Mr. Dilawar Gulab Mulla vs The State Of Maharashtra And Ors
2017 Latest Caselaw 6885 Bom

osk                                                                                                             2-wp-5660-2015.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION

                                     WRIT PETITION NO. 5660 OF 2015

Mr.Dilawar Gulab Mulla                                                                         ]
Age 47 years, Occ. Dismissed employee                                                          ]
Residing at Varad Colony, Laxmi Road                                                           ]
15th Lane, TS No. 40/5, Plot No.15                                                             ]
Jaisingpur, Taluka Shirol,                                                                     ]
District Kolhapur - 416 101                                                                    ]           Petitioner

                       V/s.

1.         The State of Maharashtra                ]
                                                   ]
2.         The Superintendent of Police, Kolhapur, ]
           At Kolhapur                             ]
                                                   ]
3.         The Addl. Director General of Police,   ]
           (Admn), M.S., Mumbai                    ]
           Police Headquarters,                    ]
           Old Council Hall,                       ]
           Shahid Bhagatsingh Road,                ]
           Mumbai - 400 005                        ]                                                       Respondents

• Mr.Shashikant Choudhari i/b. Maharashtra Law Associates for the Petitioner.

• Mr.Vishal Thadani, AGP for the Respondents-State.

CORAM : SMT. V.K. TAHILRAMANI & DR. SHALINI PHANSALKAR-JOSHI, J.J.

                                   DATE       : 7th SEPTEMBER, 2017.






 osk                                                                                                             2-wp-5660-2015.odt

ORAL JUDGMENT (PER : SMT. V.K. TAHILRAMANI, J.) :-

1] Rule. Rule is made returnable forthwith. By consent the

matter is taken up for final hearing.

2] Heard learned counsel for the Petitioner and learned AGP

for the Respondents.

3] The Petitioner was appointed as a Police Constable on

01/08/1986. By order dated 20/12/2010 he was removed from

service. He preferred an appeal against the said order, which came to

be rejected; hence he preferred Original Application (OA) No.1165 of

2012 before the Maharashtra Administrative Tribunal, Mumbai Bench,

challenging his order of removal from service. The said OA came to be

dismissed; hence this petition.

4] The main charge against the Petitioner was that he

unauthorizedly remained absent for 200 days i.e. 17/09/2007 to

02/04/2008.

5] Learned counsel for the Petitioner submitted that as the

children of the Petitioner were studying in Pune, he has sought

transfer from Kolhapur to Pune. However, his request was not

osk 2-wp-5660-2015.odt

considered.

6] The record shows that the Petitioner was given full

opportunity to defend himself. Infact, the Petitioner admitted the

charge against him during the Departmental Enquiry and the charge

against him was proved. Before imposing penalty he was given a

Show Cause Notice by Superintendent of Police Kolhapur on

13/10/2010. After his reply, detailed order dated 20/10/2010 was

passed imposing penalty of removal from service. It is to be noted that

the Special Inspector General of Police has given personal hearing to

the Petitioner during the appeal and passed a reasoned order

dismissing the appeal by order dated 21/05/2011. It is pertinent to

note that before every Authority, the Petitioner had accepted that he

was unauthorizedly absent from duty for 200 days.

7] Learned counsel for the Petitioner submitted that, even if

the Petitioner had admitted that he was unauthorizedly absent for 200

days, the punishment imposed on him is shockingly disproportionate

to the charges found to be proved. In this connection, he has placed

reliance on the decision of the Supreme Court in the case of Ranjit

Thakur vs. Union of India and Ors., reported in AIR 1987 SC 2386.

osk 2-wp-5660-2015.odt

He pointed out that in the said decision it has been observed that the

sentence should not be vindictive or unduly harsh and should not be

disproportionate to the offence so as to shock conscience.

8] In the case of Union of India and Ors. vs. S.S. Ahluwalia,

reported in AIR 2007 SC 2952, the Supreme Court has held as

under;

"the scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved."

9] In the present case, the Petitioner was a member of

disciplined and uniformed force. He has unauthorizedly remained

absent for 200 days. From the report of the Enquiry Officer, we found

that the Petitioner had admitted the charges against him. It was

therefore not necessary to hold a detailed enquiry. However, despite

the fact that the Petitioner had admitted the charges against him, a

detailed Departmental Enquiry was conducted and four witnesses

were examined. However, the Petitioner declined to cross-examine

them. The Petitioner has admitted in the Departmental Enquiry that

osk 2-wp-5660-2015.odt

he was given copies of all the relevant documents. He also admitted

that he remained absent for 200 days i.e. from 17/09/2007 to

02/04/2008.

10] Learned counsel for the Petitioner placed reliance on the

Medical Certificate dated 14/05/2008 which shows that the Petitioner

was suffering from Major Depression Alcohol Dependence syndrome

and that the Petitioner was under the treatment of Dr.Amar Shinde

from 25/11/2007. However, it is noted that, the Petitioner was

treated on an outdoor patient basis and his condition was not serious

enough to be admitted in the hospital.

11] It is pertinent to note that, this Certificate shows that the

Petitioner was under treatment from 25/11/2007. However, the

Petitioner has been unauthorizedly absent from duty from

17/09/2007.

12] Thereafter, learned counsel for the Petitioner relied on

another Certificate issued by Arpan Foundation, which is signed by

the Trustee of the said Arpan Foundation; which shows that the

Petitioner was undergoing treatment in their Rehabilitation Center

osk 2-wp-5660-2015.odt

from 24/10/2007 to 25/11/2007. The Arpan Foundation helps the

people who are Alcoholics, Drug Addicts and who cannot help

themselves. On going through the said Certificate, it shows that the

Petitioner was not admitted in a hospital but in the Rehabilitation

Center for a period of about one month from 24/10/2007 to

25/11/2007. Thereafter, there are no documents to show that the

Petitioner was admitted in any hospital during the period of 200 days

that he was unauthorizedly absent from duty.

13] As stated earlier, the Petitioner was a member of the

disciplined and uniformed force, he has remained unauthorizedly

absent for a period of 200 days. Looking to this fact, it cannot be said

that the punishment is disproportionate. Thus, we find no merit in this

petition. The Petition is, therefore, dismissed.

14]                    Rule is discharged. 



(DR. SHALINI PHANSALKAR-JOSHI, J.)    (SMT. V.K. TAHILRAMANI, J.)