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2005 DIGILAW 2963 (RAJ)

U. O. I. v. Babu Lal Yadav

2005-11-11

PREM SHANKAR ASOPA, Y.R.MEENA

body2005
Judgment Prem Shanker Asopa, J.-This special appeal is directed against the order of learned Single Judge dated 012.2002, whereby the writ petition filed by the respondent-petitioner against the dismissal order has been accepted in part and the dismissal order dated 24.05.1989 and the appellate order dated 24.02.1997 have been modified by imposing penalty of withholding six grade increment with future effect instead of dismissal. The learned Single Judge has also directed that 50% of back-wages be also paid from the date of filing the writ petition. 2. Briefly stated the facts of the case are that the petitioner-respondent was appointed as Constable in the Border Security Force on 13.06.1975. Thereafter, he was promoted from time to time. On 110.1988 the respondent-petitioner was sanctioned three days casual leave. After expiry of the said period of three days the respondent-petitioner did not turn up on duty and sent several applications and telegarm for extension of the leave on medical grounds. A show-cause notice was issued on 30.04.1989 against the proposed action of dismissal to the respondent-petitioner but it is stated that the same was not received by him. When the respondent-petitioner was declared fit, he reported on duty immediately on 22.05.1989 but he was not permitted to join the same. On 24.05.1989, the respondent-petitioner was dismissed under Rule 177 of BSF Rules for over staying 215 days leave by treating it was grave misconduct. It was also submitted in the writ petition that dismissal order has been passed without following the procedure of inquiry and further punishment is shockingly disproportionate to the gravity of charge of over staying leave. 3. Reply to the writ petition was filed by the appellants. The receipt of the telegarm and application have not been denied by the appellant in Para No. 2. However, it has been submitted that the leave was refused and a communication was sent but still the respondent-petitioner did not turn up. It was submitted in the reply that misconduct is a grave misconduct for which no inquiry is necessary under Rule 20 in existence at the relevant time. 4. The appellants have also submitted that the services of the B.S.F. are para military services, therefore, strict discipline is to be maintained. 5. The learned Single Judge after hearing both the parties partly allowed the writ petition as detailed out here-in-above. The relevant portion of the said Judgment is reproduced here under: -"6. 4. The appellants have also submitted that the services of the B.S.F. are para military services, therefore, strict discipline is to be maintained. 5. The learned Single Judge after hearing both the parties partly allowed the writ petition as detailed out here-in-above. The relevant portion of the said Judgment is reproduced here under: -"6. A close look at the record demonstrates that no procedure prescribed under law was followed. It was incumbent on the respondents to initiate disciplinary proceedings against the petitioner for his willful absence from duty but no such proceedings were ever initiated. Show-cause notice however was issued to the petitioner and even if issuance of show cause notice is treated as initiation of disciplinary proceedings, clue of the factors which had weighed with the competent authority in deciding upon the extreme punishment of termination, is missing in the impugned order. I am satisfied that the competent authority did not apply judicious mind in making selection of penalty in the instant case. 7. TheDivision Bench of this Court in RSRTC & Ors. vs. Shri Ram Yadav, 1995 (2) WLC (Raj.) 16, indicated thus: -"The order itself much show that all the relevant aspects have entered into consideration in rendering the decision by a process of ratiocination. It is only when the order itself gives a clue of the factors which have weighed with the competent authority in deciding upon the punishment of removal from service that one can say that there has been application of mind." 8. In the facts and circumstances of the case I am of the opinion that imposition of punishment of termination from service on the petitioner for overstaying leave is shockingly dis-proportionate and interference under Article 226 of the Constitution of India is warranted. Mr. V.K. Joshi placed reliance on various authority but all those cases are distinguishable as the misconduct of the employee in those cases was of the gravest type. The argument in regard to alternative remedy is also devoid of merit as this Court in S.B.C.W.P. No. 6434/1993 directed the petitioner vide order dated 111.1996 to file representation before the competent authority and the competent authority was asked to dispose of the representation treating it as appeal. 9. The argument in regard to alternative remedy is also devoid of merit as this Court in S.B.C.W.P. No. 6434/1993 directed the petitioner vide order dated 111.1996 to file representation before the competent authority and the competent authority was asked to dispose of the representation treating it as appeal. 9. For the foregoing reasons, I partly allow the writ petition and modify the impugned order dated 24.05.1989 and 24.02.1997 and instead of termination of service of the petitioner, the penalty of withholding six Grade Increments with future effect is imposed upon the petitioner. The respondents shall reinstate the petitioner in service forthwith with all consequential benefits. The petitioner shall however be entitled to 50% of the back-wages with effect from 13.05.1997, the date of filing the writ petition. The arrears of wages shall be paid to the petitioner latest by 30.01.2003. If the amount of arrears is not paid by the aforesaid date it shall carry the interest at the rate of 18% per annum from the date of order till the amount is paid. In the facts and circumstances of the case the cost made easy." 6. The submission of the Counsel for the appellants is that the learned Single Judge has committed an error apparent on the record in treating 215 days absence as a simple misconduct whereas it is a grave misconduct, particularly in force like BSF. They further submit that there appears to be no reason for not turning up on duty after the receipt of the communication. 7. In support of their submissions the Counsel for the appellants have relied upon AIR 1989 SC 1321 , Sri. Gouranga Chakraborty vs. State of Tripura & Anr.; 1995 Lab. IC 748, Gopaljee Jhga vs. State of Bihar & Ors.; AIR 1996 SC 736 , State of U.P. & Ors. vs. Ashok Kumar Singh & Anr.; AIR 1996 SC 1500 ,Union of India & Ors. vs. Ram Pal and AIR 2002 SC 2102 , Union of India & Ors. vs. Narain Singh. 8. The submission of the Counsel for the respondent is that the misconduct of overstaying the leave, that too on medical grounds, cannot be said to be the act of grave misconduct. He further submits that there appears to be no justification for refusing the leave on medical grounds. vs. Narain Singh. 8. The submission of the Counsel for the respondent is that the misconduct of overstaying the leave, that too on medical grounds, cannot be said to be the act of grave misconduct. He further submits that there appears to be no justification for refusing the leave on medical grounds. Counsel for the respondent-petitioner also submits that neither the show-cause notice was received by him nor the communication of refusal of leave. In support of the aforesaid submissions, Counsel for the respondent-petitioner relied on 2004 (2) WLC (SC) Civil 226, Bhagwan Lal Arya vs. Commissioner of Police Delhi & Anr.,1998 (5) SLR 625, The State of Punjab vs. Bakshish Singh; All India SLJ 216 State of Punjab vs. Chanan Singh, Civil Appeal No. 5918/1998,The State of West Bengal & Ors. vs. Sri Sanjib Roy & Anr. Decided on 15.02.2001, 1995 (6) SCC 749 , B.C. Chaturvedi vs. Union of India & Ors., 2005 (2) WLC (Raj.) 38, Union of India & Ors. vs. Vishnu Lal Nai & Anr. .9. Although in Para 6 of the Judgment the learned Single Judge gave a finding that no procedure prescribed under the law was followed. But the dismissal order has not been set-aside on the said ground and the same has been set-aside on the ground of dis-proportionate punishment. Therefore, in our opinion, there is no need to deal with the issue of procedure of enquiry. .10. We have considered the rival submissions of the parties and perused the record of the case. .11. In State of U.P. & Ors. vs. Ashok Kumar Singh & Anr., AIR 1996 S.C. 736 (Supra), the charge was of absent from duty without leave on several occasions and the same was taken to be a grave charge but here in the instant case the charge is of over-staying the leave and for over-staying period the leave applications were given and the same were received by the Department. Therefore, the said Judgment is distinguished. In Union of India & Ors. vs. Narain Singh, AIR 2002 SC 2102 (Supra), the Honble Supreme Court has dealt with the issue of disproportionate punishment. But the Honble Supreme Court has nowhere said that the Court has no power to reduce the penalty in case of dis-proportionate punishment. The Honble Supreme Court has only said that the Court must not lightly interfere with the sentence passed after the properly conducted inquiry. But the Honble Supreme Court has nowhere said that the Court has no power to reduce the penalty in case of dis-proportionate punishment. The Honble Supreme Court has only said that the Court must not lightly interfere with the sentence passed after the properly conducted inquiry. The relevant portion of the Judgment reported in Union of India vs. Narain Singh (Supra), is reproduced hereunder for ready reference: - .“9. As seen above, the Division Bench notes that the charges against the respondent are proved and that the charges are of serious nature. Once the Court came to the conclusion that the charges were proved and that the charges were of the serious nature, it was not the function of the Court to interfere with the quantum of punishment. The Division Bench was wrong in holding that factors viz. (a) the person is coming from which place, (b) his family background and (c) his service record etc. were to be kept in mind. In our view the Division Bench was also wrong in holding that if a poor person pleads guilty to the misconduct, then extreme penalty of dismissal is uncalled for. In our view a Court must not lightly interfere with sentences passed after a properly conducted enquiry where the guilt is proved. Reduction of sentence, particularly in military, para-military or police services can have a demoralising effect and would be a retrograde step so far as discipline of these services is concerned. In this case the charges being of a serious nature the penalty was commensurate with the charges. Further the Division Bench has itself noted that this was the third time the respondent was punished.” 12. The Judgment s cited by the Counsel for the respondent-petitioner are on the issue of dis-proportionate penalty. 13. In B.C. Chaturvedi vs. Union of India & Ors., 1995 (6) SC Cases 749, the Honble Supreme Court has held that in case the punishment imposed by the disciplinary authority shocks the conscience of the Court, it would appropriately mould the relief , either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself , in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof . The said Judgment has been affirmed from time to time by the Honble Supreme Court and recently it has been affirmed in a case reported in 2004 (2) WLC (SC) Civil 226. Para 18 of Chaturvedis case (Supra), is reproduced hereunder for ready reference: - “18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief , either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof .” Para Nos. 10. 12, 13 and 14 of the Judgment reported in 2004 (2) WLC (SC) 226 (Supra), read as under: -“10. In the instant case, the appellant had absented himself for 2 months, 8 days and 17 hours on medical grounds. The above two Rules 8, 10, provide that penalty of removal can be imposed only in cases, if grave misconduct and continued misconduct indicating incorrigibility and complete unfitness for police service. The absence of the appellant on medical grounds with application for leave as well as sanction of leave can under no circumstances, in our opinion, be termed as grave misconduct or continued misconduct rendering him unfit for police service. 12. The disciplinary authority without caring to examine the medical aspect of the absence awarded to him the punishment of removal from service since their earlier order of termination of appellants service under Temporary Service Rules did not materialize. No reasonable disciplinary authority would term absence on medical grounds with proper medical certificates from Government Doctors as grave misconduct in terms of Delhi Police (Punishment and Appeal) Rules,1980. Non application of mind by quasi judicial authorities can be seen in this case. The very fact that respondents have asked the appellant for re-medical clearly establishes that they had received applicants application with medical certificate. Non application of mind by quasi judicial authorities can be seen in this case. The very fact that respondents have asked the appellant for re-medical clearly establishes that they had received applicants application with medical certificate. This can never be termed as willful absence without any information to competent authority and can never be termed as grave misconduct. 13. InB.C. Chaturvedi vs. Union of India, ( AIR 1996 SC 484 ), three Judges Bench) the question posed for consideration was as to whether the High Court/Tribunal can direct the authorities to reconsider punishment with cogent reasons in support thereof or reconsider themselves to shorten the litigation. In this case, at Para 18, this Court has observed as under: - “A review of the above legal position would establish that the disciplinary authority and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal while exercising the power of judicial review cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of High Court/Tribunal, it would appropriately mould the relief , either directing the disciplinary/appellate authority to reconsider the penalty imposed or to shorten the litigation, it may itself , in exceptional and rare cases, impose appropriate punishment cogent reasons in support thereof .” 14. Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and dis-proportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the matter back to the disciplinary authority fro passing the order of punishment afresh in accordance with law and consistently within the principles laid down in the Judgment . However, that would further lengthen the life of litigation. Ordinarily we would have set aside the punishment and sent the matter back to the disciplinary authority fro passing the order of punishment afresh in accordance with law and consistently within the principles laid down in the Judgment . However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated up to the date on which the appellant reports back to duty pursuant to this Judgment shall not be counted as a period spent on duty? The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this Judgment .” 14. In State of Punjab vs. Chanan Singh (Supra), in Para Nos. 8 and 10, it has been categorically held that the charge of absence from duty cannot be sustained after the person has been treated on leave. The said Para Nos. 8 and 10 read as under:- “8. In the present case, Exhibit P. 1, order of dismissal, is a non-speaking order, from this order, it cannot be inferred at all that the punishing authority was alive to the inbuilt ingredients in the Rule 16.2.(1) of the Punjab Police Rules for awarding punishment of dismissal. Undisputed the Court should not interfere with regard to the quantum of punishment with respect to a person or Police Officer found guilty of dereliction of duty. The Courts have jurisdiction only to interfere where the punishment or the action has been taken unilaterally or arbitrarily. Undisputed the Court should not interfere with regard to the quantum of punishment with respect to a person or Police Officer found guilty of dereliction of duty. The Courts have jurisdiction only to interfere where the punishment or the action has been taken unilaterally or arbitrarily. In view of my observation that the punishing authority was not alive to the ingredients, i.e., while awarding the punishment in terms of Rule 16.2(1) of the Punjab Police Rules, it has to be satisfied that the act attributed is one of the gravest acts of misconduct or the cumulative effect of continued misconduct resulting in his becoming complete unfit for police service. While making such an assessment awarding punishment of dismissal, the punishing authority, should also keep in view the length of service of the delinquent and his claim to pension. Here admittedly, none of these things was taken into consideration. A reading of Exhibit P. 1 makes it obvious that the punishing authority was not alive to the situation at all. 10. Counsel for the respondent contends that it amounts to regularising the absence and only charge against the respondent being that he was absent from duty without leave, the charge is knocked out at its basis. He, in order to support his contention relied upon Tito Franciso Pereira vs. Administrator of Goa Daman and Diu & Ors., 1978 SLJ 614, B. Papaiah vs. Assistant Director, Medical Services, Secunderabad, AIR 1976 AP 75 and Bhursinh Hamsinh Rajput vs. State of Gujarat & Anr., 1982 (1) SLJ 697. The consensus of the decision in the precedents relied upon by the respondent is that once the period of absence is treated as leave of any kind whatsoever, the fact that the delinquent remained absent no more survives. The charges of absence from duty cannot be sustained after the person has been treated on leave of whatsoever kind it may be, as admittedly in the case in hand the absence was treated as leave without pay and it amounted to as if there was no break in service. The Counsel for the appellant only contends that the above precedents do not lay down the correct law as no reason has been pointed out for the same. In view of my above observations, I find force in the contention raised by the Counsel for the respondent. The Counsel for the appellant only contends that the above precedents do not lay down the correct law as no reason has been pointed out for the same. In view of my above observations, I find force in the contention raised by the Counsel for the respondent. In view of the observations made by the punishing authority in the order of dismissal that the period of absence shall be counted as leave without pay amounts to regularising the absence and as such the charge of absence no more survives. 15. In State of Punjab & Ors. vs. Bakshish Singh (Supra), the Honble Supreme Court has held that once the period of absence is regularised and converted into leave then charge of misconduct does not survive. Para Nos. 3, 4 and 8 are as under: - “3. Having affirmed the findings of the trial Court that the charge of absence from duty did not survive, the lower appellate Court proceeded to consider the question whether absence from duty was a misconduct of the gravest kind so as to warrant the maximum penalty of “dismissal from service” or it was a mere” misconduct” for which lessor punishment would be appropriate. Having found that it was not a case of misconduct of the gravest kind, the lower appellate Court remanded the case back to the punishing authority for passing a fresh order of punishment. The appellant then filed a second appeal in the High Court which was dismissed summarily. 4. It will thus be seen that the trial Court as also the lower appellate Court had both recorded the findings that the period of absence from duty having been regularised and converted into leave without pay, the charge of absence from duty did not survive. Once it was found as a fact that the charge of unauthorised absence from duty did not survive, we fail to understand how the Lower Appellate Court could remand the matter back to the punishing authority for passing a fresh order of punishment. Once it was found as a fact that the charge of unauthorised absence from duty did not survive, we fail to understand how the Lower Appellate Court could remand the matter back to the punishing authority for passing a fresh order of punishment. In the face of these findings, specially the finding of the trial Court that proper opportunity of hearing was not given and the signatures of the respondents were obtained under duress during departmental proceedings which have not been set-aside by the Lower Appellate Court, we are of the view that there was no occasion to remand the case to the punishing authority merely for passing a fresh order of punishment. 8. This provision gives very wide power to the Appellate Court to do complete justice between the parties and enables it to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any appeal or cross-objections.” 16. We are conscious of the fact that B.S.F. is a para-military force and discipline has to be maintained. But here in the instant case the appellants were aware of the fact that the respondent-petitioner was not keeping well and was seeking extension on medical ground from time to time. In such a situation there is no justification for refusing the leave and leveling the charge of over-staying the leave. The said charge of over staying leave cannot be equated with the willful absence and further the same cannot be said to be a grave misconduct. Therefore, we find no infirmity in the order passed by the learned Single Judge. 17. Now the question remains whether the case is to be remanded for reduction of penalty or this Court should exercise its exceptional power imposing penalty itself . Here in the instant case the dismissal order was passed on 24.05.1989, 16 years back. The respondent-petitioner has earlier also filed the writ petition against the show-cause notice and now the present proceedings are in appeal. In case at this stage the matter is remanded back to the disciplinary authority then the fresh inning will start. Here in the instant case the dismissal order was passed on 24.05.1989, 16 years back. The respondent-petitioner has earlier also filed the writ petition against the show-cause notice and now the present proceedings are in appeal. In case at this stage the matter is remanded back to the disciplinary authority then the fresh inning will start. Taking into consideration the aforesaid facts and circumstances of the case which will shorten the litigation, we uphold the reduction of the penalty from the dismissal to withholding the six grxade increment. 18. In the result the special appeal fails and the same is dismissed with no order as to costs.