Ganesh Singh vs State Of Uttarakhand

Ramesh Ranganathan, CJ

Heard Mr. S.K. Mandal, learned Counsel for the petitioner and Mr. J.C. Pande, learned Brief Holder for the respondent-State Government. The

jurisdiction of this Court has been invoked against the order passed by the Uttarakhand Public Services Tribunal, Nainital in Claim Petition

No.16/N.B./D.B./2015 dated 10.08.2016.

Facts, as noted in the order of the Tribunal, are that the petitioner joined service as a Constable in the Police Department on 23.01.1996. When he

was posted at Police Line, Pithoragarh, he absented from duty from 26.10.2011 to 01.02.2012 (99 days) without informing the Department. Notice

dated 14.12.2011 was served upon the petitioner on 19.12.2011 asking him to join duty failing which to face the disciplinary proceedings to be initiated

against him, but he did not report for duty till 01.02.2012. After having reported for duty for a day, the petitioner again absented from duty from

03.02.2012 to 06.10.2012 (for 247 days) without moving any application for leave, or informing the department, and again remained absent from duty

from 09.10.2012 till his termination from service on 04.01.2013. The appointing authority initiated a preliminary enquiry and, despite the Preliminary

Enquiry Officer having issued notice on 24.05.2012, the petitioner chose not to participate in the preliminary enquiry. After receipt of the preliminary

enquiry report, final inquiry proceedings were initiated, and the charge sheet dated 01.09.2012 was personally served upon the petitioner on 7.09.2012

through special messenger. The inquiry officer also personally served notices on 25.09.2012 and 31.10.2012 upon the petitioner. On 06.11.2012 the

inquiry officer submitted his enquiry report. Thereafter, the disciplinary authority personally served the show cause notice upon the petitioner on

26.11.2012, along with a copy of the enquiry report dated 10.12.2012, but the petitioner refrained from making any representation before the

disciplinary authority. Consequently, a final order was passed on 04.01.2013 dismissing the petitioner from service.

The petitioner thereafter submitted an application on 15.01.2014, before the D.I.G., Kumaun Range, Nainital, to restore him into service. The

petitioner was informed, by letter dated 20.02.2014, that he could not be permitted to join the police force as he had been dismissed from service. The

petitioner preferred an appeal on 16.04.2014, which was dismissed by order dated 27.06.2014. He moved a revision petition on 09.09.2014 which was

also dismissed by the Additional Directorate General, Administration by order dated 17.12.2014. Aggrieved thereby, the petitioner approached the

Public Services Tribunal alleging violation of principles of natural justice, and contending that, though he had appeared to join duty on 01.10.2012, he

was prevented from doing so.

In the impugned order, the Tribunal held that, for his absence from duty starting from 26.10.2011 till 01.02.2012 (99 days), the petitioner neither

informed the department nor moved any leave application; the department had issued a notice on 14.12.2011 directing the petitioner to join duty or

face the consequences; this notice was personally served upon the petitioner on 19.12.2011 through the S.S.P. Udham Singh Nagar; the petitioner

joined duty for just one day on 1.02.2012, and then again remained absent from 03.02.2012 continuously for 247 days till 06.10.2012 without intimation

or submitting any leave application; he again remained absent from duty till the order of dismissal was passed on 04.01.2013; even, thereafter, he kept

quiet till 15.01.2014 before moving an application before the D.I.G. Nainital to reinstate him in service; and the petitioner had filed some medical

certificates at the appellate stage.

The Tribunal, thereafter, held that no medical certificates were submitted by the petitioner, along with leave applications, during his service period;

the certificates produced by him, at the appellate stage, were not countersigned by the Chief Medical Officer, and could not be accepted; these

medical certificates appeared to have been prepared at one stretch by the Medical Officer, S.A.D. Toli-Jingoli, District Almora; these certificates did

not relate to the relevant period of absence from 26.10.2011 to 01.02.2012, 03.02.2012 to 06.10.2012, and till his removal respectively; the record

revealed that the petitioner was informed, by the disciplinary authority, not once but periodically, as also by the preliminary inquiry officer and the

inquiry officer; he had every opportunity to submit his leave applications along with medical certificates during his service tenure; and his contention

that he remained absent because of illness was an afterthought, and could not be accepted.

The Tribunal, then, examined the petitioner’s claim for violation of principles of natural justice and, after referring to the repeated opportunities

given to him, held that the respondents had not violated the principles of natural justice. With respect to the contention that the punishment was unduly

harsh, as it deprived him of all the retiral benefits, the learned Tribunal held that the judgment relied upon by the petitioner, in Rajinder Kumar Vs.

State of Haryana and another 2015 (7) Supreme 193, was not applicable since, in the said case, the absence was only for a period of 30 days; the

petitioner therein had submitted his medical certificates during the service period, and was found to be suffering from tuberculosis; but, in the present

case, the petitioner had not submitted any such medical reports nor had he moved any application seeking leave on medical grounds; his absence was

not merely of days but was for more than a year; he had continuously absented himself for 99 days and 247 days, and later till his removal; and the

punishment imposed did not necessitate interference.

Mr. S.K. Mandal, learned Counsel for the petitioner, would also rely on Krushnakant B. Parmar Vs. Union of India and another (2012) 3 SCC 178

to contend, that, since the petitioner’s absence was on account of illness, his absence cannot be held to be willful or deliberate; and it is only on a

finding being recorded by the respondents, that his absence was willful, could such a harsh punishment have been imposed. Learned Counsel would

submit that the order, of dismissal from service, had resulted in denying him all his retiral benefits; for mere absence from duty such a harsh

punishment could not have been imposed; and this Court may consider directing the respondents to impose a lesser punishment which would entitle the

petitioner to receive his retiral benefits, or to direct them to grant the petitioner medical leave for the period he remained absent from duty.

On the other hand Mr. J.C. Pande, learned Brief Holder for the State, would submit that the scope of interference by this Court, in the exercise of

its certiorari jurisdiction, is extremely limited; and, save cases where the order of the Tribunal suffered from an error of law apparent from the face of

the record, no interference was called for.

As has been noted earlier in the order, the petitioner initially remained absence from duty for 99 days from from 26.10.2011 to 1.02.2012 without

even intimating the department of the reasons for his absence. He, thereafter, again absented from duty for 247 days from 3.02.2012 to 06.10.2012

without moving any application for leave, and without intimating the department of the reasons for his absence. He again remained absent from duty

from 09.10.2012 till his termination from service on 04.01.2013 i.e. for a period of 86 days, again without intimation and without seeking leave. The

petitioner was working as a constable and was part of a disciplined police force. The inquiry officer has held the petitioner guilty of the charge of

remaining unauthorizedly absent from duty. Except to state that he was ill, it is not even contended before us that the petitioner had intimated the

department of the reasons for his absence or that he had sought medical leave.

While the petitioner has sought a writ of mandamus, the order of the Public Services Tribunal can only be quashed in the exercise of the certiorari

jurisdiction of this Court. A writ of certiorari can be issued for correcting errors of jurisdiction such as in cases where the order is passed without

jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction or where, in exercise of the jurisdiction conferred on it, the Court or

Tribunal acts illegally or improperly. The jurisdiction to issue a writ of certiorari is supervisory and not appellate. An error of law which is apparent on

the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. The adequacy or sufficiency of

evidence, and the inference of fact to be drawn therefrom, cannot be agitated in certiorari proceedings (Syed Yakoob Vs. K.S. Radhakrishnan &

Others : AIR 1964 SC 477) as it is in the province of a court of appeal.

If the tribunal has erroneously refused to admit admissible and material evidence, or has erroneously admitted inadmissible evidence, or if a finding

of fact is based on no evidence, it would be an error of law which can be corrected by a writ of certiorari. Where the conclusion of law by the

Tribunal is based on an obvious mis-interpretation of the relevant statutory provisions, or in ignorance of it or even in disregard of it or is expressly

founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. Whether or not an error is an error of law,

and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case, and upon the

nature and scope of the legal provisions which is alleged to have been misconstrued or contravened. (Syed Yakoob Vs. K.S. Radhakrishnan & Others

: AIR 1964 SC 477).

Unlike an appellate authority which can re-appreciate the evidence on record, the High Court, in the exercise of its certiorari jurisdiction, would not

substitute its views for that of the Tribunal, nor would it re-appreciate the evidence on record to arrive at a conclusion different from that of the

Tribunal whose order is impugned before it. Even if two views are possible, and the Tribunal has taken one of the possible views, the High Court

would not interfere, in the exercise of its certiorari jurisdiction, even if it were to be satisfied that the other possible view, canvassed before it, is more

attractive. A finding of fact reached, on the appreciation of evidence, cannot be reopened or questioned in writ proceedings save a finding of fact

which is either perverse or is based on no evidence. If a provision is reasonably capable of two constructions, and one construction has been adopted

by the authority, its conclusion may not always be open to correction in writ proceedings. (Syed Yakoob Vs. K.S. Radhakrishnan & Others : AIR

1964 SC 477).

A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior tribunals. A writ can similarly be issued where, in

exercise of the jurisdiction conferred on it, the tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to

be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. (CIT

Vs. Saurashtra Kutch Stock Exchange Ltd. :(2008) 14 SCC 17;1 andSyed Yakoob Vs. K.S. Radhakrishnan & Others : AIR 1964 SC 477). A writ of

certiorari can be issued in the case of illegal exercise of jurisdiction, and also to correct errors of law apparent on the face of the record, even though

they do not go to jurisdiction. It is only errors of law apparent on the face of the record, and not errors of fact though they may be apparent on the

face of the record, which can be corrected, (ShriAmbica Mills Co. Ltd. Vs.S.B. Bhatt and Anr. :AIR 1961 SC 97; 0R. Vs. Northumberland

Compensation Appeal Tribunal : (1952) 1 KB 338; and Nagendra Nath Bose Vs.Commr. of Hills Division : AIR 1958 SC 398, )and not every error

either of law or fact which can be corrected by a Court of appeal or revision. (T. Prem Sagar Vs.The Standard Vacuum Oil Company Madras and

Ors. : AIR 1965 SC 111; Bachan Singh and others Vs. Gaurishankar Agarwal and Others : (1972) 4 SCC 257; and Nagendra Nath Bose Vs. Commr.

of Hills Division : AIR 1958 SC 398).

Further an error of law, which can be corrected by a writ of certiorari, must be self-evident. It should not need an elaborate examination of the

record (Shri Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Anr. :AIR 1961 SC 970), or require a detailed examination or an elaborate argument to

establish it (CIT Vs. Saurashtra Kutch Stock Exchange Ltd. : (2008) 14 SCC 171H; ari Vishnu Kamath Vs. Syed Ahmad Ishaque and Ors. : AIR

1955 SC 233; Batuk K. Vyas Vs.Surat Borough Municipality and Ors. : AIR 1953 Bom 133.) An error cannot be said to be apparent if one has to

travel beyond the record to see whether the judgment is correct or not. It is an error which strikes on the mere looking, and does not need a long-

drawn out process of reasoning on points where there may conceivably be two opinions. Such an error would not require any extraneous matter to

show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. (CIT Vs. Saurashtra

Kutch Stock Exchange Ltd. :(2008) 14 SCC 171; Sant Lal Gupta Vs. Modern Coop. Group Housing Society Ltd. : (2010) 13 SCC 336).â€​

Findings of fact recorded by the Tribunal cannot be re-examined or re-appreciated in certioraris proceedings. The finding recorded by the Tribunal,

that the petitioner remained absence from duty without intimation or without applying for medical leave has not even been disputed by Mr. S.K.

Mandal, learned Counsel for the petitioner.

On the petitioner’s claim of violation of principle of natural justice, it is evident from the order of the Tribunal that the petitioner was given

repeated opportunities of hearing in the enquiry which he failed to avail. He also chose not to submit his reply to the disciplinary authority, despite

receiving a copy of the inquiry report. We are satisfied, therefore, that the petitioner’s claim of violation of natural justice is not justified.

Interference of the High Court, under Article 226 of the Constitution of India, with regards the quantum of punishment, imposed on the delinquent

employee by the disciplinary authority, would be justified only if the High Court is satisfied that the punishment imposed is grossly disproportionate to

the charges held established or the punishment imposed is one which shocks the conscience of the Court.

As noted hereinabove, the petitioner was a member of a disciplined police force. His absence from duty, without leave, was not just on one

occasion but on three difference occasions i.e. of 99 days, 247 days and 86 days. The conduct of the petitioner, in remaining repeatedly absent without

intimation or without seeking leave, and the punishment imposed on him of dismissal from service for such misconduct, cannot be said to be a

punishment which is grossly disproportionate to the charges held established.

Reliance placed on behalf of the petitioner, on Krushnakant B. Parmar, is misplaced. The law laid down therein must be considered in the context

of the facts and circumstances of the said case. The Supreme Court, in Krushnakant B. Parmar, held that the appellant had taken a specific defence

that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who had prevented him from signing the attendance register;

the appellant had brought on record 11 defence exhibits to show that he was prevented from signing the attendance register; this included his letter

dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September,

1995, etc; but such defence and evidence were ignored, and the petitioner was held guilty on the basis of irrelevant facts and surmises; the Inquiry

Officer had held the appellant guilty thought the DCIO, Palanpur, who was the complainant and against whom the appellant had alleged bias, had

refused to appear before the Inquiry Officer inspite of service of summons; two other witnesses had made no statement against the petitioner, and one

of them had stated that he had no knowledge about the absence of the petitioner; and ignoring these witnesses, the Inquiry Officer had held the charge

to have been proved, on the basis of surmises and conjectures. It is in this context that the Supreme Court held that, since the Inquiry Officer had

failed to prove that absence of the appellant from duty was willful, the punishment imposed was wholly unjustified.

In the present case, the petitioner remained absent from duty without intimation and without making any application for grant of leave. His claim of

illness is not supported by any evidence on record as the Tribunal disbelieved the genuineness of the medical certificates produced by him before the

appellate authority. The absence from duty, in the present case, is not for a short duration, but is for a long period of more than one year; and, in the

present case, it is evident that the petitioner’s absence from duty was willful.

In Rajinder Kumar Vs. State of Haryana and another 2015 (7) Supreme 193, the judgment cited before the Tribunal, the appellant therein had

remained absent on three occasions, extending to a total period of thirty seven days, unlike in the present case where the absence is for more than one

year in three different spells, firstly for 99 days, secondly for 247, and lastly for 86 days. Reliance placed on behalf of the petitioner, on Rajinder

Kumar, is therefore misplaced.

We are satisfied, in such circumstances, that the order of the Tribunal does not necessitate interference in proceedings under Article 226 of the

Constitution of India. The writ petition fails and is, accordingly, dismissed. No costs.