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2005 DIGILAW 1259 (ALL)

OM KESH RAI v. STATE OF U. P.

2005-07-15

N.K.MEHROTRA

body2005
JUDGMENT : N.K. Mehrotra, J. Heard Shri Amit Bose, the learned Counsel for the Petitioner and Shri R. B. Yadav, Brief Holder for the opposite parties. 2. The Petitioner has filed this writ petition for quashing of the impugned order of removal from service dated 18.9.2003 (Annexure-1), the order passed in appeal against that order dated 15.11.2003 (Annexure-5) and the order passed in revision dated 17.3.2004 (Annexure-6). The Petitioner has been dismissed from service for unauthorized absence during the period from 6.3.2003 to 20.3.2003. The learned Counsel for the Petitioner has pressed this writ petition only on the quantum of punishment, which according to the Petitioner is disproportionate to the misconduct as contained in the charge. 3. The case of the opposite parties is that the Petitioner is a Head Constable in Armed Force and it is clear from the appellate order passed by the Deputy Inspector General of Police that the Petitioner had committed a number of misconduct during his service. He remained absent during the whole service career several times and he is not disciplined employee. The appellate and revisional authority have relied on the seven instances during the period 1993 to 2003 during which the Petitioner was awarded minor punishments for unauthorized absence and this previous conduct has led to dismissal of the appeal and revision by the appellate and revisional authorities. The case of the opposite parties is that after seeing the previous conduct and various minor punishments awarded to the Petitioner during career, the impugned punishment cannot be said to be such punishment, which can shock the conscious of the Court. 4. The learned Counsel for the Petitioner has relied on a decision of the Supreme Court in Shri Bhagwan Lal Arya Vs. Commissioner of Police Delhi and Others, AIR 2004 SC 2131 , in which it has been held that an order of removal from service could only be passed only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police service. Commissioner of Police Delhi and Others, AIR 2004 SC 2131 , in which it has been held that an order of removal from service could only be passed only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police service. In this case the absence of more than two months on medical ground without sanction of leave was not regarded as grave misconduct or continued misconduct rendering him complete unfit for police service and dismissal on the ground of alleged misconduct of alleged conduct from duty was held excessive and disproportionate punishment and not permissible under Delhi Police (Punishment and Appeals Rules, 1980). 5. The learned Counsel appearing for the State has placed reliance on State of U.P. and others Vs. Ashok Kumar Singh and anothers, AIR 1996 SC 736 . In this case the Supreme Court having noticed the fact that the Respondent had absented himself from duty without leave on several occasions, did not approve the observations of the High Court that absence from duty, would not amount to such a grave charge. The facts of that case are not before me but in the instant case under judgment I have seen the charge contained in Annexure-2. There is only one charge that the Petitioner was unauthorized absent from duty during the period from 6.3.2003 to 20.3.2003. The Enquiry Officer found that the charge was proved. I have seen the show cause notice. In this show cause notice also the same allegation has been made against the Petitioner. I have seen the appellate order (Annexure-5). The appeal has been dismissed after mentioning the earlier 15 misconduct during the period 1993 to 2003 but there is no charge in the charge-sheet (Annexure-2) that the previous conduct at 15 occasions as mentioned in the appellate order make the nature of the alleged misconduct as gross misconduct or repeated misconduct and there was no notice to the Petitioner that the previous misconduct/punishment shall also be taken into consideration and therefore, the Petitioner was prevented from producing his defense to save the finding of gross misconduct against him. The Law is well-settled that if the previous conduct or the previous punishment are taken into consideration, it should be specifically mentioned in the charge and the delinquent employee should be given opportunity of defense on that count. The Law is well-settled that if the previous conduct or the previous punishment are taken into consideration, it should be specifically mentioned in the charge and the delinquent employee should be given opportunity of defense on that count. The previous cases of misconduct had not been taken into consideration either by the Enquiry Officer or by the disciplinary authority and as such the Petitioner had never been afforded an opportunity to confront with such material and on that ground alone, the appellate authority could not take into consideration the said cases and occasions of misconduct for justifying the order of removal from service. 6. Therefore, in the peculiar circumstances of the case in which the appeal and revision has been dismissed and the defense in the counter-affidavit is based solely on the previous misconduct on several occasions cannot justify the unauthorized absence for a short period during 6.3.2003 to 20.3.2003 to hold the Petitioner guilty of gross misconduct for the purpose of awarding punishment of dismissal. 7. In view of the above, I am of the view that the punishment of dismissal cannot be said to be proportionate to the alleged charge of unauthorized absence during the period of fifteen days without putting the previous conduct as mentioned in the appellate order. Since the previous conduct as noted in the appellate order have not been put to the Petitioner either by mentioning in the charge or by putting in evidence or by conveying him in any form that at the time of deciding the enquiry the previous conduct on various occasions shall also be the basis for awarding the punishment, cognizance of the previous conduct for deciding the quantum of punishment cannot be said to be a legal. 8. 8. In view of the above, order of punishment of dismissal and subsequent orders passed in appeal and revision are quashed with liberty to the punishing authority to pass a fresh order awarding any punishment other than dismissal, proportionate to a charge leveled against the Petitioner and if, the punishing authority is satisfied that the previous misconduct on various occasions during service is indicative of the fact that the Petitioner is not fit to be retained in armed force, the punishing authority shall be at liberty to amend the charge and conclude the enquiry after giving further opportunity to meet the charge of previous misconduct to prove the gravity of the charge of unauthorized absence during the period in question. The Petitioner shall be reinstated forthwith but during the period, during which the Petitioner remained absent because of dismissal, the Petitioner shall not be entitled for salary but it will be counted for other service benefits. 9. With the aforesaid observations, the writ petition is allowed. No order as to costs.