(Prayer:Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the order of dismissal vide the 2nd respondent's proceedings No.72011/DL8/SETC/2008, dated 02.09.2010, quash the same as arbitrary, illegal and violative of principles of natural justice and consequently direct the respondents to conduct denovo enquiry by affording an opportunity of being heard enabling the petitioner to put forth his defence by oral and documentary evidence.)
1. The order of dismissal dated 02.09.2010 is under challenge in the present Writ Petition.
2. The petitioner was appointed as Conductor on 07.04.1989 in the respondent Corporation. On account of the allegation of unauthorized absence, departmental disciplinary proceedings were initiated against the petitioner and a charge memo was issued to him. The petitioner remained absent in the enquiry proceedings and the disciplinary authority continued the proceedings ex-parte and the Enquiry Officer also conducted an enquiry and submitted his report by providing an opportunity to the petitioner, which was not availed by him. Accepting the enquiry report, the disciplinary authority issued the second show cause notice and the petitioner submitted his objections on 08.06.2010. Thereafter, the final order in the departmental disciplinary proceedings was issued in order dated 02.09.2010 imposing the penalty of dismissal from service.
3. The learned counsel for the petitioner mainly contended that the petitioner remained absent on genuine reasons. His son met with an accident and he faced certain family issues during the relevant point of time. Thus, the case of the petitioner is to be considered by setting aside the order of punishment of dismissal from service.
4. The learned counsel for the petitioner is of an opinion that the punishment of dismissal from service was imposed based on the ex-parte enquiry and therefore, the said enquiry is to be set aside and the petitioner may be provided with one more opportunity to defend his case before the Enquiry Officer. In view of the fact that the impugned punishment has been imposed based on the ex-parte enquiry, the respondents have violated the principles of natural justice. Thus, the case of the writ petitioner is to be considered.
5. The learned Additional Government Pleader appearing on behalf of the respondents objected the said contentions by stating that the petitioner remained unauthorizedly absent for about 2 years on several occasions. The petitioner was a habitual absentee and right from the year 1998, he remained unauthorizedly absent and based on that, disciplinary proceedings were initiated and a lenient view was taken by the authorities competent by imposing the punishments of stoppage of increments. Thus, the service records of the petitioner regarding the earlier allegations were considered by the disciplinary authority and finally they have formed an opinion that there is no change in the conduct of the petitioner and therefore imposed the penalty of dismissal from service. The learned Additional Government Pleader brought to the notice of this Court that the Approval Application filed by the respondents was already allowed by the Competent Authority. Thus, the Writ Petition is liable to be rejected.
6. A charge memo was issued to the petitioner stating that he remained unauthorizedly absent from 06.09.2008 onwards without any prior permission or intimation to the Competent Authorities. The unauthorized absence of the petitioner caused inconvenience to the public services to be provided to the public at large. The charge memo was received by the petitioner and sufficient time was granted to defend his case. However, the petitioner had not chosen to participate in the departmental disciplinary proceedings and remained absent. Thus, an ex-parte enquiry was conducted and based on the same, the Enquiry Officer submitted his report holding that the charges are proved and the said report was also accepted by the disciplinary authority, who in turn passed the final order imposing the punishment of dismissal from service. Thus, the procedures, as contemplated under the Discipline and Appeal Rules, were followed by the authorities competent and there is no infirmity as such.
7. The principles of natural justice have been followed and the writ petitioner had intentionally not availed the opportunity afforded to him. When the charged official remained absent during the enquiry proceedings and allowed the proceedings to be completed by the authorities, thereafter, he cannot turn around and claim that the punishment was imposed based on the ex-parte enquiry. Thus, the very contention raised by the petitioner in this regard deserves no merit consideration.
8. Regarding the proportionality of the punishment of dismissal from service imposed on the petitioner, no doubt, if an employee remains unauthorizedly absent for a short span of time, the authorities are bound to take a lenient view. On certain circumstances, the employee may not be in a position to get prior permission from the Competent Authorities due to family circumstances or on account of accident. For example, if an employee met with an accident and admitted in hospital, due to certain unavoidable circumstances, the family members of the employee may not be in a position to provide information to the Competent Authorities. However, such circumstance and the genuinity is to be established by the employee, after rejoining the duty. When the unauthorized absence is on certain genuine circumstances, the same is to be established with relevant records before the authorities, who in turn shall take a lenient view while imposing the penalty, if any disciplinary proceedings were initiated against the employee concerned. But, if the employee is a habitual unauthorized absentee on several occasions, for which, he was punished and the authorities forms an opinion that there is no possibility of change in character and conduct by the employee, then the employer has no other option but to impose the major penalty of dismissal from service. Thus, the concept of proportionality of the punishment is to be tested not only with reference to the nature of allegations, but also based on the previous conduct of the employee. No leniency can be shown in respect of the habitual offenders, as such habitual misconducts would affect the efficiency in providing public services. The Government is providing public services and such absence by the employees would cause hindrance to the smooth functioning of the organization. All these aspects are required to be considered by the Competent Authorities as well as by the Courts.
9. The power of judicial review by the High Court is to be exercised only to scrutinise the processes through which a decision is taken by the Competent Authorities in consonance with Statute and the Rules, but not the decision itself. Therefore, the process through which the decision is taken alone is to be tested, while exercising the power of judicial review. The decision, if it is in violation of the statutory rules, then alone the High Court can interfere, but not otherwise.
10. In the case of Union of India and others vs. Bishamber Das Dogra reported in (2009) 13 SCC 102, wherein the Hon'ble Supreme Court of India in paragraphs 18, 25, 26, 27 30, 33 and 34 held as under:-
“18. This Court in S.K. Sharma case [(1996) 3 SCC 364 : 1996 SCC (L&S) 717] held as under: (S.K. Sharma case [(1996) 3 SCC 364 : 1996 SCC (L&S) 717] , SCC p. 389, para 32)
“32. … Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counterproductive exercise.”
Similar view had been reiterated in S.K.Singh v. Central Bank of India [(1996) 6 SCC 415 : 1997 SCC (L&S) 39] and State of U.P. v. Harendra Arora [(2001) 6 SCC 392 : 2001 SCC (L&S) 959 : AIR 2001 SC 2319] .
25. In India Marine Service (P) Ltd. v. Workmen [AIR 1963 SC 528 : (1963) 3 SCR 575] this Court while considering a similar issue held as under : (AIR p. 529, para 6)
“6. … It is true that the last sentence suggests that the past record of Bose has also been taken into consideration. But it does not follow from this that that was the effective reason for dismissing him. The Managing Director having arrived at the conclusion that Bose's services must be terminated in the interest of discipline, he added one sentence to give additional weight to the decision already arrived at. Upon this view it would follow that the Tribunal was not competent to go behind the finding of the Managing Director and consider for itself the evidence adduced before him. The order of the Tribunal quashing the dismissal of Bose and directing his reinstatement is, therefore, set aside as being contrary to law.”
26. Similarly in DG, RPF v. Ch. Sai Babu [(2003) 4 SCC 331 : 2003 SCC (L&S) 464] this Court held as under : (SCC p. 334, para 6)
“6. … Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works.”(emphasis added)
27. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate [(2005) 2 SCC 489 : 2005 SCC (L&S) 298] this Court reiterated the similar view observing as under : (SCC p. 499, para 32)
“32. … In the facts and circumstances of the case and having regard to the past conduct of the respondent as also his conduct during the domestic enquiry proceedings, we cannot say that the quantum of punishment imposed upon the respondent was wholly disproportionate to his act of misconduct or otherwise arbitrary.”
30. In view of the above, it is evident that it is desirable that the delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require.
33. Admittedly, the respondent employee has not completed the service of six years and had been imposed punishment three times for remaining absent from duty. On the fourth occasion when he remained absent for ten days without leave, the disciplinary proceedings were initiated against him. The show-cause notice could not be served upon him for the reason that he again deserted the line and returned back after fifty days. Therefore the disciplinary proceedings could not be concluded expeditiously. The respondent submitted the reply to the show-cause notice and the material on record reveal that during the pendency of the enquiry he further deserted the line for ten days. There is nothing on record to show any explanation for such repeated misconduct or absenteeism. The court/tribunal must keep in mind that such indiscipline is intolerable so far as the disciplined force is concerned.
34. The respondent was a guard in CISF. No attempt had ever been made at any stage by the respondent employee to explain as to what prejudice has been caused to him by non-furnishing of the enquiry report. Nor had he ever submitted that such a course has resulted in failure of justice. More so, the respondent employee had never denied at any stage that he had not been punished three times before initiation of the disciplinary proceedings and deserted the line twice even after issuance of the show-cause notice in the instant case. No explanation could be furnished by the respondent employee as under what circumstances he has not even considered it proper to submit the application for leave. Rather, the respondent thought that he had a right to desert the line at his sweet will. It was a case of gross violation of discipline. Appeal filed by the respondent employee was decided by the statutory appellate authority giving cogent reasons.”
11. In the judgment of the Supreme Court in the case of Bishamber Das Dogra (cited supra), the respondent-employee therein remained absent from duty without any justification or leave for more than five years within a short span of less than six years in service. During the relevant point of time, the respondent-employee was imposed with several minor punishments and later dismissed from service. The question aroused for consideration in that case was whether the order of punishment would be vitiated if the Disciplinary Authority takes into consideration the past conduct of the delinquent employee for the purpose of punishment. The respondent-employee in the above said case, submitted the reply to the show cause notice and the materials on record would reveal that during the pendency of the enquiry, the respondent-employee further deserted the LINE for 10 days. There is nothing on record to show any explanation for such repeated misconduct or absenteeism. The Court/ Tribunal must keep in mind that such indiscipline is intolerable so far as the disciplined force is concerned. The respondent-employee was a Guard in the CISF. No attempt had ever been made at any stage by the respondent-employee to explain as to what prejudice has been caused to him by nn-furnishing of the enquiry report. Nor he ever submitted that such a course has resulted in failure of justice.
12. In the case of Bishamber Das Dogra (cited supra), it is evident t
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hat it is desirable that delinquent employee may be informed by the Disciplinary Authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in absence of Statutory Rules, the Authority may take into consideration the indisputable past conduct/service record of the employee for adding the weightage to the decision of imposing the punishment if the facts of the case so require. 13. This being the factum, this Court is of an opinion that there is no infirmity or perversity in respect of the procedures as followed by the respondents for concluding the disciplinary proceedings. Thus the enquiry or the findings in the enquiry report do not suffer any perversity. 14. In the present case, the overall consideration of the conduct of the petitioner, as assessed by the Disciplinary Authority, cannot be found fault with. It is essential to consider the overall performance of the officials and the previous misconducts committed by the employee, which becomes necessary for imposing punishments. The petitioner herein has remained unauthorizedly absent on several occasions and the details of the punishments awarded to the petitioner right from the year 1998 onwards are narrated in the order impugned, which reads as under:- "TAMIL" 15. This being the factum established, this Court do not find any infirmity in respect of the order impugned passed by the second respondent in proceedings dated 02.09.2010. Accordingly, the Writ Petition stands dismissed. No costs.