NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   2436          OF 2011 (Arising out of S.L.P. (Civil) No.35896 of 2009)

State of Uttar Pradesh & Ors.                                               ….Appellants

Versus

J. P. Saraswat                       ….Respondent

J U D G M E N T

AFTAB ALAM, J.  

1. Delay condoned.

2. Leave granted.

3. The respondent, a veterinary surgeon, was in the service of the State  

Government  of  Uttar  Pradesh.  On  December  23,  1991,  he  made  an  

application for no-objection certificate for obtaining visa for going to the  

United States of America. The no-objection certificate was granted to him.  

He then made an application on September 30, 1993 for grant of earned  

leave from October 4, 1993 to November 2, 1993. The leave was granted to  

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him on November 8, 1993. He left for the USA on October 3, 1993, but did  

not join his duties even after his leave was over. Instead, he kept on sending  

applications  for  extending  the  leave.  Finally,  he came back to  India  and  

joined the service on June 1, 1995. He again left for the USA on the ground  

that his wife was unwell, once again sending applications for leave. He came  

back to India in the year 1999 and, according to him, joined his duties on  

November 22, 1999.

4. He was put under suspension on March 22, 2000, and a charge-sheet  

was given to him on April  10,  2000.  He was subjected to a disciplinary  

proceeding on two charges,  one,  going abroad without  taking permission  

from the Government and the other unauthorized absence from duty.  

5. In the departmental enquiry, the charges were established against him  

and on that basis he was awarded the punishment of “termination of service  

which  may not  debar  from future  employment”  vide  office  memo dated  

August 16,  2003. The office memo further stated that  the decision about  

payment of  salary and allowances to the delinquent  during the period of  

suspension would be taken later on.  

6. The respondent challenged his termination from service by filing a  

writ petition (Civil Miscellaneous Writ Petition no.47118 of 2003) before  

the Allahabad High Court. The writ petition was substantially allowed by the  

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High Court by judgment and order dated April 22, 2008, against which this  

appeal is preferred by grant of a special leave.  

7. The High Court noted that in his application for grant of earned leave,  

though  the  respondent  had  mentioned  that  his  flight  to  the  USA  was  

confirmed, he did not ask for permission for going abroad; hence, his visit  

abroad was without  due permission by the State Government. In connection  

with  the  second charge relating to unauthorized absence,  the High Court  

noted that during the respondent’s first visit to the USA in the year 1993 he  

had undeniably overstayed his leave and in his second visit  he had gone  

there without any sanctioned leave at all. Therefore, the other charge was  

also duly established.  

8. One should have thought that that would be the end of the matter but  

not so the High Court. Proceeding further from that stage, in a curious way,  

the High Court observed that on the applications sent by the respondent for  

extension/grant of leave, no orders were passed by the Government. Further,  

even though he remained absent for a long time, the Government did not  

send any notice asking him to resume his duties, failing which his services  

would  be  terminated.  In  view of  the  omissions  on  the  part  of  the  State  

Government, the High Court concluded that the punishment awarded to the  

respondent was excessive and, consequently, quashed the impugned order of  

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his termination of service dated August 16, 2003. In this regard, the High  

Court made the following observations:

“7. It is not disputed that the petitioner had been sending the  applications from abroad for leave. No orders were passed on  these  applications.  The  Government  knew that  the  petitioner  was in US. In case the presence of the petitioner was required in  India, the Government ought to have rejected the application of  the petitioner and initiated the disciplinary proceeding at that  time. The government could also sent (sic send) him a notice  that in case the petitioner does not join then his services will be  terminated.  Considering the fact  that  neither any proceedings  were taken against the petitioner at that time nor any order was  passed  on  his  application  and  no  notice  was  sent  to  the  petitioner,  the  punishment  awarded  to  the  petitioner  is  excessive.  In  view  of  this  the  order  dated  16.8.2003  is  quashed.”

9. Having quashed the order of termination of service, the High Court  

substituted it by a set of directions in terms of which for the period of his  

suspension, the respondent would not be entitled to any payment other than  

the subsistence allowance;  he would not be entitled to any salary for the  

period for which he did not work but the period of his unauthorized absence  

would  be  adjusted  against  his  leave  and,  finally,  his  pension  would  be  

deducted by 35%. The High Court further directed that all amounts due to  

the respondent in terms of its order should be paid to him within 6 months  

from the date of production of a certified copy of the judgment and in case  

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of delay in payment, the due amount would attract simple interest at the rate  

of 6% per annum.  

10. We are completely unable to appreciate the manner in which the High  

Court proceeded in the matter and, in our view, the High Court grievously  

erred in assuming the role of the employer. Having come to the finding that  

the charges against  the respondent were duly established, the High Court  

ought to have simply dismissed the writ petition. Any interference on the  

question  of  punishment  is  permissible  in  very  rare  cases  where  the  

punishment is  so disproportionate  to the established charge that  it  would  

appear unconscionable and actuated by malice. In the facts of the case, the  

punishment given to the respondent was quite moderate and there was not  

even a whisper of any malice,  etc.  The respondent went to the USA and  

overstayed his leave for over a year and a half on the first occasion and on  

the second occasion, he went to the USA without even caring to obtain leave  

and  remained  there  for  over  four  years.  In  those  circumstances,  the  

punishment  of  termination  of  service  that  would  not  debar  from  future  

employment was a perfectly reasonable and fair punishment and there was  

no occasion for the High Court to interfere with that order. The High Court  

was equally wrong in setting aside the punishment order passed against the  

respondent on the ground that the State Government had not responded to  

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his applications for extension/grant of leave or that during the long period of  

his absence the government had not sent him any notice asking to resume  

duties by a certain date. These could never be the grounds for the High Court  

to set aside the punishment order passed by the State Government and to  

replace it by its own set of directions.

11. In light of the discussion made above, the judgment and order of the  

High  Court  is  set  aside  and  the  writ  petition  filed  by  the  respondent  is  

dismissed.

12. The appeal is allowed but with no order as to costs.

……………………………………J.    [AFTAB ALAM]  

……………………………………J.    [R.M. LODHA]

New Delhi, March 11, 2011.  

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