Constable 339/381 C.P. Santosh ... vs State Of U.P. And 5 Others
2019 Latest Caselaw 3390 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 42
 

 
Case :- WRIT - A No. - 4233 of 2014
 
Petitioner :- Constable 339/381 C.P. Santosh Kumar
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- P.C. Pandey,Kashinaresh Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ajay Bhanot,J.

1. Heard Sri P.C. Pandey and Kashinaresh Mishra, learned counsels for the petitioner and learned Standing Counsel for the respondents.

2. The petitioner was a Constable in the U.P. Police Force. Disciplinary proceedings were initiated against the petitioner on the foot of a charge sheet dated 09.09.2011.

3. The disciplinary proceedings culminated in the order of termination of the services of the petitioner passed by the disciplinary authority on 13.04.2012. The petitioner carried the order of termination before the appellate authority. The appeal of the petitioner was rejected by the appellate authority on 29.11.2012. Not satisfied, the petitioner took the order of the appellate authority in revision, with no better results. The revision was dismissed by order dated 31.07.2013. The termination was thus affirmed by the appellate and the revisional authority.

4. Aggrieved by the orders dated 13.04.2012, 29.11.2012 and 31.07.2013 passed by the disciplinary authority, appellate authority and the revisional authority respectively, the petitioner instituted the present writ petition and has assailed the aforesaid orders in the writ petition.

5. Learned counsel for the petitioner contends that the orders assailed in the writ petition are vitiated as the enquiry report was exparte to the petitioner. Secondly during the period of absence the petitioner was under treatment for the grievous injuries sustained in an accident. His absence from duty was not willful.

The last submission made by learned counsel for the petitioner was that the punishment of dismissal was disproportionate to the misconduct the petitioner was charged with.

Learned counsel for the petitioner relies on a judgment rendered by Hon'ble Supreme Court in the case of Krushnakant B. Parmar Vs Union of India and Another reported at 2012 (3) SCC 178.

6. Per contra, learned Standing Counsel submits that the charges against the petitioner stood proved before the enquiry officer. The petitioner did not cooperate with the enquiry officer. All authorities applied their mind independently to the facts and evidences in the record. All the concerned authorities passed orders while complying with principles of natural justice. Further he submits that the police force is a disciplined force and absence from duty for such a long period is a grave misconduct which cannot be condoned in the interest of institutional discipline.

7. Heard learned counsel for the parties.

8. The charges laid out in the charge sheet disclose that the petitioner was unauthorisedly absent from duty w.e.f. 04.07.2010.

The petitioner was posted at Kotwali Farrukhabad, District Fatehgarh in the year 2010. The petitioner was detailed for VVIP duty at Kanpur on 01.07.2010. After the completion of the assigned VVIP duty, the petitioner was required to report back at his place of posting at Kotwali Farrukhabad, District Fatehgarh. The petitioner failed to report for duty at his place of posting on 04.07.2010. Thereafter the petitioner was continuously absent from duty.

The charge sheet records that the conduct of the petitioner was an act of dereliction of duty. The charge sheet also contains a list of adverse materials which were proposed to be relied against the petitioner in the enquiry.

9. The enquiry officer nominated to conduct an enquiry of the petitioner issued notice to the petitioner intimating him the date of the enquiry proceedings. The enquiry report has been brought in the record by the State authorities by means of a supplementary counter affidavit.

10. The enquiry report records that the letter intimating the petitioner about the first date of the enquiry proceedings was sent on 06.09.2011. The letter intimating the date of the enquiry proceedings was personally received by the petitioner . The petitioner appeared before the enquiry officer on 09.09.2011 and was served a copy of the charge sheet as well as the memo of evidences proposed to be relied upon.

11. The petitioner was granted time to submit his reply to the charge sheet. The reply had to be submitted on or before 17.09.2011. On the appointed date the petitioner did not appear before the enquiry officer. The enquiry report thereafter records that a Messenger/Reserve Inspector was dispatched to serve notice of the next date to the petitioner. The next date in the enquiry proceedings was fixed on 27.09.2011. The aforesaid letter was received by the brother of the petitioner Dharmendra Singh. The petitioner did not appear on the next appointed date before the enquiry officer. Subsequently the same procedure was repeated on 03.10.2011, the notice of the enquiry proceedings was sent to the petitioner's residence intimating him the next date of the enquiry proceedings on 12.10.2011. The notice was duly received by the brother of the petitioner at his residence. However, yet again the petitioner did not appear before the enquiry officer on the date fixed. Thereafter a letter dated 23.10.2011 was sent through Reserve Inspector finalising 29.10.2011 as the next date in the enquiry proceedings. The said letter was received by the brother of the petitioner. However, the petitioner did not appear before the enquiry officer on the appointed date.

12. On 23.11.2011 a courier was sent by the petitioner making a prayer for additional time to tender his defence. The petitioner made a prayer for fifteen days additional time to submit his defence. The said letter sent by the petitioner by courier is in the record of the enquiry proceedings and marked as serial no. 52. The aforesaid prayer of the petitioner was considered sympathetically. The enquiry officer granted fifteen days time to the petitioner and fixed 08.12.2011 as the next date in the enquiry proceedings. The next date was duly intimated to the petitioner by sending notice of the same through Reserve Inspector. Inspite of service of the said notice, the petitioner failed to appear and did not join the enquiry proceedings.

13. Considering the failure of the petitioner to cooperate with the enquiry proceedings, the enquiry officer proceeded with the enquiry proceedings. The departmental witnesses were duly examined before the enquiry officer. The documents were also produced and proved in the enquiry proceedings. Upon consideration of the documentary and oral evidences the enquiry officer found that the charges against the petitioner stood proved and accordingly indicted the petitioner. After receipt of the enquiry report two show cause notices were issued to the petitioner on 10.02.2012 by the disciplinary authority. The notices were received by the petitioner.

14. The petitioner in response to the show cause notice submitted his reply before the disciplinary authority.

15. The reply submitted by the petitioner dated 28.03.2012 asserts that the petitioner sustained serious injuries in an accident in the year 2009 and under went treatment at G.G. Nursing Home, Agra. The petitioner rejoined his duties thereafter. However, the petitioner faced health issues even after he rejoined his duty. Consequently the petitioner left his post of duty w.e.f. 26.04.2010 for further treatment. The reply of the petitioner also states that the charges against the petitioner have been actuated by malice because the petitioner is in possession of certain incriminating evidences against king pins of underworld "इन काली दुनिया के बादशाहद का ताज व दस्तरसिर बंधा रहे ।क्योंकि इन गुप्त ताकतों के विरुद्ध वो सरे सबूत व जानकारियां याचक के पास मौजूद है जो जान जोखिम में डालने के लिए काफी है ।" These criminal persons wanted the petitioner to be terminated from the service to secure their own lives.

16. The reply of the petitioner was duly considered by the disciplinary authority. The disciplinary authority by a reasoned and speaking order dismissed the petitioner from service. A perusal of the order dated 13.04.2012 passed by the disciplinary authority discloses that the disciplinary authority independently applied its mind to the evidences in the record and recommendation of the enquiry officer.

17. The allegations of malafides made by the petitioner in his defence were addressed by the disciplinary authority. The disciplinary authority found that the allegations were self serving and intended to divert the attention from the act of misconduct. Consequently the allegations of malafide were rejected by the disciplinary authority. The alibi of the petitioner for unauthorizedly remaining absent from duty was also investigated. The disciplinary authority found that the bald defence of the petitioner that he was under going medical treatment was not supported by any medical documents. The case of the petitioner was that he suffered injuries in an accident in the year 2009 and consequently he left for receiving medical attention on 26.04.2010, was contradicted by the uncontested official records. The official documents record that the petitioner after being deployed in VVIP duty in Kanpur Nagar left the police station on 01.07.2010. Thereafter the petitioner did not report back for duty on 04.07.2010 and his absence was continuously recorded. The medical reasons supplied by the petitioner were supported only by a certificate from an eye specialist which was incompatible with his case of sustaining severe bodily injuries in an accident. The medical reasons tendered by the petitioner to justify his absence were hence discarded. Further in the submissions made in defence in the first instance, the petitioner did not make any reference to his ailments. The medical reasons were an after thought and found to be unreliable. After such elaborate consideration based on the reply submitted by the petitioner and the uncontested materials in the record the defence of the petitioner that he was absent from duty because of medical reasons was invalidated by the disciplinary authority.

18. In this manner, the reply of the petitioner did not find favour with the disciplinary authority. The disciplinary authority concluded that the petitioner was guilty of dereliction of duty. Further the petitioner was unauthorisedly and willfully absent for a period of ten months. The charges against the petitioner thus stood fully established.

19. The disciplinary authority also recorded in the order of termination dated 13.04.2012 that the petitioner was given several intimations regarding the pendency of the disciplinary proceedings. The dates were duly intimated to the petitioner. However, the petitioner did not join the enquiry proceedings. The petitioner did not tender any evidence, introduce any witnesses nor did he cross examine any departmental witnesses despite opportunities given by the enquiry officer. The petitioner did not avail of the opportunity to tender his defence before the enquiry officer.

20. Clearly the absence of the petitioner before the enquiry was deliberate. The failure of the petitioner to join the enquiry proceedings and cooperate with the enquiry officer was wilfull.

21. In view of the conduct of the petitioner in the enquiry proceedings, the enquiry officer had to proceed in the absence of the petitioner. The enquiry proceedings could not have come to standstill nor they could have been held to ransom by the petitioner who persistently declined to cooperate with the enquiry officer. The records bear out the fact that the petitioner was afforded several opportunities of hearing, but he spurned them all. Notices of dates of the enquiry proceedings were served upon the petitioner and his brother at the residential address of the petitioner. In such situation the petitioner cannot complain that the enquiry proceedings were held in violation of principles of natural justice.

22. The petitioner took the order of dismissal in appeal before the appellate authority. The appellate authority too duly considered the material in the record including the grounds of appeal and it independently came to the conclusion that the charges against the petitioner stood established. Since the charges, were of grave nature, the same warranted dismissal from service. The order of the appellate authority is well reasoned, depicting full and independent application of mind.

23. The petitioner exercised his further statutory remedy by filing a revision against the order passed by the appellate authority. The revisional authority also considered the case of the petitioner in detail. The order is a reasoned and speaking order reflecting full application of mind. There is full consideration of the material in the record, findings of the enquiry officer, findings of the authorities below as well as the defence of the petitioner. The revisional authority came to the conclusion that the charges against the petitioner stood proved. Further the charges being grave in nature, they should entail a dismissal from service.

24. The preceding narrative establishes the fact that the procedure adopted by the disciplinary authority, the appellate as well as the revisional authority before passing the orders assailed in the instant writ petition was compliant with the principles of natural justice. The orders assailed in the writ petition passed by successive authorities are well reasoned, reflecting thorough application of mind upon relevant material in the record . The orders cannot faulted with on the aforesaid grounds as contended by learned counsel for the petitioner.

25. This takes us to the next submission of the learned counsel for the petitioner that absence from duty is not a major misconduct. The applicability of the law laid down by the Hon'ble Supreme Court in Krushnakant B. Parmar (supra) to the facts of this case had to be seen to determine the issue.

26. The Hon'ble Supreme Court in the case of Krushnakant B. Parmar (supra), considered a case in which a petitioner was "principally charged for authorised absence from duty during three consecutive period: (i) 3rd October, 1995 to 7th November, 1995 (36 days) (ii) 9th November, 1995 to 10th December, 1995 (32 days) and (iii) 10th December, 1995 to 2nd August, 1995 (234 days), in violation of Rule 3(1)(ii) and Rule 3(1)(iii) of the Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964." The departmental proceedings ensued to investigate the veracity of the charges against the petitioner. The petitioner in the case of Krushnakant B. Parmar (supra) who was the delinquent officer was indicted in the enquiry and dismissed from service. The enquiry officer in the case of Krushnakant B. Parmar (supra) found that the petitioner was unauthorisedly absent from duty. However, the defence of the delinquent officer that he was prevented to sign the attendance register and restrained from joining his duties was recorded by the enquiry officer. The appellate authority in the case of Krushnakant B. Parmar Vs Union of India and Another (supra) found that "...the charge against the Appellant, Shri K.B. Parmar that he remained absent unauthorisedly has been established beyond doubt...". The findings of the enquiry officer as well as the appellate authority regarding unauthorized absence were found to be perverse. In these facts, and with such findings the Hon'ble Supreme Court held thus:-

"16. The question whether 'unauthorized absence from duty' amounts to failure of devotion to duty or behavior unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful 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 can not be held to be willful.

18. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a Government servant.

19. In a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct. "

27. The Hon'ble Supreme Court found the facts as under:-

"21. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani v. Union of India and Ors. reported in MANU/SC/1857/2006 : (2006) 5 SCC 88 wherein this Court held:

It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with. "

28. The facts of the instant case are distinguishable from the facts of the case in Krushnakant B. Parmar Vs Union of India and Another (supra). The case of Krushnakant B. Parmar (supra) is not applicable to this case.

29. It has been found in the preceding part of the judgment that the disciplinary authority as well as the successive appellate and revisional authorities had duly considered the alibi of the petitioner in support of his absence. After due consideration of the defence of the petitioner to justify his absence, and the material in the record the authorities below disbelieved the version of the petitioner. The reasons given by the authorities below discrediting the defence of the petitioner are impeccable. No infirmity exists in the procedure adopted to come to those findings. In the wake of such findings the authorities below found the absence of the petitioner from duty was unauthorised, willful and fully established. The conclusion of the authorities below in such circumstances cannot be faulted nor can it be substituted by an alternative view.

30. The next issue which was canvassed by the learned counsel for the petitioner was the disproportionality of the punishment imposed upon the petitioner in relation to the misconduct he was charged with and indicted of.

31. The question thus arises whether after the lawful indictment in a charge of willful absence from duty, the punishment of dismissal was proportionate to the said charge or not.

32. The concept of proportionality essentially visualizes a graduated response to the nature of the misconduct and the role of a delinquent employee.

33. The "doctrine of proportionality" was introduced and embedded in the administrative law of our country by the Hon'ble Supreme Court in the case of Ranjit Thakur Versus Union of India, reported at (1987) 4 SCC 611. The Hon'ble Supreme Court in Ranjit Thakur held thus:

"Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". 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-Martial, 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. "

34. The law laid down in Ranjit Thakur (supra) was explained by the Hon'ble Supreme Court in the case of Union of India Versus R. K. Sharma, reported at (2001) 9 SCC 592. The Hon'ble Supreme Court in R. K. Sharma (supra) clearly marked out the limits of the doctrine of proportionality in reviewing the punishment meted out to an employee indicted by an enquiry, in the following terms:

"In our view, the observation in Ranjit Thakur's case (supra) extracted above, have been misunderstood. In that case the facts were such that they disclosed a bias on the part of the Commanding Officer. In that case the Appellant Ranjit Thakur had fallen out of favour of the Commanding Officer because he had complained against the Commanding Officer. For making such a complaint the Commanding Officer had sentenced him to 28 days rigorous imprisonment. While he was serving the sentence he was served with another charge-sheet which read as follows:

"Accused 1429055-M Signalman Ranjit Thakur of 4 Corps Operating Signal Regiment is charged with-Army Act Disobeying lawful command given by his Section 41(2) superior officer, In that he, At 15.30 hrs on May 29, 1985 when ordered by JC 106251-P Sub Ram Singh, the orderly Officer of the same Regiment to eat his food, did not so."

On such a ridiculous charge rigorous imprisonment of one year was imposed. He was then dismissed from service, with the added disqualification of being declared unfit for any future civil employment. It was on such gross facts that this Court made the observations quoted above and held that the punishment was so strikingly disproportionate that it called for interference. The above observations are not to be taken to mean that a court can, while exercising powers under Article 226 or 227 and/or under Article 32, interfere with the punishment because it considers the punishment to be disproportionate. It is only in extreme cases, which on their face show perversity or irrationality that there can be judicial review. Merely on compassionate grounds a court should not interfere."

35. The proposition of law stated in R. K. Sharma (supra) was approved and followed by the Hon'ble Supreme Court in the case of Union of India and others Versus Bodupalli Gopalaswami reported at (2011) 13 SCC by holding thus:

"In Union of India v. R.K. Sharma [(2001) 9 SCC 592 : 2002 SCC (Cri) 767], this Court explained the observations in Ranjit Thakur [(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] . It clarified that in Ranjit Thakur [(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] , the charge was ridiculous, the punishment was harsh and disproportionate and it was on such gross facts that this Court had held that the punishment was so strikingly disproportionate that it called for interference; and the said observations in Ranjit Thakur [(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and merely on compassionate grounds, courts should not interfere. In this background, we may examine the third question."

36. The disciplinary authority while imposing punishment upon a charged official indicted by an enquiry, has to correlate and balance the imperatives of institutional discipline with the demands of individual rights. Too light a punishment will not be conducive to institutional discipline. Too harsh a punishment will not be consistent with norms of justice. Indiscipline unchecked is indiscipline unleashed. Only a just employer can ensure an efficient employee.

37. The disciplinary authorities best understand the needs of administration, and are best positioned to make a judgement on the quantum of punishment. The courts cannot substitute their decision on the punishment over the judgment of the departmental authorities. The judicial authority in point clearly restricts the jurisdiction of the courts to interfere in matters of quantum of punishment. The court can interfere in the punishment imposed upon a charged official only if the punishment is disproportionate to the proven misconduct to an extent that it is inhumanly harsh and it shocks the conscience of the court.

38. The application of the doctrine of disproportionality is nuanced. One standard does not fit all departments. The degree of punishment to be applied has to be based on the nature of the functions of the organization and standards of conduct required of its personnel. The personnel in uniformed forces are often required to go beyond the call of duty, even at the peril of their lives in discharge of their duties. These requirements cannot be compromised and such standards of conduct cannot be relaxed. Any deviation or compromise with these standards of conduct would be detrimental to the organization and fatal to the public function they perform.

39. A proven charge of unauthorized absence from duty in the police department is an act of grave misconduct. In fact unauthorized absence from duty is the bane of public administration in India. The act of unauthorized absence from duty reflects a conflict of personal comfort against public duty. It is an act of apathy on part of an employee as opposed to the demand of diligence imposed by the public office. The act of unauthorized absence from public duty cannot be countenanced in an uniformed and disciplined force like the U.P. Police. The U.P. Police exercises the sovereign of the State to implement and uphold public law and order. Absentee employees who disobey lawful orders of superior authorities will compromise discharge of such public function to the detriment of public at large.

40. Members of the uniformed police force are required to exhibit standards of discipline which are more rigorous than other government departments. Uniformed police personnel can be judged by yardsticks of devotion to duty higher than other employees. Clearly, the petitioner not only failed to achieve these standards but deviated substantially from the same. This conduct is not becoming of a person in an uniformed force, nor does it conform to high standards required in police department. The punishment imposed in the instant case achieves the balance in the competing requirements of institutional discipline and individual rights. The punishment imposed upon him is commensurate with misconduct the petitioner was charged with and subsequently indicted of.

41. The impugned orders were passed in lawful exercise of powers vested in the authorities. The impugned orders call for no interference by this Court.

42. The writ petition is dismissed.

Order Date :- 24.04.2019

Pravin