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2005 DIGILAW 812 (MP)

Kakandhar Patel v. State of M. P.

2005-08-03

A.K.SHRIVASTAVA

body2005
JUDGMENT This petition was originally filed before the State Administrative Tribunal at Jabalpur on 10. 10.2000. However, on account of abolition of the Tribunal, this petition has been received by this Court for its adjudication, By this petition, the petitioners are challenging their order of removal dated 23.9.1999 (Annexure P/9) passed by respondent No.3 which was affirmed by the Departmental Appellate Authority vide order dated 31.7.2000 (Annexure A/10). It has been vehemently argued by Shri Manish Soni, learned counsel for the petitioners that without entering into the controversy of the validity of the departmental enquiry, since, the punishment awarded is in excessive and shockingly disproportionate, therefore, this Court while exercising jurisdiction conferred on it under Article 226 of the Constitution of India may judicially review the order and pass suitable order. The factual matrix giving rise to this petition is that at the relevant point of time deceased petitioner No. 1 was serving on the post of Head Constable and petitioner No.2 was serving on the post of Constable in the Police Department. These two persons along with three other constables were carrying six accused persons and bringing them to the Court, however; from the bus stand one accused anyhow managed to escape as a result of which he t1ee way from the spot. The contention of learned counsel for petitioners is that the accused persons were not handcuffed and since they were six in number and there were only five police persons including the petitioners, therefore, one accused managed to escape from the custody of these persons. The contention of learned counsel is that under these facts and circumstances the punishment order directing removal from the service of petitioners is in excessive and also shockingly disproportionate. In support of his contention, learned counsel has placed reliance on the Single Bench decision of this Court in Lekhram Sharma v. Union of India and others. 2004 (I) Vidhi Bhasvar 48 = 2003 (5) MPHT 42 . On these premised submissions, it has been contended by learned counsel that the order of punishment of removal of service be quashed and appropriate punishment may be awarded. Per contra Shri Ashok Agrawal, learned Government Advocate has argued in support of impugned punishment order passed by the disciplinary authority as' well as by the appellate authority. On these premised submissions, it has been contended by learned counsel that the order of punishment of removal of service be quashed and appropriate punishment may be awarded. Per contra Shri Ashok Agrawal, learned Government Advocate has argued in support of impugned punishment order passed by the disciplinary authority as' well as by the appellate authority. According to learned Government Advocate in the peculiar facts and circumstances, it cannot be said that the punishment order directing removal of service of petitioner is in excessive or shockingly disproportionate. After having heard learned counsel for the parties, I am of the view that this petition deserves to be allowed in part. Since learned counsel for the petitioners has not pressed the petition in regard to the validity of the departmental enquiry, this Court is not passing any order in that regard. Learned counsel for the petitioner has only submitted about the quantum of punishment. In the peculiar facts and circumstances which are unfolded, it is gathered that six accused persons were being carried by five police persons including two petitioners. All the accused persons were not handcuffed and in the busy locality of bus stand, one accused any how managed to escape and flee away from the custody of the police. Since the accused persons were not handcuffed, therefore, the petitioners cannot be held solely responsible for the simple reason that other three police persons were also present. In this view of the matter, the view of this Court is that the order of punishment removing petitioner from his services is shockingly disproportionate. Looking to the totality of facts and circumstances, the impugned order Annexure A/9 dated 23.9.1999 passed by the disciplinary authority, respondent No.3 and the order of the appellate authority dated 31.7.2000 (Annexure A/10) are hereby quashed. In place of punishment of removal from service, both the petitioners are hereby punished by withholding two annual increments with cumulative effect. The respondents are directed to take back the petitioners in service forthwith with 50% back wages which would be an additional punishment for them. From today both the petitioners shall be entitled for their full salary. The petition is partly allowed to the extent indicated hereinabove. No order as to costs.