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Madhya Pradesh High Court · body

2011 DIGILAW 132 (MP)

Ashok Kumar Bagdi v. State Of M. P.

2011-01-31

S.R.ALAM

body2011
JUDGMENT ( 1. ) NOBODY is present on behalf of the petitioner. However, Shri Sanjay Dwivedi, learned Government Advocate is present on behalf of the respondents No. 1 to 3. ( 2. ) IN the instant petition, the petitioner has sought quashing of the order of Superintendent of Police, respondent No. 3 dated 25-8-1998 removing him from service and also the order of the Deputy Inspector General of Police, Headquarter, Bhopal, respondent No. 1 dated 6-11-1998 dismissing his appeal. Being aggrieved by the aforesaid orders, the petitioner has preferred this petition for the following reliefs : (i) Your Lordship may graciously be called for the entire record relating to the service of the applicant for kind perusal. (ii) Your Lordship be pleased to issue an order/direction in the nature of certiorari thereby quashing the impugned order vide Annexure A-1 dated 5-12-1998 which is illegal in the interest of justice. (iii) Your Lordship may graciously be pleased to command the respondents to reinstate the applicant in service along with back wages. (iv) Any other order, which this Honorable Tribunal may deems fit and proper may kindly be passed in favour of the applicant in the interest of justice. It appears the petitioner being aggrieved by the order of the respondent No. 2 communicated through letter dated 5-12-1998, filed OA No. 518/1999 before the M. P. State Administrative Tribunal at Jabalpur. However, after abolition of the M. P. State Administrative Tribunal, the said OA was reregistered before this Court as W. P. No. 13731/2003. ( 3. ) IT appears that the petitioner was appointed as Follower in Police Training Institute, Pachmarhi on 5-11-1981. He was thereafter transferred to Police Training Institute, Mana, Raipur on 6-6-1986 relieved on the same date to enable him to join at the transferred place. However, instead of submitting joining by the petitioner, on 18-6-1986 he sent a letter to the Superintendent of Police, Police Training Centre, Mana, Raipur stating therein that while availing joining time he fell ill, hence, he is not in a position to join and; therefore, leave may be sanctioned upto 7th of July, 1986. However, even by 8th of July, 1986 he did not join and remain absent and as such he did not submit joining for 11 years 5 months. However, even by 8th of July, 1986 he did not join and remain absent and as such he did not submit joining for 11 years 5 months. Consequently, a regular departmental proceeding was initiated against the petitioner for absconding which is a serious misconduct and also for violation of Rule 64(4) of the Police Regulations; a copy of the Memo of Charges is enclosed as Annexure A/2. He was also placed on suspension on the same date when he joined the services on 7-2-1998 (Annexure A/3). The petitioner thereafter sought 15 days further time to give reply to the charge-sheet which was granted to him vide letter dated 25-11-1997 (Annexure A/4) and thereafter he submitted his reply to the charge-sheet, an undated copy whereof is enclosed as Annexure A/5. The inquiry officer after conducting the inquiry submitted a detailed report holding the petitioner guilty of all the three charges, a copy whereof is enclosed as Annexure A/7 to the writ petition. Thereafter, the petitioner submitted his reply to the inquiry officer's report vide Annexure A/8. The disciplinary authority having considered the inquiry report and the evidence on record as also the reply filed by the petitioner, found him guilty of charges and inflicted punishment of removal from service vide order dated 25-8-1998 (Annexure A/9). The aggrieved petitioner went in appeal before the respondent No. 3 which has also been dismissed by the impugned order dated 6-11-1998 which was communicated to the petitioner through letter dated 5-12-1998. ( 4. ) FROM the perusal of the writ petition and the reply filed on behalf of the respondents, it is an admitted position that the petitioner remained absent unauthorisedly for a period of more than 11 years. During this period, the petitioner did not bother to inform the employer or to the immediate superior authority for the reason of his absence. It is also apparent that the petitioner has also not alleged that he was not given adequate opportunity to defend the charges. He has also not alleged that inquiry officer or the disciplinary authority have violated Rules and Regulations or the principles of natural justice in conducting the disciplinary proceedings. It is also apparent that the petitioner has also not alleged that he was not given adequate opportunity to defend the charges. He has also not alleged that inquiry officer or the disciplinary authority have violated Rules and Regulations or the principles of natural justice in conducting the disciplinary proceedings. He has only alleged in para 6.7 of the writ petition that the order of the punishment issued by the disciplinary authority is against the principles of natural justice because he did not take into account the representation for permission to join the duties. It has further alleged by the petitioner in the reply to the charge-sheet that continuously with effect from 28th August, 1986 he was requesting to record his arrival and joining which was not allowed. Further, in spite of that, no evidence either documentary or oral is adduced by the petitioner. Even in this petition the petitioner was not brought any evidence to show that from July, 1986 he was persistently seeking permission to join which was denied. Further, if the joining of the petitioner is not accepted by the Superintendent of Police, he could have approached to the higher authorities or could have sent complaint to them in writing. Such a long absence of 11 years without intimating to the controlling officer or the immediate higher authority is certainly a gross misconduct which warrants major punishment. Such type of serious lapse or misconduct cannot be expected from a member of disciplined force who is expected to observe and maintain highest discipline. The Apex Curt, in the case of Union of India and others vs. Datta Linga Toshatwad, (2005)13 SCC 709 on a similar circumstances where a Constable on the charge of overstayed the leave was dismissed from service, observed that members of the uniformed forces cannot absent themselves on frivolous plea, having regard to the nature of the duties enjoined on these forces. Such a discipline, if it goes unpunished, will greatly affect the discipline of the police. In S. C. Saxena vs. Union of India and others, (2006) 9 SCC 583 , the Apex Court approved imposition of major punishment of compulsory retirement for the misconduct of unauthorized absence and; therefore, looking to the gravity of the charges, I am of the view that the punishment of removal from service cannot be held to be shocking to conscience or grossly disproportionate to the alleged misconduct. ( 5. ) IN the matter of departmental proceedings judicial review is permissible to consider whether there is any error in the decision making process or there is denial of adequate opportunity of defence or there is violation of any substantive provisions of law, but the Court will not reappraise the evidence and sit an appeal over orders passed by the departmental authorities and will confine only to find out as to whether any error in the decision making process has been committed or the finding is perverse as it is based on no evidence, but it cannot reassess or reappraise the evidence to substitute its decision to that of the disciplinary authority. IN short, the scope of judicial review is limited to the deficiency in decision making process and not the decision. The Apex Court in State Bank of Patiala vs. S. K. Sharma, AIR 1996 SC 1669 evolved certain basic principles of natural justice and considering its earlier authorities in para 32 of the judgment, summarise the principles which may vitiate the departmental proceedings which are as under :- "(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) IN the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz, whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted there from, it is obvious, no interference is called for. IN this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/ employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this every aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4) (a) IN the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) IN the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived if, then the order of punishment cannot be set aside on the ground of said violation. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived if, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has no waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment) keeping in mind the approach adopted by the Constitution Bench in B. Karunakar, (1994 AIR SCW 1050). The ultimate test is always the same viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action- The Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. IN other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice''/'no hearing" and "no fair hearing." (a) IN the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). IN such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e. in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and orders to "be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the text in which behalf are laid down elsewhere.). (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the text in which behalf are laid down elsewhere.). (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interest of state or public interest may call for a curtailing or the rule of audi alteram partem. IN such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision." ( 6. ) THUS, in view of aforesaid exposition of law made by the Apex Court, the material available on record and having perused the impugned order, I do not find any error in conducting the departmental proceeding nor it could be held to be denial of adequate opportunity of defence to the petitioner, nor the punishment inflicted could be held to be disproportionate to the alleged misconduct. Hence, the petitioner cannot be granted the relief sought for in this petition. In the result, the writ petition being without merit is dismissed, but without costs. Petition dismissed.