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2019 DIGILAW 2741 (ALL)

Abdul Aleem v. State of U. P.

2019-12-09

MAHESH CHANDRA TRIPATHI

body2019
JUDGMENT : 1. Petitioner is before this Court for with a request for quashing the impugned dismissal order dated 6.3.2014 as well as appellate order dated 27.10.2014 and revisional order dated 8.10.2015 passed by respondent nos. 4, 3 and 2 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 Railway Station Naugarh on 30.5.2013 at 8 A.M. to 8 P.M., he was absent without taking any permission and remained absent unauthorisedly for nine days without any information and after nine days unauthorized absent, he returned back on 7.6.2013. By the impugned order dated 6.3.2014 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 9 days. Against the aforesaid order, he filed an appeal before respondent no. 3 and the said appeal was dismissed on 27.10.2014. Thereafter, the petitioner preferred a revision before respondent no. 2 and the said revision was also dismissed on 8.10.2015. 3. Learned counsel for the petitioner submits that while passing the impugned order, the opportunity of hearing was not given to the petitioner though a show cause notice was issued to the petitioner on 2.1.2014 but the same was not received by the petitioner. Even, he was not provided the statements of the witnesses for cross-examination. The allegation made against the applicant is wholly incorrect, false and misconceived and as such, the order impugned cannot sustain and the same is liable to be quashed by this Court. 4. Learned counsel for the petitioner further makes a statement that if the petitioner is reinstated in service, he will not claim any salary for the period in which he has not worked. In support of his submissions, he has relied upon judgments passed by this Court in Akhilesh Kumar Vs. State of U.P. and Others (Writ-A No. 29350 of 2010, dt. 22.8.2014) and Satish Kumar Vs. State of U.P. (Writ-A No. 47338 of 2015, dt. 5.5.2016) and as such it is sought to be contended that the present matter is squarely covered by the aforesaid judgments and the similar treatment may also be extended to the petitioner. 5. State of U.P. and Others (Writ-A No. 29350 of 2010, dt. 22.8.2014) and Satish Kumar Vs. State of U.P. (Writ-A No. 47338 of 2015, dt. 5.5.2016) and as such it is sought to be contended that the present matter is squarely covered by the aforesaid judgments and the similar treatment may also be extended to the petitioner. 5. On the other hand, learned 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 nine days unauthorisedly and therefore, the order impugned has rightly been passed dismissing the petitioner from service. 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 of unauthorised absence from 30.5.2013 to 7.6.2013. 8. A Division Bench of this Court in the case of Suresh Kumar Tiwari v. D.I.G., P.A.C. and Anr., 2001 (4) AWC 2630 : 2002 Lab IC 259, while reiterating the view of the Supreme Court, has 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 Ors., 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. On the contrary the Apex Court in the case of Ranjit Thakur v. Union of India and Ors., 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 Ors., 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. The Supreme Court found it fit to interfere with the punishment of removal from service and modified it to withholding of two increments. 13. 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. 14. In view of above and considering the facts and circumstances of the case, the orders impugned cannot sustain 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.