Holding

The appropriate punishment for wilful absence of three years under Rule 86(3) is removal from service, and the High Court could not lawfully substitute it with compulsory retirement.

Summary

The respondent, a government servant in Rajasthan, was absent from duty for about three years without permission, claiming illness. A disciplinary enquiry found him wilfully absent and terminated his service under Rule 86(3) of the Rajasthan Service Rules, which mandates removal for such misconduct. The Rajasthan High Court reduced the punishment to compulsory retirement with full retiral benefits, a decision upheld by a Division Bench. On appeal, the Supreme Court held that the High Court could not alter the punishment once the factual finding of wilful absence was established, and that removal from service was the appropriate sanction under the rule. The Court restored the original removal order, denied any back‑wages or benefits for the period of absence, and allowed the appeal.

Issues considered

Whether the High Court can interfere with the quantum of punishment after finding the respondent was absent for three years without justification.
Whether the High Court was justified in converting the punishment of removal into compulsory retirement with consequential retiral benefits.

Legislation cited

Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958s. Rule 16
Rajasthan Service Ruless. Rule 86(3)

Subjects

service lawdisciplinary actionremoval from servicecompulsory retirementproportionalityWednesbury principlejudicial reviewgovernment servantabsenteeismno-work-no-pay

Judgment

, ,_
A ST ATE OF RAJAS THAN AND ANR,
V,

MOHAMMED AYUB NAZ

JANUARY 3, 2006

B [H.K. SEMA AND DR. AR. LAKSHMANAN, JJ.]

-.
Service law:

Rajasthan Service Rules-Rule 86 (3)--Government servant--long
c absence from duty-Without intimation to Government-Disciplinary
proceeding-Attended by delinquent-Termination ofservice-Writ Petition--
Single Judge of High Court though found the absence was without satisfactory
explanation, yet reduced the punishment to compulsory retirement with
consequential retrial benefits-Dismissal of appeal in limine by Division Bench
D of High Court-In appeal, held: Since the delinquent was wilfully absent for "
3 years without intimation to Government, in view of the Rule, the punishment
oftermination is just--High Court was not justified in r~ducing the punishment,

Respondent was in the services of the appellant Government. He was
absent from duty for about a period of 3 years without prior permission.
E Plea of the respondent was t\lat he remained absent for the said period
because he had fallen sick. Enquiry was conducted, which was attended
by the respondent. Thereafter, his services were terminated. His appeal
against the termination order was dismissed. He filed a Writ Petition.
Single Judge of High Court, agreed that the respondent remained absent
F for about 3 years and there was no satisfactory explanation to justify the
absence. However, the punishment was reduced to compulsory retirement
with consequential retiral benefits. Appeal of the Government was
dismissed by Division Bench of High Court in limine,

In appeal to this Court the main questions for consideration were :
G (1) whether High Court could interfere with the question of punishment,
once it was decided that the finding of delinquent being absent for 3 years
as correct; (2) whether High Courtwas right in converting the punishment
of removal into compulsory retirement with consequential retiral benefits
"'
after endorsing that the delinquent was absent for about 3 years and there
was no satisfactory explanation for that.
H 138
STA TE OF RAJAS THAN v. MOHAMMED AYUB NAZ 139
Allowing the appeal, the Court A
HELD : 1.1. In the instant case, the respondent was deliberately
absent for a period of about 3 years and, therefore, he has violated Rule
86(3) of the Service rules which contemplated removal from service and,
therefore, he will ·not be entitled to any back-wages or an"y other
emoluments for the period for which he was absent. [147-F] B
...._.,.. Syndicate Bank and Anr. v. K. Umesh Nayak, (1994) 5 SCC 572,
followed. [147-G)

Bank of India etc. v. T.S. Kelawala and Ors., etc., relied on. [147-A]

1.2. In the instant case, the authorities have not omitted any relevant C
materials nor any irrelevant fact taken into account nor any illegality
committed by the authority nor the punishment awarded was shockingly
disproportionate. Tile punishment was awarded after considering all the
relevant materials and, therefore, the interference by the High court on
reduction of punishment of removal is not called for. [147-D!
D
Om Kumar and Ors. v. Union of India, [2001) 2 SCC 386, referred to.
[147-C)

1.3. A Government servant who has wilfully been absent for a period
of about 3 years and which fact is not disputed even by the Single Judge
of the High Court has no right to receive the monetary/retiral benefits E
during the period in question. The High Court has given all retiral benefits
\
which shall meari a Iumpsum money of lakhs of rupees shall have to be
\ given to the respo.ndent. Considering the totality of the circumstances, and
the admission made by the respondent himself that he was wilfully absent
for 3 years, the punishment of removal imposed on him is absolutely p
cor-rect a·nd not disproportionate as alleged by the respondent.
[147-H; 148-A, BJ
2. It cannot be said that while reviewing punishmen,~ if this Court is
satisfied that Wednesbury Principles are violated, it has normally to remit
the matter to the administrative authorities for a fresh decision as to the G
quantum of punishment. In the instant case, there has been a long delay
in the time taken by the disciplinary proceedings and in ttie time taken in
the courts and, therefore, in such rare cases, this Court can substitute its
own view as to the quantum of punishment. Therefore, the Court does
not propose to issue a direction to the disciplinary/appellate authority to
reconsider the penalty imposed. In order to appropriately mould the relief H
140 SUPREME COURT REPORTS [2006] 1 S.C.R.
'
A and to shorten the litigation the punishment of removal from service which
was imposed by the disciplinary authority in the instant case is imposed,
which is the appropriate punishment. (144-E, F, G; 149-C, DI

B.C. Chaturvedi v. Union of India and Ors., AIR (1996) SC 484, relied
on. (144-H; 145-EJ
B
V. Ramana v. A.P. SRTC and Ors., (2005J 7 SCC 338, referred to.
(146-DJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 939 of 2003.

C From the Judgment and Order dated 13.12.2001 of the Rajasthan High
Court in D.B. Civil Special Appeal No. 1073/2001.

Aruneshwar Gupta and Navin Singh for the Appellants.

Surya Kant, Vinay Garg, Vivek Sharma, Neeraj Sharma and Vishal
Sharma for the Respondents.
D The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. The above appeal arises from the final
judgment and order dated 13.12.2001 passed by the High Court of Rajasthan
in Division Benc\1 (Civil) Special Appeal No. 1073 of 2001 wherein the
E appeal filed by the State of Rajasthan was dismissed by the High Court by
a non-speaking order.

The respondent-herein joined the services of the Government of
Rajasthan in the Cooperative Department. He was promoted as UDC in March,
1965. He applied for 3 days leave while he was working as UDC. According
F to him, he became sick and could not attend the office for the period from
09.01.1978 to 19.01.1981. He was charge-sheeted under Rule 16 of the
Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958.
The enquiry was held and the respondent attended the enquiry. It is his
further case that he was not allowed to join duty even though he was marking
his presence from 13.08.1984 to 23.08.1984. His services were terminated by
G way of publication in newspaper "Dainik Navjyoti dated 27.08.1984. He filed
the appeal which was dismissed vide order dated 08.03.1988. It is also his
case that notice which was sent to the respondent was deliberately sent on
wrong address. Aggrieved against the orders dated 15.11.1984 and 08.03.1988,
the respondent filed a writ petition in the High Court in the year 1991 i.e.
H after a gap of about 3 years.
STATE OF RAJASTHAN 1·. MOHAMMED A YUB NAZ lLAKSHMANAN . .I] J4 J

Learned Single Judge of the High Court though endorses that the A
respondent did remain absent for about 3 years and that there was no
satisfactory explanation to justify absence of 3 years still proceeded to reduce
the punishment of removal into compulsory retirement with consequential
retrial benefits. It is useful to reproduce the concluding portion of the order
passed by the learned Single Judge which is as follows:-
B
"However, it goes without saying that the Petitioner remained absent
for about 3 years. He was asked time and again to join duties. There
are hardly any medical certificates placed on record even ifthe enquiry
would have been conducted in accordance with law after giving proper
opportunity, the admitted fact Qf absence was borne out from the C
record and in such situation, in my opinion, even if the Petitioner
would not have been present in the enquiry, it would not have made
any difference at all as the Petitioner himself has admitted that he
was absent for about three years for the period mentioned above
though the only circumstances which he could have brought on record
was his justification for remaining absent or producing the medical D
certificate which were in any case not attached with the leave
applications and i11 such situation, he could have prayed for some
lesser punishment.

Viewing all the aspects of the case and in the circumstances, in
my op in ion for the reason that he has put in already 18 years of E
service, a lesser punishment could have been imposed. It is a fit case
where in view of the above circumstances, instead of reinstatemer.> in
)
service, the lesser ptmishment of compulsorily retiring the Petitioner
\
can be passed and he can be retired as if he has qualified the minimum
service to obtain retiral benefits which may be available to him. F
It is a fit case where in view of the above circumstances, the
Petitioner can be deemed to have retired after seeking of service of
20 years with all retiral benefits, which may be available to him.

With the above said observations, the writ petition is disposed -of."
G
The Division Bench in Letters Patent Appeal refused to interfere and
)-, the appeal filed by the appellant was dismissed in limine. The order passed
by the Division Bench in Letters Patent Appeal reads as follows:-

"The only grievance made out by the learned counsel for the appellants
is that the direction of the learned Single Judge for giving a lesser H
142 SUPREME C'OllRJ REPORTS (2006) I S.C.R.

A penalty to the respondent was not called for. We find no reason to
interfere. The appeal fails and is, dismissed."

Aggrieved by the above judgment. the State has come in appeal before
this Court. We heard Mr. Aruneshwar Gupta, learned counsel for the appellant
and Mr. Surya Kant, learned counsel for the respondent.
B
Mr. Aruneshwar Gupta, learned counsel for the appellant, submitted
that in order to mitigate the rampant absenteeism and wilful absence from
service \Vithout intimation to the Government, Rule 86(3) was inserted in the
Rajasthan Service Rules which contemplated that if a Government servant
remains wilfully absent for a period exceeding one month and if the charge
C of wilful absence from duty is proved against him, he may be removed from
servic-e. Arguing further learned counsel submitted that in this case the person
has w!lfully been absent for a period of about 3 years and this fact is not
disputed even by the learned Single Judge of the High Court. Still the learned
Single Judge has interfered in the punishment of removal from service and
D replaced with compulsory retirement with all consequential benefits. He would
further submit that the doctrine of proportionality is not applicable while
deciding the quantum of punishment as it acts as the Court, acts as a secondary
review and that the Court can only intervene if there is any breach of
Wednesbury principle which is secondary and not primary. It was further
submitted that the High Court cannot interfere with the decision of imposing
E punishment once the High Court finds the finding of the delinquent being
absent for a period 3 years as correct. It was further stated that the High
Court cannot reduce the pun.ishment even it if finds that the delinquent had
committed an act which warranted a particular imposition of penalty and
commission of that act is not being assailed by the High Court in its decision.
F Thus, he submitted that the High Court without any justifiable reason interfered
with the decision of the disciplinary authority and affirmed by the Appellate
Authority simply on the basis that facts and circumstances warrant a lesser
punishment. He would also further submit that the learned Single Judge has
erred in coming to the conclusion that no proper opportunity of hearing was
given to the respondent during the disciplinary proceedings. In fact, the
G respondent was given ample opportunity of hearing including paper publication
but the respondent failed to avail of the same.

Mr. Surya Kant, learned counsel appearing for the respondent, submitted
that the respondent was deprived to attend the enquiry proceedings without
H any fault on his part and that he was not allowed to sign the attendance
,)- STATE OF RAJASTHAN "· MOHAMMED A YUB NAZ [LAKSHMANAN, J.] 143
register and not allowed to work. Supporting the finding of the learned Single A
Judge, learned counsel submitted that the learned Single Judge, after according
the finding in favour of the respondent, was right in passing the impugned
order on the basis of which the respondent was entitled to reinstatement with
all back-wages. But the total relief was not granted and that the learned
Single Judge has granted the lesser relief to the respondent: Even from the
judgment and enquiry report, it is borne out that the respondent was absent B
on medical grounds and this situation cannot be treated as wilful absence
from duty and that the High Court has not given a lesser punishment but in
fact only a lesser relief and that the High Court after holding on merit that
removal order cannot be sustained instead of reinstatement with full back-
wages lesser relief of compulsory retirement has been granted and, therefore, C
the order passed by the learned Single Judge and as affirmed by the Division
Bench does not call for any interference. It was further submitted that
considering the 18 years period of service a lesser punishment has been
imposed which does not call for any interference. Thus the present civil
appeal raises the following questions of law:-
D
(a) Whether the High Court can interfere with the decision of
imposing punishment once the High Court finds that finding of
the delinquent being absent for a period of 3 years as correct;
(b) Whether the High Court is right in converting the punishment of
removal into compulsory retirement with consequential retiral E
benefits after indorsing that the respondent did remain absent for
about 3 years and that there was no satisfactory explanation to
justify absence of 3 years.

We have carefully gone through the pleadings, annexures filed along
with this appeal and the judgments passed by the High Court. F
Absenteeism from office for prolong period of time without prior
permission by the Government servants has become a principal cause of
indiscipline which have greatly :i-ffected various Government Services. In
order to mitigate the rampant absenteeism and wilful absence from service
without intimation to the Government, the Government of.Rajasthan inserted G
>, Rule 86(3) in the Rajasthan Service Rules which contemplated that if a
Government servant remains wilfully absent for a period exceeding one month
and if the charge of wilful absence from duty is proved against him, he may
be removed from service. In the instant case, opportunity was given to the
respondent to contest the disciplinary proceedings. He also attended the H
144 SUPREME COURT REPORTS [20061 I S.C.R.

A enquiry. After going through the records. the learned Single Judge held that
the admitted fact of absence was borne out from the record and that the
respondent himself has admitted that he was absent for about 3 years. After
holding so, the learned Single Judge committed a grand error that the
respondent can be deemed to have retired after seeking of service of 20 years
B with all retrial benefits which may be available to him. In our opinion, the
impugned order of removal from service is the only proper punishment to be
awarded to the respondent herein who was wilfully absent for 3 years without
intimation to the Government. The facts and circumstances and the admission
- .
made by the respondent would clearly go to show that Rule 86(3) of the
Rajasthan Service Rules is proved against him and, therefore, he- may be
C removed from service.

This Court in Om Kumar and Ors. v. Union of India, (200 l] 2 SCC 386
while considering the quantum of punishment/proportionality has observed
that in deterrn ining the quantum, role of administrative authority is primary
and that of court is secondary, confined to se if discretion exercised by the '
D administrative authority caused excessive infringer.1~nt of rights. In the instant
case, the authorities have not omitted any relevant materials nor any irrelevant
fact taken into account nor any illegality committed by the authority nor the
punishment awarded was shockingly disproportionate. The punishment was
awarded in the instant case, after considering all the relevant material and,
E therefore, in our view, the interference by the High Court on reduction of
punishment of removal is not called for.

It was argued by learned counsel for the respondent that this Court
while reviewing punishment and if it is satisfied that Wednesbury principles
are violated, it has normally to remit the matter to the administrative authorities
p for a fresh decision as to the quantum of punishment. We are unable to
countenance the said submission. In the instant case, the disciplinary
proceedings were initiated against the respondent in the year 1981 and that
the Division Bench disposed of the LPA only in December, 200 I. Therefore,
there has been a long delay in the time taken by the disciplinary proceedings
and in the time taken in the Courts and. therefore, in such rare cases, this
G Court can substitute its own view as to the quantum of punishment.

In this context, we can usefully refer to the case of B. C. Chaturvedi v.
Union of India and Ors., AIR ( 1996) SC 484 (3 Judges) wherein this Court
held thus:
H
_ _),
STATE OF RAJASTHAN 1•. MOHAMMED AYUB NAZ [LAKSHMANAN. J] 145
"Ramaswamy, J for himself and B.P. Jeevan Reddy, J.-Disciplinary A
authority and on appeals, appellate authority are invested with the
discretion to impose appropriate punishment keeping in view the
magnitude or gravity of the misconduct. The High Court/Tribunal,
while exercising the power of judicial review, cannot normally
substitute its own conclusion on penalty and impose some other
penalty. If the punishment imposed by the disciplinary authority or B
\..- the appellate authority shocks the conscience of the High Court/
Tribunal, - it would appropriately mould the relief, either directing
the disciplinary/appellate authority to reconsider the penalty imposed,
or to shorten the litigation, it may itself, in exceptional and rare cases,
impose appropriate punishment with cogent reasons in support C
thereof."

Therefore, we do not propose to issue a direction to the disciplinary/
appellate authority to reconsider the penalty imposed. As pointed out by this
Court in the above judgment and in order to appropriately mould the relief
-~ and to shorten the litigation, we ourselves impose the punishment of removal D
from service which was imposed by the disciplinary authority in the instant
case which, in our view, is the appropriate punishment.

This Court in B.C Chaturvedi v. Union of India and Ors .. (supra)
further held that the Court/Tribunal cannot interfere with the findings of fact
based on evidence and substitute its own independent findings and that where E
findings of disciplin,ary authority or appellate authority are based on some
evidence C9urt/Tribunal cannot re\appreciate the evidence and substitute its
own findings. Observing further, this Court held that judicial review is not an
appeal from a decision but a review of the manner in which the decision is
made and that power of judicial review is meant to ensure that the individual F
receives fair treatment and not to ensure that the conclusion which the authority
reaches is necessarily correct in the eye of the Court. This Court further held
as follows:-

"When an inquiry is conducted on charges of misconduct by a public
ser¥ant, the Court/Tribunal is concerned to determine whether the G
inquiry was held by a competent officer or whether rules of natural
justice are complied with. Whether the findings or cone lusions are
based on some evidence, the authority entrusted with the power to
hold inquiry has jurisdiction, power and authority to reach a finding
of fact or conclusion. But that finding must be based on some evidence.
H
146 SUPREME COURT REPORTS [20061 I S.C.R.

A Neither the technical rules of Evidence Act nor of proof of fact or
evidence as defined therein, apply to disciplinary proceeding.
Adequacy of evidence or reliability of evidence cannot be permitted
to be canvassed before the Court/Tribunal. When the authority accepts
the evidence and the conclusion receives support there from, the
disciplinary authority is entitled to hold that the delinquent officer is
B guilty of the charge. The disciplinary authority is the sole judge of
facts. Where appeal is presented, the appellate authority has
coextensive power to reappreciate the evidence or the nature of
punishment. The Court/Tribunal in its power of judicial review does
not act as appellate authority to reappreciate the evidence and to
C arrive at its own independent findings on the evidence. The Court/
Tribunal may interfere where the authority held that proceedings
against the delinquent officer in a manner inconsistent with the rules
of natural justice or in violation of statutory rules prescribing the
mode of inquiry or where the conclusion or finding reached by the
.~
disciplinary authority is based on no evidence. If the conclusion or
D finding be such as no reasonable person would have ever reached, the
Court/Tribunal may interfere with the conclusion or the finding, and
mould the relief so as to make it appropriate to the facts of that case."

V. Ramana v. A.P. SRTC and Ors., [2005] 7 SCC 338

E [Arijit Pasayat and H.K. Serna, JJ.]

The challenge in the above matter is to the legality of the judgment
rendered by a Full Bench of the Andhra Pradesh High Court holding that the
order of termination passed in the departmental proceedings against the
F appellant was justified. This Court in para 11 has observed thus:

'The common thread running through in all these decisions is that the
Court should not interfere with the administrator's decision unless it
was illogical or suffers from procedural improperly or was shocking
to the conscience of the court, in the sense that it was in defiance of
G logic or moral standards. In view of what has been stated in
Wednesbury case the court would not go into the correctness of the
choice made by the administrator open to him and the court should
not substitute its decision for that of the administrator. The scope of
judicial review is limited to the deficiency in decision-making process
and not the decision."
H
STATE OF RAJASTHAN v. MOHAMMl~D AYUB NAZ [LAKSHMANAN, J] J47
\
_).,
Bank of India etc. v. T.S Ke/awala and Ors. etc .. [1990) 4 SCC 744, A
In the above case, the Industrial Court accepted the evidence of the
witness of the Company that the workmen had not worked for full 8 hours
on any day in the month concerned and-that they were working intermittently
only for some time and were sitting idle during the rest of the time. According
to the eompany, the workers had worked hardly for an hour and 15 to W B
minutes per day on an average during the said months. The Industrial Court
\-- has recorded a finding that the pro rota deduction of wages made by the
Company for the month did not amount to an act of unfair labour practice.
The Company deducted wages on the basis of each day's production. In view
of the fact that there is a finding recorded by the Industrial Court that there C
was a go-slow resorted to by the workmen and the production was as alleged
by the Company during the said period, which finding is not challenged
before this Court. It is not possible for the court to interfere with it in the
appeaL All that was challenged was the right of the employer to deduct
,, wages even when admittedly there- is a go-slow which question had been
answered in favour of the employer earlier. This Court said go-slow is a D
serious misconduct being a covert and a more damaging breach of the contract ·
of employment. Hence once it is proved those guilty of it have to face the
consequences which may include deduction of wages and even dismissal
from service. This Court, applying the principle 'no-work no-pay' held that
deliberate abstention from work, whether by resort to strike or go-slow or E
any other method, legitimate or illegitimate, resulting in no work for the
whole day or days or part of a day or days, will entitled the Management to
deduct, pro-rata or otherwise, wages of the participating workmen
notwithstanding absence of any stipulation in the contract of employment or
any provision in the service rules, regulations or standing orders. In the
instant case, the respondent was deliberately absent for a period of about 3 F
years and, therefore, he has violated Rule 86(3) of the Service Rules which
contemplated removal from service and, therefore, he will not be entitled to
any back-wages or any other emoluments for the period for which he was
absent.

Syndicate Bank and Anr. v. K. Umesh Nayak, [ 1994) 5 SCC 572 (5 G
Judges). This Court applying the 'no-work no-pay' principle held that wages
during the strike period payable only if strike is both legal and justified but
not payable of strike is legal but not justified or justified to illegal.

For the foregoing reasons, we are of the opinion that a Government H
148 SUPREME COLiRT REPORTS [2006] I S.C.R.

A servant who has wilfully been absent for a period of about 3 years and which
fact is not disputed even by the learned Single Judge of the High Court has
no right to receive the monetary/retrial benefits during the period of question.
The High Court has given all retrial benefits which shall mean a lumpsum
money of lakhs of rupees shall have to be given to the respondent. In our
B opinion, considering the totality of the circumstances, and the admission
made by the respondent himself that he was wilfully absent for 3 years, the
punishment of removal imposed on him is absolutely correct and not
- f
disproportionate as alleged by the respondent. The orders passed by the learned
Single Judge in S.B. Civil Writ Petition No. 2239/1991 dated 24.08.2001 and
of the order passed by the Division Bench in LPA No. 1073 of2001 dated
C 13.12.2001 are set aside and the punishment imposed by the disciplinary
authority is restored. However, there shall be no order as to costs. The appeal
stands al lowed.

K.K.T. Appeal allowed.