P.U Manaf v. The Union Of India And Others
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/938/2023 P.U. Manaf Vs.
The Union of India and others Mr. D.C.Kabir Mr. S. Ajith Prasad .... for the petitioner Mr. Arul Prasanth ... for the respondents January 19, 2024 [SR] Item No.1 This writ petition has been filed challenging an order dated August 30, 2023, by which the petitioner was dismissed from service. The punishment of dismissal from service, was imposed upon conclusion of a disciplinary proceeding. The petitioner has challenged the said proceeding and the order of dismissal, on the following grounds:
(a) The authorities proceeded in a biased manner. (b) The disciplinary authority proceeded on the dictation of a higher officer.
(c) The principles of natural justice was violated as a proper hearing was not given to the petitioner. Neither was the petitioner allowed to adduce evidence nor were the specific contentions of the petitioner in his reply to the show caused notice, considered.
(d) Denial of opportunity to adduce evidence and examine witnesses, amounted to procedural lapses. (e) The order of dismissal was grossly disproportionate to the charges.
Mr. Kabir, has drawn the attention of the Court to the charge sheet and submits that the absence of the petitioner from service during 2012- 2019, could not be a ground for initiation of the disciplinary proceeding, inasmuch as, the petitioner was granted promotion in 2019. Such action of the
employer, tantamounts to waiver of any objections that the employer may have had with regard to the petitioner's performance.
Mr. Kabir further draws the attention of the Court to a letter issued to the petitioner by the authority, indicating that the petitioner and his associates would be liable to disciplinary action, for having approached the Hon'ble Prime Minister with certain grievances. According to Mr. Kabir, a simple letter to the Hon'ble Prime Minister, with a request for improving the terms and condition of service of the employees in the Unit Run Canteen, INS Jarawa, Port Blair, could not have enraged the superiors to such an extent. The threat of initiation of disciplinary proceeding, was unwarranted. The employer appeared to be biased and had proceeded with a closed mind. It is submitted that the termination order was also passed on the dictation of the higher officer.
The higher officer had intimated the disciplinary authority that the punishment of dismissal should be imposed "ASAP". Another document has been relied upon which indicats that dismissal of five employees, including the petitioner would reduce the financial outflow of the Unit Run Canteen. This document is dated prior to the decision of imposing punishment.
Mr. Prasanth, learned advocate appearing for the respondents submits that the order impugned is an appealable order. It is next submitted that the petitioner had admitted that he was absent from service. The petitioner could easily approach the appellate authority with his grievances. The original file relating to the proceeding and records were produced by the respondents.
The petitioner was promoted in 2019. The Court has noticed that the days of absence during 2012-2019, form a part of the charges and the total days of absence. In 2020 and 2021, the petitioner was absent on account of Covid and the petitioner had produced documents to show that rest was advised by the Medical Inspection Room of INS Jarawa.
The petitioner was given a questionnaire in the disciplinary proceeding. He was expected to write 'Yes' or 'No' against the question. On the basis thereof, the enquiry report, holding the petitioner guilty had been prepared. The petitioner had answered in the positive, to the question whether he wanted to examine witnesses, but no date was fixed for production of witnesses. This is, in my opinion, violation of the Terms and Conditions of service, as also violation of the principles of natural justice. The writ petition is entertained. The alternative remedy of appeal, is not a bar. Alternatively, there is another aspect. The level of punctuality and the discipline expected from the petitioner will be higher than a normal civilian as he was an employee in the Unit Run Canteen, INS Jarawa at Port Blair and governed by the service rules framed by the Ministry of Defence. He also admitted the charge of being absent.
Thus, this court is not inclined to interfere with the decision of the authority to proceed against the petitioner for the absence. Although, the Terms and Conditions of service, indicates that leave of various kinds including leave without pay could be granted to the petitioner, including regularisation of a part thereof, the fact that there was absence, is available from the records.
Under such circumstances, this Court is of the view that the petitioner had been unauthorisedly absent for some period, by violating the service rules. There does not appear to be any official communication sanctioning such leave. On the other hand, there are procedural lapses. Annexure-2 of the Terms and Conditions of Service, has not been complied with. The petitioner had worked in the Unit Run Canteen of INS Jarawa since 1998 and was confirmed in the regular establishment, in 2001. There were no allegations of misconduct against the petitioner. The promotion in 2019 indicates that his performance was worthy of a promotion till that time. In the circumstances, the auauthorised absence is primarily in 2021(67 days) and 2022 (119 days). Whether Clause 16 of the Terms and Conditions of Service of the petitioner, had been taken into consideration
while deciding the actual number of days of unauthorized absence, is not available. The rules provide the kinds of permissible leaves. There is also a provision for grant of leave without pay.
Although Mr. Kabir submits that the leaves were regularized/condoned, this Court is however not inclined to go into the factual dispute with regard to condonation of the absence. There is an admission of the petitioner that he was absent for a particular period on account of Covid and other illnesses.
The employer had the power to initiate disciplinary proceeding and reach it to its logical conclusion, by imposing a punishment. Yet the employer should have proceeded according to law and the Terms and Conditions of Service ought to have been observed in letter and spirit. The punishment should also commensurate with the charges which were proved.
The final contention of the petitioner that the punishment imposed was harsh and grossly disproportionate to the gravity of the offence, is taken up for consideration. The scope of interference with the quantum and proportionality of punishment has been the subject matter of various decisions of the Apex Court. Such interference should not be a routine matter. In Union of India v. G. Ganayutham reported in (1997) 7 SCC 463, the Supreme Court summed up the position relating to proportionality in paragraphs 31 and 32 of the said judgment. The relevant paragraph is quoted herein below:- "31.
The current position of proportionality in administrative law in England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice
made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury test.
(2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational-in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU (1985 AC 374) principles. (3)(a) As per Bugdaycay, Brind and Smith as long as the Convention is not incorporated into English Law, the English Courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he had done.
(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of 'proportionality' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the Courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14."
In Chairman & Managing Director, United Commercial Bank vs. P.C. Kakkar reported in (2003) 4 SCC 364, the legal position in India has been laid down in paragraph 12 of the decision. The relevant paragraph is quoted below:-
"12. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate authority to reconsider the penalty imposed."
The Hon'ble Supreme Court took recourse to the provision of Article 14 to adjudicate the question of arbitrariness in the order of punishment in Ranjit Thakur v. Union of India, reported in (1987) 4 SCC 611, wherein the Hon'ble Supreme Court recognized the power of the Court to examine the quantum of punishment in the touchstone of proportionality in the event the punishment was shockingly disproportionate to the misconduct proved. The relevant portion of the above decision is quoted below:- "26. In Bhagat Ram v. State of Himachal Pradesh this Court held : [SCC p. 453, SCC (L&S) P. 353, para 15] It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.
The point to note, and emphasise is that all powers have legal limits.
27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." This is not a case of any misconduct which caused pecuniary loss to the employer. The charges do not involve any act of moral turpitude. At best, this is a case of indiscipline and lack of diligence.
Under such circumstances, the order of dismissal from service, is set aside. This is not a case for imposition of the punishment of dismissal from service. The matter is sent back to the disciplinary authority to decide and impose the punishment in accordance with the charges and Rules 27(a) (i) or (iii) of the Terms and Conditions of Service of Regular Civilian Employees of Unit Run Canteens, as the disciplinary authority deems fit and proper.
The authority shall decide the issue within four weeks and pass necessary orders. The petitioner shall be permitted to join the service immediately, and be handed over the access card, ID card and extended all other facilities incidental to his service. It is left to the employer as to how they would decide to treat the period of the petitioner's absence between the date of termination till the date of reinstatement. However, such absence shall not be treated as a break in service. The writ petition is accordingly disposed of. ( Shampa Sarkar, J. )