Research › Search › Judgment

Gujarat High Court · body

2021 DIGILAW 74 (GUJ)

B. M. Jadeja v. State Of Gujarat

2021-01-27

UMESH A.TRIVEDI

body2021
JUDGMENT : 1. The petitioner was working as Unarmed Police Constable, by way of this petition under Article 226 of the Constitution of India, challenged the order of penalty, pursuant to a departmental proceedings, of dismissal from the service vide order dated 21.10.2003 passed by the Superintendent of Police, Surendranagar, and treating the period of absence till the receipt of order of dismissal as unauthorized absence and to be treated as leave without pay, confirmed by the Range I.G. as also Director General of Police and Chief Police Officer, Gujarat State, Gandhinagar, vide orders dated 30.01.2004 and 01.02.2007 respectively. 2. The petitioner was appointed as Unarmed Police Constable on 16.01.1987 at Kutch District. Thereafter, he was transferred to Surendranagar District in an around the year 1993. He served there till he came to be dismissed from the service by an order dated 21.10.2003. 3. However, while he was serving with Halvad Police Station as Unarmed Police Constable, he proceeded on a casual leave on 30.06.2000 upto 02.07.2000, clubbing period of public holiday. He was to report for the duty on 03.07.2000. Further, the petitioner did not report for the duty. Therefore, on 25.07.2001, an offence under Section 145(2) of the Bombay (now Gujarat) Police Act (for short 'the Act') came to be registered against the petitioner vide C.R.No.II73 of 2001 at the very same Police Station. On 17.10.2001, the petitioner came to be arrested in connection with the aforesaid offence with said Police Station and thereafter, released on bail. Even after his arrest and subsequent release on bail in connection with the aforesaid offence, petitioner did not report for the duty. On 17.10.2001, the petitioner came to be arrested in connection with the aforesaid offence with said Police Station and thereafter, released on bail. Even after his arrest and subsequent release on bail in connection with the aforesaid offence, petitioner did not report for the duty. A chargesheet dated 3.11/12.2002 came to be issued against the petitioner on two counts i.e. (i) after proceeding on casual leave from 30.6.2000 upto 2.7.2000 with the benefit of public holiday and was to report for the duty on 3.7.2000, despite that, did not report to the duty, and therefore, a case has come to be registered against him and he has been released on bail in the said offence and (ii) though after the arrest in connection with the aforesaid offence, he was to report to the duty, he continuously did not report for the same, without obtaining any prior permission of higher authority or even informing them which shows that the petitioner has withdrawn himself from the duties without written permission of the Superintendent of Police or any other Officer of the Police Station and thereby, the petitioner has committed the misconduct. 4. Pursuant to the chargesheet, a departmental inquiry was conducted by the Presiding Officer and Circle Police Inspector against the petitioner who found the charge against the delinquent Police Officer to be partially proved. Pursuant to the report of the inquiry officer, after furnishing the copy of the report, disciplinary authority being Superintendent of Police issued a show cause notice that it intends to impose punishment of dismissal from the service, considering the misconduct, the report of the inquiry officer and the material containing in the report. Pursuant to the said show cause notice issued by the disciplinary authority, the petitioner has submitted his written reply which is at page No.25 of the compilation. 5. The disciplinary authority, considering the misconduct and the reply filed by the delinquent, imposed a penalty of dismissal from the service from the date of receipt of the order and treating the period from 30.06.2000 till the receipt of the order of dismissal as unauthorized absence and to be treated as leave without pay. The petitioner has challenged the said order of penalty by way of an appeal before the Special Inspector General of Police, Rajkot, who also dismissed the appeal preferred by the petitioner vide order dated 31.01.2004. 6. The petitioner has challenged the said order of penalty by way of an appeal before the Special Inspector General of Police, Rajkot, who also dismissed the appeal preferred by the petitioner vide order dated 31.01.2004. 6. Being aggrieved by the same, the petitioner preferred the Revision Application before the Director General of Police and Chief Police Officer, Gujarat State, Gandhinagar, who in turn, rejected the said Revision Application preferred by the petitioner by his order dated 1.2.2007. 7. The petitioner has, by way of this petition, challenged the concurrent findings recorded by the disciplinary authority and confirmed by the appellate as also revisional authority. 8. Ms. Vacha Nanavati, learned advocate for the petitioner submitted that the disciplinary authority is supposed to record reasons while issuing notice why he is not agreeing to the findings recorded by the inquiry officer for imposition of penalty. She has further submitted that, on the contrary, the inquiry officer has believed the charge to be partly proved. However, in an inquiry report, it is held that the delinquent has produced the papers of treatment and the certificate issued by different Government Hospitals showing that his treatment is still continued, and therefore, it cannot be said that he is not sick. However, the disciplinary authority has not assigned reasons why such findings recorded by the inquiry officer to be incorrect. 8.1 Relying on a decision in the case of Yoginath D. Bagde Vs. State of Maharashtra and Anr. reported in AIR 1999 SC 3734 , to contend that the punishment imposed is too harsh where there is clean record of the petitioner and he has put in all nearly 13 years of service prior to proceeding on leave. Drawing attention of the Court to the provisions of the Bombay Police Manual from the decision in the case of Mohanbhai Dungarbhai Parmar Vs. Y.B. Zala & Anr., reported in 1979 (1) G.L.R. 147, she has submitted that the punishment imposed, of dismissal from service, is not proportionate to the misconduct committed by the petitioner. It is further submitted that by imposing penalty, the general character of the Officer affected and his past service should be taken into consideration. The removal from service of a police officer, who has put in all 15 years or more service and having good character, means ruin. It is further submitted that by imposing penalty, the general character of the Officer affected and his past service should be taken into consideration. The removal from service of a police officer, who has put in all 15 years or more service and having good character, means ruin. At any rate, according to submission of learned advocate for the petitioner, the penalty of dismissal from service imposed is too disproportionate to the misconduct and it should be substituted with any other punishment. 8.2 She has further submitted that the findings recorded by the inquiry officer are in favour of delinquent - petitioner so far as production of medical certificate of different Government Hospitals. However, certificate issued by any medical officer advising him complete bed rest should have been produced by the delinquent - petitioner which is not produced. According to her submission, when the inquiry officer has found him guilty in part only, dismissal from service for such misconduct is too disproportionate penalty to be imposed, and therefore, she has requested that this petition be allowed and impugned orders may be quashed and set aside with substitution of appropriate penalty. 9. As against that, Ms. Megha Chitaliya, learned AGP, submitted that the charge of continued unauthorized absence from the duty, that too, by a Police Officer of any rank, is misconduct of a grave nature. She has submitted that though after proceeding on leave, the delinquent - petitioner has sent sick report through Bhuj Police Station, it is clear that it is not supported with any contemporaneous evidence. She has submitted that the medical certificate, which is claim to have been issued, is nothing but an afterthought as the said report claim to have been issued by the Superintendent of Government Hospital, Rambaug, Gandhidham Kutch is dated 28.02.2003, is nothing but a proof of the fact that he has been treated as outdoor patient and no prescribing any bed rest even by the medical officer, and therefore, the said medical certificate is of no use for determining the misconduct of the petitioner. 9.1 Relying on a decision in the case of Chennai Metropolitan Water Supply and Sewerage Board and others Vs. T.T. Murli Babu reported in 2014 (4) SCC 108 , more particularly para Nos.23, 24 and 25, she has submitted that unauthorized absence i.e. of overstaying leave is an act of indiscipline. 9.1 Relying on a decision in the case of Chennai Metropolitan Water Supply and Sewerage Board and others Vs. T.T. Murli Babu reported in 2014 (4) SCC 108 , more particularly para Nos.23, 24 and 25, she has submitted that unauthorized absence i.e. of overstaying leave is an act of indiscipline. The delinquent - petitioner being Police Officer such indiscipline is of a very grave nature and cannot be tolerated. She has further submitted not only that the petitioner did not report back to the duty even after a case is registered against him for unauthorized absence, he has offered no satisfactory explanation for the absence. Therefore, according to her submission, the order imposing penalty of dismissal from service is proper punishment imposed requiring no interference, that too, while exercising jurisdiction under Article 226 of the Constitution of India against the concurrent findings of the fact recorded by at least two authorities, therefore, she has requested this Court to reject this petition. 10. Having heard the learned advocates for the appearing parties and perusing the material produced along with the petition, it requires to be considered in detail. 11. The service of the petitioner is in disciplined force where he cannot be expected to disobey, not only the provisions of law but even oral orders of superior officer. Considering the charge against the petitioner, it is clear that after proceeding on a casual leave, according to case of the petitioner, he fell sick and he reported through Bhuj Police Station to the Halvad Police Station where he was serving. However, the said intimation is not supported by any medical certificate issued by Medical Officer requiring petitioner to have a complete bed rest so that he is unable to report for the duty. Though different certificates issued by the Medical Officer might have been produced during the course of inquiry, neither of them, as referred to by the inquiry officer in his report, is with regard to advising the patient of a complete bed rest so that he cannot report for the duty. 12. However, the absence from duty without prior permission of a superior officer immediately after proceeding on leave is not the only charge against the petitioner. 12. However, the absence from duty without prior permission of a superior officer immediately after proceeding on leave is not the only charge against the petitioner. As such, from 03.07.2000, the day on which the petitioner was to report back on duty on completion of casual leave, the petitioner did not report for the same for about a year and more and a case for an offence under Section 145(2) of 'the Act' came to be registered on 25.07.2001. 13. Sub-Section (2) of Section 145 of 'the Act' speaks about withdrawal from duty in contravention of Section 29 of 'the Act'. Section 29 of 'the Act' provides that no Police Officer shall withdraw himself from the duties thereof except with the written permission of the Commissioner or the Deputy Inspector General and Superintendent of Police or of some other Police Officer empowered by the Inspector General or the Commissioner to grant such permission. Thus, it is clear that a Police Officer cannot withdraw himself from the duties except with the written permission of his superior Officer. Here, in the present case, not only the petitioner did not report to the duty after his casual leave was over, may be on any ground, had not sought for any permission even ex post facto, nor has he attempted to explain the absence for the same. The lame excuse shown by the petitioner to the effect that he suffers from sciatica. However, the said assertion is also again without any support of contemporaneous record issued by competent Medical Officer. 14. After filing of the FIR against the petitioner for unauthorized absence without prior permission as provided under 'the Act', he came to be arrested in connection with that offence nearly after two and half months of the registration thereof. Though he was arrested and released on bail by the Competent Court, he did not care to even report thereafter for the duty or to obtain any prior permission from the superior Officer. The chargesheet issued to the petitioner is exactly for the period after registration of an offence that he has withdrawn himself from the duty without the prior permission, which is found to be proved on record even by the Inquiry Officer. The reasons assigned by the Inquiry Officer for believing charge to be partly proved is on the ground that from the certificates, it appears that he was sick. The reasons assigned by the Inquiry Officer for believing charge to be partly proved is on the ground that from the certificates, it appears that he was sick. However, it appears that he has missed the main point that the unauthorized absence was without any prior permission thereof. At least petitioner could have reported for the duty after registration of a case and arrest in connection therewith or obtain prior permission from the superior Officer for the absence. The conduct of the petitioner appears to be of a conscious defiant attitude which cannot be tolerated in a disciplined force like Police, and therefore, when the orders passed by the disciplinary authority and confirmed by the appellate as also revisional authority, suffers from no infirmity, requires no interference by this Court, that too, while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, and therefore, petition is required to be rejected. 15. So far as precedents relied on by the learned advocates for the appearing parties require no specific dealing as there is no quarrel on the law propounded therein. However, the fact remains that, not only the finding is recorded by the disciplinary authority on the facts alone, which is found to be correct from the record and confirmed by the revisional and appellate authority, it requires no decision than the decision rendered by the disciplinary authority. Hence, I reject this petition. Rule is discharged.