1 S.B.C.W. No.416/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.Civil Writ Petition No. 416/2009 (Smt. Sharda Devi Vs. State of Rajasthan & Ors.) ......... Date of Order : 17/02/2009 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. B.S.Deora for the petitioner. BY THE COURT By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of order Annex.P-7 dated 4.1.1996 and a direction to the respondents to release retiral benefits and family pension to the petitioner with arrears and interest thereon. I have heard learned counsel for the petitioner. The facts and circumstances giving rise to the instant writ petition are that the petitioner's husband late Shri Narayan Lal who was appointed on the post of Constable on 28.2.1976 was served with a charge sheet/ memorandum of charges under 2 S.B.C.W. No.416/2009 Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short 'the CCA Rules' hereinafter) for remaining willful absent from duty for the period mentioned in the charge sheet. An inquiry was conducted as per the procedure prescribed and the inquiry officer found the charges proved and therefore, the disciplinary authority on charges having been proved, imposed the penalty of removal from services by order dated 31.3.1993 and thereafter the order of disciplinary authority imposing punishment of removal from service came to be challenged by deceased Narayan Lal, Constable, by way of an appeal and the appellate authority vide order dated 18.10.1993 (Annex.2) remanded the matter to the disciplinary authority with certain directions and after making compliance of the order of the appellate authority, the disciplinary authority passed order dated 4.1.1996 imposing penalty of removal from services. The petitioner's husband Shri Narayan Lal expired and therefore, after his death, the petitioner being the widow of the deceased Govt. servant filed a review petition before His Excellency, the Governor of Rajasthan challenging the order of the disciplinary authority, on 11.7.2007 which came to be dismissed on the ground that it has been filed after expiry of more than three years from the date of order. Hence this writ petition. 3 S.B.C.W. No.416/2009 From the perusal of the memorandum of charges, finding of the inquiry officer, it appears that the petitioner's Late Husband Narayan Lal, Constable was habitual absentee. He willfully remained absent without leave from duty for the period of 21 days from 13.8.91 to 3.9.91, for 5 days from 5.9.91 to 10.9.91, again for 40 days from afternoon of 10.9.1991 to 20.10.1991 and for 2.1.1992, thereafter for three days from 7.2.1992 to 10.2.1992 and again for 27 days from 11.3.1992 to 6.4.1992. The inquiry officer on appreciation of the material placed before it during inquiry, found the charges proved against Shri Narayan Lal, husband of the petitioner. 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 AIR 1996 SC 736, the charge against the delinquent police constable was that he absented himself from duty on several occasions and punishment of removal from service was 4 S.B.C.W. No.416/2009 imposed which came to be challenged by the delinquent police constable 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.” 5 S.B.C.W. No.416/2009 On these premises, the Hon'ble Supreme Court set aside the order of the High Court and restored the order of U.P. Public Service Tribunal confirming the order of removal. In State of Meghalaya and Ors. Vs. Mecken Singh N. Marak AIR 2008 SC 2862, 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 (2007) 10 SCC 511, the Hon'ble Supreme Court observed as under:- “The High court was right in noting that the 6 S.B.C.W. No.416/2009 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 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 Chairman & Managing Director, V.S.P. and Others Vs. Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 569, 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 7 S.B.C.W. No.416/2009 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. In the instant case, 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 also the scope of interference in the quantum of punishment. In the instant case, while conducting the inquiry, the procedure 8 S.B.C.W. No.416/2009 prescribed has been followed, 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