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2011 DIGILAW 539 (CAL)

Ratan Dutta v. STATE OF WEST BENGAL

2011-04-13

ASHIM KUMAR BANERJEE, MRINAL KANTI CHAUDHURI

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Judgment 1. THE petitioner was a Constable in Kolkata Police. He served about 16 years. His all authorised leave were eaten up. In first 14 years he was absent for about 900 days on 25 occasions. On 24 occasions he was either cautioned or fined for a paltry sum. He did not change his attitude. On 25th occasion he was proceeded with departmentally however, imposed a lesser punishment. Fact remains, on 25th occasian he was absent unauthorisedly for 900 days. THE next lap of two years would denote that the petitioner was absent for about 178 days on many occasions. THE Authority proceeded against him departmentally upon giving adequate opportunity of defending himself. Even during enquiry he absented himself unauthorisedly as would appear from the pleadings. He was inflicted a punishment of dismissal from service. By the order of dismissal the Disciplinary Authority, after agreeing with finding of the enquiry, regularised the leave by treating those period totalling about 178 days, spent as "extraordinary leave" under Rule 175(5) of the West Bengal Service Rule, Part-I. THE last paragraph of the order of the Disciplinary Authority appearing at page 28 of the petition is quoted below: "THE period of unauthorised absence for 15 days from 3.10.00 to 17.10.00, for 02 days from 29.10. 00 to 30.10.00, for 149 days from 18.12.00 to 15.5.2001 and for 12 days from 16.5.2001 to 27.5.2001 totalling 178 days (one hundred seventy eight) is treated as spent on E.D.L. u/r 175(5) of W.B.S.R. Part-I.)" 2. THE petitioner approached the Tribunal. THE Tribunal rejected the prayer of the petitioner for setting aside of the order of dismissal. While doing so, the Tribunal relied on the Apex Court decision in the case of State of Punjab v. Sukhwinder Singh, reported in (2007) 10 SCC 511 . In the said decision the Apex Court observed in paragraph 5 as follows: "5. THE High Court was right in noting that the respondent was a member of a disciplined force and that absence form duty was unbecoming of a member of such force. It was in that light that the High Court should have looked at the repeated acts of the respondent's absence from duty. THE High Court was right in noting that the respondent was a member of a disciplined force and that absence form duty was unbecoming of a member of such force. It was in that light that the High Court should have looked at the repeated acts of the respondent's absence from duty. THE fact that the respondent is a member of the Scheduled Castes is neither here nor there for the purposes of considering whether or not he is guilty of misconduct and breach of discipline, nor the fact that he had gone to give his pay to his mother and was detained on account of her illness. It is necessary that members of the police forces should attend the duties which they have been allocated and not absent themselves. This is a paramount public interest that must overweigh private considerations. THE High Court was, therefore, in patent error in looking benignly at the numerous acts of absence of the respondent." Being aggrieved, the petitioner has approached by filing the instant application, inter alia, praying for setting aside the judgment and order of the Tribunal and for his reinstatement after quashing the order of the Disciplinary Authority so merged with the order of the Appellate Authority. 3. MR. Amal Baran Chatterjee, learned counsel, appearing for the petitioner, has contended as follows: i) Since the Disciplinary Authority treated the period of absence as extraordinary leave the leave stood sanctioned and there could be no punishment. ii) The punishment, even if held to be valid, was disproportionate to the offence committed by the petitioner, as according to him unauthorised absence could not be said to be a grave misconduct. iii) The Authority committed illegality in the decision making process by condoning the absence on one hand and imposing the punishment on the other. 4. HE relied on two Apex Court decisions in the case of Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and Ors., reported in (2004)4 SCC 560 and in the case General Manager, Appellate Authority, Bank of India and Anr. v. Mohd. Nizamuddin, reported in (2006)7 SCC 410 . Mr. Chatterjee has prayed for setting aside of the order of the Tribunal coupled with the order of reinstatement by quashing the order of the Disciplinary Authority so merged with the order of the Appellate Authority. 5. MS. v. Mohd. Nizamuddin, reported in (2006)7 SCC 410 . Mr. Chatterjee has prayed for setting aside of the order of the Tribunal coupled with the order of reinstatement by quashing the order of the Disciplinary Authority so merged with the order of the Appellate Authority. 5. MS. Suchitra Saha, learned counsel, appearing for the State, has contended that treating the unauthorised absence as extraordinary leave was nothing but to put the records in order so that those absence might be regularised for the purpose of record. That would not take away the offence committed by the petitioner for continued misconduct resulting from his unauthorised absence on regular basis. MS. Saha has further contended that unauthorised absence in a disciplined Force is itself a grave charge and the punishment imposed upon the petitioner is appropriate. She has relied on following decisions: i) Delhi Transport Corporation v. Sardar Singh, reported in (2004)7 SCC 574 . ii) State of Punjab v. Dr. P.L. Singla, reported in (2008)8 SCC 469. iii) State of UP and Ors. v. Ashok Kumar Singh and Anr., reported in (1996)1 SCC 302 . iv) State of Punjab and Ors. v. Sukhwinder Singh, reported in (2007)10 SCC 511 . 6. REPLYING to the submissions made by Ms. Saha, Mr. Chatterjee has contended that as per Police Regulation the punishment would be of two classes being major and minor. Major punishment, inter alia, includes punishment of dismissal from service. Unauthorised absence being a charge minor in nature would not attract the punishment of dismissal. He also contends that the decision in the case of Shri Bhagwan Lal Arya (supra) made it clear that when there was sanctioned leave and the incumbent was absent on medical ground the punishment of dismissal from service should not be inflicted as it could only be awarded in a case of grave nature or as comulative effect of continuing misconduct proving incorrigibility or complete unfitness for police service. Such, situation did not arise in the present case. Hence, applying the ratio of Bhagwan Lal Arya (supra) this Court should quash the punishment and reinstate the petitioner in service. We have considered the rival contentions. We are, however, unable to appreciate the contentions of Mr. Chatterjee. We wonder how the decision in the case of Bhagwan Lal Arya (supra) could be of any assistance to us. Hence, applying the ratio of Bhagwan Lal Arya (supra) this Court should quash the punishment and reinstate the petitioner in service. We have considered the rival contentions. We are, however, unable to appreciate the contentions of Mr. Chatterjee. We wonder how the decision in the case of Bhagwan Lal Arya (supra) could be of any assistance to us. If we look to the fact involved therein we would find that the incumbent was on medical leave as he was ill. His medical leave was sanctioned for two months and odd. Considering such aspect the Apex Court observed that punishment of removal of service was not apt. In the present case, out of 16 years of service the petitioner was absent for about 900 days in first 14 years and 178 days for next two years. We wonder how the Authority could hear with such absence on earlier occasions by imposing a paltry sum as fine. 7. WE cannot be oblivion of the fact that the petitioner was a member of disciplined Force entrusted to maintain law and order in the City. His continuing absence would not only carry wrong message to the members of the disciplined Force but also would cause immense difficulty to the administration in running day to day affairs. WE also do not appreciate the contention of Mr. Chatterjee that once the leave was considered to be an extraordinary leave his offence was condoned. WE also do not appreciate his contention that since the extraordinary leave do not attach any non-payment of salary such non-payment itself is a punishment and no further punishment is liable to be inflicted. He tried to avoid the decisions cited by Ms. Saha by contending that those do not relate to any sanctioned leave. In the case of State of U.P. and Ors. (supra) the Apex Court in paragraph 8 observed as follows: "WE are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observation that "his absence from duty would not amount to such a grave charge". Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that "the punishment does not commensurate with the gravity of the charge" especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out." 8. MR. Chatterjee has tried to contend that the decision in the case of State of Punjab (supra) relied on by the Tribunal dealt with a situation where the leave was subsequently condoned. On perusal of the said decision we do not find any support of what MR. Chatteriee has submitted. In the said case on identical facts the punishment was inflicted. Thereafter to set the records right the period of absence was treated as "extraordinary leave" without attaching any salary. It was required for counting the qualifying service. The Apex Court observed that by the said order the Authority did not condone the unauthorised leave nor wiped out punishment already imposed. The said order was only consequential to imposition of punishment. It was to maintain continuity of service denying salary for the period of absence. Same is the case here. The Authority by the same order imposed the punishment of dismissal from service and at the end regularised the unauthorised absence by treating the same as extraordinary leave. How this could be said to be condonation of absence, is not intelligible to us. We once again observe that the petitioner being a police Constable and a member of disciplined Force could not have absented himself on regular basis. We wonder how the Authority could bear this delinquent for last 16 years who was habitual absentee. However, at the end he has been dismissed from service, although belatedly. He does not deserve any sympathy from this Court. 9. WPST 497 of 2009 fails and is hereby dismissed. There would be no order as to costs. We wonder how the Authority could bear this delinquent for last 16 years who was habitual absentee. However, at the end he has been dismissed from service, although belatedly. He does not deserve any sympathy from this Court. 9. WPST 497 of 2009 fails and is hereby dismissed. There would be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on usual undertaking. Appeal dismissed.