not the case of the petitioner that he remained as an indoor patient in any hospital. Thus, the nature of illness was not such that the petitioner could have been prevented from filing an appropriate application for leave. Absence from duty is equally a serious charge. It may also be noticed that it was not a one time absence. The petitioner remained absent for various spells and all the charges stand proved in the enquiry. This fact has been noticed by the Appellate Authority. It is also relevant to note that before the Appellate Authority, the petitioner only pleaded for mercy and did not seriously contest the findings recorded by the Enquiry Officer. The Appellate Authority dismissed the appeal all the charges having proved against the petitioner. It is settled law that the High court while exercising powers of judicial review under Articles 226 of the Constitution of India, does not sit as a Court of appeal. The High Court can only examine the manner of exercise of powers by the domestic tribunal. The scope of enquiry under judicial review is limited to the extent of violation of principle of natural justice, violation of any statutory provisions, malafide etc. No malafides have been alleged against the Enquiry Officer and the Disciplinary Authority. Similar question has been considered by the Hon'ble Supreme Court in the case of State of U.P. Vs. Man Mohan Nath Sinha, (2009) 8, SCC, 310, has held as under:- “15. The legal position is well settled that the power of judicial review is not directed against the CWP No.15096 of 2011 - 5 - decision but is confined to the decision making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to re-appreciate and re-appraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusion. In the instant case, the High Court fell into grave error in scanning the evidence as it was a court of appeal.” In view of the above, I find no merit in the present petition and the same is hereby dismissed with no orders as to costs. 18.08.2011 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES