THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT APPEAL No.77 OF 2023
JUDGMENT: (per AKS,J)
This appeal is filed aggrieved by the order, dated
23.08.2022, passed in W.P.No.35118 of 2016 by a learned
Single Judge of this Court.
2. Heard the learned Special Government Pleader
appearing for the appellants and Sri D. Linga Rao, learned
counsel for the respondent.
3. Learned Special Government Pleader appearing for the appellants had contended that the respondent was appointed as a Police Constable in the Armed Reserve Police on 10.01.1992. He applied for leave from 25.05.2006 to 05.06.2006 on medical grounds and the same was sanctioned. Thereafter, the respondent did not report to duty and the appellants have treated him as a 'deserter' vide order, dated 04.07.2006. The respondent was again taken into service on 19.02.2008 only to conclude the disciplinary 2 AKS,J & PK,J W.A.No.77 of 2023 proceedings initiated against him. As the respondent was declared as a 'deserter', the disciplinary authority has conducted a regular enquiry, but the respondent did not participate in the said enquiry. Left with no other option, the disciplinary authority has conducted an ex parte enquiry and the Enquiry Officer came to a conclusion that the charge levelled against the respondent was proved in the domestic enquiry and for the proven misconduct, the disciplinary authority has imposed a punishment of removal from service on the respondent vide order, dated 23.11.2009. Later, on being unsuccessful in the appeal and revision as well as in mercy petition and nearly seven years after passing of the order of removal from service, the respondent has approached this Court challenging the removal order by filing the subject Writ Petition, and the learned Single Judge of this Court vide impugned order, dated 23.08.2022, was pleased to allow the Writ Petition and directed the appellants to reinstate the respondent into service with 20% of the back-wages, without appreciating any of the contentions raised by the appellants.
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4. The learned Special Government Pleader had further contended that the learned Single Judge ought not to have interfered with the order of removal, as admittedly, the respondent was absent and his whereabouts were not known from the year 2006 onwards and that he has not participated in the domestic enquiry and refused to receive the charge memo and has also not cooperated, while conducting the domestic enquiry. The respondent was working in police force and the learned Single Judge has strangely recorded a finding that unauthorized absence is not a grave misconduct. When the respondent is working in a disciplinary force like the appellants, the unauthorized absence, that too, for more than three to four years will definitely constitute major misconduct. Therefore, appropriate orders be passed in the appeal by setting aside the impugned order and allow the appeal.
5. On the other hand, learned counsel for the respondent had contended that the learned Single Judge has rightly allowed the Writ Petition in favour of the respondent by taking into consideration that the respondent has overstayed his 4 AKS,J & PK,J W.A.No.77 of 2023 leave period owing to various health issues including that of bereavement in the family of the respondent. The learned Single Judge has interfered with the order of removal on the ground of proportionality, as admittedly, the respondent has overstayed the sanctioned leave by few days and imposing the punishment of removal from service is shockingly disproportionate to the charge levelled against the respondent. Therefore, there are no merits in the appeal and the same is liable to be dismissed.
6. This Court, having considered the rival submissions made by the learned counsel for the parties, is of the view that the learned Single Judge was justified in interfering with the order of removal from service on the ground of proportionality, as admittedly, the respondent overstayed the sanctioned leave period, however, the learned Single Judge ought not to have directed the appellants to reinstate the respondent into service. In normal course, the Court must give its finding in respect of proportionality and remand the matter to the authorities concerned for reconsideration to 5 AKS,J & PK,J W.A.No.77 of 2023 impose any other punishment, with a specific finding that the punishment imposed is shockingly disproportionate to the charge/s levelled. Therefore, this Court is of the considered view that the learned Single Judge ought not to have directed the appellants to reinstate the respondent into service, as the learned Single Judge has interfered with the punishment of removal from service by applying proportionality theory. Therefore, the matter has to be remanded to the appellants to reexamine the same and impose any other punishment on the respondent, other than removal/dismissal from service, as the punishment of removal from service imposed against the respondent is shockingly disproportionate to the charge levelled against him.
7. Accordingly, the impugned order, dated 23.08.2022, passed in W.P.No.35118 of 2016 by the learned Single Judge of this Court is modified and the matter is remanded to the appellants to reexamine the case of the respondent afresh and to impose any other punishment, other than removal or dismissal from service on the respondent.
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8. With the above observations/directions, the Writ Appeal is disposed of. There shall be no order as to costs.
Miscellaneous Petitions, if any, pending in this Writ Appeal shall stand closed.
___________________________ ABHINAND KUMAR SHAVILI, J _________________ PULLA KARTHIK, J Date: 21-02-2023.
MD