ORDER
S.P. Khare, J.
1. These are the two writ petitions under Article 226 of the Constitution of India challenging the order dated 1-6-2002 (Annexure P-l) by which his services have been terminated. He has claimed reinstatement and arrears of salary.
2. It is not in dispute that petitioner M.C. Mittal was working as Training Officer in Industrial Training Institute, Koni, Bilaspur. He was transferred from that place to Balaghat by order dated 14-5-1994. He was relieved on 31-7-1995. He did not join his duties at Balaghat for 2 years, nine months and seven days. He joined at Balaghat on 8-5-1998. A departmental enquiry on two charges was initiated against the petitioner on 6-5-1999. A copy of the charge-sheet is Annexure R-l. A detailed imputation of misconduct along with a list of documents and a list of witnesses was supplied to him. The petitioner submitted his reply on 26-5-1999. A copy of that reply is Annexure R-2. An enquiry officer was appointed to hold the departmental enquiry. During the pendency of this enquiry the petitioner was served with an additional charge-sheet on 26-7-2000 containing two more charges. The petitioner submitted reply to that charge-sheet also. The enquiry officer submitted his enquiry report on 28-9-2001. He found that all the four charges were proved. A copy of the report is Annexure A-3. The petitioner was supplied a copy of this enquiry report. He submitted his reply (Annexure A-4). The disciplinary authority after considering the enquiry report and the representation of the petitioner came to the conclusion that all the four charges were duly proved. He passed a speaking order terminating the services of the petitioner. The period from 31-7-1995 to 8-5-1998 and from 22-6-2001 has been treated as “dies-non”.
3. The petitioner’s case is that the charge-sheet (Annexure R-l) was issued by the Joint Director of the Directorate of Employment and Training whereas the petitioner’s appointing authority is Director and therefore the departmental enquiry is vitiated. The show-cause notice with which the copy of the enquiry report was sent did not specify the penalty and therefore it is not in accordance with law. It is submitted that the charges have not been proved. According to the petitioner the relieving letter was not served upon him; he was not paid T.A. and D.A. and was sick and therefore he could not join at Balaghat. It is stated by him that the Director by his letter dated 23-4-1998 (Annexure P-2) treated his absence as “duty period” and he was asked to join at Balaghat within 15 days and as he joined on 8-5-1998 it can not be said that he has committed any misconduct. He was not paid the arrears of his salary at Balaghat and he was transferred to Vijayraghogarh. It is pleaded that once the Director passed the order dated 23-4-1998 giving an opportunity to the petitioner to join his duties within 15 days, the succeeding Director could not terminate his services on that count. The petitioner has claimed an amount of Rs. 4,58,000/- as arrears of his salary with interest.
4. The respondents’s case is that the charge-sheet could be legally issued by the Joint Director. The disciplinary action has been taken by the Director and the termination order has also been passed by him and therefore there is no legal infirmity. It is also stated that the relieving letter was served upon the petitioner and the advance for T.A. and D.A. was also drawn but the petitioner did not receive it and remained absent for more than two and a half years and thus he committed gross misconduct by disobedience and remaining absent from duty for a long period. It is denied that the Director by the letter dated 23-4-1998 treated the absence of the petitioner as duty period. According to the respondents the departmental enquiry was held in conformity with the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 and the penalty which has been imposed upon the petitioner is not disproportionate, the petition is liable to be dismissed. The salary of the petitioner from May, 1998 to September, 1998 has not been paid as he continued to occupy the Government quarter at Koni in spite of his transfer to Balaghat and therefore, the penal rent of Rs. 33,472/- is recoverable from him.
5. The learned Counsel for both the sides have been heard. The legal position is well settled that it is not necessary for the disciplinary authority to issue the charge-sheet under his signature. The charge-sheet can always be issued by an officer below the rank of the appointing authority. The order of removal or termination of the services should not be passed by an officer below the rank of the appointing authority as provided in Article 311(1) of the Constitution of India. Recently in State of U.P. v. Chandrapal Singh, (2003)
4 SCC 670, it has been held that the authority competent to dismiss or remove an official need not itself initiate or conduct the enquiry proceedings. Therefore, the termination can not be said to be illegal on the ground that the charge-sheet (Annexure R-l) was issued by the Joint Director as the order of termination has been passed by the appointing authority after considering the enquiry report and other relevant facts.
6. In the departmental enquiry the enquiry officer has held that all the four charges have been proved. There is no procedural defect in the enquiry. The petitioner was given full opportunity to defend himself. The main charge against him was that he remained absent from duty for a long time and that is without any justification. The petitioner admittedly remained absent for more than two and a half years. It has been held by the enquiry officer while dealing with charge No. 2 that the relieving letter was issued and the T.A. Advance was drawn for payment to the petitioner but he did not turn up to receive the same. He was submitting applications for leave from time to time. The finding of the enquiry officer that the petitioner deliberately remained absent is proper and reasonable. He was obstinate and obdurate. His attitude was incorrigible. In Govind Vakil v. Jawaharlal Nehru Krishi Vishwa Vidyalaya, 2003(4) M.P.H.T. 390 = 2003 (4) MPLJ 532, it has been held by this Court that absence of an employee for a long period amounts to misconduct. The justification of the absence, if any, has to be established by the employee and it is not for the department to show that there is no justification for absence. In State of A.P. v. Rahimuddin Kamal, AIR 1997 SC 947, it has been held by the Supreme Court that the absence from duty for a long period is covered by the definition of misconduct. Again in State of Rajasthan v. Sujata. Malhotra, (2003) 9 SCC 286, it has been reiterated by the Supreme Court that in case of unauthorised absence of an employee for a long period the termination of services after holding the departmental enquiry is proper.
7. The jurisdiction of the High Court under Article 226 of the Constitution is supervisory one and not appellate one. The finding of the enquiry officer can not normally be interfered with by the High Court. The scope of interference in such finding of fact is very limited. It is well settled that once the charge against a delinquent employee is established, the quantum of punishment is for the employer to decide and the Court ordinarily would not interfere with the order on quantum of punishment. There can be interference only when the punishment is “shockingly disproportionate”. [Dev Singh v. Punjab Tourism Development Corporation, (2003) 8 SCC 9 and United Commercial Bank v. A.C. Kakkar, AIR 2003 SC 1571].
8. The learned Counsel for the petitioner has referred to the letter dated 23-4-1998 (Annexure P-2) of the Director and argued that the absence of the petitioner was condoned as he was asked to join his duties within 15 days of the receipt of that letter. The petitioner joined his duties at Balaghat on 8-5-1998. This letter has been perused by this Court. It has been clearly stated in this letter that the petitioner has remained absent from duty in spite of the repeated directions to join his duties; At the end he has been asked to join his duties within 15 days at Balaghat and his claim for emoluments would be settled by the Principal at Balaghat. It is not possible to spell out from the, words used in the last para of the letter that the long and unauthorised absence of the petitioner amounting to misconduct was condoned.
9. The petitioner has claimed arrears of salary. He was absent and did not perform his duty and therefore, he is not entitled to the salary for the period he was absent. He continued in possession of the quarter at Koni even after his transfer and therefore, penal rent has been levied and his salary for about 3-4 months has not been paid on that account. There are no pleadings from the side of the petitioner to show why he should not pay the penal rent. Therefore, no interference can be made by this Court on that count also.
10. In the result both the petitions are dismissed.