--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITITION NO. 3268 / 2006 BALU SINGH S/O BHERAJI MAIDA Vs. STATE OF MP & OTHERS * * * * * O R D E R ( 5/7/2011) The petitioner before this court has filed this present petition being aggrieved by order dt. 23/1/06 by which punishment of removal from service has been inflicted upon him. The petitioner is also aggrieved by order dt. 25/3/06 by which the appeal preferred by the petitioner has been dismissed. The contention of the petitioner is that he was appointed as a Constable in the Special Armed Force of the State of MP in the year 1992 and a charge sheet was issued alleging certain misconduct. It was alleged that the petitioner was absent from 9/6/2001 without proper leave application and thereafter an ex-parte enquiry was conducted. An order of dismissal was passed on 22/11/02. --- 2 --- Petitioner being aggrieved by order of dismissal preferred an appeal before the appellate authority and the appellate authority vide order dt. 2/8/05 has reinstated the petitioner back in service. The Departmental Enquiry as it was an ex- parte enquiry was set aside and the Enquiry Officer was directed to conclude the enquiry afresh after permitting the petitioner to participate in the enquiry. Petitioner's grievance is that the respondents in a most mechanical and casual manner have now again completed the Departmental Enquiry and they have not looked into the documents relied upon by the petitioner at all and the petitioner has again been removed from service vide impugned order dt. 23/1/06. He has further stated that his appeal has been dismissed vide impugned order dt. 25/3/06. Learned counsel for the petitioner has vehemently argued before this court that the petitioner while he was posted at Shajapur suffered a fracture on 12/1/01 and was referred to E Company, Indore. He has further stated that on 19/4/09 he was referred to MY Hospital (which is a hospital of the State Government) and he was under treatment upto 10/1/02 . The petitioner has --- 3 --- further stated that on 8/7/02 he was admitted in Ratlam Hospital which is again a Government Hospital and he was operated at Ratlam and was in hospital till 27/11/02. Petitioner has further stated that while he was undergoing treatment he was discontinued from service that too by holding an ex-parte Departmental Enquiry and the enquiry officer in the subsequent enquiry also has not looked into the various medical certificate hence the findings arrived at deserves to be set aside. Learned counsel for the petitioner has vehemently argued before this court that the punishment awarded to the petitioner is extremely harsh and even if the charge of unauthorised absence is proved the punishment of removal from service is excessive. He has placed reliance on a judgment delivered by the apex court in the case of Chairman Cum Managing Director, Coal India Ltd., and another Vs. Mukul Kumar Choudhuri and others (2009) 15 SCC 620. Learned counsel for the petitioner has also raised another ground before this court and his contention is that no presenting officer was appointed while conducting the Departmental Enquiry. He has vehemently argued before --- 4 --- this court that the enquiry officer himself has acted as a presenting officer, meaning thereby a Judge has acted as prosecutor in the present case. He has further informed this court that the enquiry officer has not only examined the witnesses, he has cross examined the petitioner at length and thereafter has submitted a finding, holding the petitioner guilty of unauthorised absence. Learned counsel for the petitioner has prayed for quashing of the Departmental Enquiry on this count also. A reply has been filed on behalf of the respondent State and the stand of the State is that the petitioner was absent for total 532 days and he has filed medical certificates only for 137 days. The respondents have stated that the petitioner was absent from 9/6/01 to 21/1/02 and the medical certificate is in respect of the period w.e.f. 8/7/02 to 21/11/02. The stand of the respondent State is that the petitioner being a member of disciplined force, as he was unauthorisedly absent for a period of 532 days has rightly been dispensed with from service and there is no procedural error in the Departmental Enquiry warranting interference. --- 5 --- Respondent State has also argued before this court that the petitioner has been rightly inflicted with the punishment of removal from service and in absence of violation of any statutory provision of law and in absence of violation of principles of natural justice and fair play, the question of interference by this court in the matter of Departmental Enquiry, does not arise. Respondents have also produced before this court the original Departmental Enquiry record and have prayed for dismissal of the present writ petition. Heard learned counsel for the parties at length and perused the record. In the present case, it is an admitted fact that the petitioner was appointed in the year 1992 on the post of Constable in the Special Armed Force of the State of MP. He was charge sheeted for being unauthorisedly absent for a period w.e.f. 9/6/01 to 21/11/02. The respondents in their return have categorically stated that the petitioner was unauthorisedly absent from 9/6/01 to 21/11/02 and has filed medical certificates only in respect of 137 days ie., for the period w.e.f. 8/7/02 to 21/11/02. The findings arrived at by --- 6 --- the enquiry officer reflects that the petitioner has been found guilty for remaining unauthorised absence for the entire period, meaning thereby, the certificates filed by the petitioner in respect of his illness have been totally ignored by the enquiry officer. Not only this, the report further reveals that the petitioner was referred to MY Hospital for treatment and record is certainly available, as reflected in the enquiry report. This Court is of the considered opinion that the petitioner as he has suffered a fracture has informed the authorities about his fracture and was under treatment and therefore the findings arrived at by the enquiry officer are perverse findings as he has ignored the documents of the petitioner in toto. Not only this, in the present case, the enquiry officer has acted as a prosecutor. The enquiry officer has not only examined all the witnesses, but also examined and cross examined the petitioner meaning thereby has assumed the role of prosecutor. Keeping in view the aforesaid fact, as the enquiry officer has acted as a prosecutor, the Departmental Enquiry proceedings deserves to be set aside. It is pertinent to note --- 7 --- that learned counsel for the petitioner has fairly stated before this court that the petitioner is not claiming back wages in the matter. Keeping in view the totality of the circumstances of the case, no back wages are being awarded in the peculiar facts and circumstances of the case. In the present case, normally this court would have remitted the matter back to the disciplinary authority to hold a fresh enquiry, however, in the present case, the subsequent Departmental Enquiry has been done after remand order passed by the appellate authority vide order dt. 2/8/05 and therefore there appears to be no justification in remanding the matter again to the enquiry officer specially in view of the fact that the petitioner has foregone the claim of back wages. Not only this, the apex court in the case of Chairman Cum Managing Director, Coal India Ltd., and another Vs. Mukul Kumar Choudhuri and others (supra) in para 19 to 22 has held as under : 19. de Smith states that ‘proportionality’ involves ‘balancing test’ and ‘necessity test’. Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests --- 8 --- and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative. [Judicial Review of Administrative Action (1995), pp. 601-05, Para 13.085; see also Wade & Forsyth: Administrative Law (2005), p. 366.] 20. In Halsbury's Laws of England (4th Edn.), Reissue, Vol. 1(1), pp. 144-45, Para 78, it is stated: ‘The court will quash exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well established in European law, and will be applied by English courts where European law is enforceable in the domestic courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a separate ground for review in English law, but is regarded as one indication of manifest unreasonableness.’ 21. The doctrine has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of --- 9 --- discretion. There can be no ‘pick and choose’, selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a ‘sledgehammer to crack a nut’. As has been said many a time; ‘where paring knife suffices, battle axe is precluded’. 22. In the celebrated decision of Council of Civil Service Unions v. Minister for Civil Service Lord Diplock proclaimed: (AC p. 410 D-E) ‘… Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality”, the second “irrationality” and the third “procedural impropriety”. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality”….’ (emphasis in original) Keeping in view the judgment of the apex court, as the petitioner was not well and he was undergoing treatment in respect of his fracture, the punishment awarded by the --- 10 --- disciplinary authority is certainly excessive. However, as this court has held the findings of the enquiry officer to be perverse, no further orders are required to be passed in the present case. The impugned orders dt. 23/1/06 and 25/3/06 are hereby quashed. Respondents are directed to reinstate the petitioner on the post of Constable within 30 days from the date of receipt of the certified copy of this order. It is needless to mention that the petitioner shall not be entitled to back wages. He will be entitled to notional fixation of salary and other consequential benefits. With the aforesaid this petition stands allowed. No order as to costs. (S. C. SHARMA) J U D G E KR