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2025 DIGILAW 497 (MP)

Chandra Kumar Mishra v. State of Madhya Pradesh

2025-08-14

MANINDER S.BHATTI

body2025
ORDER : MANINDER S. BHATTI, J. This petition under Article 226 of the Constitution of India has been filed by the petitioner seeking following reliefs:- "(i) The Hon'ble Court may kindly be pleased to call for the records pertaining to issue of order dated 17.6.2004 as contained in Document No. P/18 from the office of the respondent No.4, as also the order dated 1.10.2004 as contained in Document No. P/20 from the office of respondent No.3 and the order dated 6.5.2005 as contained in Document No. P/22 from the office of respondent No.2, and be further pleased to examine the same and to quash the said orders by issuance of a writ of certiorari. (ii) The Hon'ble Court may kindly be graciously pleased to issue a writ of mandamus commanding the respondents to reinstate the petitioner in service from the date of his dismissal and grant him all the privileges of such service, such as pay, allowances, seniority of the post etc. (iii) Any other reliefs which this Hon'ble Court deem fit in the circumstances of the case, may also be granted to the petitioner together with the cost of this writ petition." Facts: 2) The facts, as narrated in the petition, in nutshell, are that the present petitioner was appointed as Constable in the Police Department way back on 17.4.1989. In the year 1992, the petitioner suffered some cardiac issues and was being treated at Jabalpur. The petitioner also came across certain orthopedic disorders and was being treated at various places including Gangaram Hospital, New Delhi. On 26.3.2004, the petitioner was served with a charge-sheet vide Annexure P-8 in which as many as 3 charges were levelled against him. The charge No. 1 was that the petitioner had not attended the basic training which was scheduled to be held from 30.12.2003 at PTS, Indore; charge No. 2 was pertaining to unauthorized absence of the petitioner of 11 days i.e. from 30.12.2003 to 6.1.2004 (for 8 days) and from 9.1.2004 to 11.1.2004 (for 3 days) and charge No. 3 was that there was no improvement in the conduct of the petitioner despite the fact that he was punished with minor penalties in past on the allegation of unauthorized absence. The petitioner submitted reply to aforesaid charge-sheet. Thereafter enquiry proceedings were drawn. The petitioner submitted reply to aforesaid charge-sheet. Thereafter enquiry proceedings were drawn. Enquiry report was submitted vide Annexure P-17 and then the Disciplinary Authority passed the impugned order vide Annexure P-18 removing the petitioner from service. The petitioner preferred an appeal as well as mercy petition, however, both have been dismissed. Hence this petition has been filed. Contentions: 3) The counsel for the petitioner contends that the impugned order is liable to be set aside, inasmuch as, it was not a case of willful absence from duty. Undisputedly, the petitioner was indisposed at the time when the order to undergo the training was issued. The petitioner could not make himself available for the said training on account of his ailment. The petitioner had also produced the medical documents pertaining to his treatment in order to demonstrate his illness. However, the Authority without having considered the same, proceeded to pass the impugned order. It is further contended that it is a case where the factum of illness of the petitioner was not questioned by the Authority. The Authority has only observed that the petitioner, just in order to avoid the duty, projected himself to be indisposed and such conduct was unbecoming of a member of a Disciplined Force. It is contended that the Disciplinary Authority has passed the impugned order in a purely mechanical manner. It had to apply its mind and pass an order which should be enriched with cogent reasons and findings. It is further contended that Regulation 226 of the Police Regulation stipulates that so far as Constables are concerned, passing of order of termination should be avoided. The counsel has placed reliance on a decision of a co-ordinate Bench of this Court in W.P. No. 24106 of 2014 (Prabhu Dayal Pandey vs. State of M.P. & others) to submit that the order which has been passed without assigning the reasons, is unsustainable and is liable to be quashed. The counsel has also placed reliance on the decision of this Court in Purshottam Ivne Vs. State of M.P. & others - 2014 (3) MPLJ 704 and prayed that the impugned orders be set aside and the petitioner be directed to be reinstated in service along with all the consequential benefits. The counsel has also placed reliance on the decision of this Court in Purshottam Ivne Vs. State of M.P. & others - 2014 (3) MPLJ 704 and prayed that the impugned orders be set aside and the petitioner be directed to be reinstated in service along with all the consequential benefits. 4) Per contra, the counsel for the State has supported the impugned order and submitted that there was charge against the petitioner that he did not attend the basic training which was scheduled to be held on 30.12.2003 at PTS Indore despite having knowledge of the same. Another charge levelled against the petitioner was that he unauthorisedly remained absent from duty for 11 days as mentioned in the impugned charge-sheet. It is further submitted that in past also the petitioner was given opportunities by giving minor punishments to improve his conduct but the petitioner did not mend his ways. Therefore, the Disciplinary Authority had no other option but to pass the impugned order. It is submitted that the Disciplinary Authority has rightly passed the impugned order, in which no interference is warranted and petition is liable to be dismissed. 5) No other point is argued or pressed by the counsel for the parties. Analysis: 6 ) Heard the submissions advanced on behalf of the parties and perused the record. 7) On perusal of the record, it reflects that the following charges were levelled against the petitioner:- 8) A perusal of aforesaid reveals that as per the first charge, the petitioner was called upon to make himself available to undergo a training, which was scheduled to be held from 30.12.2003 at P.T.S. Indore and the petitioner did not attend the said training and was unauthorizedly remained absent. The second charge which was levelled against the petitioner was that he unauthorizedly remained absent from the duty from 30.12.2003 to 6.1.2004 for 8 days and from 9.1.2004 to 11.1.2004 for 3 days, total 11 days. The third charge refers to previous orders of imposing minor penalties on the similar allegations. On being served with the charge-sheet, the petitioner submitted his reply vide Annexure P-9, in which the petitioner had brought to the notice of the Authority that he was suffering from some cardiac disorders for which he obtained treatment from various Doctor at Jabalpur as well as Allahabad. On being served with the charge-sheet, the petitioner submitted his reply vide Annexure P-9, in which the petitioner had brought to the notice of the Authority that he was suffering from some cardiac disorders for which he obtained treatment from various Doctor at Jabalpur as well as Allahabad. It was also submitted that in the year 2003, the petitioner faced some orthopedic problems sustaining pressures in the spinal nerves L-5, L-6, L-7, L-8. To bolster the aforesaid contention, the petitioner produced documents relating to his treatment at Damoh, Sagar, Jabalpur and New Delhi. 9) During course of the departmental enquiry, the statements of the witnesses of the Department were record, which reveal that witnesses namely Satendra Tiwari, Smt. Nirmala Sen, constable Bhagwan Singh and constable Chandrawati in their cross-examinations, have admitted that they were aware of the fact that the petitioner was suffering from serious disorders pertaining to waist as well as legs. Thus, the cross-examinations of the aforesaid four witnesses clearly reveal that they have not disputed the factum of illness of the petitioner. 10) It is further important to take note of the testimony of defense witness namely Shiv Mohan Singh, who, in his statement, stated that the petitioner was having pain in his legs and waist and he was taken to Doctor by this witness. The aforesaid witness was not cross-examined on the said aspect by the Department. The testimony of the said witness has also not been dealt with by the Inquiry Officer in the Enquiry Report. The Inquiry Officer, while submitting Enquiry Report, prima facie, did not take into consideration the cross-examinations of the aforesaid four departmental witnesses, who did not deny the fact that the petitioner was suffering from aforesaid orthopedic disorders. Thus, in the considered view of this Court, this aspect of the matter was required to be taken note of by the Disciplinary Authority while passing the impugned order. 11) Undisputedly, the petitioner did not attend the basic training which was scheduled to be held from 30.12.2003 and thereafter unauthorisedly remained absent for 11 days as mentioned hereinabove, however, as the petitioner had taken the stand of his aforesaid illness, in the considered view of this Court, the penalty imposed by the Authority, was not proportionate to the allegations, which were levelled against the petitioner. It is also pertinent to take note of the fact that another Constable namely Brij Mohan, who had also not attended the training on 30.12.2003 and unauthorizedly absent for 77 days, subsequently, by the order of the Appellate Authority was reinstated back in service and the period of absence was directed to be treated on the basis of "No Work No Pay". 12) The Apex Court in the case of B.C. Chaturvedi Vs. Union of India - (1995) 6 SCC 749 has held as under:- "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." 13. Further, the Apex Court in the case of Naresh Chandra Bhardwaj Vs. Bank of India & others - (2019) 15 SCC 786 has held that the parity is required to be maintained by the employer/department while imposing penalty against similarly situated employees on similar set of charges. The Apex Court observed in paragraph 5 as under:- "5. It is trite to say that the domain of the courts on the issue of quantum of punishment is very limited. It is the disciplinary authority or the appellate authority, which decides the nature of punishment keeping in mind the seriousness of the misconduct committed. This would not imply that if the punishment is so disproportionate that it shocks the conscience of the court the courts are denuded of the authority to interfere with the same. Normally even in such cases it may be appropriate to remit the matter back for consideration by the disciplinary/appellate authority. This would not imply that if the punishment is so disproportionate that it shocks the conscience of the court the courts are denuded of the authority to interfere with the same. Normally even in such cases it may be appropriate to remit the matter back for consideration by the disciplinary/appellate authority. However, one other cause for interference can be where the plea raised is of parity in punishment but then the prerequisite would be that the parity has to be in the nature of charges made and held against the delinquent employee and the conduct of the employee post the incident. It is the latter aspect which is sought to be advanced by the learned counsel for the appellant by relying upon the judgment in Rajendra Yadav v. State of M.P. [Rajendra Yadav v. State of M.P., (2013) 3 SCC 73 : (2013) 1 SCC (L&S) 476] On this very aspect the learned counsel for the respondents drew out attention to a subsequent judgment in Lucknow Kshetriya Gramin Bank v. Rajendra Singh [Lucknow Kshetriya Gramin Bank v. Rajendra Singh, (2013) 12 SCC 372 : (2013) 3 SCC (L&S) 159] which had taken note of the earlier judgment referred to aforesaid." 14) Thus, when the impugned order contained in Annexure P-18 is subjected to perspicacious scrutiny in the light of the aforesaid enunciation of law by the Apex Court, it would reveal that in the present case, the Disciplinary Authority has failed to appreciate that the aforesaid five witnesses of the Department admitted that the petitioner was suffering from acute pain in his legs as well as back. In such circumstances, the Authority was required to consider as to whether the absence of the petitioner was willful or not. In case of unauthorised absence, the Department is required to prove that the absence of the employee concerned was willful. The Apex Court in Krushnakant B. Parmar v. Union of India - (2012) 3 SCC 178 has held as under :- "16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 17. The question whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct." Conclusion: 15) In the aforesaid conspectus, this Court is of the view that the penalty imposed upon the petitioner of removal from service by the Authority vide impugned order, is unsustainable being disproportionate and therefore, the impugned order is liable to be set aside. 16) Resultantly, the petition is allowed. Impugned orders contained in Annexures P-18, P-20 and P-22 are here by set aside. The respondents are directed to reinstate back the petitioner in service without backwages. However, the respondents are at liberty to impose any other penalty in proportion to the charges levelled against the petitioner. No costs.