State Of Jharkhand And Ors vs Arun Kumar

The instant intra-court appeal is against the order dated 13.06.2018 passed by learned Single Judge of this Court in W.P.(S) No. 5426 of 2016

whereby and whereunder the order of punishment passed against the respondent-writ petitioner, has been modified to the extent by quashing the part

of the punishment treating the period of absence as break in service and non-pensionable.

Before delving into the merit of the issues, it requires to refer the factual aspect which is necessary for proper adjudication of the issue agitated in

the present appeal.

The respondent-writ petitioner had joined as Assistant Engineer in the Water Resource Department, Government of Bihar in the year 1987, remained

posted at different places and was lastly posted at Minor Irrigation Sub-Division, Khunti vide order dated 28.06.2003 where he joined on 11.08.2003.

He was again transferred to the Urban Development Department, Government of Jharkhand vide letter No.1491 dated 02.08.2004 issued by the

Urban Development Department, Government of Jharkhand and in pursuance thereto, he had joined on 19.10.2004 as also handed over charge of the

post of Assistant Engineer, Khunti on 23.11.2004 but due to the Assembly Election of 2004, notified on 17.12.2004, the Model Code of Conduct was

notified and, therefore, he was not posted anywhere by the Urban Development Department in spite of submitting his joining and as such he had made

a request to the Secretary, Urban Development Department, Government of Jharkhand, Ranchi vide his letter dated 21.12.2004 to post him otherwise

there will be difficulty in getting salary with effect from the month of December, 2004. On receipt of such letter, the Urban Development Department

issued a letter bearing No. 2398 dated 17.12.2004 by returning the services of the respondent-writ petitioner to the Water Resource Department

which was protested by the him by making a request to post him anywhere under the Urban Development Department but having not been responded

by the authorities concerned, a writ petition being W.P.(S) No. 328 of 2005 was filed assailing the order dated 17.12.2004 and during the pendency of

the writ petition, the respondent-writ petitioner was posted as Assistant Engineer, Design Division No.2, Medininagar vide order as contained in Memo

No. 621 dated 03.03.2005. In consequence thereof, the respondent-writ petitioner filed an interlocutory application being I.A. No. 969 of 2005 seeking

leave of the Court to allow amendment to challenge the order as contained in Memo No. 621 dated 03.03.2005 but the said writ petition was dismissed

vide order dated 28.07.2005 on the ground that the services of the respondent-writ petitioner was repatriated to the parent department only because of

non-availability of post in the Urban Development Department.

The respondent-writ petitioner, thereafter, submitted his joining in the Water Resource Department, Design Division No.2, Medininagar on 01.08.2005

and requested to allow him to take charge against the vacant post of Assistant Engineer but the post having not vacant, the respondent-writ petitioner

was not allowed to assume the charge which he brought to the notice of the respondent authorities vide letter dated 03.08.2005.

The respondent-writ petitioner thereafter filed Letters Patent Appeal being L.P.A. No. 588 of 2005 which was dismissed vide order dated 08.02.2006

against which he filed Special Leave Petition being S.L.P.(Civil) No. 8042 of 2006 before the Hon’ble Supreme Court which was also dismissed

vide order dated 07.07.2006.

Thereafter, the respondent-writ petitioner, under the provision of Right to Information Act, made an application before the Public Information Officer,

Urban Development Department seeking information about availability of vacancies of the post of Assistant Engineer upon which information had

been furnished showing the availability of vacancies and as such, the respondent-writ petitioner filed review petition being Civil Review No.102 of

2006 but the same was dismissed vide order dated 08.02.2007 against which Special Leave Petition was filed before the Hon’ble Supreme Court

being S.L.P.(Civil) No. 7733 of 2007 which was also dismissed vide order dated 07.05.2007 with the specific direction to the Water Resource

Department, Government of Jharkhand to look into the grievance of the respondent-writ petitioner pertaining to the payment of salary due since

December, 2004.

The respondent-writ petitioner again approached to this Court by filing writ petition being W.P.(S) No. 4325 of 2007 agitating the grievance about non-

posting, which was disposed of vide order dated 23.08.2007 directing the respondent authorities to consider the representation of the respondent-writ

petitioner in the light of the order dated 07.05.2007 passed by the Hon’ble Apex Court.

The respondent-writ petitioner also filed another writ petition being W.P.(S) No. 5702 of 2007, wherein besides other reliefs, prayer was also made for

quashing of the letter No. 3790 dated 13.09.2007 by which the respondent-writ petitioner was informed about non-submission of his joining on the

vacancy created after transfer of the Assistant Engineer. The said writ petition was disposed of vide order dated 15.07.2011 with an observation

which reads hereunder as:-

“24. Be that as it may, in case the petitioner joins the duty within the aforesaid period on the place of posting given by the respondents

by passing a separate order ignoring all previous orders, then the respondents may pay regular salary to the petitioner from the date of

joining the duties on the said post without waiting for any other formalities. However, if the respondents want to take any action against the

petitioner for his not joining the posting/duties since the year 2004, then they are free to take action in accordance with law then the

payment of arrears of salary shall depend upon the result of that proceeding for which this Court is not passing any order in the present

facts and circumstances as the petitioner admittedly is not working on any post. In case department is not intending to take action against

the petitioner on this count within one month from today, they shall pay the arrears of salary to the petitioner within one month thereafter.â€​

The authorities, without initiating any departmental proceeding, passed order of punishment on 13.08.2011 holding therein about his non-entitlement for

salary from 03.03.2005 till one day before the date of fresh posting, i.e., 15.08.2011, which period shall be treated as break in service and would be

non-pensionable.

The aforesaid order of punishment was challenged by filing writ petition being W.P.(S) No.5127 of 2011 which was allowed vide judgment dated

17.07.2014 by which the order of punishment dated 13.08.2011 was quashed with a direction upon the respondents to initiate regular departmental

proceeding within one month from the date of passing of the order and the charges which the respondents may deem fit against the petitioner must be

communicated to him within a fortnight and performing all the formalities, entire exercise must be completed within a period of six months from the

date of order.

In pursuance to the aforesaid order, the memorandum of charges dated 05.08.2014 was served upon the respondent-writ petitioner alleging therein the

charge of not giving his joining in the parent department in pursuance to the letter No. 2398 dated 17.12.2004 and further through departmental

notification No.621 dated 03.03.2005 by which he was posted as Assistant Engineer in the Design Division No.2, Medininagar.

The respondent-writ petitioner participated in the enquiry and submitted detailed reply denying the charges, as would appear from Annexure-17 to the

paper book, which was responded by the department as annexed at Annexure 18 and 19 to the paper book. The enquiry had proceeded and report

was submitted by Enquiry Officer which has been annexed as Annexure-21 to the paper book in which the charges have been found to be proved.

The respondent-writ petitioner was served with second show cause notice (Annexure-22) which was duly responded and thereafter the order of

punishment was passed imposing therein three punishments i.e.,

(i) Censure;

(ii) he will not be entitled for any salary for the period from 03.03.2005 till one day prior to the issuance of the fresh posting order; and

(iii) the said period would be treated to be non-pensionable and break in service.

The respondent-writ petitioner filed an appeal before the appellate authority who declined to interfere with the order passed by the disciplinary

authority as would appear from Annexure-26 to the paper book, thereafter, the order was challenged by filing writ petition being W.P.(S) No. 5426 of

2016 which was partly allowed by the learned Single Judge against which the present intra court appeal has been filed.

Mr. Dhananjay Kumar Pathak, learned counsel appearing for the appellant State of Jharkhand has taken the following grounds for assailing the

order passed by the learned Single Judge :-

(i) Since in the regular departmental proceeding charge has been found to be proved, though some technical lapses have been committed by the

disciplinary authority, the writ court ought to have taken into consideration this aspect of the matter by quashing the order and remitting it for passing a

fresh order in accordance with law as because, according to him, when the charge has conclusively been proved after providing adequate and

sufficient opportunity of being heard, merely on the technicalities, the writ petitioner cannot be made escort free.

(ii) So far as the punishment of Censure is concerned, the same has also been quashed by the learned Single Judge only on the ground that the

absence, which has been said to be unauthorized, cannot be held to be willful and intentional, but according to the learned counsel appearing for the

State, the Enquiry Officer has given conclusive finding by holding the absence as willful since even in spite of the order of repatriation to the parent

department, from where also the order of posting was issued posting the respondent-writ petitioner in the Design Division No.2, Medininagar, he has

not chosen to join and hence it cannot be said to be without any intention and further, the learned Single Judge ought not to have come to the

conclusive finding by holding the unauthorized absence as non-willful and unintentional by substituting his views to that of the views expressed by the

Enquiry Officer which has been accepted by the disciplinary authority.

(iii) The scope of judicial review under Article 226 of the Constitution of India so far as it relates to interference in the order of punishment is very

least and if any finding has been recorded by the Enquiry Officer, the same cannot be disturbed by the High Court unless there is any perversity in the

same but no such perversity has been pointed out by the respondent-writ petitioner before the learned Single Judge and hence, the order quashing

punishment of Censure is not justified.

(iv) So far as quashing of punishment of break in service or not to treat the period a pensionable service as it is not under the list of punishments is

concerned, there is no dispute about the position of law that the punishment which has not been enshrined under the list of punishments applicable

under the Rules cannot be imposed, but after quashing it, the matter ought to have been remitted to the authority to pass order afresh in accordance

with law. Otherwise, in the present context, even though the charge has been found to be proved, the respondent-writ petitioner will be set free.

Mr. Saurav Arun, learned counsel appearing for the respondent-writ petitioner has vehemently opposed the submissions and grounds agitated by the

learned counsel appearing for the appellant-State of Jharkhand by raising the issue emphatically that the disciplinary authority namely Mr. Bindu

Madhav Prasad Singh, who was disciplinary authority on the day when the original order was passed i.e. on 06.05.2015, as would appear from

Annexure-23 to the paper book, but on being promoted, he became Joint Secretary to the Water Resource Department, Government of Jharkhand and

has acted as an appellate authority, as would appear from Annexure-26 to the paper book and hence, according to him, the appellate authority while

dismissing the appeal, has committed gross illegality since he has become judge of his own cause, therefore, the order passed by the appellate

authority is not fit to be sustainable.

He further submitted that the charge leveled against the respondent-writ petitioner although has been proved, but the learned Single Judge, after taking

into consideration the fact about the punishment of Censure, has found the same to be unjustified on the ground that the unauthorized absence has

been held to be not willful and intentional and according to him, such finding is required to be reflected in the enquiry report, having not found therein,

the learned Single Judge while quashing the order of Censure, has not committed any error.

It is also submitted that the other punishment which pertains to treating the service as non-pensionable and break in service is admittedly not under the

list of punishment and it is settled position of law that when a punishment, if imposed, which is not enshrined in the list of punishments, will be said to

be without jurisdiction and, therefore, the learned Single Judge has quashed it and while doing so, no infirmity has been committed.

This Court, after having heard the learned counsel for the parties in detail and from the argument as has been referred hereinabove, has found

therefrom that the writ petitioner was posted as Assistant Engineer and ultimately he was posted to the Urban Development Department of the State

of Jharkhand but due to non-availability of post, his services were repatriated to the parent department i.e., Water Resource Department but he did not

give his joining. Series of litigations have been agitated. Twice the matter had gone before the Hon’ble Apex Court but the order of posting or

repatriation has been declined to be interfered with.

This Court requires to refer one order passed in W.P.(S) No. 5702 of 2007 by this Court which was disposed of on 15.07.2011 wherein this Court,

after detailed discussion of the factual aspect, has made an observation against the conduct of the respondent-writ petitioner as has been referred at

paragraph 20, 21 and 22 thereof which requires to be referred herein for ready reference â€

“20. During the course of arguments and to bring an end to all disputes, the State was asked where they want to post the petitioner then

the State counsel, after taking instruction from the officer present in Court, submitted that the petitioner may join duty at Medininagar for

which the petitioner insisted that since in the interim order dated 29.09.2008 it has been held that said decision of the State is illegal,

therefore, he will not accept this offer and will not join at that place. Then the petitioner was asked to give place of his choice for his

posting anywhere in the State of which the petitioner is ready to go and join as the State has given his option which is not acceptable to the

petitioner. Then the petitioner stated that he can join at any place but he being an employee cannot insist for any particular post and

therefore, he will not suggest where he wants his posting. Even on again and again asking by the Court to give his choice for posting, the

petitioner refused to give his choice. This conduct of the petitioner itself was sufficient for dismissal of the entire writ petition without

entering into the merit of the case, but this Court already considered the case of the petitioner on merit, therefore, does not want to dismiss

the writ petition only on the ground of conduct and lack of bona fide of the petitioner.

The learned counsel for the respondent-State submitted that the petitioner was given several letters asking him to join duties whereas the

petitioner stated that he joined his duty before the Secretary, Water Resource Department and, therefore, he has already reported for duty.

The petitioner, at this juncture, again relied upon another judgment of the Hon’ble Supreme Court delivered in the case of Dr. Ramesh

Chandra Tyagi Vs. Union of India & Others reported in (1994) 2 SCC 416 in support of his argument that only competent authority can

pass the order of transfer and delegation of power in the circumstances of that case was found to be not competent. As it has already been

noticed that petitioner’s only endeavor is entangle not only his department but all his officers in litigation and create an atmosphere of

fear in which he succeeded to some extent which is apparent from that fact that the State had to offer in Court the post of his choice

anywhere in the State.

It is really unfortunate that the person, who has no knowledge of the law, tried to become the law expert with the help of reading

judgments without understanding them but for that reason the Court is punishing the petitioner and this Court is of the view there is no merit

in the petition as well as not only writ petition but contempt petition is also not bona fide. The respondents are, therefore, directed to pass

an appropriate order of posting of the petitioner within a period of 15 days from receipt of copy of this order and the petitioner shall join

the duties at that place of posting and in case petitioner fails to join duties on that place of posting given by the employer, then the

respondent department will be free to take appropriate action against the writ petitioner.â€​

The respondent authorities, in pursuance to the aforesaid observation, initiated a departmental proceeding by leveling charge of not giving joining in

spite of specific order passed by the competent authority in which the respondent-writ petitioner had participated and defended by putting forth his

defence and ultimately the Enquiry Officer has found the charges proved which has been accepted by the disciplinary authority by imposing

punishment of Censure, not entitled for any salary for the period from 03.03.2005 till one day prior to the issuance of the fresh posting order and the

said period would be treated to be non-pensionable and break in service, as would appear from Annexure-23 dated 06.05.2015. Against that order, the

respondent-writ petitioner preferred a statutory appeal which was dismissed vide order dated 10.08.2016.

The contention agitated by the learned counsel for the respondent-writ petitioner is that the appellate authority was the same person who, during the

relevant time, was the disciplinary authority. This aspect of the matter has been scrutinized by this Court and has found from the original orders dated

06.05.2015 and 10.08.2016 that both the orders have been passed by one Bindu Madhav Prasad Singh. It is settled position of law that a man cannot

be a judge of his own cause. The appeal being an alternative remedy, cannot be said to be a formality and if such appeal has been filed, the same is to

be dealt with without any prejudice and with independent mind which cannot be expected from a person whose order has been challenged before the

appellate authority and now is exercising power of the appellate authority and, therefore, so far as the contention pertaining to this issue, as has been

agitated by the learned counsel appearing for the respondent-writ petitioner, this Court is in agreement with the same.

This Court, before entering into the legality and propriety of the impugned order, deem it fit and proper to discuss about the power of this Court

showing interference under Article 226 of the Constitution of India by way of power of judicial review.

The Hon’ble Apex court in the judgment rendered in the case of B.C.Chaturvedi Vs. Union of India and Others reported in (1995) 6 SCC 749h as

been pleased to laid down the position of law by taking reliance of the Constitution Bench judgment of the Hon’ble Apex Court rendered in the

case of State of Orissa Vs. Bidyabhushan Mohapatra reported in AIR 1963 SC 779 wherein it has been laid down that having regard to the gravity of

the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the

High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassessable. The

order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final. The High Court had no

jurisdiction to direct the Governor to review the penalty. It was further held that if the order was supported on any finding as to substantial misconduct

for which punishment ""can lawfully be imposed"", it was not for the Court to consider whether that ground alone would have weighed with the authority

in dismissing the public servant. The court had no jurisdiction, if the findings prima facie made out a case of misconduct, to direct the Governor to

reconsider the order of penalty. The paragraph 17 of the said judgment is reproduced hereinbelow :-

“17. The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A

Constitution Bench of this Court in State of Orissa Ors. v. Bidyabhushan Mohapatra [AIR 1963 SC 779 ]held that having regard to the

gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not

open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the

conclusion, it became unassessable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate

punishment was final. The High Court had no jurisdiction to direct the Governor to review the penalty. It was further held that if the order

was supported on any finding as to substantial misconduct for which punishment ""can lawfully be imposed"", it was not for the Court to

consider whether that ground alone would have weighed with the authority in dismissing the public servant. The court had no jurisdiction, if

the findings prima facie made out a case of misconduct, to direct the Governor to reconsider the order of penalty. This view was reiterated

in Union of India v. Sardar Bahadur [(1972) 2 SCR 218]. It is true that in Bhagat Ram v. State of Himachal Pradesh & Ors. [AIR 1983 SC

454], a Bench of two Judges of this Court, while holding that the High Court did not function as a court of appeal, concluded that when the

finding was utterly perverse, the High Court could always interfere with the same. In that case, the finding was that the appellant was to

supervise felling of the trees which were not hammer marked. The Government had recovered from the contractor the loss caused to it by

illicit felling of trees. Under those circumstances, this Court held that the finding of guilt was perverse and unsupported by evidence. The

ratio, therefore, is not an authority to conclude that in every case the Court/Tribunal is empowered to interfere with the punishment imposed

by the disciplinary authority. In Rangaswami v. State of Tamil Nadu [AIR 1989 SC 1137], a Bench of three Judges of this Court, while

considering the power to interfere with the order of punishment, held that this Court, while exercising the jurisdiction under Article 136 of

the Constitutions, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that

of the authority. It would be seen that this Court did not appear to have intended to lay down that in no case, the High Court/Tribunal has

the power to alter the penalty imposed by the disciplinary or the appellate authority. The controversy was again canvassed in State Bank of

India's case (supra), where the court elaborately reviewed the case law on the scope of judicial review and powers of the Tribunal in

disciplinary matters and nature of punishment. On the facts in that case, since the appellate authority had not adverted to the relevant facts,

it was remitted to the appellate authority to impose appropriate punishment.â€​

In the case of Indian Oil Corporation Ltd. and Another Vs. Ashok Kumar Arora reported in (1997) 3 SCC 7 2the Hon’ble Apex Court has been

pleased to hold at paragraph 20 which reads hereunder as :-

“20. At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein

does not exercise the powers of appellate court/Authority. The jurisdiction of the High Court in such cases is very limited for instance where

it is found that the domestic enquiry is vitiated because of non- observance of principles of natural justice, denial of reasonable

opportunity; findings are based on no evidence, and or the punishment is totally disproportionate to the proved misconduct of an employee.

There is catena of judgments of this Court which had settled the law on this topics and it is not necessary to refer to all these decisions.

Suffice it to refer to few decisions of this Court on this topic viz., State of Andhra Pradesh Vs. S.Sree Rama Rao [1963 (3) SCR 25,] State of

Andhra Pradesh Vs. Chitra Venkata Rao [1976(1) SCR 521,] Corporation of City of Nagpur and Anr. Vs. Ramachandra [1981 (3) SCR 22]

and Nelson Motis Vs. Union of India and Anr. [AIR 1992 SC 1981].â€​

In the judgment rendered in the case of State of U.P. and Others Vs. Raj Kishore Yadav and Another reported in (2006) 5 SCC 673 it has been laid

down that the High Court has limited scope of interference in the administrative action of the State in exercise of extra ordinary jurisdiction under

Article 226 of the Constitution of India and, therefore, the findings recorded by the Enquiry Officer and the consequent order of punishment of

dismissal from service should not be disturbed.

The Hon’ble Apex Court, in the case of State Bank of Hyderabad and Another Vs. P. Kata Rao reported in (2008) 15 SCC 65 7while dealing

with the scope of judicial review in the departmental enquiry and interference with the finding of the Enquiry Officer, has laid down at paragraph 18

and 19 which reads hereunder as :-

“18. There cannot be any doubt whatsoever that the jurisdiction of superior courts in interfering with a finding of fact arrived at by the

Enquiry Officer is limited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment. There cannot,

furthermore, be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands acquitted,

the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding and/ or where the departmental

proceedings had already been initiated or to continue therewith.

We are not unmindful of different principles laid down by this court from time to time. The approach that the court's jurisdiction is

unlimited although had not found favour with some Benches, the applicability of the doctrine of proportionality, however, had not been

deviated from.â€​

In the case of State of Uttar Pradesh and Another Vs. Man Mohan Nath Sinha and Another reported in (2009) 8 SCC 31 0it has been laid down at

paragraph 15 which reads hereunder as:-

“15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision

making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to re- appreciate and

reappraise the evidence led before the Inquiry Officer and examine the findings recorded by the Inquiry Officer as a court of appeal and

reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal.

The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter

requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court.â€​

In the case of Union of India and Others Vs. P. Gunasekaran reported in AIR 2015 SC 54,5 the Hon’ble Apex Court has been pleased to lay

down the principle of interference in the departmental proceeding and not to show any interference as has been held at paragraph 13 thereof which

reads hereunder as:-

“13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the

disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge no.1 was accepted by the

disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and

cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India,

shall not venture into re- appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of

the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such

conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of

the evidence; (iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience.â€​

In the case of Management of State Bank of India Vs. Smita Sharad Deshmukh and Another reported in (2017) 4 SCC 75 at paragraph 15 it has been

laid down which reads hereunder as:-

“5. It is a well-settled principle that the High Court will not re-appreciate the evidence but will only see whether there is evidence in

support of the impugned conclusion. The court has to take the evidence as it stands and its only limited jurisdiction is to examine, whether

on the evidence, the conclusion could have been arrived at.â€​

It is evident from the aforesaid ratio laid down by the Hon’ble Apex Court in the judgments referred hereinabove that the power of judicial

review is very limited. This Court has proceeded to examine the finding recorded by the learned Single Judge on the basis of the ratio laid down as

referred hereinabove.

Admitted position herein is that the order of punishment of Censure has been quashed on the ground that the Enquiry Officer has not reflected in the

enquiry report, the absence is willful or intentional.

The question herein is that the learned Single Judge has come to the finding about the absence from duty holding it not willful and unintentional on the

ground that the respondent-writ petitioner was before the Court pursuing the legal remedy available to him.

The absence will be said to be willful and intentional if the absence is beyond the control of the public servant but merely on account of the fact that a

public servant is pursuing the legal remedy against the order of transfer or repatriation, absence on that count cannot be said to be not willful or

unintentional and hence the conclusion arrived at by the learned Single Judge on the ground of pursuing the legal remedy, will be said to be showing

interference with the finding recorded by the Enquiry Officer based upon the relevant documents/evidence, by doing this, learned Single Judge has

acted as a Court of Appeal in the garb of power of judicial review, which is not permissible, as held by Hon’ble Apex Court in the judgment

referred above.

As has been held by Hon’ble Supreme Court in the case Krushnakant B.Parmar Vs. Union of India and Another reported in (2012) 3 SCC 17,8

wherein the issue of unauthorized absence was an issue and whether it is willful or not it has been held at para 17 and 18 which reads hereunder as:-

“17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence

cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does

not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling

circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of

devotion to duty or behaviour unbecoming of a government servant.

In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove

that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.â€​

This Court, on assessment of the factual aspect in hand, finds that the absence is not in the nature which can be said to be beyond control of the writ

petitioner, warranting interference by the learned Single Judge under the power of judicial review as because admittedly the writ petitioner was not ill

rather on the pretext of legal remedy, not joined, which according to us, cannot be said to be unwillful or unintentional

So far as the quashing of the other of punishment which is not under the list of punishment is concerned, this Court is in agreement with the ground

agitated by the learned counsel appearing for the respondent-writ petitioner and also finds support from the judgment rendered by the Hon’ble

Apex Court in the case of Vijay Singh Vs. State of Uttar Pradesh and Others reported in (2012) 5 SCC 24 2wherein in a case leading to imposing

punishment was not found to be under the statutory rules so prescribed and as such held to be without jurisdiction, as would appear from paragraph 11

to 15 and 23, which reads hereunder as:-

“11. Admittedly, the punishment imposed upon the appellant is not provided for under Rule 4 of Rules 1991. Integrity of a person can be

withheld for sufficient reasons at the time of filling up the Annual Confidential Report. However, if the statutory rules so prescribe it can

also be withheld as a punishment. The order passed by the Disciplinary Authority withholding the integrity certificate as a punishment for

delinquency is without jurisdiction, not being provided under the Rules 1991, since the same could not be termed as punishment under the

Rules. The Rules do not empower the Disciplinary Authority to impose “any other†major or minor punishment. It is a settled proposition

of law that punishment not prescribed under the rules, as a result of disciplinary proceedings cannot be awarded.

This Court in State of U.P. & Ors. v. Madhav Prasad Sharma, [(2011) 2 SCC 212], dealt with the aforesaid 1991 Rules and after

quoting Rule 4 thereof held as under:

“16. We are not concerned about other rule. The perusal of major and minor penalties prescribed in the above Rule makes it clear that

sanctioning leave without pay is not one of the punishments prescribed, though, and under what circumstances leave has been sanctioned

without pay is a different aspect with which we are not concerned for the present. However, Rule 4 makes it clear that sanction of leave

without pay is not one of the punishments prescribed. Disciplinary authority is competent to impose appropriate penalty from those provided

in Rule 4 of the Rules which deals with the major penalties and minor penalties. Denial of salary on the ground of “no work no payâ€

cannot be treated as a penalty in view of statutory provisions contained in Rule 4 defining the penalties in clear terms.â€​ (Emphasis added)

The Authority has to act or purport to act in pursuance or execution or intended execution of the Statute or Statutory Rules.

The issue involved herein is required to be examined from another angle also. Holding departmental proceedings and recording a

finding of guilt against any delinquent and imposing the punishment for the same is a quasi-judicial function and not administrative one.

Imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules. Therefore, while performing the

quasi-judicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. The

disciplinary authority is bound to give strict adherence to the said rules. Thus, the order of punishment being outside the purview of the

statutory rules is a nullity and cannot be enforced against the appellant.

Thus, in view of the above, the punishment order is not maintainable in the eyes of law. In the result, appeal succeeds and is allowed.

The impugned order dated 8.7.2010 withholding integrity certificate for the year 2010 and all subsequent orders in this regard are

quashed. Respondents are directed to consider the case of the appellant for all consequential benefits including promotion etc., if any,

afresh taking into consideration the service record of the appellant in accordance with law.â€​

The learned Single Judge while quashing the order of punishment of treating the period as not pensionable and break in service, is not under the list

of punishment applicable as per the Civil Services (Classification, Control and Appeal) Rules wherein the punishment has been prescribed under the

provision of Rule 49 which, for ready reference, is being referred hereunder:-

“49. The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services

comprised in any of the classes (1) to (5) specified in rule 14, namely :-

(i) Censure.

(ii) Withholding of increments or promotion including stoppage at an efficiency bar.

(iii) Reduction to a lower post or time-scale, or to a lower stage in a time-scale.

(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders.

(iv-a) Compulsory retirement.

(v) Suspension.

(vi) Removal from the civil service of the Crown, which does not disqualify from future employment.

(vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment;

Therefore, the part of the order, by which the order of punishment pertaining to treating the period as break in service and not pensionable has

been imposed, has rightly been held to be unjustified and as such, has rightly been quashed, but the question herein is that when the charge has been

proved and the punishment if imposed by the disciplinary authority is not in pursuance to the statutory rule applicable, can the delinquent employee be

made escort free.

It is settled position of law that if there is any lacuna in the enquiry or in the order of punishment, the proper course is to remit the matter to the

authority to take decision in accordance with law as has been held by Hon’ble Apex Court in the case of Chairman, Life Insurance Corporation of

India and Others Vs. A. Masilamani reported in (2013) 6 SCC 530 wherein at paragraph 15 and 16 it has been laid down which reads hereunder as:-

“15. In view of the issues raised by the learned counsel for the parties, the following questions arise for our consideration:

15.1. When a court/tribunal sets aside the order of punishment imposed in a disciplinary proceeding on technical grounds, i.e., non-

observance of statutory provisions, or for violation of the principles of natural justice, then whether the superior court, must provide

opportunity to the disciplinary authority, to take up and complete the proceedings, from the point that they stood vitiated and;

15.2. If the answer to question no.1 is, that such fresh opportunity should be given, then whether the same may be denied on the ground of

delay in initiation, or in conclusion of the said disciplinary proceedings.

It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly

conducted, the Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the

enquiry from the point that it stood vitiated, and conclude the same.â€​

Further, the order passed by the appellate authority also suffers from patent illegality for the reason that the disciplinary authority who has passed

the order, on being promoted, has come to the status of the appellate authority and as such, he has exercised the jurisdiction of appellate authority by

dismissing the appeal and hence, on this ground also, the order passed by the appellate authority is not sustainable in the eye of law.

This Court, on the basis of elaborate discussions made hereinabove and taking into consideration the fact that the charges have been proved but

merely on the technical ground the enquiry cannot be allowed to remain inconclusive, deems it fit and proper to remit the matter before the original

authority to pass fresh order in accordance with law on the basis of the materials already available on record within a period of three months from the

date of receipt of the copy of this order.

Accordingly, the appeal is disposed of with the direction and observation made hereinabove.