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Madhya Pradesh High Court · body

2006 DIGILAW 763 (MP)

Deo Sharan Singh v. State of M. P.

2006-05-20

A.M.NAIK

body2006
ORDER 1. By this petition, a challenge has been made to the order of removal dated 22.4.1995 and the Appellate order dated 4.7.1995 contained in Annexure A-7 and A-8 respectively. 2. Facts relevant for the purposes of the writ petition are that the petitioner was a Constable on account of having been appointed on 6.5.1986. After completion of training, he was posted at G.R.P. Itarsi, on 20.2.1988. He met with an accident on 20.3.1994 and suffered fracture in his left leg which was reported by him to the Police Station. He proceeded on one month's medical leave. He failed to attend his duties due to ill-health and submitted medical certificates dated 19.3.1994 and 14.6.1994. Simultaneously, he was also suffering from Sciatica and Arthritis. 3. The petitioner was served with a charge sheet on ?9.1994 on the ground that he was unauthorisedly absent from duty for about 103 days (6.3.1994 to 16.6.1994) and that the petitioner is a habitual absentee in an unauthorised manner. Reply was filed by the petitioner stating about his ill-health. Necessary documents were also submitted. After the departmental enquiry, final order dated 22.4.1995 was passed by the Superintendent of Police, Bhopal, vide Annexure A-7, removing thereby the petitioner from service. Appeal preferred against the same has also been dismissed vide Annexure A-8 dated 4.7.1995. The petitioner has contended that he did not commit any misconduct and has not been a habitual absentee. Accordingly, it is submitted that the impugned orders are not sustainable in law. 4. Claim of the petitioner has been denied by the respondents No.1 and 2 vide their joint return. It is submitted in the return that the petitioner remained unauthorisedly absent for a period of 103 days (from 6.3.1994 to 16.6.1994). It has been further pleaded that the petitioner has been a habitual absentee and was so found in the departmental enquiry. Accordingly, it is stated that the impugned orders contained in Annexure A-7 and A-8 are not liable to be interfered with on account of having been passed legally. 5. Shri Mrigendra Singh, learned counsel for the petitioner, vehemently argued that the petitioner is not proved to have absented himself unauthorisedly. He urged that the petitioner was suffering from fracture and thereafter from Sciatica and Arthritis making him unable to discharge his duties. Moreover, he is not proved to be a habitual absentee. 5. Shri Mrigendra Singh, learned counsel for the petitioner, vehemently argued that the petitioner is not proved to have absented himself unauthorisedly. He urged that the petitioner was suffering from fracture and thereafter from Sciatica and Arthritis making him unable to discharge his duties. Moreover, he is not proved to be a habitual absentee. Lastly, it has been contended that the punishment of removal is too harsh and highly disproportionate. 6. Shri Harish Agnihotri, learned Government Advocate, submitted that the petitioner absented himself from the duty for 103 days without obtaining leave. His unauthorised absence was found to be proved in the departmental enquiry and he being a habitual absentee, has been rightly removed from services. 7. Considered the submissions and perused the record. 8. Both the charges are based mainly on the ground of unauthorised absentism. The petitioner took a plea that he was not well and the same was informed at the Police Station. The disciplinary authority has given a specific finding in the last paragraph of the impugned order contained in Annexure A-7 that it is found correct from the evidence of the parties that the petitioner was suffering from 3.3.1994 to 19.3.1994 from "Shunya Kal Rog" and was suffering from fracture in leg from 21.3.1994 to 15.6.1994. This entire period has been directed to be adjusted against the leave admissible to the petitioner. Punishment of removal from service has been imposed on the ground that the petitioner was unauthorisedly absent during this period and is a habitual absentee. From the findings recorded by the learned Disciplinary authority, it is amply clear that though the petitioner remained absent without obtaining leave, there was a justifiable reason for his absence. This reason has been impliedly accepted by the department by granting leave for this period subject to his entitlement vide Annexure P-7. After grant of sanction of leave vide Annexure P-7, the absence of the petitioner remains no more an unauthorised absence during the relevant period. It is true that the petitioner is found to have taken a false plea in the reply to charge sheet that his absence occurred on 3.3.1994. The absence was found to have occurred on 21.3.1994. However, this plea even if taken, will not wipe out the effect of sanction of leave for a period which covers the period of the alleged total unauthorised absence. 9. The absence was found to have occurred on 21.3.1994. However, this plea even if taken, will not wipe out the effect of sanction of leave for a period which covers the period of the alleged total unauthorised absence. 9. Once the disciplinary authority found the petitioner to be entitled to leave as per his entitlement during the relevant period on account of ailment, the absence of the petitioner remains no more unauthorised so as to Warrant removal from services. It is true that the sanction of leave has been directed subsequently but it dilutes the seriousness of the misconduct on account of unauthorised absence. It would have been a case otherwise had there been no leave on credit side in the petitioner's leave account. It is not the case of the respondents that the petitioner had no leave on his credit side in the leave account. Once the finding is given by the Disciplinary authority about ailment of the petitioner during the relevant period and a direction has been given to sanction leave as per his entitlement for the said period, the charge of absence for the same period loses the seriousness so as to warrant removal from services. Moreover, the petitioner has been rewarded with 25 rewards whereas, he was punished with 12 minor punishments. No major punishment was imposed on him prior to the impugned order. Keeping this in mind, the Disciplinary authority ought to have taken into consideration Regulation 226 of M.P. Police Regulations which lays down that dismissal is the last resource and should, ordinarily, not be inflicted until all other means of corrections have failed. The Disciplinary authority has failed to take into consideration the said 25 rewards given to the petitioner by the department for his appreciable work. 10. The Appellate Authority is also not shown to have taken into consideration the effect of sanction of leave by the Superintendent of Police vide Annexure P-7 on the quantum of punishment. In the opinion of this Court, the purpose of the disciplinary proceedings could have been well achieved by imposing a punishment minor in Comparison to the penalty of removal from service. 11. In the aforesaid facts and circumstances, the penalty of removal from service on the allegation of unauthorised absence and habitual absentism is found to be shockingly disproportionate. In the opinion of this Court, the purpose of the disciplinary proceedings could have been well achieved by imposing a punishment minor in Comparison to the penalty of removal from service. 11. In the aforesaid facts and circumstances, the penalty of removal from service on the allegation of unauthorised absence and habitual absentism is found to be shockingly disproportionate. Accordingly, Annexure P-7 and P-8 are quashed to the extent they relate to the quantum of punishment. Respondent No.4 is directed to reconsider the case of the petitioner and award him some lesser punishment. However, the petitioner is not held to be entitled to back wages during the period when he was not allowed to discharge the duty. 12. The petition stands disposed of accordingly. No order as to costs.