Calcutta High Court (Appellete Side)
Sasanka Shekhar Bagdi vs The Union Of India & Ors on 22 May, 2026
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
W.P.A. 20779 of 2016
Sasanka Shekhar Bagdi
-Vs-
The Union of India & Ors.
For the Petitioner : Mr. Aditya Mondal
For the Respondents/U.O.I. : Mr. Swapan Kumar Nandi
Mr. Amal Kumar Datta
Judgment on : 22.05.2026
Ananya Bandyopadhyay, J.:-
1. The petitioner asserted that he entered service in the year 1992 as a
Constable bearing No.913162245 under the 87 BN Commandant, Central
Reserve Police Force at Mathura in the State of Uttar Pradesh. The
petitioner portrayed his initial tenure in service marked by sincerity,
efficiency, honesty, diligence and disciplined conduct contending that
from the date of his appointment till June 1995 there existed no
allegation or adverse remark against him from any quarter whatsoever.
2. It had been pleaded that the petitioner, during the period commencing
from 10th July, 1995 and continuing till 26th July, 1995 had availed
Casual Leave for 15 days on account of the marriage ceremony of his
sister. According to the petitioner although such leave had been duly
sanctioned, he was ultimately unable to rejoin his duties within the
stipulated period. The petitioner further stated that he faced with
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compelling personal circumstances; he had thereafter addressed twotelegrams to the Company Commander, D-87 BN CRPF, SKJ Bhumi,
Mathura, Uttar Pradesh, requesting extension of the leave period but in
vain. It was specifically alleged notwithstanding such communications
seeking indulgence from the authority concerned, no extension of leave
was granted in his favour.
3. Elaborating the circumstances which allegedly prevented his return to
duty, the petitioner stated that he was required to resume duty on
26.07.1995 but could not report owing to a grave domestic exigency. It
had been averred that his wife namely Chabi Bagdi had suffered fracture
of tibia and had been medically advised to complete bed-rest. The
petitioner asserted that he had been the sole adult member in the family
at the relevant point of time to attend not only to his ailing wife but also
to his minor children and aged parents. In such circumstances, according
to the petitioner, had became impossible for him to leave his family
unattended or arranged any viable alternative so as to immediately rejoin
service.
4. The petitioner further contended, despite repeated requests and
representations explaining the aforesaid circumstances, the respondent
no.2 proceeded to lodge a complaint against him under Section 10(M) of
the Central Reserve Police Force Act, 1949 against the petitioner on 02nd
December, 1995 allegedly without affording him any concrete opportunity
of hearing. The narrative of the petitioner further revealed that on 17th
June, 1996 a show-cause notice was issued against him in connection
with his prolonged absence from duty. The notice disclosed that a
departmental enquiry had already been conducted by one Rakesh Kumar,
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Assistant Commandant and charge was framed under Article I and ArticleII had been found proved. The petitioner was thereby called upon to show
cause within 15 days as to why punishment should not be imposed upon
him pursuant to the findings recorded in the departmental proceedings.
5. The petitioner further asserted upon receipt of the show-cause notice, he
furnished a reply reiterating that his leave for the period from 10 th July,
1995 to 26th July, 1995 had been sanctioned and that his inability to
report to duty on the due date arose solely on account of the compelling
medical condition of his wife and the attendant family circumstances as
stated above.
6. The petitioner further urged notwithstanding submission of such reply,
the respondent no.3 herein, ultimately passed an order dated 30th June,
1996 holding the petitioner guilty of misconduct in his capacity as a
member of the Force under Section 11(1) of the Central Reserve Police
Force Act, 1949.
7. The petitioner contended, subsequent thereto, he submitted several
representations before the competent authorities explaining the reasons
behind his failure to join duty on time and seeking sympathetic
consideration of his domestic predicament. However, according to the
petitioner, such representations did not evoke any favourable response.
The Disciplinary Authority proceeded upon the allegation that the
petitioner being Constable No.913162245 attached to B/87 CRPF, had
failed to resume duty under expiry of sanction leave and had remained
absent unauthorisedly till 25th March, 1996 without sufficient cause or
permission from the competent authority.
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8. It was further alleged against him that he reported to join his duty at the
Company premises on his own only on 26th March, 1996 and such
prolonged unauthorized absence constituted conduct prejudicial to the
maintenance of discipline and good order within the force.
9. The Learned Advocate representing the petitioner assailed the impugned
disciplinary action by contending at the very threshold that the decision
making process adopted by the Disciplinary Authority stood vitiated by
pre-determination absence of fair consideration and a palpable failure to
address the humanitarian dimensions of the matter.
10. It was argued that the order imposing the major penalty of removal from
service is wholly unsustainable both on facts and in law, having been
rendered in a mechanical arbitrary manner without due appreciation of
the surrounding circumstances under which the petitioner had failed to
rejoin duty within time.
11. The Learned Advocate for the petitioner further submitted the Disciplinary
Authority proceeded with undue haste in issuing the charge-sheet in
June, 1996 without properly examining whether the foundational
ingredients constituting misconduct were at all present in the facts of the
case. According to the Learned Advocate, the authorities completely failed
to take into account the contemporaneous communications and several
letters through which the petitioner had informed the department about
the grave medical condition of his wife and the unavoidable
circumstances compelling his continued absence.
12. Elaborating such contention, it was urged that the Disciplinary Authority
failed to discharge the quasi-judicial obligation cast upon it and neglected
to consider that the petitioner’s absence did not arise out of indiscipline
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or conscious abandonment of service but from compelling domestic
adversity occasioned by serious illness and restricted bed-ridden
condition of his wife. The Learned Advocate for the petitioner submitted
that the impugned orders suffered from violation of the principles of
natural justice and was further impaired by perversity inasmuch as the
inference regarding the petitioner’s alleged unwillingness to continue in
service rest upon assumptions and speculative conclusions rendered
cogent evidence.
13. It was also argued that there existed no substantive material before the
Enquiry Authority to establish any deliberate misconduct on the part of
the petitioner and that the charges leveled against him had not been
proved in accordance with law. The petitioner, according to the
submissions advanced, had rendered service under the 87 Battalion
Commandant, Mathura with diligence, honesty and sincerity till June,
1995 and had thereafter proceeded on duly sanctioned leave from 10th
July, 1995 to 26th July, 1995 in connection with the marriage ceremony
of his sister.
14. The Learned Advocate representing the petitioner led considerable
emphasis upon the unfortunate incident that allegedly befell on the
petitioner’s wife during the said period. It was submitted while attending
the marriage ceremony, the petitioner’s wife suffered fracture of tibia
namely a serious injury affecting the upper weight-bearing bone of the
lower leg necessitating complete bed-rest upon medical advice. The
petitioner’s aged parents were also stated to be bed-ridden and residing
with him at the relevant point of time. In such circumstances, it was
contended that the petitioner and his wife were the only available
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members capable of attending to the needs of the family and owing to the
sudden accident and resulting medical emergency, the petitioner was
constrained to remain at home to take care of his wife, his children and
infirm parents. The entire situation, according to the petitioner, was
entirely beyond his control. It was further submitted that the petitioner
had duly communicated the aforesaid predicament to the respondent
authorities through two separate telegrams seeking extension of leave.
However, despite being fully apprised of the circumstances confronting
the petitioner, the respondents allegedly rejected his requests without
proper consideration and proceeded to lodge a complaint against him
under Section 10(M) of the Central Reserve Police Force Act, 1949.
15. The Learned Advocate as foresaid further argued that the respondents
themselves admitted in paragraph 4(B) of the affidavit-in-opposition that
such communications had indeed been received, thereby indicating that
the authorities were conscious of the petitioner’s plight and crisis in the
family, yet failed to extend fair and reasonable consideration to his
requests. Begrudgingly the petitioner subsequently was served with a
show-cause notice dated 17th June, 1996 informing him for the first time
that a departmental enquiry had been conducted in his absence and
beyond his knowledge. It was urged that effective notice of such enquiry
had never been served upon the petitioner and as a consequence he was
denied of his legitimate opportunity to participate in the proceedings or
defend himself against the charges leveled against him. The entire enquiry
proceedings accordingly was characterized to be mala fide determined and
pre-arranged asserting that a plain reading of the show-cause notice itself
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clearly disclosed that the conclusions had substantially been arrived at
prior to afford the petitioner any effective opportunity of hearing.
16. The Learned Advocate for the petitioner further submitted that the
impugned action of the respondent authorities reflected a manifest,
arbitrary and high-handed approach, particularly reliance was placed
upon Section 11(1) of the Central Reserve Police Force Act, 1949 to
contend that the provision contemplated imposition of minor
punishments in appropriate circumstances, whereas in the instant case
the authorities, without adequately considering the mitigating factors
surrounding the petitioner’s absence, proceeded directly to inflict the
extreme punishment of dismissal from service.
17. It was also urged that the Enquiry Officer was duty-bound to examine
whether the petitioner’s absence was wilful or occasioned by
circumstances beyond his control. Moreover, despite immediate
communication regarding his domestic crisis, the authorities failed to
examine the genuineness of the reasons furnished and initiated
disciplinary proceedings hastily in a mechanical manner. The authorities
ought to have considered whether the absence was deliberate or
unavoidable before branding the petitioner guilty of misconduct
prejudicial to the discipline of uniformed force.
18. On the issue of delay in approaching this Court, the Learned Advocate
submitted that the doctrine of delay and laches is not an inflexible
principle and cannot operate as an absolute bar where the facts disclosed
continuing injustice or circumstances offending the judicial conscience of
the Court. It was argued that no third party rights had intervened in the
present matter and that the conduct of the respondents marked by haste,
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arbitrariness and mala fide exercise of power justified invocation of writ
jurisdiction notwithstanding the lapse of time.
19. The Learned Advocate representing the petitioner further contended that
the sole defence taken by the respondents in their affidavit-in-opposition
was that the petitioner had remained unauthorisedly absent for 242 days
without sanctioned leave and that the disciplinary action was, therefore,
legally justified.
20. In answer thereto, the Learned Advocate as aforesaid relied upon settled
principles of service jurisprudence to argue that absence from duty
though technically unauthorized does not ipso facto amount to wilful
misconduct. It was submitted that where compelling circumstances such
as illness, accident or unavoidable domestic emergencies render it
impossible for an employee to report to duty, such absence or abstinence
cannot automatically be construed as failure of devotion of duty or
conduct unbecoming in Government Service.
21. The circumstances as stated above had been duly communicated to the
respondent authorities through applications and telegrams seeking
extension of leave, yet without considering the genuineness of such
explanation, the respondent authorities initiated proceedings under
Section 10(M) of the aforesaid Act, 1949 in a manner which, according to
the petitioner, reflected undue haste, arbitrariness and excessively a rigid
administrative approach.
22. The Learned Counsel appearing on behalf of the respondents opposed the
writ petition by placing the departmental records and sequence of events
leading to the disciplinary action against the petitioner. It was submitted
that the petitioner, namely Constable/GD Sasanka Sekhar Bagdi bearing
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No. 913162245, was serving in the Central Reserve Police Force as a
Constable/GD and had initially been granted fifteen days’ casual leave
with effect from 10th July, 1995 for attending the marriage ceremony of
his sister. According to the respondents, upon expiry of the sanctioned
leave period, the petitioner failed to report back for duty on the due date
and remained absent with effect from 26th July, 1995.
23. The respondents contended that although the petitioner subsequently
submitted an application seeking extension of leave for thirty days on the
ground of his wife’s leg fracture, such request did not merit acceptance by
the competent authority. It was further submitted that repeated directions
were thereafter issued by the Officer Commanding through official
communications dated 28th July, 1995, 14th August, 1995 and 4th
September, 1995 requiring the petitioner to immediately report for duty
and warning him that strict disciplinary action would otherwise follow.
Despite such repeated directions, according to the respondents, the
petitioner failed to resume duty of his own accord and continued to
remain absent without authority.
24. The Learned Counsel for the respondents further submitted that, in the
meantime, a Court of Inquiry was conducted and the petitioner was
ultimately declared a deserter by office order dated 29th January, 1996
with retrospective effect from 28th July, 1995. It was argued that the
prolonged absence of the petitioner from 27th July, 1995 till 25th March,
1996 constituted a serious breach of discipline warranting initiation of
formal departmental proceedings.
25. The respondents further stated that a departmental enquiry was
thereafter initiated against the petitioner in respect of such unauthorised
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absence and Shri Rakesh Kumar, Assistant Commandant of the Unit, was
appointed as the Enquiry Officer to enquire into the circumstances
surrounding the petitioner’s continued absence from duty during the
aforesaid period. According to the respondents, the enquiry was
conducted strictly in accordance with the prevailing rules and procedural
instructions governing disciplinary proceedings within the Force and,
upon conclusion of the enquiry, the charges relating to wilful absence
stood fully established.
26. It was submitted that the enquiry report was thereafter supplied to the
petitioner by official communication dated 17th June, 1996 granting him
opportunity to submit documents or evidence in his defence. The
petitioner, according to the respondents, submitted his representation on
22nd June, 1996; however, such representation did not disclose any fresh
or substantive material capable of dislodging the findings already arrived
at in the departmental enquiry.
27. The Learned Counsel for the respondents further argued that upon
consideration of the enquiry report and the representation submitted by
the petitioner, the disciplinary authority passed the order of removal from
service with effect from 30th June, 1996. It was contended that the
punishment imposed was commensurate with the gravity of misconduct
established against the petitioner and did not warrant interference in
exercise of writ jurisdiction.
28. Referring to the affidavit-in-opposition filed before this Court, the
respondents reiterated that the petitioner had overstayed beyond the
sanctioned leave period from 27th July, 1995 till 25th March, 1996,
thereby remaining absent for a total period of 242 days without prior
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permission or sanction from the competent authority. It was further
contended that despite repeated directions requiring him to report back
for duty, the petitioner deliberately failed to do so and voluntarily
continued to remain absent without authorisation.
29. The respondents additionally asserted that letters had been dispatched to
the petitioner at his native residence directing him to resume duty, yet the
petitioner failed to comply with such directions. In such circumstances,
according to the respondents, initiation of proceedings under Section
10(m) of the Central Reserve Police Force Act, 1949 was entirely justified
and fully in consonance with the governing statutory framework.
30. The Learned Counsel appearing for the respondents further addressed the
scope of judicial review in disciplinary matters involving members of
disciplined forces. It was submitted that the settled principles laid down
by the Hon’ble Supreme Court consistently circumscribe the jurisdiction
of the High Court while exercising powers of judicial review over findings
recorded in departmental proceedings. The respondents contended that
interference is permissible only in exceptional circumstances, namely
where there is violation of principles of natural justice, breach of statutory
procedure, consideration of extraneous matters, or where the conclusions
arrived at are so arbitrary or irrational that no reasonable authority could
have reached such findings on the materials available before it.
31. In support of such proposition, reliance was placed upon the judgment of
the Hon’ble Supreme Court in Union of India & Others vs. Subrata Nath,
rendered in Civil Appeal Nos. 7939-7940 of 2022 arising out of Special
Leave Petition (Civil) Nos. 3524-3525 of 2022, wherein the contours of
judicial review in disciplinary proceedings were elaborately discussed in
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paragraphs 16 to 21 of the judgment. Reliance was also placed upon the
decision rendered in State of Rajasthan & Others vs. Bhupendra Singh in
Civil Appeal Nos. 8546-8549 of 2024 arising out of Special Leave Petition
(Civil) Nos. 12773-12776 of 2021, decided on 8th August, 2024, wherein
the Hon’ble Apex Court revisited the principles governing interference
with disciplinary punishments in exercise of writ jurisdiction.
32. The respondents further relied upon the judgment delivered by a Division
Bench of this Court in M.A.T. No. 2290 of 2024 (Union of India & Others
vs. R. Kasivelu), delivered on 9th July, 2025, wherein the Division Bench
considered the extent of judicial scrutiny permissible in matters involving
punishment imposed upon members of disciplined forces.
33. Particular emphasis was laid upon the observations made in the aforesaid
judgment to the effect that the power of judicial review under Article 226
of the Constitution does not permit the High Court to function as an
appellate authority over disciplinary findings. It was argued that even
where punishment appears severe, interference is not ordinarily
warranted unless the penalty is shockingly disproportionate or the
decision-making process itself stands vitiated by illegality, perversity or
procedural impropriety.
34. The Learned Counsel for the respondents further referred to the judgment
of the Hon’ble Supreme Court in Union of India & Others vs. Constable
Sunil Kumar, reported in AIR 2023 SC 554, wherein a member of the
Central Reserve Police Force charged with grave misconduct and
insubordination was dismissed from service after conclusion of
departmental proceedings. The respondents submitted that the Hon’ble
Supreme Court, while examining interference with punishment imposed
13
upon members of disciplined forces, reiterated that judicial review does
not extend to reassessment of proportionality unless the punishment is
outrageously disproportionate or the decision itself suffers from manifest
irrationality.
35. Reliance was also placed upon the earlier decision in Union of India vs.
R.K. Sharma, reported in (2001) 9 SCC 592, wherein the Hon’ble Supreme
Court held that interference with punishment in exercise of powers under
Articles 226 or 32 of the Constitution would arise only in rare and
exceptional situations involving perversity or patent irrationality apparent
on the face of the record.
36. Proceeding on the strength of the aforesaid authorities, the respondents
contended that the principles laid down therein apply with full force to the
present case inasmuch as the petitioner’s unauthorised absence for 242
days constituted grave misconduct directly affecting discipline within the
Force. It was therefore argued that the disciplinary authority had acted
strictly in accordance with the applicable rules and procedures, that
adequate opportunity had been afforded to the petitioner during the
enquiry process, and that the final order of removal from service was
lawful, justified and fully consistent with the principles of natural justice.
37. The rival submissions advanced on behalf of the parties, the records of
the disciplinary proceedings and the materials disclosed in the pleadings
require this Court to examine not merely whether the petitioner remained
absent from duty beyond the sanctioned leave period, but whether the
extreme punishment of removal from service imposed upon him bears a
just and proportionate relationship with the nature of the misconduct
alleged and the circumstances attending such misconduct.
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38. The factual foundation giving rise to the present controversy admits of
little dispute. The petitioner, a Constable attached to the Central Reserve
Police Force, had been granted sanctioned casual leave for the period
commencing from 10th July, 1995 till 26th July, 1995 for attending the
marriage ceremony of his sister. It is also beyond controversy that upon
expiry of the sanctioned leave period, the petitioner failed to report back
for duty and continued to remain absent till 25th March, 1996. The
departmental authorities treated such prolonged absence as unauthorised
and incompatible with the discipline expected from a member of a
uniformed force, ultimately culminating in the order of removal from
service dated 30th June, 1996.
39. The respondents have strongly emphasised that repeated communications
were issued directing the petitioner to resume duty and that despite such
directions he continued to absent himself without obtaining prior
permission from the competent authority. The records further reveal that
a Court of Inquiry was conducted, the petitioner was declared a deserter
and a departmental enquiry thereafter proceeded against him under the
provisions of the Central Reserve Police Force Act, 1949 and the
applicable Rules governing members of the Force.
40. There can be no dilution of the principle that discipline constitutes the
foundational structure upon which every armed and uniformed force
rests. A member of such force is expected to display unwavering
adherence to duty and prompt obedience to lawful directions issued by
superior authorities. Prolonged unauthorised absence, particularly within
a disciplined organisation entrusted with maintenance of public order and
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national security, cannot be viewed lightly or treated as a trivial departure
from service obligations.
41. Yet, the existence of misconduct by itself does not conclude the enquiry
before a constitutional court exercising powers of judicial review.
Administrative discipline, however essential, cannot be insulated from the
constitutional requirement that punishment must remain proportionate
to the nature of delinquency established and the circumstances in which
such delinquency occurred. The doctrine of proportionality has now
assumed a settled and indispensable position within administrative
jurisprudence. Exercise of disciplinary power, though primarily resting
within the domain of the employer, nevertheless remains subject to
scrutiny where the punishment imposed appears manifestly excessive or
where relevant mitigating circumstances have either escaped
consideration or received only superficial attention.
42. The petitioner has, from the inception of the proceedings, consistently
maintained that immediately after proceeding on sanctioned leave, his
wife suffered fracture of the tibia requiring complete bed rest under
medical advice. The petitioner further disclosed that his aged parents
were themselves infirm and dependent upon him and that there existed
no other adult member within the family capable of managing the sudden
domestic crisis which had overtaken the household. The petitioner also
asserted that he had communicated such circumstances to the
authorities through telegrams seeking extension of leave. The respondents
do not appear to dispute receipt of such communications.
43. The significance of these circumstances cannot be reduced to mere
sentimental considerations external to the enquiry process. Service
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jurisprudence has long recognised the distinction between intentional
abandonment of duty and absence occasioned by compelling
circumstances beyond the control of the employee. Every unauthorised
absence may constitute misconduct within the technical meaning of
service law; yet every such absence cannot automatically be elevated to
deliberate desertion warranting the severest civil consequences.
44. The records placed before this Court do not disclose any material
suggesting that the petitioner sought employment elsewhere, attempted to
permanently sever his relationship with the Force or acted in open
defiance of institutional authority. On the contrary, the petitioner
addressed communications seeking extension of leave and eventually
reported back to the unit on 26th March, 1996. The conduct attributed to
the petitioner therefore reflects failure to maintain strict procedural
discipline, but the materials do not readily support the inference that the
petitioner had consciously resolved to permanently abandon service.
45. The Hon’ble Supreme Court in the case of UNION OF INDIA & ANR V. RK
SHARMA1 has held the following :-
“11. As regards to the period for which the respondent was absent
from duty, we are satisfied that the punishment of dismissal from
service is too harsh, disproportionate and not commensurate with the
nature of the charge proved against the respondent. We are, therefore,
of the view that the ends of justice would have been adequately met
by imposing some lesser but major penalty upon the respondent.”
46. The Hon’ble Supreme Court in the case of KRUSHNAKANT B. PARMAR V.
UNION OF INDIA & ANR2 has held the following:-
1
2022 SCC Online SC 2010
17
“17. ….. 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.
19. In the present case the inquiry officer on appreciation of evidence
though held that the appellant was unauthorisedly absent from duty
but failed to hold that the absence was wilful; the disciplinary
authority as also the appellate authority, failed to appreciate the same
and wrongly held the appellant guilty.
20. The question relating to jurisdiction of the court in judicial review in
a departmental proceeding fell for consideration before this Court in
M.V. Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919]
wherein this Court held: (SCC p. 95, para 25)“25. It is true that the jurisdiction of the court in judicial review is
limited. Disciplinary proceedings, however, being quasi-criminal in
nature, there should be some evidence to prove the charge. Although
the charges in a departmental proceeding are not required to be proved
like a criminal trial i.e. beyond all reasonable doubt, we cannot lose
sight of the fact that the enquiry officer performs a quasi-judicial
function, who upon analysing the documents must arrive at a
conclusion that there had been a preponderance of probability to prove
the charges on the basis of materials on record. While doing so, he
cannot take into consideration any irrelevant fact. He cannot refuse to
consider the relevant facts. He cannot shift the burden of proof. He
cannot reject the relevant testimony of the witnesses only on the basis
of surmises and conjectures. He cannot enquire into the allegations
with which the delinquent officer had not been charged with.””
2
(2012) 3 SCC 178
18
47. The Hon’ble Supreme Court, in the case of SYED ZAHEER HUSSAIN VS
UNION OF INDIA (UOI) AND ORS3. has made the following observations:
“4. In our view, in the facts and circumstances of the case, the
punishment of dismissal from service is too harsh and on the contrary
it is required to be substituted by appropriate lesser punishment.
Learned Counsel for the respondents after instructions has stated that
appropriate lesser punishment may be awarded by this Court. It will
be acceptable to the respondents. In our view, ends of justice will be
served if we set aside the order of dismissal of the appellant and
instead direct reinstatement of the appellant in service with continuity
and with all other benefits save and except withdrawing 50 per cent of
back wages from the date of dismissal i.e. 11-10-1988 till today. In our
view, this punishment which will involve substantial monetary loss to
the appellant will meet the ends of justice and will be a sufficient
corrective measure for the appellant. The request of learned Counsel
for the respondents that two future increments may also be withheld
without cumulative effect does not appear to us to be justified on the
peculiar facts and circumstances of the case. In our view, the aforesaid
monetary loss to the appellant will meet the ends of justice so that he
may be careful in future. It is ordered accordingly. At the request of
learned Counsel for the respondents eight weeks’ time is granted to
the respondents to comply with the present order and to reinstate the
appellant with continuity in service and with all other benefits. We
make it clear that from today onwards the appellant will be entitled to
full salary. Both the appeals are allowed accordingly. The orders of the
Tribunal dated 4-11-1996 and 13-2-1997 arc set aside. O. A. No. 714
of 1993 filed by the appellant in the Tribunal shall stand allowed in
aforesaid terms. In the facts and circumstances of the case, there will
be no order as to costs.”
48. The Hon’ble Supreme Court in the case of COLOUR- CHEM LIMITED V.
AL ALASPURKAR & OTHERS4 has held the following:-
3
AIR 1999 SC 3367
19
“The aforesaid observations in this decision fall in line with the
observations in the earlier decision of this Court in Hind Construction
[AIR 1965 SC 917 : (1965) 2 SCR 85 : (1965) 1 LLJ 462] . Consequently
it must be held that when looking to the nature of the charge of even
major misconduct which is found proved if the punishment of
dismissal or discharge as imposed is found to be grossly
disproportionate in the light of the nature of the misconduct or the past
record of the employee concerned involved in the misconduct or is such
which no reasonable employer would ever impose in like
circumstances, inflicting of such punishment itself could be treated as
legal victimisation. On the facts of the present case there is a clear
finding reached by the Labour Court and as confirmed by the
Industrial Court that the charges levelled against the respondent-
delinquents which were held proved even though reflecting major
misconducts, were not such in the light of their past service record as
would merit imposition of punishment of dismissal. This factual finding
would obviously attract the conclusion that by imposing such
punishment the appellant-management had victimised the respondent-
delinquents. Imposition of such a shockingly disproportionate
punishment by itself, therefore, has to be treated as legal victimisation
apart from not being factual victimisation as on the latter aspect the
Labour Court has held against the respondent-workmen and that
finding has also remained well sustained on record. Thus it must be
held that the management even though not guilty of factual
victimisation was guilty of legal victimisation in the light of the proved
facts which squarely attracted the ratio of the decisions of this Court in
Hind Construction [AIR 1965 SC 917 : (1965) 2 SCR 85 : (1965) 1 LLJ
462] and Bharat Iron Works [(1976) 1 SCC 518 : 1976 SCC (L&S) 92 :
(1976) 2 SCR 80] . It is easy to visualise that no reasonable
management could have punished a delinquent workman who in the
late hours of the night shift by about 3.30 a.m. had gone to sleep
keeping the machine in a working condition especially in the absence
of any gross misconduct reflected by the past service record, with the4
(1998) 3 SCC 192
20
extreme penalty of dismissal. It is also interesting to note that this was
a peculiar case in which the Plant-in-Charge found during his surprise
visit at 3.30 a.m. in the early hours of the dawn the entire work force
of 10 mazdoors and 2 operators like the respondents and the
supervisor all asleep. It is also pertinent to note that so far as the 10
mazdoors were concerned they were let off for this very misconduct by
a mere warning while the respondents were dismissed from service. It
is, of course, true that the respondents were assigned more
responsible duty as compared to the mazdoors, but in the background
of the surrounding circumstances and especially in the light of their
past service record there is no escape from the conclusion that the
punishment of dismissal imposed on them for such misconduct was
grossly and shockingly disproportionate, as rightly held by the Labour
Court and as confirmed by the revisional court and the High Court. By
imposing such grossly disproportionate punishment on the
respondents the appellant-management had tried to kill a fly with a
sledgehammer. Consequently it must be held that the appellant was
guilty of unfair labour practice. Such an act was squarely covered by
clause (a) of Item 1 of Schedule IV of the Act being legal victimisation, if
not factual victimisation. The ultimate finding of the Labour Court
about maintainability of the complaint can be supported on this
ground. The second point is answered in the affirmative against the
appellant and in favour of the respondent-workmen.”
49. The Hon’ble Madhya Pradesh High Court in the case of SANTOSH
KUMAR V. UNION OF INDIA & OTHERS5 has held the following:-
“12. Reliance has been placed on the Judgment of Bhagawan Lai Arya
(supra), wherein the Hon’ble Supreme Court has held that a Police
Constable absenting himself for two months on medical ground
without sanction of leave is not such a grave misconduct or continued
misconduct rendering him completely unfit for police services.
5
2018 SCC Online MP 984
21
14. In the case of Sardar Singh (supra), the ratio is that habitual or
continuous absence from duty without sanctioned leave for long, prima
facie amounts to “habitual negligence of duties and lack of interest in
work” which constitutes a misconduct under relevant standing order of
the appellant Corporation. Burden lies on the employee concerned to
prove otherwise by placing relevant material on record.
16. In the case of Datta LingaToshtawad (supra) Hon’ble Supreme
Court has defined as to when absenteeism will amount to desertion
and has held that punishment of dismissal on members of the
uniformed services absenting themselves on frivolous pleas, having
regard to the nature of the duties enjoined on these forces. Such
indiscipline, if it goes unpunished, will greatly affect the discipline of
the forces. In such forces, desertion is a serious matter. It has been
held that a member of a uniformed force, who overstays his leave by a
few days, must be able to give a satisfactory explanation. However, a
member of the force, who goes on leave and never report for duties
thereafter, cannot be said to be one, merely overstaying his leave. He
must be treated as a deserter and in cases of this nature, dismissal
from force is a justified disciplinary action and cannot be described as
disproportionate to alleged misconduct.”
50. The Hon’ble Madhya Pradesh High Court, in the case of SUBHASH
RATHORE VS STATE OF M.P. & ORS6. has made the following
observations:
“The Apex Court in the case of Raghubir Singh Vs. General manager,
Haryana, Roadways, reported in 2014 (10 SCC, 301 was dealing with
the issue of termination on account of unauthorised absence. In the
aforesaid case, the Apex Court in paragraph Nos.29 and 30 has held
as under:-
“29. Further, assuming for the sake of argument that the unauthorised
absence of the appellant is a fact, the employer is empowered to grant6
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of leave without wages or extraordinary leave. This aspect of the case
has not been taken into consideration by the employer at the time of
passing the order of termination. Therefore, having regard to the period
of unauthorised absence and facts and circumstances of the case, we
deem it proper to treat the unauthorised absence period as leave
without wages. In our view, the termination order is vitiated since it is
disproportionate to the gravity of misconduct alleged against him. The
employment of the appellant-workman with the respondent is the
source of income for himself and his family members’ livelihood,
thereby their liberty and livelihood guaranteed under Article 21 of the
Constitution of India is denied as per the view of this Court in its
Constitution Bench decision in Olga Tellis& HIGH COURT OF MADHYA
PRADESH: BENCH AT INDORE W.P. No.1222/2009 (s) (-6-) Ors. v.
Bombay Municipal Corporation and Ors.[9] wherein it was held as
under:-
30. The appellant workman is a conductor in the respondent-statutory
body which is an undertaking under the State Government of Haryana
thus it is a potential employment. Therefore, his services could not
have been dispensed with by passing an order of termination on the
alleged ground of unauthorised absence without considering the leave
at his credit and further examining whether he is entitled for either
leave without wages or extraordinary leave. Therefore, the order of
termination passed is against the fundamental rights guaranteed to
the workman under Articles 14, 16,19 and 21 of the Constitution of
India and against the statutory rights conferred upon him under the
Act as well as against the HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE W.P. No.1222/2009 (s) (-7-) law laid down by this
Court in the cases referred to supra. This important aspect of the case
has not been considered by the courts below. Therefore, the impugned
award of the Labour Court and the judgment & order of the High Court
are liable to be set aside.”
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51. The Hon’ble Calcutta High Court, in the case of DAYANAND PASWAN VS
COAL INDIA LTD. & ORS7, has made the following observations:
“(27) Ld. Counsel then submitted that the attendance of the petitioner
was very poor in the three years preceding the year in which the
charge-sheet was issued. His attendance was 76 days in the year
2000, 59 days in the year 2001 and 7 days in the year 2002. He was
a habitual absentee from work without intimation to the authority or
prior permission. Hence, the punishment of termination was justified in
his case. In this connection Ld. Counsel relied on a decision of the
Hon’ble Supreme Court in the case of L & T Komastu Ltd.-vs.-N.
Udayakumar, (2008) 1 SCC 224. In that case, the Hon’ble Supreme
Court referred to several of its earlier decisions and observed that an
employee cannot as a matter of right claim leave of absence though
that might be without permission and though there might not be any
application for the same. That would be gross violation of discipline. In
the facts of that case, the employee concerned was habitually absent
from work. A disciplinary proceeding was initiated against him after
he remained absent unauthorisedly for 105 days. The charge of
unauthorised absence was proved in the departmental enquiry and
the employee was dismissed from service. This gave rise to an
industrial dispute and the workman filed an application under
the Industrial Disputes Act, 1947. The Labour Court found that though
the workman remained absent unauthorisedly, the extreme
punishment of dismissal of service was too harsh and disproportionate
to the gravity of the charge. It set aside the order of dismissal and the
workman was directed to be reinstated with continuity of service but
without back wages. The Management challenged the Labour Court’s
award by way of writ petition. The Ld. Single Judge modified the
award and deprived the workman from continuity of service. Both the
Management and the workman appealed. The Division Bench allowed
the appeal of the workman to the extent of granting continuity of
service to him. The Management’s appeal was dismissed. The7
2016 SCC ONLINE CAL 1552
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Management approached the Hon’ble Supreme Court which set aside
the orders of the High Court and the Labour Court and restored the
order of termination of service of the concerned workman. The Hon’ble
Supreme Court held that though under Section 11A of the Industrial
Disputes Act, the Tribunal has the power to reduce the quantum of
punishment, it has to be done within the parameters of law.
Possession of power is itself not sufficient; it has to be exercised in
accordance with law.
(45) In the case of Collector Singh-vs.-L.M.L. Ltd., Kanpur (supra), the
Hon’ble Apex Court set aside the order of dismissal from service
holding that the same was harsh and disproportionate to the alleged
misconduct of throwing jute/cotton balls on a co-employee. (46) In
Chairman Cum Managing Director, Coal India Ltd.-vs.-Mukul Kumar
Choudhuri (supra), the Hon’ble Supreme Court held that where the
misconduct of the delinquent was unauthorised absence from duty for
six months but upon being charged of such misconduct, he fairly
admitted his guilt and explained the reasons for his absence by
stating that he did not have any intention nor desire to disobey the
order of higher authority or violate any of the company’s rules and
regulations but the reason was purely personal and beyond his
control, as a matter fact, he sent his resignation which was not
accepted, the order of removal cannot be held to be justified since no
reasonable employer would have imposed the extreme punishment of
removal in like circumstances. The Hon’ble Supreme Court directed
reinstatement of the concerned employee but denied him back wages
by way of punishment for the proved misconduct of unauthorised
absence for six months.”
52. The Hon’ble Jharkhand High Court, in the case of SAMLENDRA KUMAR
VS UNION OF INDIA THROUGH C.R.P.F8, has made the following
observations:
8
2024:JHHC:12823
25
“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.”
15. The Hon’ble Apex Court while dealing with a case of quantum of
punishment held that the question of interference on the quantum of
punishment has already been answered in a catena of judgments
whereunder it has been 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. This judgment
is rendered in the case of S.R. Tiwari Vs. Union of India, reported in
(2013) 6 SCC 602.
16. The aforesaid judgments are squarely applicable in the present
case in view of the fact that the impugned order of dismissal does not
indicate any evidence whatsoever against the petitioner which was
looked into in the enquiry proceeding. Even the medical certificates
and reply submitted by the petitioner have been completely ignored.
Disproportionality of the punishment vis-a-vis the charges imputed
against the petitioner can also be seen by application of the judgment
of Hon’ble Supreme Court in Krushnakant B. Parmar (supra) in which
Hon’ble Supreme Court has specifically held that the question of
unauthorised absence from duty amounting to misconduct can be
decided only after the decision on the question as to whether the
absence is wilful or because of compelling circumstances. It has been
further held that if the absence is the result of some compelling
26
circumstances under which it was not possible to report for duty, such
absence cannot be said to be wilful and, therefore, would not amount
to misconduct where under dismissal from services would be effected.”
53. The disciplinary authority, while exercising quasi-judicial functions, was
required to assess not only the duration of absence but also the
conditions under which such absence continued. The impugned decision,
however, proceeds predominantly upon the numerical length of
unauthorised absence without corresponding evaluation of the mitigating
features repeatedly brought to the notice of the authorities by the
petitioner. The reasoning reflected in the order does not indicate any
substantive consideration of whether the petitioner’s conduct arose from
calculated indifference towards duty or from circumstances generated by
grave domestic adversity.
54. The service record of the petitioner prior to the incident also assumes
relevance. The petitioner had entered service in the year 1992 and no
material has been placed before this Court indicating any prior
misconduct, indiscipline or adverse antecedent before the episode in
question. A disciplinary authority, while imposing punishment carrying
irreversible civil consequences, is expected to maintain a measured
balance between preservation of institutional discipline and recognition of
human circumstances accompanying the misconduct alleged.
55. The punishment imposed in the present case possesses the effect of
permanently depriving the petitioner of public employment and
extinguishing his service career altogether. Removal from service
constitutes one of the gravest penalties available under service
jurisprudence and ordinarily warrants misconduct displaying
27
incorrigibility, moral depravity, insubordination of a serious order,
violence, corruption or conduct fundamentally destructive of institutional
confidence. Though prolonged absence undoubtedly undermines
discipline, the surrounding circumstances appearing from the present
records do not persuade this Court that the petitioner’s conduct belonged
to a category demanding irreversible exclusion from service without
consideration of any lesser measure of punishment.
56. The authorities relied upon on behalf of the respondents correctly
delineate the restricted contours of judicial review in disciplinary matters
involving members of disciplined forces. This Court remains fully
conscious that the writ jurisdiction cannot be converted into an appellate
forum for reassessment of departmental findings. Simultaneously, those
very principles acknowledge that judicial intervention becomes
permissible where punishment appears strikingly disproportionate to the
misconduct established or where the decision-making process reflects
failure to consider relevant circumstances having material bearing upon
the nature of punishment.
57. The present matter, in the considered assessment of this Court, falls
within that recognised sphere warranting limited judicial interference. The
petitioner cannot be completely absolved of responsibility for remaining
absent without sanctioned leave for an extended period. His conduct
undoubtedly invited disciplinary action. Yet the penalty ultimately
imposed does not appear to have maintained a proportionate equilibrium
between the misconduct established and the mitigating circumstances
emerging from the records.
28
58. The disciplinary authority appears to have approached the matter
predominantly through the lens of institutional rigidity without adequate
reflection upon the humanitarian factors consistently projected by the
petitioner throughout the proceedings. Administrative discipline cannot
be sustained through mechanical uniformity alone; it must also
accommodate the requirement that punishment retain a rational and
humane nexus with the facts giving rise to the misconduct.
59. For the reasons aforesaid, the order of removal from service dated 30th
June, 1996 cannot be sustained and is accordingly set aside and
quashed.
60. The matter is remanded to the disciplinary authority for fresh
consideration confined exclusively to the question of punishment. The
competent authority shall reconsider the nature and extent of penalty to
be imposed upon the petitioner after taking into account the mitigating
circumstances disclosed in the records, the absence of prior misconduct,
the nature of the domestic adversity pleaded by the petitioner and the
doctrine of proportionality governing disciplinary action under public law.
61. Such exercise shall be completed within a period of twelve weeks from the
date of communication of this order. The petitioner shall be afforded an
opportunity of hearing and a reasoned decision shall thereafter be passed
strictly in accordance with law.
62. It is clarified that this Court has not interfered with the findings recorded
in the departmental enquiry relating to unauthorised absence and the
reconsideration directed herein shall remain confined solely to the aspect
of punishment.
29
63. In view of the above discussions, the instant writ petition being WPA
20779 of 2016 is allowed.
64. Accordingly, the petition is disposed of.
65. There is no order as to costs.
66. Photostat certified copy of this order, if applied for, be given to the parties
on priority basis on compliance of all formalities.
(Ananya Bandyopadhyay, J.)
