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2005 DIGILAW 172 (GAU)

Laishram Deven Singh v. State of Manipur and Ors.

2005-03-01

T.NANDA KUMAR SINGH

body2005
1. A short factual matrix will be sufficient for disposing the present writ petition. The petitioner joined the Manipur Police Department as a Police Constable in pursuance of the order of the Police Head Quarter dated 31.8.88 being No.E/31/30/88-PHQ on the recommendation of the DPC and as approved by the Govt. Vide Home Deptt. Letter No.13(1)/36/84-H(Pt) dated 25.8.88. When the petitioner was serving as Police Constable, he had been posted to different places and in the month of May, 1995, he was posted as a guard to the Assistant Inspector General of Police, Govt. of Manipur at his residence at Uripok, Imphal. On 1.5.1995, he left for his home after taking necessary permission from the Guard Commander. At that time, the petitioner was suffering from mental break down due to a nervous shock on the sudden death of his daughter, namely Hemolata Devi, who was aged about 6 ½ years. As soon as he reached his home, the petitioner's physical health became worsen and he was suffering from psychatric problem and he was treated by one Dr. L. Surchandra Singh, Psychatrist of J.N. Hospital, Porompat, Manipur with effect from 1.5.1995 to 28.10.1995, and a Medical Certificate was issued by Dr. L. Surchandra Singh in this regard. The Medical Certificate is at Annexure-A/2 to the writ petition. A departmental enquiry was initiated against the petitioner for the unauthorized absence of 181 days w.e.f. 1.5.95 to 28.10.1995. The petitioner was given the opportunity to file his written statement of defence in the said departmental enquiry against him. The said Medical Certificate issued by Dr. L. Surchandra Singh was annexed as one of the documents in the said written statement of defence which was filed in the departmental enquiry. After holding the departmental enquiry, the Enquiry Officer submitted the report to the Superintendant of Police, Imphal District, Manipur and the said Superintendant of Police, Imphal District issued the impugned order dated 31.8.1996 for imposing extreme penalty of removal from service after holding that the period of absence w.e.f. 1.5.95 to 28.10.95 will be treated as extra ordinary leaves. The petitioner also filed an appeal against the said order of the Superintendent of Police, Imphal District dated 31.8.96 to the Dy. Inspector General of Police (V/R), Manipur. The Dy. The petitioner also filed an appeal against the said order of the Superintendent of Police, Imphal District dated 31.8.96 to the Dy. Inspector General of Police (V/R), Manipur. The Dy. Inspector General of Police (V/R), Manipur also passed an order dated 4.10.1997 (Annexure-A/5 to the writ petition) for dismissing the said appeal of the petitioner, and the Director General of Police, Manipur also passed an order dated 25.7.2001 (Annexure-A/6 to the writ petition) for dismissing the appeal filed by the petitioner against the said order of the Superintendent of Police, Imphal District, Manipur dated 31.8.96 and the said order of the Dy. Inspector Genral of Police(V/R), Manipur, dated 4.10.1997. Hence, this present writ petition for quashing the said orders of the Superintendent of Police, Imphal District, Manipur dated 31.8.96, the order of the Dy. Inspector General of Police (V/R), Manipur dated 4.10.1997 and the order of the Director General of Police, Manipur dated 25.7.2001. 2. In this writ petition, it is mentioned very clearly that the Manipur Police Department has made out discriminatory treatment to the present writ petitioner by imposing extreme penalty of removal from his service for the unauthorized absence of 181 days inasmuch as in respect of other Police Constables, namely Shri Th.Ibotombi Singh, Constable No.3128 for his unauthorized absence for a period of 192 days, i.e. w.e.f. 20.4.95 to 28.10.95, Shri Ch. Chandramani Singh, C/No.791186 who absented without leave for 146 days from 5.6.95 to 28.10.95 and Shri Theko Mao, C/No.861352 who absented without leave for 108 days from 13.7.95 to 28.10.95 that had been reinstated into service. The petitioner also has annexed a list of the other Police Constables who absented themselves without leave for more than 180 days as Annexure-A/7 to the writ petition. In respect of those Police Constables whose names are mentioned at Annexure-A/7 to the writ petition had already been reinstated in service even if they absented themselves without any leave for the period ranging from 192 days to 280 days. The petitioner also filed reply-affidavit and three orders for reinstating the Police Constables who absented themselves without leave for the period ranging from 192 to 309 days had been annexed. In respect of one of the Police constables, Shri Th. The petitioner also filed reply-affidavit and three orders for reinstating the Police Constables who absented themselves without leave for the period ranging from 192 to 309 days had been annexed. In respect of one of the Police constables, Shri Th. Ibotombi Singh, C/No.3128, who absented himself without leave for the period of 192 days, the Director General of Police, Manipur also passed order being No.E2/43/58(6)/98-PHQ/(Admn), Imphal, the 16th March,2000 for imposing lesser punishment by awarding stoppage of 4(four) years' increment without affecting his future increment (Annexure-A/8 to the additional affidavit to the writ petition). Further, in the case of one Police Constable No.821114, Shri S. Shyamjai Singh of Imphal West District who absented himself for a period of 309 days, i.e.w.e.f. 26.7.95 to 8.8.96, without obtaining permission from the competent authority, the Dy. Inspector General of Police(Range-I & II): Manipur:Imphal passed an order being No.A-3/5/R-I&II/99 dated 29.6.1999 for imposing lesser punishment by awarding stoppage of 3(three)years annual increment without cumulative effect for having remained in unauthorized absence for a period of 309 days and the said period of 309 days was treated as EOL. By the order of this Court dated 11.01.2005, the learned Govt. Advocate for the respondents had been directed to produce the D.E. record/D.E proceedings against the said Police Constable who absented themselves for a period ranging from 192 days to 309 days and against whom the respondents did not award the extreme penalty of removal from service. The learned Govt. Advocate admits the existence of those orders at the time of hearing of this writ petition. 3. In the above factual circumstances and the nature of the present case, the punishment awarded to the petitioner by issuing the impugned orders dated (i) 31.8.96 (Annexure-A/4 to the writ petition), (ii) 4.10.1997 (Annexure-A/5 to the writ petition) and (ii) 25.7.2001(Annexure-A/6 to the writ petition) for imposing the extreme penalty of removal service is disproportionate for his unauthorized absence of 181 days. 4. Heard Mr. N. Brojendro Singh, learned counsel for the writ petitioner as well as Md. Jalal Uddin, learned G.A. appearing for the respondents. 5. The respondents filed their affidavit-in-opposition in the present writ petition and in their affidavit-in-opposition, the respondents did not deny that the petitioner had filed the Medical Certificate issued by the said Dr. 4. Heard Mr. N. Brojendro Singh, learned counsel for the writ petitioner as well as Md. Jalal Uddin, learned G.A. appearing for the respondents. 5. The respondents filed their affidavit-in-opposition in the present writ petition and in their affidavit-in-opposition, the respondents did not deny that the petitioner had filed the Medical Certificate issued by the said Dr. L. Surchandra Singh, Psychatrist, J.H. Hospital, Porompat as a document in support of his written statement of defence in the departmental enquiry. The learned counsel for the petitioner also submits that this court in the case of one Elangbam Nimai Singh - Vrs - State of Manipur, reported in 1998 (2) GLT 315, had interfered with the extreme penalty of removal from service for the unauthorized absence of 68 days without leave. In that case also, it is clear that the delinquent had submitted his Medical Certificate in order to show that he was suffering from certain illness during the said period of 68 days. This court in the case of Elangbam Nimai Singh (Supra) had discussed the ratio laid down by the Apex Court in a number of cases including the case of B.C. Chaturvedi - Vrs - Union of India, reported in AIR 1996 SC 484 , Ex Naik Sardar Singh - Vrs - Union of India & Ors, reported in AIR 1992 SC 417 , State of U.P. & Ors - Vrs - Ashok Kumar Singh & Anr.,reported in AIR 1996 SC 736 and State of U.P. & Ors. - vrs -Nand Kishore Shukla & Anr., reported in 1996(3) SCC 750 , and passed the judgment and order that the punishment imposed to the said Police Constable for imposing extreme penalty of removal from service is disproportionate for his unauthorized absence of 68 days. This court in Elangbam Nimai Singh(Supra) had discussed the principle of 'Equal Treatment' enshrined under Article 14 and 16 of the Constitution of India even in the case of imposing penalty. This court again in Trilok Singh - Vrs -Union of India & Anr. Reported in 2000(3) GLT 558 held that imposing of extreme penalty of dismissal from service is disproportionate for the charge of bigamy by following the ratio laid down by this court in Prafulo Kalita - Vrs - Oil and Natural Gas reported in 1995 (2) GLR 388. 6. Reported in 2000(3) GLT 558 held that imposing of extreme penalty of dismissal from service is disproportionate for the charge of bigamy by following the ratio laid down by this court in Prafulo Kalita - Vrs - Oil and Natural Gas reported in 1995 (2) GLR 388. 6. The Apex Court in B.C Chaturvedi -vrs- Union of India, reported in AIR 1996 SC 484 held that judicial review by exercising the power under Article 226 of the Constitution of India is not an appeal from a decision and the High Court while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. But the High Court by exercising the power under Article 226 can interfere with if the punishment imposed by the disciplinary/appellate authority shocks judicial conscience in which the court can mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. The Apex court again reiterated in Dev Singh - Vrs - Punjab Tourism Development Corporation Ltd. And another, reported in (2003)8 SCC 9 that if the punishment imposed by the disciplinary authority or appellate authority shocks judicial conscience, court can mould the relief. Para-7 of SCC in Dev Singh (Supra) is quoted hereunder: “7. Applying the said principles laid down by this court in the cases noted hereinabove, we see that in this case the appellant has been serving the respondent Corporation for nearly 20 years with unblemished service, before the present charge of misconduct was leveled against him. The charge itself shows that what was alleged against the appellant was misplacement of a file and there is no allegation whatsoever that this file was either misplaced by the appellant deliberately or for any collateral consideration. A reading of the charge-sheet shows that the misplacement alleged was not motivated by any ulterior consideration and at the most could be an act of negligence, consequent to which the appellant was unable to race the file again. A reading of the charge-sheet shows that the misplacement alleged was not motivated by any ulterior consideration and at the most could be an act of negligence, consequent to which the appellant was unable to race the file again. The disciplinary authority while considering the quantum of punishment came to the conclusion that the misconduct of the nature alleged against the appellant should be viewed very seriously to prevent such actions in future, whereby important and sensitive records could be lost or removed or destroyed by the employee under whose custody the records are kept. Therefore, he was of the opinion that a deterrent punishment was called for, forgetting for a moment that no such allegation of misplacing of important or sensitive record was made in the instant case against the appellant and what he was charged of was misplacement of a file, important or sensitiveness of which was not mentioned in the charge-sheet. Therefore, in our opinion, the disciplinary authority was guided by certain facts which were not on record, even otherwise, we are of the opinion that when the Service Bye-laws applicable to the Corporation under Service Bye-laws 17 provide various minor punishments, we fail to appreciate why only maximum punishment available under the said Bye laws should be awarded on the facts of the present case. We think the punishment of dismissal for mere misplacement of a file without any ulterior motive is too harsh a punishment which is totally disproportionate to the misconduct alleged and the same certainly shocks our judicial conscience. Hence, having considered the basis on which the punishment of dismissal was imposed on the appellant and the facts and circumstances of this case, we think to avoid further prolonged litigation it would be appropriate if we modify the punishment ourselves. On the said basis, while upholding the finding of misconduct against the appellant, we think it appropriate that the appellant be imposed a punishment of withholding of one increment including stoppage at the efficiency bar in substitution of the punishment of dismissal awarded by the disciplinary authority. We further direct that the appellant will not be entitled to any back wages for the period of suspension. We further direct that the appellant will not be entitled to any back wages for the period of suspension. However, he will be entitled to the subsistence allowances payable up to the date of the dismissal order.” By keeping in view of the ratio laid down by the Apex Court as well as by this court, it is required to see the present case as to whether the respondents had made out partial treatment while imposing penalty for the unauthorized absence. It is crystal clear that in respect of those persons who absented themselves for the period ranging from 192 days to 309 days without leave of the competent authority, the respondents did not impose the extreme penalty of removal from service. In this regard, the learned counsel for the respondent submits that the cases of those Police Constables are quite different from the present case, but it is an undeniable fact that in respect of those persons also, the Enquiry Officer had made findings that they had absented themselves without leave from the competent authority for the period ranging from 192 days to 309 days. Similarly, in the present case also, there is a finding of the departmental enquiry that the petitioner absented himself for the period of 181 days but the only difference is that in respect of those Police Constables who absented themselves for the period ranging from 192 days to 309 days without the permission of the competent authority, the respondents did not impose the extreme penalty of removal from their services by denying the right of the petitioner guaranteed under Article 14 and 16 of the Constitution of India. 7. This court, in the above factual back ground, is of the view that the punishment imposed by the respondents for imposing extreme penalty of removal from service for his unauthorized absence of 181 days shock the judicial conscience of this court inasmuch as the respondents had imposed the punishment other than the extreme penalty of removal from service in respect of those who absented themselves for the period ranging from 192 days to 309 days. Accordingly, on the consideration of the materials on record, I am of the considered view that the punishment imposed on the writ petitioner is severe and harsh punishment. Accordingly, on the consideration of the materials on record, I am of the considered view that the punishment imposed on the writ petitioner is severe and harsh punishment. Accordingly, the impugned orders dated (i) 31.8.96(Annexure-A/4 to the writ petition), (ii) 4.10.97(Annexure-A/5 to the writ petition) and (iii) 25.7.2001(Annexure-A/6 to the writ petition) are set aside and quashed, but I left it to the authority to impose any punishment save and except dismissal or removal from service. It is made clear that the petitioner shall not be entitled to back wages. The order of reinstatement of the petitioner shall be passed within a period of 2(two) months from the date of receipt of this judgment and order. The writ petition is allowed. No order as to costs.