MISRA, J. - (1.) THIS special appeal has been preferred by the State of Rajasthan against the judgment and order of the learned Single Judge passed in a writ petition bearing No. 2418 of 1995 whereby the respondent-Ranvir Singh who had been a Constable in the IVth Battalian of the Rajasthan Armed Constabulary (RAC for short) and was removed from service on the charge of wilful absence from duty for more than a period of one year, has been ordered to be reinstated in service but without backwages. However, the period of his absence from duty has been ordered to be treated as extraordinary leave and this period has further been ordered to be considered for the purpose of pension. The learned Single Judge has further desired that the conduct of the respondent be watched so that he should be put on duty befitting his medical status. Thus the order of removal of the respondent from service of the Commandant IVth Battalian, RAC, Jaipur, was set aside and the writ petition was allowed.
(2.) THE aforesaid order of removal dated 30. 4. 1982 had been passed against the respondent after-an enquiry was held against him and a finding was recorded that he had remained wilfully absent from duty ever since 29. 10. 1980 and yet never cared to submit any application or conveyed any information to the concerned officer regarding the reasons for his absence. THE RAC, IVth Bn. , therefore, had initiated a proceeding against him under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal),rules, 1958 and a notice alongwith a charge-sheet with statement of allegations was served personally on the respondent on 16. 11. 1981 on which he had affixed his signature acknowledging the receipt of the papers. THE respondent, however, did not participate in the enquiry proceeding inspite of service of notice and hence the enquiry proceeded ex-parte against him, wherein it was recorded that the respondent for the first time had submitted the application about his leave on 28th of November,1981 with medical certificate which also was not worth accepting as it appeared to be fake since it had not been issued on a printed letter head and was signed by an Ayurvedic practitioner. Besides this the respondent also did not submit any prescription or any bill of medicine to believe about his illness. A conclusion, therefore, was drawn that the respondent's story regarding his mental illness was an after-thought which was set- up merely as his defence to explain his absence from duty. THE respondent, however, had also submitted an application on 26. 12. 1981 regarding his illness but that was not supported by any medical certificate nor it declared that it will be supported with medical certificate later. After considering the entire aspects, the enquiry report was submitted against the respondent stating that he remained absent from duty for more than a year without prior "permission and left the headquarters without sanction of leave which amounted to disobedience of service rules which was bound to have affect on the public service as also on the discipline of other Government servants. THEreafter, the disciplinary authority issued a notice to the respondent regarding the proposed punishment and an order of his removal from service was then passed on 30. 4. 1982 against which the departmental appeal failed. The respondent herein had thereafter preferred further appeal before the Governor of Rajasthan against his removal from service which was rejected on 27. 3. 1984 but partial relief was granted to him as it was ordered that his removal be made effective from 30. 4. 1982 instead of 29. 10. 1980 as this period was ordered to be adjusted as extraordinary leave of the respondent. The respondent challenged the order of his removal from service as also the order of the Governor by which he was refused to be reinstated in service by filing a writ petition in this court (against which this appeal arises) wherein it was contended on behalf of the respondent-Ranvir Singh that he was infact mentally ill during all this period and was undergoing treatment and he had informed the appellant that he would be unable to join duties on account of his mental condition and that the enquiry also be kept pending; yet the enquiry was conducted ex-parte against him and he was ultimately removed from service. It had also been contended before the learned Single Judge that since his absence from duty was ultimately regularised vide order dated 17. 10. 1984 by treating his absence from 16. 4. 1981 to 30. 4. 1982 as leave without pay, there was hardly any reason for treating the delinquent-Ranvir Singh as wilfully absent from duty. The appellant-State of Rajasthan, however, relying on the written statement and the enquiry report asserted that the respondent had absented from 29. 10. 1980 and until the notice was served on the respondent on 16. 11. 1981, the respondent had not submitted any leave application nor had informed about his whereabouts. It was stated by the appellant-State that it was for the first time on 28. 11. 81 that the respondent submitted the medical certificate and hence he cannot be allowed to contend that he had offered plausible explanation for his absence. The learned Single Judge after considering their submissions was pleased to allow the writ petition and ordered the respondent's reinstatement in service as already recorded hereinbefore vide the judgment and order dated 21. 04. 1999 which is under challenge in this appeal, essentially on the ground that the respondent's absence from duty from 16. 04. 1981 to 30. 4. 1982 has already been regularised as a period of leave due and the charge of the respondent regarding absconding from duty without leave prior to this period was held as perverse which was considered fit to be set aside. This was so held as it was found by the learned Single Judge that the respondent had first of all left his duties on 29. 10. 1980 which information was received in the office on 1. 11. 1980 and thereafter an information was received on 10. 11. 1980 about the respondent's illness who had asked for days rest from 1. 11. 1980 and then he had also sent a letter dt. 15. 12. 1980 with a certificate of his illness asking for leave of 40-45 days with effect from 18. 11. 1990. The learned Single Judge therefore, held that the respondent did not abscond from duty and even if he was absent without information, it was at the most an irregularity committed by the delinquent but it cannot be said that he had absconded. He was, therefore, ordered to be reinstated in service but without backwages with further directions as already recorded hereinbefore.
(3.) THE appellant-State of Rajasthan through the Commandant IVth Bn. , RAC, Jaipur feeling aggrieved with the aforesaid judgment and order of the learned Single Judge has preferred this appeal on the ground that the impugned order and judgment of the learned Single Judge is perverse, illegal and arbitrary as the learned Single Judge ought not to have interfered with the findings of fact recorded in the enquiry report as it was clearly proved that the respondent remained wilfully absent from duty eversince 29. 10. 1980 due to which a charge-sheet dated 16. 11. 1981 was served upon him and an enquiry officer was appointed, yet the respondent did not participate in the enquiry proceeding after which an enquiry report was submitted. It was contended inter alia that the findings recorded by the enquiry officer regarding willful absence from duty for a sufficiently long period without cogent reasons was not fit to be interfered with and did not deserve any sympathy for his reinstatement in service as it was not dispro- portionate looking into the grave nature of charge. It was also submitted that once the complete procedure was followed by the appellant-State before passing the order of removal, wherein a finding had been recorded by the enquiry officer regarding the respondent's wilful absence from duty, the same could not have been treated as perverse, so as to interfere with it and set it aside. It was still further submitted that the learned Single Judge should not have interfered with the order of punishment imposed against the delinquent once the charges were held to have been proved. In support of his submissions learned counsel for the appellant relied upon several authorities of the Supreme Court. THE first decision cited is State of U. P. and Ors. vs. Nand Kishore Shukla & Anr. (1), wherein it was contended by the delinquent-respondent that in view of the finding given by the enquiry officer that five charges are proved and in view of the fact that Charges 1,3,4 & 5 could not be gone into due to non-availment of oppor- tunity on the part of the respondent, it could not be predicted with certainty that the disciplinary authority would have passed the order of removal from service on the basis of charge No. 2 alone. This contention of the respondent was rejected and allow- ing the appeal of the State of U. P. , the learned Judges of the Supreme Court held that it is settled law that the court of appeal could not go into the question of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of the punishment to be imposed on a government servant based upon the misconduct proved against him. Its proportionality also cannot be gone into by the Court. The counsel for the appellant further placed reliance on the judgment in State of Tamilnadu and Anr. vs. Subramaniam (2) in order to reinforce his submission that the Administrative Tribunal cannot reappreciate the evidence and reach its own conclusion since the power of judicial review of the High Court under Article 226 of the Constitution was taken away by the power under Article 323-A and invested in the Tribunal by the Administrative Tribunals Act,1985. The court further held as under:- "that the Tribunal has only power of judicial review of the administrative action of the appellant on complaints relating to service conditions of employees and it is the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings "whether the charge has been proved or not". The learned Judges further held that i n judicial review the Court or Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, the Tribunal is devoid of power to reappreciate the evidence and come to its own conclusion on the proof of the charge. The only consideration, the Court/tribunal has in its judicial review is whether the conclusion is based on evidence on record and supports findings or whether the conclusion is based on no evidence. " The counsel for the respondent on the other hand relied upon the reasonings assigned by the learned Single Judge while allowing the writ petition and in support of the case of the respondent, he further relied upon a decision of Ranjit Thakur vs. Union of India (3), which is a case relating to proceedings under Section 130 of the Army Act of 1940 regarding summary court-martial for imposition of punishment. In this matter, the delinquent Ranjit Thakur who was in the Army service and was posted as a Signal Man, had not commended himself well to the Commanding Officer of the Regiment and was serving out a sentence of 28 days rigorous imprisonment imposed on him for violating the norms for presenting the representation to the higher officers. He was stated to have sent representation complaining of ill- treatment at the hands of Commanding Officer directly to the higher officer. The delinquent was punished for that by the Commanding Officer and he was held in the quaterguards cell in handcuffs to serve that sentence of R. I. While serving this sentence he was stated to have committed another offence of refusing to eat food although he was ordered to do so for which also a summary court-martial was held. The charge was held proved and a sentence of R. I. for one year was imposed and he was immediately sent to the civil prison to serve out the sentence which he served but thereafter he was also dismissed from service with the added disqualification of being declared unfit for any future civil employment. The representation of the delinquent was rejected by the General Officer Commanding on 24. 5. 86 against which he filed a writ petition before the High Court which was dismissed in limine against which a Special Leave Petition was preferred before the Supreme Court which was admitted and allowed in favour of the delinquent Ranjit Thakur. The learned Judges of the Apex Court therein had held that judicial review generally speaking is not directed against a decision but is directed against "the decision making process". The court also held that the question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial but the sentence has to suit the offence and the offender. It should not be vindictive and unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. Hon'ble Justice M. N. Venkatchaliah speaking for the Court observed as follows: "the doctrine of proportionality, as part of the concept of Judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction as irrationality and perversity are recognised grounds of judicial review". Thus the ratio of this judgment was that irrationality and perversity are recognised grounds of judicial review and since in this case the punishment was held strikingly disproportionate to the charge, interference was held Justified as it could not have been allowed to remain uncorrected in judicial review. ;