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2017 DIGILAW 34 (GUJ)

Raghubhai Govabhai Desai v. State of Gujarat

2017-01-11

P.P.BHATT

body2017
JUDGMENT : P.P. Bhatt, J. 1. By way of present petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of an appropriate writ/order for quashing and setting aside the impugned order passed by the respondent No. 4 dated 01.12.2004 at Annexure-A, and also the order passed by the respondent No. 3 dated 08.07.2005 at Annexure-B, as also the order passed by the respondent No. 1 dated 22.06.2006 at Annexure-C, and to direct the respondents-authorities to immediately reinstate the petitioner back in service on the post of Unarmed Police Constable with full back wages and continuity of service with all other consequential and incidental benefits arising therefrom. 2. It is the case of the petitioner that he was working under the respondents as an Unarmed Police Constable, and he has served for about more than 14 years under the respondents, but on account of mental illness, he remained absent for total 425 days during last 3 years before removal from the service. It is the case of the petitioner that petitioner was having problem of severe headache, and he was under medical treatment of a psychiatrist. During the course of inquiry, he has also produced a medical certificate and other treatment papers to show that he was actually under the medical treatment, but the said explanation of the petitioner was not accepted by the Inquiry Officer, and ultimately the disciplinary authority passed an order imposing major penalty of removal from the service. According to petitioner, the said punishment is excessive in nature and disproportionate to the charges levelled against him, and it also amounts to economic death of a person, as the petitioner is having responsibility to look after and maintain his family, and his 4 minor children are studding. 3. Learned advocate for the petitioner submits that the departmental inquiry proceedings conducted by the Inquiry Officers are in clear violation of principle of natural justice as the petitioner was not given a reasonable opportunity to explain or put-forth his case. It is also submitted that the major punishment inflicted upon the petitioner is also excessive in nature and disproportionate to the charges levelled against him. The factors which were required to be taken in to consideration before indictment of such a major punishment were not taken in to account by the disciplinary authority. It is also submitted that the major punishment inflicted upon the petitioner is also excessive in nature and disproportionate to the charges levelled against him. The factors which were required to be taken in to consideration before indictment of such a major punishment were not taken in to account by the disciplinary authority. The petitioner has rendered more than 14 years of dotless service, and only during the last 3 years, because of his mental illness, he could not remain present on some of the days. It is also submitted that the petitioner has intimated his superior officer about his illness, and the respondents were also aware about the problems faced by the petitioner. However, without taking into consideration the ground of illness, such harsh penalty was inflicted upon the petitioner. It is further submitted that the petitioner was already punished by the disciplinary authority for similar charges, and at that time, a minor penalty was imposed upon him. This is a 2nd inquiry in respect of similar charges, and therefore, the petitioner has been punished twice for the same charges, and this amounts to double jeopardy. It is also submitted that the petitioner preferred a revision against the order of removal from the service, but the said revision also came to be dismissed on the ground of delay and laches. According to learned advocate for the petitioner, there is delay of about 52 days in preferring the revision, but instead of taking a lenient view by condoning delay, the revision was dismissed merely on the ground of delay and laches, without entering into the merits of the case. It is further submitted that the petitioner has also made out a sufficient ground/reason for condonation of delay, but the said ground was not properly appreciated and considered by the revisional authority, and therefore, the said order is also against the principles of law, and required to be quashed and set aside. 4. Learned AGP appearing for the State has opposed this petition and tried to justify the order passed by the inquiry officer, appellate authority and the revisional authority. 4. Learned AGP appearing for the State has opposed this petition and tried to justify the order passed by the inquiry officer, appellate authority and the revisional authority. It is submitted that the petitioner remained absent for about 425 days in the last 3 years, and therefore, the punishment inflicted upon by the disciplinary authority is proportionate to the charges levelled against him as the petitioner was serving as Unarmed Police Constable under the respondents, which is considered to be a indiscipline force. Learned Assistant Government Pleader further submits that there is no procedural and lapses in the inquiry proceedings and the petitioner was given a reasonable opportunity to participate in the inquiry proceedings. It is also submitted that there is no infirmity in the order passed by the appellate as well as revisional authority. Thus, according to learned Assistant Government Pleader, the orders passed by the respondents-authorities are in accordance with law and the present petition deserves to be dismissed. 5. Regard being had to the above submissions, and looking the facts and circumstances of the present case, it appears that the petitioner was appointed as an Unarmed Police Constable under the respondents, and he has served for about more than 14 years under the respondents. The allegations against the present petitioner was that he remained absent for about 425 days within a span of 3 years. It appears that the petitioner was suffering from mental illness, and he was taking medical treatment when the show-cause notice along with charge-sheet was issued upon him. He tried to explain the difficulties faced by him, and also tried to justify as to why he could not remain present during last 3 years regularly. It also appears that petitioner has also informed the respondents-authorities about his medical treatment, but it appears that the charges levelled against the petitioner were proved, and thereafter, major penalty of removal from service was inflicted on the petitioner. At the time of imposing punishment to a delinquent, the disciplinary authority is required to take into consideration various factors as enumerated by the Hon'ble Supreme Court in its judgment in case of Sardarsingh Devisingh v. Dist. Supdt. At the time of imposing punishment to a delinquent, the disciplinary authority is required to take into consideration various factors as enumerated by the Hon'ble Supreme Court in its judgment in case of Sardarsingh Devisingh v. Dist. Supdt. of Police, Sabarkantha and others reported in 1985 GLH 940 , wherein it is held that the consequences of removal or dismissal from the services are severe, sometimes the entire family is ruined because another job or work may not be easy to find, and therefore, it is all the more necessary that the punishment of removal/dismissal should be invoked sparingly, and in cases which can be described as gross, such as receiving illegal gratification, misappropriation or defalcation of public funds. In the instant case, the petitioner has tried to justify his absence on account of his mental illness, and that too by producing medical case papers and certificates, but unfortunately, the said facts were not properly considered. It further appears that except for the last 3 years before his removal from service, the service record of the petitioner for the last 12 years appears to be dotless, and the petitioner has not received any memo during his service tenure. Thus, while inflicting major penalty like removal from service, the disciplinary authority was also required to take into consideration the overall service record of the petitioner, and the far reaching consequences of any major penalty. Of course, the said penalty should also be proportionate to the charges levelled against the delinquent. In any case, after passing of an order of removal from service, the petitioner preferred an appeal, and thereafter, on account of dismissal of such appeal, he also preferred a revision before the State Government, but as it reveals from the record, the said revision application also came to be dismissed on the ground of delay and laches, without looking at the merits of the case or without entering in to merits of the matter. Thus, the petitioner had no opportunity or chance to put forward his case before the revisional authority. Thus, the petitioner had no opportunity or chance to put forward his case before the revisional authority. So far as delay in filing of revision, and that too, 52 days is concerned, according to petitioner, he has tried to explain as to why he could not approach the revisional authority in time, but it appears that instead of taking a lenient view while dealing with the delay condonation application, the revision application is dismissed on the ground of delay. There are judicial pronouncements of this Court as well as Hon'ble Apex Court that while dealing with application for condonation of delay, the authority/Court has to consider the merits of the case also, and generally the approach require to be adopted by the Court/authority to do substantial justice. In the instant case, it appears that the revision application filed by the petitioner has been dismissed merely only on the ground of delay and laches, and therefore, this Court is of the view that the said order is required to be quashed and set aside and the matter is required to be remitted to the revisional authority for denovo consideration of his revision application. It is expected from the revisional authority that the revision application of the petitioner shall be considered sympathetically in accordance with law, and while doing so the observations made by this Court may also be taken into account at the time of taking final decision in the revision application. 6. With aforesaid observations/directions, the present petition is partly allowed. The order passed by the revisional authority is quashed and set aside and the matter is remitted to the revisional-authority. The revisional authority shall made endeavour to decide the said revision application within a period of 3 months from the date of receipt of the order. Rule is made absolute to the aforesaid extent.