LPA No. 75 of 2004 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 75 of 2004 Date of Decision: 01-09-2008 Dr. Naresh Chand ....Appellant Versus State of Punjab and another .....Respondents Coram: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri P.N. Aggarwal, Advocate, for the appellant. Ms. Madhu Dayal, Additional AG, Punjab. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. The challenge in the present appeal is to the judgment passed by the learned Single Judge on 30.10.2003, whereby the writ petition filed by the appellant for quashing of the order of dismissal dated 14.7.1986 (Anenxure P.10) was dismissed. The appellant was appointed as PCMS Class-II vide order dated 24.8.1961. He completed his probationary period and was promoted to PCMS Class-I on 21.4.1976. While posted as Health Officer, Municipality, in April, 1983, he proceeded on leave of 120 days with effect from 1.7.1983 to 28.10.1983 to go abroad. Such leave was sanctioned and he proceeded on leave. Since the appellant did not join duties after the expiry of leave period, therefore, the appellant was charge-sheeted on 4.5.1984 on account of wilful absence from duties with effect from 29.10.1983; non-compliance with the directions of the LPA No. 75 of 2004 (2) authorities and violation of the Government orders. The copy of the charge-sheet was sent to the appellant at his foreign address, but the same was received back un-delivered. Dr. Inderjit Singh, Joint Director, Health Services was appointed as an Inquiry Officer on 15.1.1985. The appellant replied on 18.2.1985 expressing his helplessness to appear before the Inquiry Officer as he was not keeping good health. But after conclusion of inquiry, the appellant was called to appear before the Secretary Health and Welfare Department. The appellant replied that he has received the letter on 9.4.1986 and, therefore, could not appear. It was further stated that he had a bad car accident and he was under the treatment of the Doctor and was unable to appear for the personal hearing for 3-4 months. Subsequently, the Secretary passed an order on 14.7.1986 of dismissal of the appellant from service under Rule 8 of Punjab Civil Services (Punishment and Appeal) Rules, 1970. The Departmental appeal against the said order was dismissed. In a writ petition filed to challenge the order of dismissal, the learned Single Judge, found that the appellant has abstained from duties as while granting leave, it was made clear that there will be no extension in leave. Still further, it was found that the appellant does not deserve any lenient view as he intentionally abstained and sent false medical certificates to extend his stay in USA. After returning such finding, the writ petition was dismissed. Learned counsel for the appellant has vehemently argued that the appellant has 24-1/2 years of qualifying service and, therefore, the order of dismissal after such qualifying service is wholly unjustified. The order of dismissal is harsh; disproportionate to the misconduct alleged against the appellant and therefore, the punishment of dismissal is required to be converted into that of a compulsory retirement. It is also argued that the appellant has gone abroad after taking leave only for four LPA No. 75 of 2004 (3) months and he being a dedicated and efficient employee of the Government, his intention could not be doubted and by saying that he has been sending false medical certificates. It is contended that the appellant could not come back on account of compelling circumstances as he was suffering from spinal injury and later on has suffered a bad car accident and, thus, the order of punishment is not sustainable. It has been also argued that the order of dismissal is an ex- parte order and the appellant has not been afforded with the opportunity of hearing and, thus, the order of punishment is vitiated. The learned Single Judge has tabulated the period for which the appellant applied for extension in leave; reasons mentioned in the leave applications and the communication from the Office of Director Health Services rejecting the leave. A perusal of the said table shows that the appellant has not sent any medical certificate while seeking extension in leave. The learned Single Judge has noticed that he has sent two medical certificates but such certificates do not support the illness of the appellant for the entire period of his absence. Such certificates were not sent along with the original application for leave. The appellant has requested the Inquiry Officer vide letter dated 18.2.1985 to postpone the inquiry for three months. The Inquiry Officer sent his report on 10.5.1985. After the completion of the inquiry, the appellant was again served with the notice, but again the appellant did not appear and sought that on account of car accident, he was unable to arrive in India and that the communication was received late. The manner in which the appellant has sought extension in leave and has failed to participate in inquiry proceedings shows that the absence of the appellant was wilful. The present writ petition is only to seek the monetary benefits after the order of dismissal was passed. Such misuse of public funds at the instance of a person, who has availed leave unauthorisedly is condemnable. The power of judicial review under LPA No. 75 of 2004 (4) Article 226 of the Constitution is not against the decision, but against the decision making process. Though the appellant has alleged procedural irregularities and violation of the principles of natural justice, but the notices were served upon the appellant at each stage of the disciplinary proceedings and in fact, the appellant has been responding to few of the notices as well, but still failed to participate in the inquiry proceedings. Therefore, the appellant cannot be permitted to dispute the punishment imposed upon him in the writ jurisdiction of this Court. Learned counsel for the appellant has referred to a large number of judgments on the point that the inquiry against the appellant was not in accordance with the Rules and, therefore, the order of dismissal from service is illegal and ultra-vires. However such judgments have no applicability to the facts of the present case, where the the appellant was associated in the inquiry proceedings, but the appellant failed to appear. The appellant was served with the show cause notice after completion of inquiry, but the appellant failed to appear on the ground of the alleged car accident. Thus, the judgments referred to by the learned counsel for the appellants are distinguishable on facts. The argument of the learned counsel for the appellant that the penalty of dismissal imposed upon the appellant is highly excessive; punitive and disproportionate, is without any merit. Similar argument was considered by the Division Bench of this Court in Smt. Harsant Kaur v. Union of India (CWP 6983-CAT of 2007 decided on 14.2.2008), wherein the petitioner working under the Chandigarh Administration proceeded on ex-India leave in October, 1994. The order of dismissal was passed in the year 1997, but an argument was raised that such order of dismissal is bad as the petitioner has sought voluntary retirement before the order of punishment was passed. This Court, while considering various judgments has held to the following effect:- LPA No. 75 of 2004 (5) “In Kailash Nath Gupta v. Enquiry Officer (R.K. Rai), Allahabad Bank & Others, JT 2003 (3) SC 322, the Hon'ble Supreme Court has held that the High Court or the Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary authority/appellate authority to reconsider the penalty imposed or to shorten the litigation, it may itself in exceptional and rare cases impose appropriate punishment with cogent reasons in support thereof. In the present case, the petitioner abstained from duties for more than 2-1/2 years before the order of punishment was passed and thereafter for more than six years, no steps were taken by the petitioner. Such inaction on the part of the petitioner shows a total indifferent attitude of the petitioner so as to take recourse to her remedy in accordance with law. Having failed to do so, it cannot be said that the punishment awarded is disproportionate in any manner and shocks the conscience of the Court. We do not find that the punishment imposed is disproportionate to the misconduct in the facts and circumstances of the case.” LPA No. 75 of 2004 (6) In view of the above, we are of the opinion that the punishment of dismissal from service imposed upon the appellant is wholly justified. Consequently, we do not find that any case for interference in exercise of the appellate jurisdiction of this Court arising out of a writ petition, is made out. Hence, the present appeal is dismissed. (Hemant Gupta) Judge (Kanwaljit Singh Ahluwalia) Judge 01-09-2008 ds