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1993 DIGILAW 393 (CAL)

Neela Devi Rai v. State of West Bengal

1993-08-20

NIRENDRA KRISHNA MITRA, PARITOSH KUMAR MUKHERJEE

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JUDGMENT PARITOSH KUMAR MUKHERJEE, J. 1. The application for stay of operation of the judgment delivered by the learned Single Judge dated June 14, 1993, as well as, the connected appeal are taken up for hearing, by consent of parties. 2. This appeal arises out of an order of summary rejection of the writ petition filed by Smt. Neela Devi Rai & other, widow and minor daughters of late Constable C/784 Brij Bahadur Rai of Village and Post Office-Harpur, District-Bhojpur, in the State of Bihar. 3. The learned Single Judge dismissed the writ petition, as according to His Lordship, the petitioners being the widow and minor daughters of Constable late Brij Bahadur Rai had no locus standi to move the writ petition before this Court. 4. In the writ petition, the petitioners, Smt. Neela Devi Rai & other, inter alia, prayed for issue of a Writ in the nature of Mandamus commanding the respondents and each one of them to withdraw/cancel the charge, being Annexure 'B' to the writ petition, and the final order of dismissal being Annexure 'E' to the writ petition. 5. Mr. L.C. Bihani, learned Advocate appearing in support of the appeal submits in the first place that the order passed by the learned Judge cannot be accepted, as even after the death of the petitioner no. 1's husband, Brij Bahadur Rai, the widow of the Constable is entitled to maintain the writ petition, as during the life time of the delinquent Constable, the petitioners could not challenge the order of dismissal, which was passed as far back on November, 30, 1989. 6. It may be recorded here that Brij Bahadur Rai died on June 30, 1991, even after several months after the passing of the final order of dismissal, passed in respect of the said Brij Bahadur Rai. 7. Mr. Bihani submits in the second place that the order of dismissal dated November 30, 1989, was too harsh as the Constable Brij Bahadur Rai was charged for "unauthorised absence" from duty for the period from February 15, 1986 to October 21, 1986, i.e. for 248 days and again from October 24, 1986 to July 3, 1987, i.e. for 253 days, totaling 501 days. 8. 8. It appears from the enquiry proceedings that the Inquiring Officer, D.D. Chatterjee, I.R.P. Barasat, Sealdah, G.R.P. had observed that the delinquent Constable unauthorisedly absented himself from duty for 501 days and thereby he is liable for E.O.L. for 501 days only, and submitted the enquiry report before the G.R.P. Sealdah, for consideration. 9. Thereafter, a show cause notice was issued by the Superintendent of Police, G.R.P., Sealdah on August 12, 1989, which was duly replied by the said Brij Bahadur Rai, wherein he has stated that as he was suffering from Tuberculosis and he was still under the treatment, he could not join his duties for the said period, and as such, no order of dismissal should be passed. 10. He also prayed for kind and humanitarian consideration by the disciplinary authority by taking into relevant consideration of the fact that as he was suffering from Tuberculosis, he could not join his duties and as such, minor punishment may be imposed, as recommended by the Inquiring Officer, by granting extraordinary leave. 11. In spite of the aforesaid reply being given, it appears, the disciplinary authority, being the Superintendent of Police, G.R.P., Sealdah has imposed maximum punishment of dismissal on November 30, 1989, without considering the reply to the show cause notice. 12. Thereafter, the delinquent Constable died on June 30, 1991, suffering from Tuberculosis. 13. Mr. Bihani submits that because of the untimely death of the delinquent Constable Brij Bahadur Rai, the writ petition could not be moved immediately after the passing of the order of dismissal dated November 30, 1989, and the learned Judge should have considered the relevant facts and should have entertained the writ petition, which was moved for granting a job to the present appellant/petitioner no.1, being the widow of the Constable, as a Class IV Staff in the Police Establishment and for finalisation of all the pensionary benefits by setting aside the final order of dismissal, in the facts stated above. 14. Mr. 14. Mr. Bihani submits that the order of dismissal which is too harsh cannot be supported, in view of the decision of the Supreme Court in the case of Bhakat Ram vs. State of Himachal Pradesh, AIR 1983 SC 454 , wherein the Supreme Court observed that it is equally true that penalty imposed must be commensurate to the gravity of misconduct and that any penalty disproportionate to the gravity of misconduct would be violative of Article 14 of the Constitution. 15. In the said case, Their Lordships of the Supreme Court had taken into consideration the judgment of the House of Lords in the case of Council Service Union vs. Minister for Civil Service, 1984 (3) W.L.R. 1174 (House of Lords) wherein Lord Diplock observed that anything disproportionate should be discarded. 16. The said judgment of the Supreme Court has been constantly followed in the subsequent decision of the Supreme Court in the case of Ranjit Thakur vs. Union of India, AIR 1987 SC 2386 . 17. Referring to the aforesaid decisions, Mr. Bihani submits that undoubtedly there is a provision in s. 29 of the Police Act, 1861, for dealing with unauthorised absence, which is as follows:- "29. Penalties for neglect of duty, etc.-Every Police officer who shall be guilty of any violation of duty or willful breach or neglect of any rule or regulation or lawful order made by competent authority, or who shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months (or who, being absent on leave, shall fail, without reasonable cause, to report himself for duty on the expiration of such leave), or who shall engage without authority in any employment other than his police duty, or who shall be guilty of cowardice or who shall offer any unwarrantable personal violence to any person in his custody shall be liable, on conviction before a Magistrate, to a penalty not exceeding three months' pay, or to imprisonment with or without hard labour, for a period not exceeding three months, or to both." 18. After referring to the aforesaid provision of section 29 of the said Act, Mr. After referring to the aforesaid provision of section 29 of the said Act, Mr. Bihani submits that the maximum punishment that could be imposed in respect of the delinquent Constable, Brij Bahadur Rai, could be imprisonment, without hard labour for a period not exceeding three months or corresponding fine, but the respondents in the present case, having imposed punishment of dismissal, the same is undoubtedly not in accordance with the provision of s. 29 of the said Act. 19. In the next place, Mr. Bihani submits that the Inquiring Officer having recommended regularisation of the period of absence for 501 days by granting extraordinary leave, the disciplinary authority was not competent to disagree and/or dissent with the said finding of the Inquiring Officer, without giving any independent reasons, as it has been held in the case of State of Madras vs. A.R. Srinivasan, reported in AIR 1966 SC 1827 . 20. In paragraph 15 of the said judgment, it was observed that it is conceivable that if the State Government does not accept the findings of the Tribunal which may be in favour of the delinquent officer and proposes to impose a penalty on the del inquest officer, it should give reasons why it differs from the conclusions of the Tribunal though even in such a case it is not necessary that the reasons should he detailed or elaborate. 21. As in the instant case, no reason to differ from the recommendations of the Inquiring Officer has been given and order of dismissal has been passed, the said order of dismissal cannot be upheld in the court of law. 22. Mrs. Sukiran Biswas, learned Advocate appearing on behalf of the respondents, submits that the present appellant/petitioner no.1 being the widow of the delinquent Constable Brij Bahadur Rai has no locus standi to maintain the writ petition, inter alia, praying for a job on compassionate ground and for sanction of the retirement benefits, as if Brij Bahadur Rai had not been dismissed from service. 23. Mrs. Biswas submits in the next place that provision of s. 29 of the Police Act, 1861, cannot be attracted in the facts of the present case. 24. In reply, Mr. 23. Mrs. Biswas submits in the next place that provision of s. 29 of the Police Act, 1861, cannot be attracted in the facts of the present case. 24. In reply, Mr. Bihani appearing for the appellants, has drawn attention of this Court to the provision of Regulation 876 of the Police Regulation Bengal, 1943, wherein it has been provided that police officers, who are absenting themselves without leave are liable to prosecution under s. 29 of the Police Act, 1861, prosecution, however, shall only be instituted in exceptional circumstances. 25. At the hearing of the application for stay and the appeal, we had directed Mrs. Biswas to obtain instruction as to whether the respondents police authorities, including the Superintendent of Police, G.R.P., Sealdah is inclined to take the widow of the delinquent Constable, being the present appellant/petitioner no.1, Smt. Neela Devi Rai, in service on compassionate ground. However, Mrs. Biswas has got instruction, but unfortunately, the respondents, including the Superintendent of Police G.R.P., Sealdah are not agreeable to accept the present appellant/petitioner no.1, Smt. Neela Devi Rai and to grant any job on compassionate ground until and unless a formal application to that effect is filed by the appellant/ petitioner no.1 before the respondents authorities. 26. In such circumstances, we are to dispose of the application for stay and the appeal by scrutining the order of dismissal passed by the disciplinary authority and the order of the learned Judge dismissing the writ petition filed on behalf of the appellants/petitioners. 27. In our view, although the provision of Code of Civil Procedure has not been extended to the writ petitioners, yet the principles analogous to Order 22, Rule 4 of the Code of Civil Procedure can be extended in case of consideration of locus standi of the present appellant/petitioner no.1 being the widow of the deceased Constable Brij Bahadur Rai, and as such, according to us, the writ petition at the instance of the widow of the delinquent Constable is maintainable. 28. Regarding validity of the final order of dismissal dated November 30, 1989, we are of view that the said order of dismissal is too harsh, and as such, cannot be sustained in law and should be set aside, in view of the decisions referred to in the cases of Bhakat Ram (supra) and Ranjit Thakur (supra). 29. 28. Regarding validity of the final order of dismissal dated November 30, 1989, we are of view that the said order of dismissal is too harsh, and as such, cannot be sustained in law and should be set aside, in view of the decisions referred to in the cases of Bhakat Ram (supra) and Ranjit Thakur (supra). 29. Further, we are of the view that the Superintendent of Police, G.R.P., Sealdah, is not competent to pass final order of dismissal, without taking into consideration the recommendation of the Inquiring Officer dated August 12, 1989, as well as, without considering the effective reply submitted by the delinquent Constable, Brij Bahadur Rai on September 15, 1989 and to regularise the period of absence as extraordinary leave. 30. Accordingly, the impugned judgment dated June 14, 1993, delivered by Susanta Chatterji, J. is set aside and the appeal is allowed. 31. The order of dismissal dated November 30, 1989, of the said Brij Bahadur Rai, is accordingly set aside. 32. In the present case, as the delinquent Constable had died on June 30, 1991, after passing of the order of dismissal there is no scope for granting reinstatement to the delinquent and/or re-employment to the said delinquent, and as such, this Court directs the respondents and each one of them to finalise the entire retirement benefits, including provident fund gratuity, family pension and other benefits, as if the order of dismissal in respect of the delinquent Constable had not been passed at all, upto the date of dismissal, that is November 30, 1989. 33. Such fixation of retirement benefits should be made within a period of three months from this date. 34. Since the delinquent could not join duties for 501 days, the respondents authorities will be entitled to calculate the service benefits excluding the said period and treating the said period as extraordinary leave without pay. 35. If the appellant/petitioner no.1 makes a formal application before the Superintendent of Police, G.R.P., Sealdah, for appointment on compassionate ground within a. period of fortnight from this date, the Superintendent of Police. G.R.P., Sealdah is directed to dispose of the same without any delay and preferably within a period of six weeks from the date of receipt of such application, with compassion, and grant a suitable job to the appellant/petitioner no.1 in any Class IV post. 36. The appeal is allowed to the extent indicated above. G.R.P., Sealdah is directed to dispose of the same without any delay and preferably within a period of six weeks from the date of receipt of such application, with compassion, and grant a suitable job to the appellant/petitioner no.1 in any Class IV post. 36. The appeal is allowed to the extent indicated above. 37. Let xerox copies of this order be supplied to the learned Advocates of the parties, on usual undertaking. Appeal allowed. I agree.