Varsinh Bhagwan v. STATE — 1991 DIGILAW 197 (GUJ)

D. G. KARIA, J. ( 1 ) THIS is an appeal by the original plaintiff under Section 100 of the Code of Civil Procedure against the judgment and decree dated April 30, 1979 passed by the learned District Judge, Junagadh in Regular Civil Appeal No. 474 of 1979 setting aside the judgment and decree dated 20-9-1973 passed by the learned joint Civil Judge (S. D.), Junagadh in regular Civil Suit No. 279 of 1971. ( 2 ) THE plaintiff was an Unarmed constable in the Prohibition Task Force, junagadh, having Buckle No. 807. The plaintiff proceeded on Casual Leave on december 6, 1969 suffixing Sunday and as such he was required to resume his duty on December 8, 1969. The plaintiff remained absent without any report or permission. The Police Inspector of the prohibition Task Force, therefore, served a notice dated December 29, 1969 on the plaintiff and called upon him to resume duty within seven days. The plaintiff replied to the said notice on January 11, 1969. However, he did not resume duty. Thereafter, the District Superintendent of Police, Junagadh, issued a notice dated march 10, 1970 calling upon the plaintiff to resume duty within seven days. In response to the said notice, the plaintiff reported for duly on March 19, 1970. ( 3 ) THE District Superintendent of police, Junagadh, issued a charge-sheet dated May 29,1970 to the plaintiff alleging gross negligence in duty by remaining absent without permission from december 6, 1969 to March 19, 1970. Thereafter necessary departmental inquiries were held and it was found that the charge against the plaintiff was proved. On September 9, 1970, a show- cause notice was issued to the plaintiff to show cause why he should not be dismissed from service. Ultimately, on october 6, 1970, the plaintiff was removed from service. ( 4 ) THE plaintiff, therefore, filed the aforesaid Civil Suit No. 279 of 1971 in the Court of the Civil Judge (S. D.), junagadh praying that the order of dismissal dated October 6, 1970 be quashed and the plaintiff be reinstated in service. The plaintiff before filing the suit, had served necessary notice under section 80 of the Code of Civil Procedure on the defendant. The plaintiff before filing the suit, had served necessary notice under section 80 of the Code of Civil Procedure on the defendant. The plaintiff, inter alia, contended that on account of his sickness he could not resume duty and necessary medical certificate of a Registered Medical practitioner was submitted on the day on which he reported for the duty. The plaintiff further contended that by the notice dated March 10, 1970 at Exh. 21 he was directed to report for duty within seven days and accordingly he had reported for duty on March 19, 1970 and therefore he had complied with the notice and as such no disciplinary action should have been taken against the plaintiff. The said notice being conditional, the departmental inquiry and the consequent dismissal order are vitiated. The plaintiff also alleged that he was not given opportunity to meet with the case and the inquiry was violative of principles of natural justice and that his defence was not considered and that the relevant regulations did not envisage the removal on account of the alleged misconduct. He averred that the plaintiff could at the most be treated as on leave without pay. In fact, the leave of the plaintiff was treated as without pay and he was removed from service and therefore he was awarded double penalty. On these grounds, the plaintiff sought his dismissal to be set aside and reinstatement in service. ( 5 ) THE defendant, by its written statement Exh. 8, denied the allegations of the plaintiff. The defendant contended, inter alia, that the plaintiff had proceeded on Casual Leave for one day and had remained absent for three months and eleven days without any permission or report. Therefore, the notice Exh. 21, was issued asking the plaintiff to join duty within seven days. The plaintiff joined duty on March 19, 1970 and produced certificate from Vaidya and did not submit any report regarding the sickness during the period from December 6, 1969 to march 18, 1970. The defendant denied that the notice Exh. 21 was conditional or that the double punishment was inflicted as alleged. The plaintiff joined duty on March 19, 1970 and produced certificate from Vaidya and did not submit any report regarding the sickness during the period from December 6, 1969 to march 18, 1970. The defendant denied that the notice Exh. 21 was conditional or that the double punishment was inflicted as alleged. ( 6 ) THE learned Civil Judge (S. D.), junagadh, having framed necessary issues and having recorded the evidence and heard the parties, decreed the suit declaring that the order of dismissal passed by the District Superintendent of police, Junagadh on October 6, 1970 was inoperative and that the plaintiff be treated as in service irrespective of any break caused by the dismissal order. ( 7 ) THE State of Gujarat being aggrieved by the said judgment and decree passed by the Trial Court, preferred the aforesaid civil Appeal No. 41 of 1974 in the District court at Junagadh. The learned District judge by his judgment and decree dated april 30, 1979 allowed the appeal, setting aside the judgment and decree passed by the Trial Court. It is this judgment and decree that is challenged in the present second Appeal by the plaintiff. ( 8 ) THIS Court, while admitting the appeal, formulated the following substantial questions of law: (1) Whether in the facts and circumstances of the case, the learned district Judge erred in not properly construing Sections 29 and 145 of the bombay Police Act and the provisions of Rules 645 and 22 of the B. C. S. R. ? (2) Whether the learned District Judge erred in not properly construing the notice of the D. S. P. Exh. 21 and holding that the inquiry was tenable? ( 9 ) MR. M. D. Rana, learned Advocate for the appellant-plaintiff, at the time of arguing the appeal, mainly made submissions with regard to the adequacy of penalty that has been imposed on the plaintiff for the misconduct. According to Mr. Rana, such harsh punishment of dismissal from service could not have been imposed even if the misconduct of the plaintiff is established. There is no substantial question of law framed with respect to adequacy of the punishment and therefore Mr. According to Mr. Rana, such harsh punishment of dismissal from service could not have been imposed even if the misconduct of the plaintiff is established. There is no substantial question of law framed with respect to adequacy of the punishment and therefore Mr. Rana requested the court to frame a substantial question of law as to non-application of mind by the concerned authority in respect to the quantum of punishment, inasmuch as the punishment of dismissal imposed is not commensurate with the misconduct. Section 100 of the Code of Civil Procedure contemplates that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate such question and the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso to Section 100 provides that nothing in the sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. A specific contention was raised before the lower appellate Court to the effect that the penalty imposed on the plaintiff was not commensurate with the magnitude of the fault. In support of the said submission, the case of H. P. Thakore v. State of gujarat and Others, 20 G. L. R. 109 was cited. Having regard to the facts and circumstances of the case and particularly when the point was urged before the courts below, it would be in interest of justice to formulate the further substantial question of law as under : in the facts and circumstances of the case, whether there was non-application of mind on the part of the Disciplinary authority in imposing punishment of dismissal and whether the penalty imposed was commensurate with the misconduct. ( 10 ) AS regards the aforesaid first substantial question of law relating to the provisions of Sections 29 and 145 of the bombay Police Act, it was argued on behalf of the appellant that for remaining absent from duty, at the most the provisions of Section 29 of the Bombay police Act can be said to have been violated and the penalty that has been prescribed under the provision is prosecution as provided in Section 145 of the Bombay Police Act. It was further submitted that the charge being proved, the delinquent shall forfeit all arrears of pay then due to him and the forfeiture of arrears of pay shall be in addition to the penalty to which the plaintiff was liable under Section 145 of the Act. ( 11 ) SECTIONS 29 of the Bombay Police act, so far as it is material for the present purpose, contemplates that no police officer from the subordinate rank shall withdraw himself from duties except with the written permission of the District superintendent of Police or some other police officer empowered in this connection. Sub-Sec. (3) of Section 29 provides that if any such police officer withdraws himself from the duties of his office in contravention of Section 29, he shall be liable, on the order of the District superintendent of Police, to forfeit all arrears of pay then due to him and this forfeiture shall be in addition to the penalty to which the said officer is liable under Section 145 of the Act or any other law in force. Section 145 of the Bombay police Act prescribes penalty for withdrawing from duties by the Police officer in contravention of Section 29 among other misconducts. Section 145 (3) of the Act lays down that a Police Officer who, being absent on leave, fails, without reasonable cause to report himself for duty on expiration of such leave shall, for the purpose of Clause (b) of sub-Sec. (2), be deemed to withdraw himself from the duties of his office within the meaning of Section 29. Mr. Section 145 (3) of the Act lays down that a Police Officer who, being absent on leave, fails, without reasonable cause to report himself for duty on expiration of such leave shall, for the purpose of Clause (b) of sub-Sec. (2), be deemed to withdraw himself from the duties of his office within the meaning of Section 29. Mr. Rana thus relying upon the aforesaid provisions of the Bombay police Act, submitted that the District superintendent of Police could not have dismissed the plaintiff from service and that the arrears of pay then due to the plaintiff should have been forfeited with forfeiture of arrears of pay or the prosecution could have been launched against the plaintiff resorting to Section 29 of the Bombay Police Act read with section 145 of the said Act. It is true that these are the provisions made in the bombay Police Act in connection with the police officer having withdrawn himself from the duty. However, it does not lay down or there is nothing provided in the Bombay Police Act that the District superintendent of Police cannot initiate any departmental inquiry against the delinquent. ( 12 ) SECTION 25 of the said Act provides for the punishment of the members of the subordinate ranks of the police force departmentally for neglect of duty, etc. Similarly, Section 26 of the Act prescribes procedure to be observed in awarding the punishment. Therefore, the District superintendent of Police is competent and empowered to hold departmental inquiry and pass appropriate order of punishment, having regard to Sections 25 and 26 of the Bombay Police Act. Since there are other provisions relating to the absence of duty by the subordinate police officers, it cannot be construed that no departmental inquiry could be initiated against the delinquent for his misconduct, nor any punishment can be imposed. The district Superintendent of Police cannot be said to be exonerated of his liability to hold departmental inquiries, and the proceedings that were initiated against the plaintiff are quite proper, in view of sections 25 and 26 of the Act. There is. therefore, no substance in the submission of Shri Rana that the District judge committed any error in not construing Sections 29 and 145 of the bombay Police Act. ( 13 ) SHRI Rana relied upon Rule 645 of the Bombay Civil Services Rules. There is. therefore, no substance in the submission of Shri Rana that the District judge committed any error in not construing Sections 29 and 145 of the bombay Police Act. ( 13 ) SHRI Rana relied upon Rule 645 of the Bombay Civil Services Rules. The said rule says that a Government servant who remains absent after the end of his leave is entitled to no leave-salary for the period of such absence, and that period will be debited against his leave account as though it were leave on half average pay, unless his leave is extended by a competent authority. Wilful absence from duty after the expiry of leave may be treated as misbehaviour for the purpose of Rule 22. Now, Rule 22 provides for the transfer of a Government servant. These rules, however, cannot be said to be restricting or abridging the powers of the District Superintendent of Police to hold proper proceedings for misconduct of the plaintiff. Mr. Rana could not point out as to how the learned District Judge committed error in construing Rule 645 read with Rule 22 of the BCSR. Therefore, the submission of Shri Rana in this behalf requires to be discarded. In view of the above discussion, the learned District judge has properly construed the provisions of Sections 29 and 145 of the bombay Police Act and the provisions of Rules 22 and 645 of the BSCR. ( 14 ) SHRI Rana next submitted that the notice dated March 10, 1970 issued by the District Superintendent of Police was not properly construed. He contended that the said notice was conditional in the way that the plaintiff was directed to report for duty after seven days of the receipt of the notice Exh. 21. Accordingly the plaintiff had reported for duty on March 19, 1970 and thus he complied with the notice. Therefore, the departmental inquiry held against him was improper and illegal. The substance of say of Mr. Rana is that since the plaintiff had resumed the duty as directed in the notice Exh. 21, no departmental proceedings could have been held against him nor any penalty could have been imposed on him. This contention seems to be fallacious. The District superintendent of Police cannot be said to be exonerated from his liability to hold departmental proceedings on issuance of the notice Exh. 21. 21, no departmental proceedings could have been held against him nor any penalty could have been imposed on him. This contention seems to be fallacious. The District superintendent of Police cannot be said to be exonerated from his liability to hold departmental proceedings on issuance of the notice Exh. 21. It is open for the concerned authority to hold the departmental proceedings and on being satisfied about the guilt of the delinquent to impose necessary penalty when the cause for absence was not found satisfactory. The plaintiff having proceeded on one days Casual Leave, had remained absent for 101 days. He did not submit any report during the said long absence. On service of the notice exh. 21, he came forward with the plea that he suffered from dysentery for such a long period. He produced medical certificate issued by a Vaidya. However, the plaintiff had not given any explanation as to why he could not send such medical certificate during his absence of 101 days. The plaintiff had given his reply to the notice dated December 29, 1969 and he did not make any ground of his alleged sickness in the said reply. Having regard to all these facts and circumstances of the case, when it was found that the plaintiff was bluffing or raising absolutely a false plea, the departmental proceedings should obviously be initiated against him. Therefore, it cannot be said that since it was stated in the notice that the plaintiff should report within seven days, no departmental action could be taken against the plaintiff, nor any penalty could be imposed on him. Under the circumstances, there is not misconstruction or misinterpretation of the notice Exh. 21. The contention of the plaintiff thus falls to the ground. ( 15 ) AS regards the substantial question of law relating to adequacy of punishment, it is settled position of law that the punishment or penalty that should be imposed on the delinquent must be commensurate with the extent or magnitude of the misconduct. The District superintendent of Police, while dismissing the plaintiff. from service on account of his aforesaid absence, has not taken into account the important aspect of law. There is, therefore, non-application of mind on the part of the Disciplinary Authority while awarding the punishment. The District superintendent of Police, while dismissing the plaintiff. from service on account of his aforesaid absence, has not taken into account the important aspect of law. There is, therefore, non-application of mind on the part of the Disciplinary Authority while awarding the punishment. The consequence of removal or dismissal from service is severe and sometimes the entire family of the delinquent is ruined because no other job or work will be available to the lone bread-earner of the family. It is settled law that the punishment of removal or dismissal should be resorted to sparingly and in cases which may be described as gross such as taking bribe or illegal gratification, criminal breach of trust or misappropriation or defalcation of the funds that would have entrusted to the delinquent, for the behaviour which may involve moral turpitude or gross abuse or misuse of the post held by the delinquent. From the facts and circumstances of the case, it is evident that the plaintiff remained absent without leave or permission for 101 days. It is certainly a misconduct for which adequate punishment or penalty should be imposed on the plaintiff. The question, however, would be whether the punishment of dismissal imposed on the plaintiff is just, proper or commensurate with the guilt of the plaintiff. It is not in dispute that the authority is conferred with the powers to inflict minor and major penalties such as warning, censure, extra drill or duty, fine, stoppage of increments, reduction in rank, removal or dismissal. It is absolutely. essential that the authorities should give a serious thought to the question of penalty. The imposition of penalty cannot be arbitrary or capricious, but it must always depend upon the nature and extent of the misconduct established in a given case. As is held in H. P. Thakores case, 20 G. L. R. 109 (supra), one cannot rationally or justly impose the same penalty for giving a slap as one would impose for homicide. In other words, the penalty imposed should be commensurate with the magnitude of the fault. The plaintiff remained absent without any permission or report and as such committed misconduct. However, the indiscipline of the plaintiff could have been remedied by imposing a lighter penalty than that of the dismissal, inasmuch as withholding of increments for the misconduct that has been committed by the plaintiff. The plaintiff remained absent without any permission or report and as such committed misconduct. However, the indiscipline of the plaintiff could have been remedied by imposing a lighter penalty than that of the dismissal, inasmuch as withholding of increments for the misconduct that has been committed by the plaintiff. It is not on the record that the plaintiff was in habit of remaining absent. It appears that it was his first misconduct to be away from duty without permission. Therefore, in view of this background, imposition of such harsh and severe punishment is unwarranted. H after imposing the light punishment, the delinquent repeatedly commits similar violation of the conduct rules, he can be visited with more harsh or severe penalty and ultimately the order of removal from service can be passed if such a situation arises. However, without giving any opportunity to improve by imposing a lighter penalty, imposition of such severe punishment of dismissal is not commensurate with the established guilt. If a bread-earner is deprived of a job for such misconduct or remaining absent without leave, it is not only the delinquent who suffers on that account, but his entire family would face economic ruination. It is, therefore, necessary that the authority which is charged with the duty of selecting the penalty, i. e. to be imposed for proved misconduct, must weigh all the pros and cons and after serious application of mind should decide on the question of punishment. In sardarsingh Devisingh v. Dist. Supdt. of Police, Sabarkantha and Others, 1985 g. L. H. 940, it has been observed that the penalty of dismissal from service should be invoked sparingly and in gross cases only. In H. P. Thakores case, 20 g. L. R. 109 (supra), it is observed that in order not to attract the charge of arbitrariness, it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. In Sattuji babaji v. Slate of Gujarat and Another, 1986 G. L. H. (U. J.) 46, it has been held that removal from service can be imposed in grave cases and in case of corruption or dishonest misappropriation. It has been further observed therein as under : "there are different kinds of punishments with different degrees of severity depending upon different degrees of gravity of misconduct. It has been further observed therein as under : "there are different kinds of punishments with different degrees of severity depending upon different degrees of gravity of misconduct. The disciplinary authority and the appellate authority are expected to consider as to whether any lesser punishment could have served the ends of justice and of the administration and also maintenance of discipline and good conduct in the police service. . . . " in view of the above settled legal position, it is clear from the record that the District Superintendent of Police, junagadh did not apply his mind with respect to quantum and adequacy of the penalty that, has been imposed on the plaintiff. The decision, therefore, suffers from the vice of non-application of mind. It was incumbent upon the disciplinary authority to record a finding that it was a fit case to impose the penalty of dismissal; however, having regard to the facts and circumstances of the present case, such punishment cannot be imposed according to law and for that reason only the Appellate Authority has remained silent about the adequacy of punishment. The impugned order of dismissal therefore requires to be quashed on this count. ( 16 ) MR. Makwana, the learned Assistant government Pleader, appealing for the respondent-State, has submitted that in event of reinstatement of the plaintiff in service, he should not be awarded all the full backwages for the reason that the plaintiff would not have remained unemployed for this long period of twenty years. There is, however, nothing on record to show that the plaintiff was gainfully employed anywhere. Mr. Makwana further submitted that the plaintiff having attained the age of superannuation would have retired in the year 1987, if he were in the service. In view of this subsequent development, the respondent would not be in a position to take any proceedings nor could impose any penalty other than the dismissal or removal from service on the plaintiff. Having regard to the facts and circumstances of the case, it would just and proper that the plaintiff should be reinstated in service from the date on which he was ordered to be dismissed and he should be paid 60% of the back-wages. Having regard to the facts and circumstances of the case, it would just and proper that the plaintiff should be reinstated in service from the date on which he was ordered to be dismissed and he should be paid 60% of the back-wages. The learned Advocate for the appellant also sought amendment in the relief-clause of the plaint to the effect that the defendant should be directed to pass formal order of reinstatement and to pay to the plaintiff all the consequential benefits, as if there was no order of dismissal and as if the plaintiff has retired on the date of normal superannuation in the year 1987. The said amendment has been granted by this Court and the prayer in the plaint has been accordingly added. In view of the above, the impugned order of dismissal dated October 6, 1970 is quashed and set aside and the respondent-State is directed to pay 60% of the back-wages to the plaintiff from the date of his dismissal till the date of his superannuation. ( 17 ) IN the result, the appeal is allowed with costs and the judgment and decree passed by the learned District Judge, junagadh in Regular Civil Appeal No. 41 of 1974 are set aside and that of the Trial court are restored. The impugned order of dismissal dated October 6, 1970 is quashed and set aside and the petitioner-plaintiff is ordered to be reinstated in service with effect from the date of his dismissal till the date of his superannuation with 60% back-wages for the said period. Appeal allowed. .