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2016 DIGILAW 1725 (ALL)

SATISH KUMAR v. STATE OF U. P.

2016-05-05

MAHESH CHANDRA TRIPATHI

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JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—Satish Kumar is before this Court for quashing the impugned orders dated 31.12.2013, 27.5.2014 and 1.8.2014 passed by respondent Nos. 5, 4 and 3 respectively. 2. As per record, this much is reflected that the petitioner was serving as Constable in Civil Police. In the year 2013, when the petitioner was posted at Moradabad Anubhag, Moradabad, he was deputed in the night duty at quarter guard and he was also directed to be present at Pared but he was not present at Pared and without taking any permission, the petitioner unauthorized absented from 1.3.2013 to 15.5.2013 (76 days) without any information and after 76 days unauthorized absent, he returned back.By the impugned order dated 31.12.2013 passed by respondent No. 4, the petitioner was awarded punishment of major penalty of dismissal from services under Rule 4 (1) (a) (i) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 on the ground of unauthorised absent of 76 days. Against the aforesaid order, he filed an appeal before respondent No. 3 and the said appeal was dismissed on 25.7.2014. Thereafter, the petitioner preferred a revision before respondent No. 2 and the said revision was also dismissed on 1.8.2014. 3. Learned counsel for the petitioner submits that while passing the impugned order the opportunity of hearing was not given to the petitioner. The enquiry proceedings were also not conducted in proper manner. The petitioner was suffering from Jaundice and he was under treatment at Kendriya Police Hospital, Moradabad and the doctor advised him to take complete bed rest on account of this, the petitioner could not join his duties. From time to time the petitioner informed about his ailment to the higher police official, but the respondents had not considered the same and passed the impugned order ex parte without giving opportunity to the petitioner. 4. Learned counsel for the petitioner further makes statement that if the petitioner is reinstated in service, he will not claim any salary for the period in which he has not worked. 5. On the other hand learned Additional Chief Standing Counsel submits that the petitioner belongs to disciplined force and there is no illegality or infirmity in the orders impugned. The petitioner was absent from duty for a long period of time unauthorisedly and therefore, the order impugned has rightly been passed. 6. 5. On the other hand learned Additional Chief Standing Counsel submits that the petitioner belongs to disciplined force and there is no illegality or infirmity in the orders impugned. The petitioner was absent from duty for a long period of time unauthorisedly and therefore, the order impugned has rightly been passed. 6. Heard rival submissions and perused the record. 7. It appears from the record that the petitioner has been dismissed from service on the ground unauthorised absence from 1.3.2013 to 15.5.2013 (total 76 days). 8. A Division Bench of this Court in the case of Suresh Kumar Tiwari v. D.I.G., P.A.C. and another, 2001 (4) AWC 2630 , 2002 Lab IC 259, has, while reiterating the view of the Supreme Court, held that the High Court normally does not interfere with the quantum of punishment unless the punishment shocks the conscience of the Court. 9. As already noticed above, since the charges on which the punishment has been imposed are to be taken as correct, what is now left to be considered and examined is as to whether the punishment imposed was commensurate with the said charges or not. 10. In Mithilesh Singh v. Union of India and others, 2003 (1) UPLBEC 911, the Apex Court held that absence from duty without proper Intimation and permission amounted to grave offence warranting removal from service. In the case of State of U.P. v. Ramakant Yadav, 2003 (1) AWC 84 (SC); 2002 (3) UPLBEC 2799, the Supreme Court reversed the order of the High Court whereby the punishment had been reduced to reinstatement in service on payment of 50% of back wages with a warning to the delinquent, and held that the High Court ought not to have Interfered with the quantum of punishment in the facts of that case. The Supreme Court in the case of State of U.P. v. Ashok Kumar Singh, AIR 1996 SC 736 , held that where the employee had absented himself from duty without leave on several occasions, the High Court was not correct in holding that his absence from duty would not amount to such a great charge so as to impose the penalty of dismissal from service. 11. 11. On the contrary the Apex Court in the case of Ranjit Thakur v. Union of India and others, AIR 1987 SC 2386 , has held that “the question of the choice and quantum of punishment is within the Jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Marital, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.” 12. In the case of Union of India and others v. Giriraj Sharma, AIR 1994 SC 215 , the Apex Court held that over-staying of leave subsequent to the order of rejection of application for extension of leave could not be considered to be a sever enough charge to warrant punishment of dismissal from service and the same was held to be harsh and disproportionate. A Division Bench of this Court in the case of Harpal Singh v. State Public Services Tribunal, Lucknow and others, 2000 (2) AWC 1075 : 2000 (86) FLR 334 , held that where it was on account of negligence of the constable of the G.R.P. that one passenger was misbehaved with and was murdered, the same could not be a case of serious misconduct and held that the punishment of dismissal from service was totally disproportionate to the offence and thus directed reinstatement of the employee in service, with half back wages and also ordered that he be given a severe warning. Further, in the case of Alexandar Pal Singh v. Divisional Operating Superintendent, 1987 (2) ATC 922 (SC), the Supreme Court held that ordinarily the Court or Tribunal cannot interfere with the discretion of the punishing authority in imposing particular penalty but this rule has an exception. If the penalty imposed is grossly disproportionate with the misconduct committed, then the Court can interfere. The railway employee on being charged with negligence in not reporting to the railway hospital for treatment was removed from service. If the penalty imposed is grossly disproportionate with the misconduct committed, then the Court can interfere. The railway employee on being charged with negligence in not reporting to the railway hospital for treatment was removed from service. The Supreme Court found it fit to interfere with the punishment of removal from service and modified it to withholding of two Increments. 13. A Division Bench of this Court in the case of Suresh Kumar Tiwari v. D.I.G., P.A.C. and another, 2001 (4) AWC 2630 , 2002 Lab IC 259, has, while reiterating the view of the Supreme Court, held that the High Court normally does not interfere with the quantum of punishment unless the punishment shocks the conscience of the Court. 14. In the light of the law laid down by the Apex Court as well as this Court, in my view the broad principle which emerges is that normally, it is the disciplinary authority which should be best left with the duty of imposing the punishment after considering the facts and circumstances of the case. However, it is well-settled that in case, if on the admitted facts, the punishment imposed is grossly disproportionate to the offence, which shocks the conscience of the Court, the Court has the power and jurisdiction to interfere with the punishment imposed. 15. In view of above and considering the facts and circumstances of the case, the orders impugned cannot be sustained and are hereby set aside. The writ petition is allowed. The petitioner is also entitled to be reinstated and all other consequential benefits forthwith. However, on the basis of no work no pay the petitioner is not entitled for any salary for the period in which he had not worked and the same has also been accepted by learned counsel for the petitioner.