Manisha vs The State Of Bihar & Ors.

(Per: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA)

The present intra-court appeal has been filed aganist the order, dated 14.08.2018, passed by Hon’ble Single Judge in CWJC No. 833 of 2016, whereby the writ petition filed by the appellant challenging the order of dismissal, dated 09.07.2012, was dismissed. The appellant has also challenged the order, dated 03.04.2019, passed in Civil Review No. 470 of 2018, whereby the review application was dismissed.

The factual matrix of the case is that the appellant was initially appointed as Child Development Project Officer (CDPO) on 20.10.2000 and she was posted at different places, including Barahara in the district of Bhojpur and Kanti in the district of Muzaffarpur. At the relevant time, the process of allocation of services consequently upon the reorganization of the erstwhile State of Bihar was in progress. In this connection, the appellant submitted an application, dated 24.06.2002, before the Secretary, Social Welfare Department, Government of Bihar, requesting allocation of her service to the State of Bihar. Notwithstanding the aforesaid request her service was allocated to the State of Jharkhand vide order no. 106 Jha/2007, dated 25.05.2007 and letter no. 689, dated 27.07.2007.

Upon coming to know that her earlier request has not been acted upon and that she has been allocated the State of Jharkhand, the appellant submitted a further representation, dated 04.07.2007, requesting that her services be retained in the State of Bihar on personal grounds.

In the meantime, she came to know that one Mary Stela Inderkar was seeking allocation of her service to the State of Jharkhand. The appellant, accordingly, submitted another application, dated 11.07.2007, requesting mutual allocation of cadre, so that she could continue service in the State of Bihar.

Notwithstanding the aforesaid representations and the difficulties pleaded by the appellant, she ultimately required to join the State of Jharkhand pursuant to the order of allocation. The appellant submitted her joining on 31.10.2008 and was posted as CDPO, Simdega. On the very date of her joining i.e. 31.10.2008, the appellant submitted an application before the competent authority seeking leave on account of her medical condition.

Subsequently, the appellant’s request for mutual allocation was accepted by the competent authority and vide order no. 5553, dated 27.07.2009, the appellant was allotted Bihar cadre as per mutual allocation agreement. Following the aforesaid order, the appellant was required to be relieved from the State of Jharkhand to enable her to join the Bihar cadre. Accordingly, she submitted an application, dated 03.11.2009, before the Secretary, Social Welfare, Women and Child Development Department, Government of Jharkhand, Ranchi, requesting that she be relieved from the State of Jharkhand and permitted to join the Government of Bihar.

While the appellant’s request for mutual allocation was accepted and she was allotted Bihar cadre, the authorities of Jharkhand placed her under suspension. The suspension was purportedly made in exercise of the power under Rule 49-A of the Civil Services (Classification, Control and Appeal) Rules, 1930, vide Memo No. 1730, dated 14.11.2009, on the ground of unauthorized absence. However, shortly thereafter, the appellant was relieved from the services of Government of Jharkhand for the purpose of joining in Bihar vide notification no. 1740, dated 16.11.2009, issued by the Social Welfare, Women and Child Development Department, Government of Jharkhand, Ranchi.

Pursuant to the aforesaid notification and allocation of Bihar cadre, the appellant submitted her joining before the Social Welfare Department, Government of Bihar, Patna, on 04.12.2009. On the same day, she submitted an application seeking study leave stating therein that she had qualified the admission test for the Post Graduate Programme in Public Policy and Management conducted by the Management Development Institute, Gurgaon, and had secured admission to the said programme.

Thereafter, vide resolution no. 4887, dated 21.10.2010, departmental proceeding was initiated against the appellant by the Government of Bihar on the ground that pursuant to notification no. 1740, dated 16.11.2009, she joined the Social Welfare Department, Government of Bihar, Patna, on 04.12.2009 and sought study leave w.e.f. 07.12.2009 for pursuing a one-year course at MDI, Gurgaon. However, without obtaining sanction of the said leave, she remained continuously absent from duty and notice were published in the daily newspaper directing her to appear in the Department without delay. Pursuant to the said notice, she appeared in the Social Welfare Department (Headquarters) on 26.08.2010 and 27.08.2010. However, citing the commencement of her examinations, she again submitted an application seeking permission to complete her studies and thereafter remained absent from duty.

Sri Deokant Diwakar was appointed as the Inquiry Officer and Sri Vijay Kumar Singh as the Presenting Officer, and a memorandum of charge was served upon the appellant on 21.10.2010. In response, the appellant submitted her provisional reply to show-cause, dated 17.01.2011, before the Inquiry Officer denying the allegations and submitted that her absence was due to health reasons, issues relating to cadre allocation and career advancement and not willful or deliberate. She requested regularization of period of absence through admissible leave, post-facto approval of the study leave undertaken at MDI, Gurgaon, and revocation of suspension.

The departmental inquiry was concluded and Inquiry Officer submitted his report, dated 06.04.2011. The Inquiry Officer, upon consideration of the appellant’s defence and the materials available on record, specifically took note of appellant’s own admission that she had remained absent from duty for a period of more than two years. Although, the appellant claimed that she had availed causal leave from 14.10.2007 to 24.10.2007 and earned leave, medical leave and leave not due from 25.10.2007 to 04.12.2009, however, she failed to produce any leave sanction order, approval certificate or other documentary evidence showing that the said period of absence had been duly authorized by the competent authority. The Enquiry Officer also observed that in view of the fact that the appellant was under suspension, she could not claim leave during the said period and the provisions of Rule 153 of the Bihar Service Code shall be applicable to her during suspension. In view of the appellant’s admitted prolonged absence, her failing to establish that the alleged leave had been duly sanctioned and her admitted undertaking of the course at MDI, Gurgaon, during the period of suspension without prior departmental permissions, the Enquiry Officer held that the appellant had remained absent without lawful authorization and, accordingly, concluded that the charge of unauthorized absence stood proved.

A second show-cause notice vide letter No. 2829, dated 25.07.2011, was issued to the appellant, enclosing a copy of the Enquiry Officer’s report and calling upon her to show cause, within 15 days, as to why, in view of the charges having been found proved, she should not be dismissed from service. In response, the appellant submitted her detailed reply, dated 08.08.2011, denying the charges and reiterating the circumstances relating to her cadre allocation, medical condition, leave applications and study leave.

The appellant, thereafter, approached this Court by filing CWJC No. 3579 of 2012, challenging, inter alia, the suspension order, dated 14.11.2009, enquiry report and second show-cause proceedings. The writ application was dismissed as withdrawn on 05.03.2012 with a direction for conclusion of the departmental proceeding within three months.

The disciplinary authority, upon consideration of the appellant’s supplementary second show-cause reply, found the same unsatisfactory and decided to impose the penalty of dismissal from service. The proposal was approved by the Hon’ble Chief Minister and thereafter referred to the Bihar Public Service Commission for its statutory advice under Rule 14(xi) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005, as amended in 2007. The Commission, upon consideration, concurred with the proposed penalty. Subsequently, the penalty of dismissal was approved by the State Council of Ministers in its meeting dated 25.06.2012, pursuant to which the State Government passed the order dismissing the appellant from service with immediate effect vide Memo No. 3263 dated 09.07.2012.

The order of dismissal, dated 09.07.2012, thereafter, was challegned by the appellant after four years in the year 2016 in CWJC No. 833 of 2016. The learned Single Judge, by judgment, dated 14.08.2018, dismissed the writ petition primarily on the following two considerations that the appellant had joined Bihar on 04.12.2009 and thereafter remained absent from duty and her explanation did not satisfy the disciplinary authority which has resulted in the order of dismissal; and that she had challenged the dismissal order after a lapse of about four years. The appellant then preferred Civil Review No. 470 of 2018. which was dismissed on 03.04.2019 on the ground that the appellant was seeking reconsideration of the opinion already expressed by the Court and that such reconsideration was impermissible.

Mr. Shekhar Singh, learned senior counsel appearing on behalf of the appellant, submits that the punishment of dismissal/termination from service is grossly disproportionate to the allegation levelled against the appellant. The appellant's absence was occasioned by her serious medical condition and other compelling circumstances, also for the purpose of study, and she had duly informed the authorities and submitted applications seeking leave from time to time. There was no intention on part of the appellant to abandon her service.

It has further been submitted that the departmental proceeding is vitiated by non-compliance with Rule 17(3) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005, inasmuch as the list of witnesses proposed to be relied upon by the department was not furnished to the appellant. The appellant was thereby deprived of an effective opportunity to know the evidence against her and to properly prepare and present her defence. No proper evidence was led to establish that the leave applications submitted by the appellant had been rejected by the competent authority or that her absence was wilful.

The Enquiry Officer, therefore, could not have mechanically treated the mere fact of absence as sufficient proof of the charge. The Enquiry Officer failed to consider the explanation and medical circumstances placed on record by the appellant. The appellant had undergone medical treatment and had been facing serious health-related difficulties and her absence was neither clandestine nor with an intention to evade duty. The mitigating circumstances has not been considered by the disciplinary authority while imposing extreme punishment. The punishment of dismissal from service is grossly disproportionate to the allegations against the appellant, and at best, a minor penalty could have been imposed for her absence from duty.

Learned counsel has placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Roop Singh Negi v. Punjab National Bank & Ors., reported in (2009) 2 SCC 570, in support of his contention.

On the other hand, learned counsel appearing for the respondents submitted that the appellant was afforded full and adequate opportunity in the departmental proceeding. She participated in the enquiry, submitted her defence and thereafter replied to the second show-cause notice and the inquiry report was duly served upon her. The charge of prolonged unauthorised absence stood established on the basis of the materials available before the Enquiry Officer and the admission of the delinquent.

Learned counsel further submitted that Hon’ble Single Judge was justified in declining interference in the order of punishment on the ground of the appellant’s prolonged absence from duty, no procedural irregularity was pointed out in the deparmental proceeding and the appellant took four years to challenge the order of dismissal. He relied upon the judgment of Hon’ble Supreme Court passed in the case of Chairman-cum-Managing Director, U.P. Power Corporation Ltd. & Ors. v. Ram Gopal, reported in (2021) 13 SCC 225.

I have considered the rival submissions advanced by the parties and carefully perused the materials available on record, including the charge memorandum, enquiry report, appellant’s reply, order of punishment, judgment under appeal and the order passed in civil review.

The scope of judicial review in disciplinary matters is well settled. The High Court, while exercising jurisdiction under Article 226 of the Constitution, does not sit as an appellate authority over the findings recorded in a departmental proceeding. It is not ordinarily permissible for the Court to reappreciate the evidence and substitute its own conclusion for that of the disciplinary authority. Interference may, however, be warranted where the proceedings have been conducted by an authority without jurisdiction, where the prescribed procedure has been violated resulting in prejudice, where the principles of natural justice have been infringed, where the finding is based on no evidence, or where the conclusion is so perverse that no reasonable person could have arrived at it. [See, Union of India vs. P. Gunasekaran, reported in (2015) 2 SCC 610]

The main contention of appellant is that the appellant’s absence was occasioned by illness and study purposes and she had made applications from time to time for leave and the period could have been regularized.

The admitted position, emerging from the records, is that the appellant was absent for a considerable period and that her leave applications were never sanctioned. The appellant remained absent as admitted by her for considerable period of more than two years.

The respondent’s case is that the submission of leave application does not amount to sanction of leave and the appellant could not have remained absent for an indefinite period without obtaining permission from the competent authority.

The Enquiry Officer took note of the fact that the appellant has admitted that she had remained absent from duty without producing any order sanctioning the relevant leave. The finding against the appellant was not based merely on the fact of her absence; rather, the explanation furnished by her was duly considered by the Enquiry Officer and was not found acceptable. The appellant’s admission that she remained absent for more than two years without sanctioned leave is significant. Such prolonged absence cannot be justified merely by submission of leave applications, particularly in the absence of any order sanctioning leave for the entire period.

The appellant joined the Bihar cadre on 04.12.2009 as a suspended employee. She was thereafter bound by the applicable service discipline and could not remain away from duty without requisite permission. Her claim for post-facto approval of the period of absence also cannot be accepted in view of Rule 153 of the Bihar Service Code, which bars grant of leave to a Government servant under suspension. The period of absence during suspension, therefore, cannot be treated as sanctioned leave. The appellant's contention regarding the alleged non-supply of the list of witnesses and documents also requires consideration.

The Hon’ble Supreme Court in a judgment, in the case of Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal & Others, reported in (1999) 7 SCC 332, has held that giving opportunity is a check and balance concept and that no one’s right be taken away without giving opportunity or without enquiry where statute so requires, but this is not necessary where allegation/charges are admitted and no possible defence is placed before the authority concerned. No enquiry is necessary when one admits once’s violations.

In yet another judgment, in the case of Chairman-cum-Managing Director, Coal India Ltd. & Anr. v. Mukul Kumar Choudhuri & Others, reported in (2009) 15 SCC 620, the Hon’ble Supreme Court has held that where the delinquent admitted the charges, no scope is left to differ with the conclusions arrived at by the inquiry officer about the proof of charges. In absence of any procedural illegality or irregularity in conduct of the departmental enquiry, it has to be held that the charges against the delinquent stood proved and warranted no interference.

In the present matter all the procedures were followed in conducting departmental enquiry and there is no violation of principles of natural justice. Unauthorized absence is admitted by the delinquent, therefore, there is no failure for supply of list of witness and documents in order to prove the charges of unauthorized absence. The things which are admitted by the delinquent is not required to be proved separately during course of departmental enquiry. The judgment relied upon by the appellant is not applicable in the facts of the case. The appellant’s own admission that she remained abasent from duty from 14.10.2007 to 04.12.2009 for a period exceeding two years without sanctioned leave requires no further proof.

On the facts of the present case, I am not satisfied that the punishment of dismissal is so shockingly disproportionate as to warrant interference under Article 226 of the Constitution. The appellant was holding responsible public post, as such, the disciplinary authority was entitled to take a serious view of such conduct.

The delay in approaching the Writ Court by filing writ petition after four years is also significant inasmuch as the order of dismissal was passed on 09.07.2012, whereas the appellant filed the writ petition in the year 2016 after a lapse of approximately four years.

For all the reasons aforesaid, I am of the considered view that the departmental proceeding does not suffer from any procedural illegality or violation of the principles of natural justice. The findings recorded by the Enquiry Officer and accepted by the disciplinary authority are supported by materials on record and cannot be characterised as perverse or as findings based on no evidence. The punishment imposed also does not warrant interference in exercise of the limited power of judicial review.

In the result, I find no error in the judgment, dated 14.08.2018, passed by the Hon’ble Single Judge in C.W.J.C. No. 833 of 2016, warranting interference in the present intra-court appeal. The order, dated 03.04.2019, passed in Civil Review No. 470 of 2018 also does not require interference.

Accordingly, the intra-court appeal stands dismissed and the judgment and order, dated 14.08.2018, passed in C.W.J.C. No. 833 of 2016 and order, dated 03.04.2019, passed in Civil Review No. 470 of 2018, are hereby affirmed. The order of dismissal of service contained in Memo No. 3263, dated 09.07.2012, shall remain undisturbed.