Sasanka Shekhar Bagdi vs The Union Of India & Ors on 22 May, 2026

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    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

    SPONSORED

    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
    2
    compelling personal circumstances; he had thereafter addressed two

    telegrams 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 Article

    II 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
    6
    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
    9
    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
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    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 the

    4
    (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 grant

    6
    AIRONLINE 2019 MP 1808
    22
    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.”

    23

    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. The

    7
    2016 SCC ONLINE CAL 1552
    24
    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.)



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