1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.Civil Writ Petition No. 2021/2001 (Heera Mani Vs. State of Rajasthan & Anr.) ......... Date of Order : 11/12/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. Rajesh Joshi for the petitioner. Mr. B.L.Tiwari, Additional Govt. Counsel for respondents. BY THE COURT Reportable By the instant writ petition under Article 226 of the Constitution of India, the order dated 26.10.1996 (Annex.29) terminating the services of the petitioner's late husband Shri Kailash Chandra Sharma, has been challenged by the petitioner after death of the Govt. employee whose services came to be terminated on 26.10.1996. Briefly stated the facts of the case to the extent they are relevant and necessary for the decision of this writ petition are that the petitioner's husband Shri Kailash Chandra Sharma while in employment of the respondent Police Department on the post of Constable voluntarily remained absent without leave and 2 therefore, the respondents initiated inquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short 'the CCA Rules' hereinafter) against the police constable Shri Kailash Chandra Sharma. A memorandum of charges was served on him and inquiry officer on the basis of the material placed before it, by inquiry report Annex.28 held that the petitioner's husband Shri Kailash Chandra Sharma while working as police constable with the respondent police department voluntarily remained absent from duty without leave for 57 days and as such the charges levelled against him stood proved. By order Annex.29, the Disciplinary Authority terminated the services of the delinquent employee Shri Kailash Chandra Sharma on the ground that he was habitual absentee from the duty voluntarily without leave for the period mentioned in the order impugned dated 26.10.1996. Subsequent thereto, about after three years, the delinquent police constable Kailash Chandra Sharma expired on 30.04.1999 and thereafter the petitioner who is widow of deceased police constable Shri Kailash Chandra Sharma, has filed the instant writ petition challenging the order terminating the services of her late husband. A reply to the writ petition has been filed by the respondent State and supporting the order impugned it has been averred that the writ petition suffers from inordinate delay and laches and the delinquent police constable Shri Kailash Chandra 3 Sharma has accepted the punishment imposed by terminating his services as the order terminating services is appealable and thereafter the remedy of review before His Excellency the Governor is provided by the Statute but since the husband of the petitioner during his life time has accepted the finding of the inquiry officer and the punishment imposed by the disciplinary authority and therefore, now it is not open for the petitioner after the death of her husband to challenge the same. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that the petitioner's husband Late Shri Kailash Chandra Sharma was not served with the copy of the order terminating his service Annex.29 dated 26.10.1996 and therefore, the petitioner could not know that her husband's services were terminated. It is further contended that the inquiry officer has not recorded finding on each charge and therefore, the report of inquiry officer is neither reasoned nor speaking so also the order of disciplinary authority is unreasoned and non-speaking inasmuch as the inquiry officer did not even discuss the evidence produced in defence. Learned counsel for the petitioner has relied on decision of Hon'ble Supreme Court in Syed Zaheer Hussain Vs. Union of India and Others (1999) 9 SCC 86, Pepsu Road Transport Corporation Vs. Rawel Singh 2008 AIR SCW 2099 and a decision of this Court in Abhay Singh Vs. State of Rajasthan 4 and Ors. S.B.Civil Writ Petition No. 3441/2003 decided on 14.08.2006. Per contra, learned Additional Govt. Counsel appearing for the respondent State submits that the petitioner has concealed various material facts by the instant writ petition inasmuch as the petitioner came with a case that the order terminating services of her late husband was neither served to her late husband during his life time and nor was made available to the petitioner, whereas according to learned Additional Govt. Counsel, the order terminating services of the delinquent police constable Shri Kailash Chandra Sharma late husband of the petitioner was personally served to him and thereafter a certified copy of the order terminating service dated 26.10.1996 came to be served personally to the present petitioner Heera Mani on 07.07.1997 and the fact that her husband expired on 30.4.1999 much after serving of the copy to him as well as to the present petitioner, whereas in the writ petition, the petitioner came with a case that the order terminating services of her husband was neither served to his husband nor to her and therefore, the petitioner could not know of the order terminating services of her husband and therefore, the writ petition has been filed belatedly, this fact is obviously contrary to the record. Learned Additional Govt. Counsel has shown me the original record, from which it appears that the copy of the order terminating services was 5 served on the delinquent police constable soon after the order was passed and thereafter on the request of the present petitioner, it was served to her on 07.07.1997 as record bears the signature of the present petitioner having received the copy of the order terminating services on 07.07.1997. Learned Additional Govt. Counsel has relied on decision of Hon'ble Supreme Court in State of U.P. And Others Vs. Ashok Kumar Singh and Another AIR 1996 SC 736, in State of Punjab and Others Vs. Sukhwinder Singh (2007) 10 SCC 511, in Uttaranchal Forest Development Corporation and Another Vs. Jabar Singh and Others (2007) 2 SCC 112, in Chairman & Managing Director, V.S.P. And Others Vs. Goparaju Sri Prabhakara Hari Babu (2008) 5 SCC 569 and in State of Meghalaya and Ors. Vs. Mecken Singh N. Marak AIR 2008 SC 2862. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties. In Syed Zaheer Hussain Vs. Union of India and Others (supra), the appellant therein who was working as Sorting Assistant came to be dismissed from service on the ground that he remained unauthorisedly absent from 09.01.1985 to 15.01.1985 and was placed under suspension on 16.01.1985 and after departmental inquiry, he was dismissed from service. The order dismissing the appellant from service was challenged before the tribunal and the tribunal took the view that the 6 punishment meted out to the appellant was grossly disproportionate but could not interfere in exercise of its jurisdiction. The matter was carried to the Hon'ble Supreme Court and the Hon'ble Supreme Court in the facts and circumstances of that case, held that the punishment of dismissal from service is too harsh and on the contrary it is required to be substituted by an appropriate lesser punishment. In Pepsu Road Transport Corporation Vs. Rawel Singh (supra), order of dismissal from service of workman on the ground of absence of few days came to be challenged before the labour court and according to labour court the dismissal of workman was grossly disproportionate and excessively high and therefore, directed the reinstatement of the workman. The Apex Court did not interfere with the order of the labour court. In Abhay Singh Vs. State of Rajasthan and Ors. (supra), the petitioner therein while holding the post of Constable in Rajasthan Police was served with a memorandum under Rule 16 of the Rules of 1958 alleging five charges of misconduct. Essentially all the charges relate to unauthorised absence from duty. This Court held that it is well settled that the inquiry officer while making an inquiry is not only required to collect evidence but is also required to discuss the same and then to reach at a specific conclusion by analysing the evidence produced before him and on that premises, it was held that the 7 disciplinary authority must give a specific finding supported by reasons against each and every charge. In that case, the disciplinary authority while giving a notice to the delinquent employee for tentative decision to impose penalty has not referred the specific proposed punishment and therefore, held that non giving specific tentative penalty denies the government servant a right to submit an effective explanation. On these premises, the orders passed by the disciplinary authority and appellate authority as also inquiry officer were held to be non- speaking and unreasoned, however, in the facts and circumstances of that case, instead of quashing the orders and remanding the matter, this Court modified the penalty of dismissal by substituting the penalty of compulsory retirement in place of the penalty of dismissal. The decisions relied on by learned counsel for the petitioner turn on their own facts and are of no help to the petitioner for the reason that in the case of Syed Zaheer Hussain Vs. Union of India and Others (supra), the appellant therein remained unauthorisedly absent from 9.1.1985 to 15.1.1985 only for seven days and that was not a case of habitual absentee and therefore, the Apex Court did not interfere with the order of tribunal holding the punishment of dismissal disproportionate. In Pepsu Road Transport Corporation Vs. Rawel Singh (supra), the appellant therein remained absent for few days unauthorisedly 8 and the labour court held the termination of services bad and the High Court did not interfere with the order of the labour court. The Apex Court held that the inquiry could not be said to be contrary to law or in violation of principles of natural justice and fair play, it was the duty of the respondent-workman to cooperate with such enquiry and participate in disciplinary proceedings which the workman failed to do. In those circumstances, the Apex Court thought it fit that the respondent Corporation should not be asked to pay back wages to the workman and the order of the labour court and the High Court was modified to that extent. In the instant case, it is evident from the inquiry report that the husband of the petitioner being police constable, an employee of the respondent Police Department in Uniform repeatedly remained absent without leave voluntarily. It is not that it was the first occasion on which the husband of the petitioner remained absent without leave voluntarily, but he was habitual in remaining absent without leave as on the date mentioned in the order of inquiry officer. In State of U.P. and Others Vs. Ashok Kumar Singh and another (supra), the charge against the delinquent police constable was that he absented himself from duty on several occasions and punishment of removal from service was imposed which came to be challenged by the delinquent police constable 9 before U.P.Public Service Tribunal and the Tribunal maintained the same. The order of the tribunal confirming the order of removal came to be challenged by the delinquent police constable before High Court and the High Court quashed the order of removal and directed the opposite party to reinstate the delinquent therein on duty. The State of U.P. challenged the order of the High Court before Hon'ble the Supreme Court. The Hon'ble Supreme Court observed as under:- “We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observation that “his absence from duty would not amount to such a grave charge”. Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that “the punishment does not commensurate with the gravity of the charge” especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out.” On these premises, the Hon'ble Supreme Court set aside the order of the High Court and restored the order of 10 U.P. Public Service Tribunal confirming the order of removal. In State of Meghalaya and Ors. Vs. Mecken Singh N. Marak (supra), the Hon'ble Supreme Court observed as under:- “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. 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.” In State of Punjab and Others Vs. Sukhwinder Singh (supra), the Hon'ble Supreme Court observed as under:- “The High court was right in noting that the respondent was a member of a disciplined force and that absence from duty was unbecoming of a member of such force. It was in that light that the High Court should have looked at the repeated acts of the respondent's absence from duty. The fact that the respondent is a member of the Scheduled Caste is neither here nor there 11 for the purposes of considering whether or not he is guilty of misconduct and breach of discipline, nor the fact that he had gone to give his pay to his mother and was detained on account of her illness. It is necessary that members of the police forces should attend the duties which they have been allocated and not absent themselves. This is a paramount public interest that must overweigh private considerations. The High Court was, therefore, in patent error in looking benignly at the numerous acts of absence of the respondent.” The Hon'ble Supreme Court further observed as under:- “That the order of dismissal did not use the “mantra” of “gravest act of misconduct” is not determinative. The substance of that conclusion is to be found in that order. When a policeman is repeatedly absent from duty, it cannot but be reasonably concluded that there is incorrigibility in his continued misconduct.” In Uttranchal Forest Development Corporation and Another Vs. Jabar Singh and Others (supra), the Hon'ble Supreme Court while considering the availability of alternative remedy and without exhausting the same entertaining the writ petition by the High Court held that the workmen have not made out any exceptional circumstances to knock the door of the High Court strainghtaway without availing the effective alternative remedy available under the Industrial Dispute Act. But the dispute relates to enforcement of a right or obligation under the 12 statute and a specific remedy is, therefore, provided under the Statute. The High Court should not deviate from the general law and interfere under Article 226 of the Constitution except when a very strong case is made out for making a departure. In Chairman & Managing Director, V.S.P. and Others Vs. Goparaju Sri Prabhakara Hari Babu (supra), the respondent was a repeated absentee but still appellant employer let him off by taking a lenient view in earlier cases of unauthorised absence. The Hon'ble Supreme Court held that the respondent was a habitual absentee. The Jurisdiction of the High Court in this regard is rather limited. Its power to interfere with the disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-reasoned order only on sympathy or sentiments. The High Court in exercise of its jurisdiction under Article 226 also cannot, on the basis of sympathy or sentiments, overturn a legal order. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke doctrine of proportionality. If decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when misconduct stands proved. Apart from the above, the writ petition suffers from 13 the delay and laches. Reference may be made in this regard to the decisions of Hon'ble Supreme Court reported in Bhoop Singh Vs. Union of India & ors., AIR 1992 SC 1414, State of Orissa Vs. Lochan Nayak, (2003) 10 SCC 678, New Delhi Municipal Council Vs. Pan Singh & Ors. AIR 2007 SC 1365 , in Government of West Bengal Vs. Tarun K.Roy & Ors. (2004) 1 SCC 347 and in Karnataka Power Corporation Ltd. Through its Chairman & Managing Director & Anr. Vs. K.Thangappan & Anr., (2006) 4 SCC 322. In the instant case, soon after the impugned order dated 26.10.1996 Annex.29, the delinquent police constable neither challenged the same by way of statutory appeal nor by way of review petition and he accepted the same. Even otherwise after the order, for near about a period of three years, the delinquent constable was alive yet he did not challenge the order impugned and after his death in the year 1999, the instant petition came to be filed belatedly without availing the alternative statutory remedy of appeal and then review which is efficacious in nature as also the fact that from the factual matrix of the case as noticed above, the petitioner's husband was a habitual absentee as record shows that on several occasions he remained absent without leave voluntarily and therefore, keeping in view the various decisions of Hon'ble Supreme Court referred herein above, the scope of interference by this Court in the order passed by the disciplinary authority is very limited as 14 also the scope of interference in the quantum of punishment. In the instant case, while conducting the inquiry, the procedure prescribed has been followed. There is no violation of principles of natural justice as the delinquent police constable was represented by the defence nominee and even the defence representative stated that the delinquent constable has not been appearing in the inquiry as he has absented himself w.e.f. 26.6.1996 and even the defence representative asked the constable to file a detailed explanation but he did not respond even to the defence representative and therefore, the respondents were justified in passing the order impugned. It cannot be said that the punishment imposed to the delinquent police constable is disproportionate to the delinquency. In this view of the matter, I do not find any merit in the writ petition. The writ petition is therefore, dismissed. There shall be no order as to costs. (H.R.PANWAR), J. rp