High Court of Patna

Shashi Kumar Singh Vs. The State of Bihar and Ors.

MANU/BH/0406/2020

21.08.2020

Service

Where delinquent chooses not to participate in proceedings in spite of opportunity being granted, he is estopped from raising the plea of non-compliance of the principles of natural justice

The Petitioner has assailed the order whereby the District & Sessions Judge, has dismissed the Petitioner from service with effect from 1st June, 2002. The Petitioner has sought a direction for payment of arrears of salary which he alleges to be due since 1st July, 2000. He has also prayed for reinstatement in service. It is submitted by the Petitioner's counsel that, the proceedings were conducted in gross violation of the principles of natural justice.

The Petitioner has been absent without leave. The Petitioner has not complied with the order, transferring him from Deoghar to Madhubani Judgeship for a very long period. Though he was relieved from Deoghar on 28th April, 1998, he has not joined at the transferred place until 30th June, 2000, i.e., a period of more than two years. That apart, the Petitioner has chosen not to appear in the proceedings in spite of various adjournments granted to facilitate his appearance before the Enquiry Officer. Even thereafter, he has never appeared before the Disciplinary Authority.

Since the Petitioner has himself chosen not to participate in the proceedings, there is a deemed waiver with the principles of natural justice by the petitioner. The Apex Court in the case of Board of Director, Himachal Pradesh Transport Corporation & Another-Versus-K C Rahi, has clearly held that, where the delinquent chooses not to participate in the proceedings in spite of opportunity granted, he is estopped from raising the plea of non-compliance of the principles of natural justice. The Apex Court has held that in such circumstances, the principles of natural justice cannot be applied as a straight jacket formula.

The order of the Disciplinary Authority dismissing the Petitioner from service is an elaborate and detailed order taking into consideration the Petitioner's assertions and response to the charges sent by post. The Petitioner himself, on the other hand, chose not to appear at any stage of the proceedings.

Present Court exercising judicial review under Article 226 of the Constitution of India, referring to the decision in the case of Union of India & Others-Versus-P Gunasekaran, would confine judicial review to the decision making process. Present Court is not inclined to look into the order of the Disciplinary Authority, as if it is sitting in appeal over the same. From the facts available on record, it appears that, the Petitioner has refused to comply with the transfer order for a long period. No case is, therefore, made out for setting aside the order of punishment awarded to the Petitioner. Writ petition is dismissed.

Relevant

Board of Director, Himachal Pradesh Transport Corporation & Another-Versus-K C Rahi, MANU/SC/1138/2008
, Union of India & Others-Versus-P Gunasekaran, MANU/SC/1068/2014

Tags : Punishment Dismissal Legality

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