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2014 DIGILAW 1110 (KAR)

NARASIMHA RAO S. v. INSPECTOR GENERAL OF POLICE

2014-12-18

N.K.PATIL, RATHNAKALA

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Order Aggrieved by the order dated 18.11.2011 passed by the Karnataka Administrative Tribunal in Application No. 11525/2002 at Annexure ‘C’, the order dated 20.06.2000 passed by the 2nd respondent vide annexure A1 (SC.EST(2); DE8:9697 APS 135/2000-2001 and 1st also the order dated 21.06.2002, passed by the respondent in appeal No. 104/2000-2001 vide Annexure A2, the petitioner has filed this petition, seeking for reinstatement into the service with all consequential benefits. 2. As the facts unfurl, this petitioner was working as a Police Constable in Mandya West Police Station; a disciplinary enquiry was initiated against him on the charges of unauthorised absence w.e.f 06.08.1996. In the meantime, he was arrested on 05.02.1997, on the charges of theft. Full pledged departmental inquiry was conducted both on the charges of unauthorized absence and theft. In the meantime, he was charge sheeted by the police for the offence of theft and was tried along with co-accused/Fiaz; the case ended in his acquittal. Parallely, the Inquiring Authority submitted it’s report holding that the charge is proved. The petitioner filed his remarks to the Inquiry Report. The Disciplinary Authority concurred with the Inquiring Authority and ordered for his compulsory retirement with effect from 20.06.2000. The Appellate Authority dismissed his departmental appeal. Aggrieved by the said order, he approached the Karnataka Appellate Tribunal under Section 19 of the Administration Tribunal Act, 1985 (for short ‘the Act’). The Tribunal after giving audience to both and on consideration of the entire material on record, dismissed the application. 3. Sri Hanumantharayappa, learned Counsel for the petitioner submits that while considering the findings of the Disciplinary Authority about unauthorised absence, the Tribunal found fault with the petitioner for not obtaining medical history sheet maintained in the Police Station in respect of ailing head constables and also noticed that he had not applied for leave in the prescribed form. But the reason for not producing medical history sheet was, despite his request, the Station Authorities did not furnish him medical history sheet and refused to grant leave. The Tribunal has observed that he did not make effort to validate the leave application but such validation of the leave application is only a procedural aspect. He had to remain absent without prior permission because of his sudden unexpected illness. Though he had produced the medical certificate, leave was refused without any reason. The Tribunal has observed that he did not make effort to validate the leave application but such validation of the leave application is only a procedural aspect. He had to remain absent without prior permission because of his sudden unexpected illness. Though he had produced the medical certificate, leave was refused without any reason. Infact, respondent No.2 had deputed one Inspector of Police (west) to ascertain the true facts regarding the illness. The said Inspector visited the hospital, verified his medical records and submitted his report that he had undergone treatment at Bowring Hospital, Bangalore; but said record was not considered either by the Inquiring Authority, Disciplinary Authority, Appellate Authority and the Tribunal. He was alleged for the offence of selling the stolen two wheelers but the criminal case on the same charges had ended in acquittal. Neither the owners of the vehicles nor the purchasers of the stolen properties were produced in the inquiry, stolen property is not identified; none of the allegations were proved against him. The punishment of compulsory retirement is grossly disproportionate to the alleged misconduct at the fag end of his service and hence, the order passed by Karnataka Administrative Tribunal so also the orders passed by the respondent Nos.1 and 2, vide Annexures C, A1 and A2 are liable to be quashed with a direction to the respondents to reinstate him into service with consequential benefits. 4. Sri R.B. Sathyanarayana Singh, leaned HCGP for the respondents fully supports the orders passed by the respondents, Disciplinary Authority, Appellate Authority and Karnataka Administrative Tribunal. 5. On perusal of the impugned orders in the backdrop of the submissions made by both parties, the following points arise for our consideration: 1. Whether the finding of the Inquiry Authority was perverse ? 2. Whether the petitioner had full opportunity to contest the charges during the Inquiry ? 3. Whether the punishment order is grossly disproportionate to the charges held proved ? 6. The punishment order called in question read as follows: “ORDER SC.EST(2);DE8:9697 DATED:20.06.2000 APS 135/20002001 Narsimha Rao CPC 383 Mandya West Police Station is retired from service compulsorily and the absence period from 6.8.96 to 20.2.97 is treated as leave without salary and the period from 21.297 till the receipt of this order by the delinquent is treated as suspension period.” 7. The Appellate Authority respondent No.1 dismissed his appeal vide order dated 21.06.2002 and his application before the Karnataka Administrative Tribunal is dismissed on 18.11.2011. 8. From the order dated 22.03.1997, passed by the Disciplinary Authority, it is gathered that Domestic Inquiry was initiated against the petitioner and CPI of Srirangapatna Circle was appointed as Inquiring Officer. The charge sheet issued reads as follows: “XXXX XXXX XXXX” 9. Petitioner participated in the Inquiry knowing fully well the nature of the charges. He had the assistance of a friend from the Department, 16 witnesses were examined for the Department and 44 documents were marked. He has cross-examined the witnesses. He had filed a witness list, but he did not choose to examine any one on his behalf, though time was granted. He has filed his defense statement in writing. In respect of the first allegation of unauthorised absence, the Inquiring Officer observes that he should have proceeded on leave only after getting prior permission or by submitting MHS format which is maintained in the Police Station; he has given certificate from a doctor of Bowring Hospital that he has taken treatment as out patient from 06.08.1996 to 20.09.1996, but the said certification cannot be relied, in view of the other factors which emerged during inquiry. During the cross-examination, it emerged that he was present with one Fiaz. When said Fiaz was arrested during August 1996, he was engaged in theft of two wheeler vehicles. There is material on record to show that, between 06.08.1996 to 20.09.1996, he was indulged in sale of two wheeler vehicles in and around Mandya. That being so, there was no need for him to go over to Bangalore from Mandya frequently. Even otherwise, he could have informed his Superiors about his exigencies of taking treatment at Bowring Hospital and he could have proceeded on MHS form. That apart, he has not examined the doctor, though trice opportunity was given to him. Hence, the medical certificate shall be presumed to be fabricated and his absence is unauthorized as alleged. With regard to the second charge of theft of two wheelers, the findings of the Inquiry Authority is, he has sold the stolen vehicles to seven purchasers and while riding on the eighth vehicle on 05.02.1987, he was caught red handed near RMC Circle, Mysore and produced before the Mandya Police Station, Mysore. With regard to the second charge of theft of two wheelers, the findings of the Inquiry Authority is, he has sold the stolen vehicles to seven purchasers and while riding on the eighth vehicle on 05.02.1987, he was caught red handed near RMC Circle, Mysore and produced before the Mandya Police Station, Mysore. A case was registered against him in crime No.15/1997 and he was arrested on the information given by him, seven two wheelers were seized from Mandya and surrounding villages. His police friend examined the prosecution witnesses 1 to 10 in detail. Anticipating that the inquiry will not be favourable, he started attending the inquiry without his police friend. He went on filing applications for the change of the Inquiry Officer. He had threatened the prosecution witness No.9 on the morning of the hearing date. On the above, the Inquiring Officer concluded that both charges were proved. Thereafter, inquiry report was marked to the petitioner and he submitted his remarks to the Disciplinary Authority. 10. The Disciplinary Authority considered each of his contentions viz-a-viz the materials from the inquiry records, and did not find any merits in his contentions. The Disciplinary Authority recorded it’s satisfaction that the inquiry was conducted as per Rule 6 of KSP (DP) Rules 1965. No leave letter as alleged by him was received in the Police Station. None of his allegations against the Inquiry Officer was tenable. Accordingly, the Disciplinary Authority ordered for his compulsory retirement and his unauthorised absence from 06.08.1996 to 20.02.1997 was treated as leave without wages. The Appellate Authority on consideration of all the grounds urged in the appeal viz-a-viz., the inquiry report, found that the punishment order is passed on consideration of all his grievances. The Authority records that he was charged with serious misconduct and the order of compulsory retirement is not disproportionate to the alleged misconduct. Thereby, his appeal is dismissed. 11. When the matter came up for consideration before the Appellate Tribunal, virtually, it re-appreciated the material evidence. The Authority records that he was charged with serious misconduct and the order of compulsory retirement is not disproportionate to the alleged misconduct. Thereby, his appeal is dismissed. 11. When the matter came up for consideration before the Appellate Tribunal, virtually, it re-appreciated the material evidence. In the body of it’s order, the Tribunal observed, despite knowing that the leave letters have not reached his Higher Officer, he has neither taken any steps for obtaining sanction of the leave nor he has made any efforts to obtain leave for his absence for the period till 20.10.1998 and he was issued an order dated 05.09.1996 as a ‘deserter’, since, he was absent to duty without obtaining permission for more than 21 days. Hence, it was evident that he remained absent without leave for the period from 06.08.1996 to 20.10.1998. With regard to the second charge, it was held that he was given ample opportunity to cross-examine the witnesses. He was accommodated on three hearing dates to examine the defense witness, but he did not produce any witness. The Inquiry Officer granted many hearing dates. On the absence of his police friend, petitioner cross-examined two witnesses at length; his contentions that he was acquitted of the criminal charges was of no help for him. As per Rule 108 of the Karnataka Civil Service Rules, absence to duty without leave for four months may invite the penalty of ‘Removal’ from the service. But in this case, the petitioner remained absent to duty without leave for a period of 2 years and therefore, removal from service is not a disproportionate penalty. 12. On a travel through the orders passed by the authorities below, we are convinced that during the inquiry, the petitioner had sufficient opportunity to contest the charges. The findings of Inquiry Officer is founded on the evidentiary material collected during the inquiry. The disciplinary authority after over all consideration of all his objections against the inquiry report has re-appreciated the evidence and has found the petitioner guilty of the misconduct. The Appellate Authority and also the Tribunal have not found any merit in any of his contentions and confirmed punishment order as appropriate. In our considered opinion also, his compulsory retirement from service with all the service benefits, commensurates with the gravity of the charges proved. Petitioner has not made out any case warranting exercise of writ jurisdiction of this Court. In our considered opinion also, his compulsory retirement from service with all the service benefits, commensurates with the gravity of the charges proved. Petitioner has not made out any case warranting exercise of writ jurisdiction of this Court. Accordingly, the writ petition is dismissed.