Shanti Tiwari vs State of M.P.

S.R. Alam, Chief Justice

Heard on the question of admission.

This Intra-court Appeal arises from the order of the learned Single Judge, dated 7.9.2010 passed in W.P No. 17190/2003(S).

The original petitioner, who died during the pendency of the petition and is represented by the appellants, was a Police Constable and was posted in Shahdol had filed the aforesaid writ petition before the learned Single Judge assailing the order dated 24.3.2000 dismissing him from service.

It was contended by the learned counsel for the appellant/petitioner 3 It was contended by the learned counsel for the appellant/petitioner before the learned Single Judge that the original petitioner was served with a charge sheet on 12.11.1999 on charges of unauthorized absence and non-improvement in his conduct inspite of punishment imposed upon him in that respect. It is submitted that though a show cause notice was issued to the original petitioner, he could not appear in the enquiry due to illness, and thereafter the authorities without giving him any further opportunity completed the enquiry behind his back and issued a second show cause notice to the appellant/petitioner proposing punishment of termination from service to which the appellant/petitioner filed a reply which was not considered and by the impugned order dated 24.3.2000 a punishment of dismissal from service was imposed upon the original petitioner.

Being aggrieved by the aforesaid order the appellant/petitioner had filed O.A No. 1249/2001 before the State Administrative Tribunal, Jabalpur which on being transferred to the High Court was registered as W.P No. 17190/ 2003 and has been dismissed by the impugned order dated 7.9.2010.

The original petitioner having died during the pendency of the Writ Petition, his legal representatives who are the present appellants have filed this appeal before this Court on the ground that the learned Single Judge has failed to take into consideration the fact that the original petitioner was denied adequate opportunity of hearing in the departmental proceedings and that the findings recorded by the Disciplinary Authority were contrary to the evidence on record. The appellants have also further submitted that the learned Single Judge has failed to appreciate the fact that the punishment imposed upon the original petitioner was extremely harsh and a lesser punishment should have been imposed upon him.

The learned Single Judge, on going through the record, has recorded a finding that the original petitioner participated in the enquiry and had even cross-examined the prosecution witnesses. The learned Single Judge has also recorded a finding to the effect that the petitioner, on being served with a show cause notice, had also filed his reply to the same which was duly considered by the authority. The learned Single Judge, on the basis of the record, has also affirmed the findings recorded by the Disciplinary Authority to the effect that the original petitioner was a habitual absentee and remained absent for a period of 619 days inspite of being warned and punished on several occasions.

From a perusal of the impugned order it is also evident that the learned Single Judge relying upon the decision of the Supreme Court rendered in the case of Union of India and others vs. Datta Linga Toshatwad (2005) 13 SCC 709 and S. C. Saxena v. Union of India and others, (2006) 9 SCC 583, has concluded that the appellant/petitioner being a member of a uniformed and disciplined force had committed grave misconduct in absenting himself without leave and, therefore, the misconduct of the petitioner being grave in nature, the punishment of dismissal from service would commensurate with the misconduct committed by the original petitioner. The Apex Court in Datta Linga Toshatwad (supra) observed that members of the uniformed forces cannot absent themselves on frivolous pleas having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. Therefore, in the facts of the case and looking to the nature of the charges, it cannot be held that punishment inflicted on the petitioner is grossly disproportionate to the alleged misconduct.

We are also of the view that the appellant being a member of the disciplined force, he ought to have obeyed the directions of the superior officers by submitting his joining and in the absence of any evidence justifying such abnormal overstay any interference would have serious impact on the discipline which has to be observed strictly by a member of the uniformed and disciplined force.

It is a settled law that this Court does not sit as an appellate authority over disciplinary proceedings and its interference in the same is limited to cases of no evidence, perversity or Wednesbury unreasonableness as has been held by the Supreme Court in the case of Yoginath D. Bagde Vs. State of Maharashtra and Another,

Scope of judicial review in the matter pertaining to departmental proceedings is limited and it is not an appeal from a decision but a review of the manner in which the decision is made. This Court would not interfere unless it is found that the finding recorded by the Enquiry Officer and the disciplinary authority is contrary to the evidence brought on record or is based on no evidence or the proceeding is conducted in violation of the principles of natural justice or any other statutory rules prescribing the mode of enquiry. In the case in hand, the learned Single Judge found that the original petitioner participated in the enquiry and also cross-examined the prosecution witnesses and on a perusal of the record affirmed the finding recorded by the disciplinary remained absent for a longer period of 619 days. Even before this Court the learned counsel for the appellants during the course of his submission could not point out any perversity or manifest illegality in the disciplinary proceedings. It is also apparent that the original petitioner was granted full opportunity to participate in the enquiry and, therefore, it cannot he held that the respondents committed any irregularity or illegality while holding the disciplinary proceedings.

In view of the aforesaid, we find no ground or reason to differ with the view taken by the learned Single Judge or to interfere in the impugned order passed by the learned Single Judge dated 7.9.2010. The appeal, being meritless is, accordingly, dismissed.