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2015 DIGILAW 1411 (RAJ)

Man Singh v. State of Rajasthan

2015-07-28

AJIT SINGH, ANUPINDER SINGH GREWAL

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JUDGMENT : Anupinder Singh Grewal, J. This intra court appeal is directed against the order of learned Single Bench dated 21st January 2005 whereby the writ petition preferred by the appellant against order of termination dated 05th April 1996 was dismissed. 2. The appellant-petitioner who was working as Constable with the Rajasthan Police is alleged to have absented from duty without leave from 14.01.1994 to 30.11.1994. Disciplinary proceedings were initiated and after report of the Inquiry Officer wherein the charges were found proved against the appellant, he was dismissed from service vide order dated 05th April 1996. 3. The learned counsel for the appellant has contended that the appellant was unwell during the period of absence and the medical certificates which he produced were erroneously overlooked while passing the impugned order. It is further contended that the charge of absence from duty without leave against the appellant is not such a charge which would warrant dismissal from service. He relied on judgment of Hon'ble Supreme in the case of Krushnakant B. Parmar v. Union of India and another (2012) 3 SCC 178 in support of his submissions. 4. On the contrary, learned counsel for the respondents contended that the appellant being member of disciplined force like Rajasthan Police had absented for a period of over 10 months and hence, only punishment appropriate in this case would be dismissal from service. 5. We have heard learned counsel for the parties and perused the record. 6. It is evident that the appellant-petitioner had absented from duty without leave on 14th January 1994. The appellant had produced medical certificates only after a period of 8 months of his absence. The first medical certificate was produced by him in September 1994 which indicated that he was suffering from backache. The medical certificate for the month of October 1994 shows that he was having depression and backache while the certificate for the period from 31st October to 21st November 1994 states that he had low back pain and it was also certified that he was fit to resume duty on 30th November 1994. There is another certificate issued in October 1996 which shows that the petitioner was suffering from schizophrenia. 7. These medical certificates only indicate that the appellant was suffering from various ailments and do not show that the appellant had, in fact, been admitted in hospital during the period of his aforementioned absence. There is another certificate issued in October 1996 which shows that the petitioner was suffering from schizophrenia. 7. These medical certificates only indicate that the appellant was suffering from various ailments and do not show that the appellant had, in fact, been admitted in hospital during the period of his aforementioned absence. 8. Further, from the perusal of record it appears that even on earlier occasions the appellant was absent from duty without leave viz. from 02.09.1982 to 26.09.1982 (25 days), from 21.09.1987 to 02.10.1987 (12 days) and from 12.06.1993 to 13.08.1993 (63 days). The appellant was given full opportunity to defend himself during the inquiry and he was present when statement of prosecution witness was recorded. The appellant had not demanded any document which was not furnished to him. Even though vide letter dated 14th July 1995 the Inquiry Officer had asked the appellant-petitioner to lead his evidence in defence or submit his reply but the appellant did not produce anything in his defence. A copy of the inquiry report was also furnished to him which has been received under his signatures on 22nd January 1996. 9. It is, therefore, evident that the appellant-petitioner was given full opportunity to defend himself and the procedure laid down in the rules for conduct of departmental inquiry was properly followed before passing the order of dismissal from service. 10. The judgment in the case of Krushnakant B. Parmar (supra) relied upon by the learned counsel for the appellant is distinguishable on facts from the instant case. In that case it was specific defence of the delinquent that he was prevented from attending the duty and was not allowed to sign attendance register. The evidence produced by him to substantiate his claim in this regard was ignored by the authorities concerned and on the basis of irrelevant facts and surmises he was held guilty. However, in the instant case, there is no such evidence that the appellant was either prevented from joining duty or that he was seriously ill due to which he could not resume duty for over 10 months at a stretch. 11. It is also well settled that the absence from duty without leave in a disciplined force like Police would warrant the punishment of dismissal from service. 11. It is also well settled that the absence from duty without leave in a disciplined force like Police would warrant the punishment of dismissal from service. Reference can be made to the judgment of the Hon'ble Supreme Court in the case of Om Prakash v. State of Punjab & Others reported as (2011) 4 SCC 682, wherein dismissal of a Head Constable for his absence for a period of 39 days without leave or intimation was upheld. 12. Reference can also be made to the judgment of the Hon'ble Supreme Court in the case of Chennai Metropolitan Water Supply and Sewerage Board & Ors. v. T.T.Murali Babu [ (2014) 4 SCC 108 ], wherein while allowing the appeal, the order dismissing the respondent therein, who was absent without leave for a period of 1 year & 7 months, was upheld. It was held as under: "30. After so stating the two-Judge Bench proceeded to say that one of the tests to be applied while dealing with the question of quantum of punishment is whether any reasonable employer would have imposed such punishment in like circumstances taking into consideration the major, magnitude and degree of misconduct and all other relevant circumstances after excluding irrelevant matters before imposing punishment. It is apt to note here that in the said case the respondent had remained unauthorisedly absent from duty for six months and admitted his guilt and explained the reasons for his absence by stating that he neither had any intention nor desire to disobey the order of superior authority or violated any of the rules or regulations but the reason was purely personal and beyond his control. Regard being had to the obtaining factual matrix, the Court interfered with the punishment on the ground of proportionality. The facts in the present case are quite different. As has been seen from the analysis made by the High Court, it has given emphasis on past misconduct of absence and first time desertion and thereafter proceeded to apply the doctrine of proportionality. The aforesaid approach is obviously incorrect. It is telltale that the respondent had remained absent for a considerable length of time. He had exhibited adamantine attitude in not responding to the communications from the employer while he was unauthorisedly absent. The aforesaid approach is obviously incorrect. It is telltale that the respondent had remained absent for a considerable length of time. He had exhibited adamantine attitude in not responding to the communications from the employer while he was unauthorisedly absent. As it appears, he has chosen his way, possibly nurturing the idea that he can remain absent for any length of time, apply for grant of leave at any time and also knock at the doors of the court at his own will. Learned counsel for the respondent has endeavoured hard to impress upon us that he had not been a habitual absentee. We really fail to fathom the said submission when the respondent had remained absent for almost one year and seven months. The plea of absence of "habitual absenteeism" is absolutely unacceptable and, under the obtaining circumstances, does not commend acceptation. We are disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate. 31. Another aspect needs to be noted. The respondent was a Junior Engineer. Regard being had to his official position, it was expected of him to maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. This kind of conduct cannot be countenanced as it creates a concavity in the work culture and ushers in indiscipline in an organization. In this context, we may fruitfully quote a passage from Government of India and another v. George Philip: - "In a case involving overstay of leave and absence from duty, granting six months time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the work culture in the organization. Article 51-A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. Article 51-A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution have the tendency to negate or destroy the same." 32. We respectfully reiterate the said feeling and restate with the hope that employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development." 13. In view of the above, we do not find any ground to interfere with the well-reasoned order of the learned Single Judge affirming the dismissal of the appellant-petitioner. 14. In the result, the instant appeal is dismissed being devoid of any merit.