Akhilesh Kumar vs State Of U.P. And Others
2014 Latest Caselaw 4783 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 31
 
Case :- WRIT - A No. - 29350 of 2010
 
Petitioner :- Akhilesh Kumar
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Sanjay Kumar Singh,Abhishek Kumaar,Hari Om Yadav
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard learned counsel for the petitioner and learned counsel for the respondent.

By means of present writ petition, the petitioner has prayed to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 23.04.2010, passed by the respondent no.2, order dated 19.02.2010, passed by the respondent no.3 as well as the order dated 19.01.2010 passed by the respondent no.4, by which the services of the petitioner had been terminated.

The brief facts giving rise to the present writ petition that the petitioner was appointed on the post of constable (armed police) on 01.08.1989, and finally the petitioner was transferred on 11.09.2008 in District Lalitpur on the post of constable (armed police) and he continue their up to 19.01.2010.

It transpires from the record that petitioner was suffering from piles and on account of his serious ailment he had taken seven days leave since 24.07.2009 as per advise of his doctor and was getting his treatment under the supervision of doctor at District Hospital, Lalitpur.

It also transpires from the record that on 31.07.2009 petitioner again fell ill and having fever had approached District Hospital, Lalitpur on the same very day and doctor again advised him for proper rest. The prescription report dated 31.07.2009 is brought on record as Annexure No.2 to the writ petition.

It is also apparent from record that Senior Superintendent of Police, District Lalitpur on 09.09.2009 had directed Pratisar Nirikshak to conduct the preliminary inquiry in the matter, as it had been found that petitioner was missing from duty for twenty three days. Thereafter, departmental proceeding had commenced against the petitioner under Rule 14(1) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred as "Rule 1991") and thereafter the said inquiry was handed over to Circle Officer, Tal Behat, Lalitpur. A notice was served to the petitioner on 21.11.2009, immediately petitioner had submitted his reply on the same day. The plea was taken by the petitioner that doctor had advised him for three weeks bed rest and immediately thereafter the petitioner had reported to the Pratisar Nirikshak and intimated him about the entire scenario and prayed for joining. It has also been submitted that Pratisar Nirikshak had informed to the petitioner that since he was under treatment, therefore in absence of fitness certificate, he could not be permitted to join the services and finally on the basis of fitness certificate dated 22.08.2009, he had reported to the Additional Superintendent of Police on the next date. The inquiry officer had submitted his report on 16.12.2009 by which he had recommended for termination of the services of the petitioner. Thereafter the Superintendent of Police, Lalitpur had issued a show cause notice on 18.12.2009, alleging therein that petitioner had been found to be guilty of being absent from the duties for a period of about 23 days and accordingly observed that why the petitioner may not be terminated from his services. Immediately the petitioner had submitted his reply to the show cause notice and submitted full details regarding his absence and submitted that he had not made any misconduct, time to time he had informed to the authority concerned regarding his absence. The reason had been shown that he was suffering with piles and doctor had advised him to take three weeks rest and also pleaded that his service record were always up to mark and had never misbehaved to any superior officer. Thereafter, the Superintendent of Police, Lalitpur vide order dated 19.01.2010 had dismissed the petitioner from services.

Aggrieved with the termination order dated 19.01.2010, the petitioner as per the provisions of Rule 20 of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991, had referred an appeal before respondent no.3. The respondent no.3 vide his order dated 19.02.2010 had dismissed the said appeal. Thereafter, the petitioner had also preferred revision before respondent no.2, under Rule 23 of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991, and same was also rejected by the respondent no.2 vide his order dated 23.04.2010.

Learned counsel for the petitioner submits that the petitioner was admittedly suffering from piles and fever and initially had taken leave and after receiving fitness certificate had reported to the concerned officer for joining. The order of dismissal was unwarranted under the present facts and circumstances. There was no deliberate absence or negligence and as such the punishment order was too harsh, specially on ground that service track record of the petitioner was always up to mark and his work and conduct had always been appreciated by the superior authorities.

Learned counsel for the petitioner submits that order impugned is absolutely illegal and unjust. The punishment order is disproportionate and too harsh under the back ground. The petitioner on account of ailment was absent from duty, for twenty three days.

However, on the other hand, learned standing counsel submits that the services of the petitioner was terminated only after full-fledged inquiry, every opportunity had been afforded to him before passing the impugned order.. The termination order had been passed on account of absence of twenty three days, which is fully justified under the present facts and circumstances, even the appellate and revisional authority have not intervene in the matter and upheld the termination order. He has further pleaded that no indulgence may be given in favour of the petitioner under the present facts and circumstances.

I have heard the rival submissions of learned counsel for the parties and perused the record.

In the present matter, the petitioner had joined on the post of constable (armed police) on 01.08.1989, and as per record it is also apparent that prior to the termination order the petitioner was not involved in any indisciplined act, and no adverse remarks had ever been given by any superior officer and on account of his ailment he had taken leave since 24.07.2009 and subsequently on account of his continued serious ailment, he could not report to the concerned officer within time and reported after twenty three days.

A bare perusal of the impugned order, it clearly shows that petitioner was dismissed from service on account of absence from duty for twenty three days. The appeal filed by the petitioner against said order had also been dismissed by the Deputy Inspector General of Police, on 19.02.2010 and thereafter, the revision was also rejected by the respondent no.2 vide his order dated 23.04.2010.

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.

Learned counsel for both the parties have placed reliance on a large number of judgments. In certain decisions, which shall be dealt with in the foregoing paragraphs, the Courts have either reduced the punishment imposed or set aside the same on the ground that the same was shockingly disproportionate to the charges. However, in certain cases, as have been relied upon by the learned standing counsel, the Apex Court, as well as the High Court, have held that if the finding of fact has been accepted to be correct by the Courts, it should not interfere with the punishment imposed.

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.

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."

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.

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, has, while reiterating the view of the Supreme Court, held that the High Court normally does not interfere with the quantum of punishment unless the punishment shocks the conscience of the Court.

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.

Considering the facts and circumstances of the case, the punishment awarded to the petitioner of dismissal from service is to harsh and totally discriminated of the charges for which he had been found guilty. The punishment of dismissal from service are restored only if there is very grave misconduct. The punishment from dismissal from service imposed on the petitioner is to harsh and is liable to be set-aside. In my opinion, lesser punishment ought to have awarded.

However, the petitioner has been found guilty of twenty three days absent from duty and definitely be punished and he had already remained out of service from 2010 till date.

Considering the entire fact and circumstances of the case, in my view, the punishment of withholding of three increments with cumulative effect and reinstatement in service without back wages would be sufficient and adequate punishment.

Accordingly, it is directed that the petitioner shall be reinstated in service within a period of two months from the date of filing of a certified copy of this order before respondent No. 4, i.e. Superintendent of Police, District Lalitpur. However, three increments of the petitioner with cumulative effect shall be withheld, and he shall also not be entitled for salary from the date of his dismissal till the date of his reinstatement, but he shall be given continuity of service for all other purposes. In the result, this writ petition is partly allowed, to the extent as stated above.

The impugned termination order as well as appellate order and revisional order are set-aside.

The writ petition is allowed.

There shall be no order as to cost.

Order Date :- 22.8.2014

VKG