Abrar Mohammad vs State Of Madhya Pradesh & Anr

With the consent of learned counsel for the parties, the matter is finally heard.

Order dated 02.07.2018 passed in Writ Petition No.7374/2016 is being questioned vide this appeal under Section 2(1) of Madhya Pradesh Uchcha

Nayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 whereby the removal of the appellant from service has been upheld.

The relevant facts briefly are that father of appellant employed as Accountant in the School Education Department died on 06.08.2003. An application

for compassionate appointment was filed along with the affidavit of his mother and two brothers, that the two brothers live separately and the

appellant and his mother had no independent source of income. Pertinent it is to note that neither mother nor the brothers of the appellant disclosed the

fact in the affidavit that these brothers were in government service. Be that as it may. The note sheet reveals that the matter was under consideration

before the Collector till 30.08.2003 to consider it in the context of the existing policy. It appears from the documents on record that no action was

taken for over two years. Whereafter note-sheet of 2005 reveals that the Collector, Sheopur vide his letter No.LFkk-/vuq-fu-/2005/3381 Sheopur

dated 31.03.05 remanded the matter to the District Education Officer, Sheopur for verification and other necessary action. The District Education

Officer instead of sending back the matter to the Collector, Sheopur for necessary action after verification issued the appointment order on 24.10.2005

appointing the appellant on the regular post in grade 2550-3200.

That in the year 2011 complaint was received by the department against the appellant that, though not eligible yet he sought appointment on

compassionate ground. The complaint led to cause a fact finding enquiry wherein following facts got revealed:

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djkus dh d`ik djsaA^^

That show-cause notice was caused on 03.10.2015 as to why his appointment as peon on compassionate ground be not cancelled as the same was

obtained by not disclosing correct facts. In a challenge to said order vide Writ Petition No.7842/2015, led to direction to the authorities concerned to

consider the objection/representation of the petitioner and decide the same after affording opportunity to the concerned. Consequently, considering the

representation, petitioner was served with the charge-sheet with the following charges:

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In the departmental enquiry, the charges were found proved that the appellant obtained employment by concealing vital facts. The copy of the report

was given to the appellant affording him opportunity to reply on 26.09.2016.

Thereafter, considering the entire facts the order of termination was passed on 10.10.2016. The order was challenged vide Writ Petition

No.7374/2016. The petition was dismissed by impugned order on 02.07.2018. The present appeal is directed against said order.

It is not in dispute that as per the policy of the State Government for appointment on compassionate ground it is incumbent that none of the family

members of the deceased Government servant should be in government service or in the service of the corporation or local bodies. It is also not in

dispute in the case at hand that at the time of death of appellant's father two of his brothers were in Government service as Assistant Teacher.

Evidently, these facts did not find mention in the affidavit by appellant's mother and brothers. As at the relevant time, brothers of the appellant were in

government service, he was not eligible to be appointed. It is held in “Mohd. Sartaj and another Vs. State of U.P. and others [(2006) 2 SCC

315]â€​:

“19. In the present case, the appellants' case falls within the exception laid down in S.L. Kapoor case (1980) 4 SCC 379 and other supporting

cases, as admittedly, the appellants were not qualified and they did not possess BTC or Hindustani Teacher's Certificate or Junior Teacher's

Certificate or Certificate of Teaching or certificate of any other training course recognized by the State Government as equivalent thereto at the time

of their initial appointment. In view of the basic lack of qualifications, they could not have been appointed nor their appointment could have been

continued. Hence the appellants did not hold any right over the post......â€​

Furthermore, merely because they were living separately from the mother, will not lead to relaxation of the condition stipulated in policy as held in

“Prajesh Shrivastava Vs. State of M.P. and others 2016 (3) MPLJ 88â€​:

“31. The foremost factor for consideration for appointment on compassionate ground, therefore, is to protect the family in question from penury on

the death of sole bread earner. It is in the light of this aspect Clause 4.1 is to be understood. It states that in case any eligible member of the

deceased family is in Government service, he will not be entitled for appointment on compassionate ground. Apparently, the Clause is loosely drafted.

If a family member at best residing separately is already in employment in Government service, there is no need for him to file an application for

appointment on compassionate ground in lieu of death of father, mother or brother, as the case may be. The need arises only when “no one in the

familyâ€​ is in employment of the State or instrumentality of the State and there is sudden death of the sole bread earner.â€​

It is also a matter of record that the appellant was charge-sheeted and a regular departmental enquiry was held after affording him opportunity of

hearing. In the enquiry, after taking into consideration the entire cogent, material evidence on record found the petitioner guilty of misconduct. The

disciplinary authority after adopting due procedure by serving the copy of the enquiry report on the appellant, considering the defence taken by him

affirmed the finding and imposed the penalty of removal on the ground that the petitioner since was not eligible for appointment on compassionate

ground as the said appointment was obtained by not disclosing vital facts which if disclosed could have led him ineligible for the said appointment.

Learned Single Judge after taking into consideration the entire material facts on record declined to cause any interference.

Trite it is that the judicial review is not against the decision. It is against the decision making process.[Bank of India and others Vs. T. Jogram

{(2007)7 SCC 236}]. And unless established that there has been “(i) a violation of principle of natural justice or (ii) the proceedings have been held

in violation of statutory regulation prescribing mode of such enquiry, (iii) the decision is vitiated by consideration extraneous to the evidence and merits

of the case or (iv) if the conclusion made by the authority is ex-facie arbitrary or capricious that no reasonable person could have arrived at such

conclusion [please see High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil and another {(2000) 1 SCC 716}].

In Chairman & Managing Director, V.S.P and others v. Goparaju Sri Prabhakara Hari Babu [(2008) 5 SCC 569] it is held:

20 The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well known

factors. It cannot set aside a well reasoned order only on sympathy or sentiments. [See Maruti Udyod Ltd. v. Ram Lal and Others [(2005) 2 SCC

638]; State of Bihar & Ors. v. Amrendra Kumar Mishra [(2006) 12 SCC 561]; SBI v. Mahatma Mishra [(2006) 13 SCC 727; State of Karnataka v.

Ameerbi & Ors. [(2007) 11 SCC 681]; State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors. [(2008) 1 SCC 456] and Uttar Haryana Bijli Vitran

Nigam Ltd. & Ors. v. Surji Devi [(2008) 2 SCC 310].

Once it is found that all the procedural requirements have been complied with, the Courts would not ordinarily interfere with the quantum of

punishment imposed upon a delinquent employee. The Superior Courts only in some cases may invoke the doctrine of proportionality. If the decision of

an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. {[See

Sangeroid Remedies Ltd. v. Union of India & Ors. [(1999) 1 SCC 259]}.

Their Lordships in Chairman and Managing Director, United Commercial Bank and others v. P.C. Kakkar [(2003) 4 SCC 364] further pleased to hold

that:

The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was

illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral

standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the

administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the

deficiency in decision-making process and not the decision.â€​

That serious charges were levelled against the appellant which stood proved in the departmental enquiry establishing the conduct of the appellant

unbecoming of the department.

In “Secretary to Government, Home Deptt. and others Vs. Srivaikundathan [(1998) 9 SCC 553]â€​, it is held:

“4. The Tribunal was also not justified in interfering with the punishment which was imposed on the respondent. It is for the disciplinary authority to

consider the punishment which should be imposed. The disciplinary authority in the present case, looking to the gravity of charges, and looking to the

fact that both the respondent as well as Joseph were entrusted with the custody of the two prisoners and had been guilty of total dereliction of duty, as

a result of which a life convict escaped, has imposed a somewhat lessor punishment of removal from service on the respondent. The Tribunal was

wrong in saying that since respondent had served only for a short period, he should be given another chance. The Tribunal, in a serious matter

involving proper discharge of duty by a member of the Police Force, ought not to have interfered in this wholly unwarranted manner with the

punishment imposed. Nor was there any occasion to direct that a second chance be given to the respondent and that he should not be removed from

service. Not only is the order beyond the jurisdiction of the Tribunal but is also grossly improper in a case like this.â€​

The impugned order when is tested on the anvil of the proposition of law laid down in Mohd. Sartaj, T. Jogram, Shashikant S. Patil, Goparaju Sri

Prabhakara Hari Babu, P.C.