Dr. Praveen Gupta vs State of Punjab

Tejinder Singh Dhindsa, J.—The petitioner who had served on the post of Medical Officer under the Health and Family Welfare Department, State of Punjab has filed the instant writ petition impugning order dated 23.6.2010, Annexure P10, whereby he has been removed from service. Brief facts of the case are that the petitioner was served with the charge sheet dated 31.10.2007 under Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules, 1970 on the following articles of charge:

i) Remaining absent from duty continuously from 11.7.2006 in an unauthorized manner;

ii) Disobedience of the orders of the higher authorities; and

iii) Making over-writings in the attendance register.

The reply submitted by the petitioner to the charge sheet having been found unsatisfactory, an Enquiry Officer was appointed vide order dated 22.9.2008 to enquire into the allegations levelled in the charge sheet. The enquiry report was furnished on 19.3.2009 returning findings against the petitioner. Vide letter dated 20.4.2009, a copy of the enquiry report was forwarded to the petitioner to raise objections, if any. The reply/objections having been considered and upon approval having been accorded by the Punjab Public Service Commission, the Principal Secretary, Punjab Government Health and Family Welfare Department has passed the impugned order dated 23.6.2010 imposing major penalty of removal from service upon the petitioner.

Mr. R.K. Chopra, learned Senior Counsel appearing for the petitioner, has confined the challenge to the order of removal on two grounds. It has been argued that the Punishing Authority has ignored the fact that the petitioner possessed an unblemished service record of 22 years and the gravity of the charge proved against the petitioner i.e. absence from duty cannot justify the imposition of the extreme penalty of removal from service. Learned counsel would argue that there was no complaint as regards the integrity of the petitioner and the punishment awarded is wholly disproportionate in relation to the charge levelled and proved against him. It has been urged strenuously that the ends of justice would be met if the punishment of removal from service was to be set aside and substituted with an order of compulsory retirement. Towards such submission, heavy reliance has been placed upon a Single Bench judgment of this Court rendered in Civil Writ Petition No. 2073 of 1988, Smt. Kailash Sharma (since deceased) through Shri Om Parkash Sharma (husband) v. State of Punjab and others, decided on 7.1.2004, Annexure P11.

The second limb of challenge to the impugned order of removal from service raised by learned Senior Counsel is that the petitioner had submitted an application dated 26.5.2006 for premature retirement giving three months'' notice. It is contended that as per mandate of Rule 3, clause 3(a) of the Punjab Civil Services (Pre-mature Retirement) Rules, 1975 (for short to be referred as "1975 Rules"), such voluntary retirement was to become effective from the date of expiry of the notice period contained in the application submitted by the petitioner and, accordingly, the petitioner shall be deemed to have been prematurely retired automatically upon expiry of the period of three months'' notice and no specific order from the competent authority in this regard was required. It is argued that the petitioner, accordingly, would be construed to have pre-maturely retired under the 1975 Rules and on such short ground, the impugned order of removal from service cannot sustain.

Per contra, learned State counsel would justify the State action by stating that the order of removal has been passed upon due procedure having been followed and after the culmination of regular departmental proceedings in which the petitioner had been granted opportunity at each and every stage. It has been argued on behalf of the State that in the light of the allegations/charges levelled against the petitioner and the same having been duly proved, judicial intervention in the decision taken by the competent authority would not be called for, particularly, in the light of the fact that no irregularity and illegality in the decision-making process has been pointed out.

The scope and extent of judicial scrutiny in administrative decisions relating to punishment in disciplinary cases questioned as arbitrary under Article 14 of the Constitution of India and as regards the quantum of punishment awarded, has been considered by the Hon''ble Supreme Court in a catena of judgments. In B.C. Chaturvedi Vs. Union of India and others, , it was observed as follows:

A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/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/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 Union of India and another Vs. G. Ganayutham (Dead) by LRs., , the Apex Court crystallized the principles on the question of quantum of penalty against the backdrop of the tests of proportionality and Wednesbury''s principle in the following terms:

The current position of proportionality in administrative law in England and India can be summarized as follows:-

(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was on which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury (1948 (1) KB 223) test.

(2) The Court would not interfere with the administrator''s decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU (1985 AC 374) principles.

(3)(a) As per Bugdaycay (1987 AC 514), Brind (1991 (1) AC 696) and Smith (1996 (1) All E R 297), as long as the Convention is not incorporated into English Law, the English Courts merely exercise a secondary judgment to find out if the decision maker could have, on the material before him, arrived at the primary judgment in the manner he had done.

(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.

(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find it the executive or administrative authority has reasonably arrived at his decision as the primary authority.

(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of ''proportionality'' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the Courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of ''proportionality''. There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to ''irrationality'', there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in ''outrageous'' defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain Ranjit Thakur Vs. Union of India (UOI) and Others, .

The issue that stands settled is that the Court should not interfere with the decision of the competent authority unless it is illogical, palpably erroneous, suffers from procedural impropriety or is shocking to the conscience of the Court in the sense that it is in defiance of logic or moral standards. The Court would refrain from going into the correctness and extent of penalty imposed by the Punishing Authority and would not substitute its own opinion to that of the Punishing Authority. The scope of judicial review is limited to the deficiency in the decision making process and not the decision.

In the facts of the present case, a detailed perusal of the enquiry report placed on record at Annexure P8 would reveal that even though the period of absence from 11.7.2006 to 7.8.2006 has been dealt with by the Enquiry Officer and certain observations have come in favour of the petitioner viz. the grant of medical leave applied for such period on the basis of illness had not been considered as per rules and instructions, yet the petitioner had been held guilty for continuous absence unauthorisedly thereafter. That apart, the charges of disobedience of the orders of the higher authorities and making over-writings in the attendance register stand duly proved. In other words, such charges are in the nature of insubordination and interpolation in the official record. I have been unable to persuade myself that the penalty of removal from service imposed upon the petitioner is shockingly disproportionate to the charges levelled and proved. There would be no basis to warrant interference as regards the quantum of punishment is concerned.

The judgment in Smt. Kailash Sharma (supra) upon which the reliance was placed cannot ensure to the benefit of the petitioner. In that case, the only charge was with regard to absence from duty. In the present case, apart from the petitioner having been found guilty on the charge of unauthorized absence, there are other serious charges in the nature of making overwritings in the attendance register and disobedience of the orders of the higher authorities that stand duly proved. The case of Smt. Kailash Sharma (supra) would be clearly distinguishable on facts.

The submission raised on behalf of the petitioner that he would be deemed to have pre-maturely retired upon expiry of the period of three months'' notice in view of his application dated 26.5.2006 in the light of the provisions contained in the 1975 Rules, also requires to be dealt with. The positive assertion in the writ petition is to the effect that no decision was taken by the respondent-authorities on his application dated 26.5.2006 seeking pre-mature retirement. This Court on 9.7.2013 had directed that an additional affidavit of the Principal Secretary to Government of Punjab, Department of Health and Family Welfare be filed clarifying as regards the status of such application that had been filed by the petitioner seeking pre-mature retirement. In compliance of the directions passed by this Court, an additional affidavit dated 27.8.2013 of respondent No. 1 has been placed on record. It has been clearly deposed therein that the application submitted by the petitioner dated 26.5.2006 in which three months'' notice for voluntary retirement had been given was under consideration with the Government, but the petitioner in the meanwhile vide letter dated 9.8.2006 requested for the withdrawal of the notice regarding voluntary retirement and the Government vide order dated 29.9.2006 accepted such request of the petitioner. The letter dated 9.8.2006 submitted by the petitioner and the acceptance thereof vide order dated 29.9.2006 has also been placed on record as Annexures R3 and R4, respectively, along with the affidavit.

Such fact as regards the petitioner having submitted a request dated 9.8.2006 for withdrawal of the notice seeking voluntary retirement made vide application dated 26.5.2006 has not been disclosed by the petitioner in the petition. Suffice it to observe that this was a material fact and the petitioner is guilty of having deliberately concealed the same. The petitioner has not approached this Court with clean hands and this is also a reason which has weighed with this Court to decline any relief to him. For the reasons recorded above, this Court is of the considered view that no interference is called for and the writ petition is, accordingly, dismissed.