Shyam Deo Singh v. State of Bihar — 1998 DIGILAW 552 (PAT)

JUDGMENT A.K. Ganguly, J. This writ petition has been filed by the petitioner challenging his order of dismissal as also the order passed by the appellate and the revisional authority confirming the said order and also the final order passed by the Director General of Police (Annexure-6) on his memorial. The charge against the petitioner is one of disobedience of command and remaining absent for 22 days. 2. Learned counsel for the petitioner submits that the departmental proceeding which was conducted against the petitioner in respect of the aforesaid charges was conducted improperly and unfairly and illegally without intimating the date of examination of the prosecution witness Ram Ratan Singh and without supplying him copy of the deposition and without fixing the date of examination of defence witnesses. The petitioner has stated in paragraphs 6, 9 and 14 of the writ petition that the Enquiry Officer suppressed the real position and claimed to have sent intimation at the home address of the petitioner whereas the petitioner was attending the police line learned counsel further submitted that the finding of the Enquiry Officer has also not been served upon him. Such non-furnishing of the enquiry report amounts to breach of Appendix 49 which contains the rules for proceedings for departmental punishment and sub-para (iv) of para 7 of the said Appendix provides that a copy of the findings of the conducting officer should be given to the delinquent without delay. Learned counsel for the petitioner submits that non-compliance of the said rules makes the proceeding liable to be set aside. The last submission of the learned counsel for the petitioner is that the order of dismissal for absence of 22 days is very harsh and disproportionate to the offence and this Court should quash the same. 3. In support of the aforesaid contention, learned counsel has referred to the decision of the Division Bench of this Court in the case of Thakur Ram vs. The State of Bihar and others reported in 1991 (2) PLJR page 324. 3. In support of the aforesaid contention, learned counsel has referred to the decision of the Division Bench of this Court in the case of Thakur Ram vs. The State of Bihar and others reported in 1991 (2) PLJR page 324. In the said judgment in the case of Thakur Ram (supra) the learned Judges of the division Bench held that since notice was not properly served in the departmental proceeding on the concerned Government servant, there has been denial of reasonable opportunity to show cause in the said disciplinary proceeding and the finding of the enquiry officer and order of the disciplinary authority are liable to be quashed. 4. Learned counsel for the petitioner also relied upon various un-reported decisions of this Court which have been disclosed by way of supplementary affidavit to the writ petition. Those judgments, mainly, are concerned with the question of quantum. In one of those judgment in C.W.J.C. No. 701 of 1995 (Bishwanath Ram vs. State of Bihar and others) the learned Judge set aside the order of punishment which was passed for absence from duty for 34 days. The learned Judge also quashed the appellate order and held that the petitioner is entitled for the salary for the entire intervening period in accordance with law and made it clear that the respondents, however, are at liberty to pass any appropriate order in accordance with law commensurate with the allegations as mentioned in the charge-sheet. 5. There is another judgment passed by another learned Judge of this Court in C.W.J.C. no. 6130 of 1996 (Jay Kumar Singh vs. The State of Bihar & Others) disposed of on 26.3.1998. There also one of the learned Judge of this Court while dealing with the disciplinary proceeding against the 'police constable for absence of 119 days, was pleased to observe that the punishment of dismissal against the petitioner was harsh and was quashed. His Lordship held that it should be substituted by withholding one increment of the petitioner with cumulative effect. Learned counsel for the petitioner wanted this Court to follow the aforesaid two decisions of this Court. 6. His Lordship held that it should be substituted by withholding one increment of the petitioner with cumulative effect. Learned counsel for the petitioner wanted this Court to follow the aforesaid two decisions of this Court. 6. Learned counsel for the petitioner also relied on another judgment of the Division Bench of this Court rendered in CW.J.C. No. 1589 of 1993 disposed of on 5.1.1994 (Nag Narayan Tiwary vs. State of Bihar & Others) where the Judges of the Division Bench of this Court has held that failure to supply to the petitioner a copy of the report of the Enquiry Officer before passing an order inflicting punishment against him vitiates the order of the disciplinary authority as well as the order of the appellate authority and as such the impugned order was quashed giving liberty to the authority concerned to pass a fresh order in accordance with law after furnishing to the petitioner copy of the report of the Enquiry Officer. 7. Learned counsel for the respondents has contested all the aforesaid contentions of the learned counsel for the petitioner. Learned counsel for the respondents submitted that since the petitioner is a Member of the disciplined force, he is not to remain absent even during suspension period. Therefore, there was no reason to contend that the disciplinary proceeding was held ex parte. In support of this contention learned counsel for the respondents placed before this Court section 8 of the Police Act 1861 and he has submitted that the relevant provisions relating to suspension which is contained in Sections 8 of the Police Act is as follows :- "A police officer shall not by reason of being suspended from office cease to be a police officer. During the terms of such suspension the powers, functions ans privileges vested in him as a police officer shall be in abeyance, but he shall continue subject to the same responsibilities discipline and penalties and to the same authorities as if he had not been suspended." 8. In support of the said contension, he has relied on the decision of the Supreme Court in the case of State of Punjab and others vs. Dharam Singh reported in A.I.R. 1997 SC page 1905. 9. In support of the said contension, he has relied on the decision of the Supreme Court in the case of State of Punjab and others vs. Dharam Singh reported in A.I.R. 1997 SC page 1905. 9. Learned counsel for the respondents submitted that rule 16.21 of the Rules which was considered in that case by the Hon'ble Supreme Court is pari materia with Section 8 of the Police Act which has been extracted above. Learned counsel relied on paragraph 4 of the said judgment in order to contend that even during the period of suspension the police officer is required to attend the roll call and be available to the authorities. Such availability of the Officer cannot be dispensed with even for non-payment of the subsistence allowance. In the said judgment in paragraph 4 it has been also held that in view of such rules, the delinquent officer cannot absent himself from duty even for non-payment of subsistence allowance. In the instant case it has not been said that the subsistence allowance was not paid. Therefore, it was very much incumbent on the part of the petitioner to be present in the police line. The fact that the petitioner was not present in the line shows his delinquency. Learned counsel for the respondents, however, submits that this conduct of the petitioner has not been taken into consideration while imposing the penalty on him. 10. Having regard to the facts and circumstances of this case, this Court cannot place any reliance on the cases relied upon by the learned counsel for the petitioner. This Court on the other hand considering the ratio of the judgment of the Supreme Court in the case of State of Punjab (supra) that it is the duty of the petitioner to be present and attend the enquiry. Apart from that, from the impugned order, learned counsel for the petitioner has tried to show that the notices were sent under registered post to the employee at every stage. Therefore, it cannot be said that the attempts were not made by the enquiry authority to hold the enquiry in the presence of the petitioner. If the petitioner deliberately evades the enquiry, he cannot take advantage of that fact. 11. Therefore, it cannot be said that the attempts were not made by the enquiry authority to hold the enquiry in the presence of the petitioner. If the petitioner deliberately evades the enquiry, he cannot take advantage of that fact. 11. On the question of non-furnishing of the Enquiry Officer's Report, learned counsel for the respondents submitted that at no stage prior to the filing of the memorial before the Director General of Police, such a grievance was made. In fact all attempt to send all the materials to the petitioner were taken by the disciplinary authority. 12. This Court considering the rival contentions of the parties is of the opinion that the petitioner being a member of the disciplined force should have been present in the line and should have attended the enquiry. By not attending the enquiry he cannot take any advantage and if by not attending the enquiry he has lost any opportunity to defend himself, he should not blame the department rather he should blame himself for the same. Apart from that the question of non-furnishing of enquiry report being a disputed question as would appear from the averment made in the writ petition and the counter affidavit, this Court cannot pass any order on the same. 13. But the question which shocks the conscience of this Court is the order of dismissal passed against the petitioner for absence from duty for 22 days. In this aspect of the matter the Court has said as early as in the year 1983 in the case of Bhagat Ram vs. State of Himachal Pradesh and others reported in A.I.R. 1983 SC page 454 that the penalty imposed on a delinquent must be commensurate with the gravity of his misconduct and if any penalty is imposed disproportionate to the gravity of the misconduct, the same would be violative of Article 14 of the Constitution. The said ratio in Bhagat Ram has been followed by the Supreme Court in a very erudite and lucid judgment in the case of Ranjit Thakur vs. Union of India and others reported in A.I.R. 1987 S.C page 2386 by Venkatachaliah, J., as His Lordship then was. The said ratio in Bhagat Ram has been followed by the Supreme Court in a very erudite and lucid judgment in the case of Ranjit Thakur vs. Union of India and others reported in A.I.R. 1987 S.C page 2386 by Venkatachaliah, J., as His Lordship then was. The learned Judge after noting the grounds of judicial review from the speech of Lord Diplock in Council of Civil Service Unions vs. Minister for the Civil Service (1984) 3 WLR 1174 (HL) has held that 'proportionality' is a legitimate ground for judicial review. It has been further held that all powers must have legal limits. Taking the aforesaid view the learned Judge in the case of Ranjit Thakur (supra) has quashed the punishment imposed in a summary Court Martial proceeding. 14. The subsequent judicial opinion as expressed by the apex Court, is of course a little different. In a judgment which has been cited by the learned counsel for the respondents between the State of U.P. and others vs. Nand Kishore Shukla and another reported in A.I.R. 1996 SC page 1561, two learned Judges of the Supreme Court held that "proportionality cannot be gone into by the Court". Unfortunately the attention of the Court was not drawn to the well considered and rather elaborate judgment of the Supreme Court in the case of Ranjit Thakur (supra). 15. Learned counsel for the respondents has also cited another judgment of the Supreme Court in the case of State of Punjab and other vs. Bakhshish Singh reported in A.I.R. 1997 SC page 2696 and in paragraph 5 of the said judgment the learned Judges of the two Judges Bench has held that "It is settled legal position that it is for the disciplinary authority to pass appropriate punishment, the Civil Court cannot substitute its own view to that of the disciplinary as well as appellate authority on the nature of the punishment to be imposed upon the delinquent officer". 16. Considering all these views which are not very consistent in nature, this Court is of the opinion that in a case like this where a person has been dismissed from service for absence from duty for 22 days, the punishment imposed has been rather disproportionate compared to the gravity of the misconduct. But this Court does not quash the dismissal order. But this Court does not quash the dismissal order. This Court feels that ends of justice will be sufficiently met if the following directions are passed. 17. Learned counsel for the respondents has categorically stated that the impugned order has not been passed considering any other delinquency of the petitioner concerned. Therefore, the sale reason for passing the impugned order is one of absence of 22 days. In the facts of this case, this Court feels that justice and equity of this case demands that the quantum of punishment imposed upon the petitioner deserves reconsideration. So without quashing the .impugned order of dismissal passed against the petitioner, this Court remands it to the Senior Superintendent of Police, Patna (respondent No. 6), who has passed the impugned order of dismissal, to reconsider the quantum of punishment imposed upon the petitioner in the light of the observation made in this judgment. Since the matter is an old one, the order of dismissal having been passed on 17.3.1987, it is expected that the reconsideration by respondent no. 6 will be made within a period of three months from the date of receipt/service of a copy of this judgment upon respondent no. 6. 18. With the above observation/direction, this writ petition is disposed of. There will be no order as to cost.