1. Heard learned counsel representing the petitioner and learned counsel representing the respondents.

2. By filing this writ petition, the petitioner has challenged the impugned order of punishment as contained in Memo No.1918 dated 26.03.2007 (Annexure-4 to the writ petition), whereby the petitioner has been dismissed from service after departmental enquiry.

2.1. The petitioner has further prayed for direction upon the respondents to decide his Departmental Appeal dated 22.03.2023 (Annexure-5 to the writ petition).

3. Learned counsel representing the petitioner submits that the petitioner was suffering from mental ailment, as a result of which he was absent from duty. She submits that absence of the petitioner is neither deliberate nor wilful, thus, the punishment of dismissal imposed against the petitioner is absolutely harsh. She further submits that considering the mental status of the petitioner, the impugned order should be set aside and the petitioner be reinstated in service.

4. Learned counsel representing the respondent – State submits that a proper Departmental Proceeding was initiated against the petitioner after the charge-sheet was issued to him. He submits that even after opportunity being given, the petitioner did not appear before the Disciplinary Authority. He submits that the charge is grave as the petitioner abandoned his duty without depositing the firearms. He submits that the petitioner left the firearms in the office and took some ammunitions with him which were later on deposited by one Dwarika Ram. So far as mental ailment of the petitioner is concerned, he submits that documents to that effect were never put before the Disciplinary Authority and the Enquiry Officer and thus the documents which were not placed before the Enquiry Officer, cannot be considered by this Court. He lastly submits that even the Appeal was filed after a lapse of sixteen years, which was dismissed by the Appellate Authority on 03.07.2023.

5. After hearing the parties and going through the record, I find that the petitioner is a Constable. He was dismissed from service and his order of dismissal is under challenge. The dismissal is consequent upon the Disciplinary Proceeding.

6. In a Disciplinary Proceeding, the scope of interference under Article 226 of the Constitution of India is very limited. This Court does not sit as an Appellate Authority to reappreciate the evidence and materials.

7. The Hon’ble Supreme Court in the case of Director General of Police, Railway Protection Force and Others versus Rajendra Kumar Dubey reported in 2020 SCC OnLine SC 954 at paragraph 21.1 thereof, has held that it is well settled that High Court cannot act as an Appellate Authority and re- appreciate the evidence, which was led before the enquiry officer. By referring to judgment in the case of State of Andhra Pradesh Vs. S. Sree Rama Rao [1963 AIR SC 1723], the Hon’ble Supreme Court has held that it is not the function of the High Court to review the findings and arrive at a different finding. In a departmental proceeding, scope is very limited and it is well settled that the High Court can interfere where the departmental authority has acted against the principles of natural justice or where the findings are based on no evidence or in violation of the statutory rules provided. Further, if the punishment imposed is excessive, the Court can also interfere. It has also been held by the Hon’ble Supreme Court that under Article 226 and 227 of the Constitution of India, the High Court shall not:-

                  (i) re-appreciate the evidence;

                  (ii) interfere with the conclusions in the enquiry, in the case the same has been conducted in accordance with law;

                  (iii) go into the adequacy of the evidence;

                  (iv) go into the reliability of the evidence;

                  (v) interfere, if there be some legal evidence on which findings can be based;

                  (vi) correct the error of fact however grave it may appear to be;

                  (vii) go into the proportionality of punishment unless it shocks its conscience.

8. In this case, I find that the charge-sheet was issued to the petitioner. The charge-sheet as contained in Memo No.2901 dated 03.09.2004 has been brought on record as Annexure-B to the counter affidavit. As per the charge-sheet, the misconduct of the petitioner are as follows :-

                  “when the petitioner was posted at Bagbera Police Station, he was sent to Police Centre on 04.08.2004 for Treasure Escort. After completion of the said Treasure Escort, he was sent back to Bagbera Police Station Golchakkar Guard at 18:00 O’Clock on 13.08.2004. He eloped by leaving the rifle in the Guardroom. The Guard-In-Charge namely Dwarika Ram, caught him from his house and deposited the rifle’s bullets on 28.08.2004. Then the petitioner again submitted the order sheet in the office and absconded.”

9. To prove the misconduct, a Departmental Proceeding was initiated wherein the witnesses were examined. After examination of the witnesses, the Enquiry Officer came to a conclusion that the petitioner is guilty of grave misconduct.

10. Be it noted that in spite of opportunity given to the petitioner, the petitioner did not appear to participate in the Departmental Proceeding.

11. A second show cause notice was issued to the petitioner, upon which he appeared and only given a statement that he is mentally ill. Thereafter, considering the enquiry report, the punishment of dismissal from service was passed.

12. Considering the limited jurisdiction in this type of matter, I find that there is no illegality or irregularity committed by the respondents in the Disciplinary Proceeding. The above- mentioned charge levelled against the petitioner is definitely a grave charge. Opportunity was given to the petitioner but he did not appear before the Enquiry Committee.

13. The punishment which has been imposed is that of dismissal from service. As the charge levelled against the petitioner was proved, the aforesaid punishment was inflicted.

14. So far as the quantum of punishment is concerned, the prerogative to punish the delinquent-employee is of the employer. The quantum of punishment must be assessed by the employer and it is not the Court who can substitute its view.

15. The Hon’ble Supreme Court in the case of Lucknow Kshetriya Gramin Bank v. Rajendra Singh reported in (2013) 12 SCC 372, at para-19, has held as hereunder:-

                  “19. The principles discussed above can be summed up and summarised as follows:

                  19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.

                  19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.

                  19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.

                  19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.

                  19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co- delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co- delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.”

16. It is true that if the quantum of punishment is disproportionate to the proved misconduct, the Court exercising jurisdiction under Article 226 of the Constitution, can interfere with the same, but in this case after going through the charge, I find that the punishment cannot be said to be disproportionate.

17. In this case, since the petitioner is in Disciplined Force and remained unauthorizedly absent for a considerable period of time and also maintained laxity in keeping the arms and ammunitions, which were in his custody while discharging his duty, it cannot be said that the punishment which has been imposed does not commensurate with the proved misconduct. The respondents deemed it fit to dismiss the petitioner from service, thus I find no reason to interfere with the order of punishment.

18. The Hon’ble Supreme Court in the case of Union of India & Ors. Vs. Ghulam Mohd. Bhat reported in (2005) 13 SCC 228, has held that the discipline has to be maintained in the Disciplined Force and unauthorized absence is fatal. Para-9 of the said judgment is as follows:-

                  “9. This Court had occasion to deal with the cases of overstay by persons belonging to disciplined forces. In State of U.P. v. Ashok Kumar Singh the employee was a police constable and it was held that an act of indiscipline by such a person needs to be dealt with sternly. It is for the employee concerned to show how that penalty was disproportionate to the proved charges. No mitigating circumstance has been placed by the appellant to show as to how the punishment could be characterised as disproportionate and/or shocking. (See Mithilesh Singh v. Union of India.) It has been categorically held that in a given case the order of dismissal from service cannot be faulted. In the instant case the period is more than 300 days and that too without any justifiable reason. That being so the order of removal from service suffers from no infirmity. The High Court was not justified in interfering with the same. The order of the High Court is set aside. The appeal is allowed but under the circumstances there shall be no order as to costs.”

19. Admittedly, in this case another glaring aspect is that the petitioner filed an Appeal after sixteen years. Thus, the same was correctly dismissed being time barred. So far as the mental illness of the petitioner is concerned, there was no document before the Authorities to arrive at a conclusion that the petitioner was mentally ill. Further, in spite of opportunity given, the petitioner never appeared before the Authorities also.

20. Considering what has been held above, I find no illegality in the order passed by the respondents dismissing the petitioner from service.

21. Accordingly, this writ petition stands dismissed.