Magnitude And Degree Of Misconduct To Be Taken Into Consideration Before Imposing Punishment In Disciplinary Proceedings: Jharkhand HC

The Court directed the Disciplinary Authority to reinstate CRPF Hawaldar who failed to report due to compelling circumstances.

The bench of Justice S.N. Pathak observed, “the overstyal of leave by the petitioner was under the compelling circumstances Of course, it is the duty of the employee like the petitioner that too in a disciplined force to join immediately on the duty place, once leave period is exhausted. But at the same time, it is also the obligation of the respondents before imposing the punishment to take into consideration major, magnitude and degree of misconduct and all other relevant circumstances after excluding the irrelevant factors.”

Advocate Vikash Kumar appeared for the Appellant and ASGI Anil Kumar appeared for the Respondent.

Brief Facts-

The petitioner, Samlendra Kumar was appointed as Hawaldar in the Central Reserve Police Force. He took leave due to the illness of his mother after getting it sanctioned by the competent authority. However, the petitioner did not report on the day he was supposed to. As per the petitioner, he sent his application for an extension of leave period on the grounds that the health conditions of her mother deteriorated, and he was also suffering from jaundice, but no consideration was shown for his request. On the other hand, the stand of the respondents was that several letters were sent to the residential address of the petitioner, but the petitioner did not turn up. A warrant of arrest was also issued. Thereafter, the enquiry was conducted ex-parte, which culminated in his dismissal from service. According to the Court, this appeared to be a disputed fact, which cannot be decided in the writ jurisdiction.

The Court looked into the question of whether on the ground of non-furnishing of the prior information regarding the absence of the petitioner, the termination order was justified and went on to examine whether the absenteeism of the petitioner was wilful or due to compelling circumstances beyond his control.

The Court noted that though the inquiry officer had proved the charge of an unauthorised absence of the petitioner, at the same time, the inquiry officer himself had mentioned in his report that the petitioner had duly requested the authority for an extension of the leave period, as her mother was admitted in hospital with supportive medical reports.

The Court also noted that it was also mentioned that the extension of leave period was rejected by the competent authority and it was informed to the petitioner to report for duty. The Court further noted that no order was passed on his request to extend the leave period and was directed to report for duty.

The Court also mentioned the Supreme Court decision Union of India & Ors. Vs. Giriraj Sharma and observed, “held that when there was no wilful intention on the part of the petitioner to flout the order of the superior authority, the punishment of dismissal is excessive and disproportionate.”

Single bench further relied on the decision of the Apex Court in S.R. Tiwari Vs. Union of India, reported in (2013) 6 SCC 602 while dealing with a case of quantum of punishment and observed, “it was held that if the punishment awarded is disproportionate to the gravity of misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution of India.”

“It has also been held that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse.”The court further observed.

The Court stated that the above-mentioned judgments were squarely applicable in the present case as the impugned order of dismissal does not indicate any evidence against the petitioner which was looked into in the enquiry proceeding. According to the Court, even the medical certificates and replies submitted by the petitioner were completely ignored.

As per the Court, the overstyal of leave by the petitioner is neither wilful nor deliberate; rather, it was beyond his control. Hence, according to the Court, the punishment of dismissal from service was certainly disproportionate to the nature of misconduct which shocks the conscience of this Court.

The Court remitted back the disciplinary authority to consider the case of the petitioner for lesser punishment and directed the respondents to reinstate him in service.

The Court allowed the Writ Petition.

Cause Title: Samlendra Kumar v. Union of India

Appearance:

Appellant: Adv. Vikash Kumar

Respondent: ASGI Anil Kumar

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