Ex Constable Mohar Singh vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 967 Del

JUDGMENT

S.B. Sinha, C.J.

1. The original applicant before the Tribunal is the writ petitioner. He was a constable serving in the Delhi Police. He allegedly had been suffering from Tuberculosis (in short, 'T.B.'). He was also referred to G.T.B. Hospital as a chronic patient.

2. According to the petitioner, on or about 18.12.1995, while he was posted in 6th Battalion, DAP, he had been taken to his native place owing to his critical condition. There he was treated in a Government Hospital and was advised bed rest. The petitioner allegedly informed the appropriate authority thereabout.

3. According to the petitioner, once Constable Chokhe Ram had gone to serve him a notice of absentee and on seeing his critical condition he lodged a D.D. entry in that regard.

4. As the petitioner had been absent unauthorizedly for a long time, departmental proceeding against him was initiated. In the summary of allegation previous absentee record of the petitioner is shown as under :- "Previous Absentee Record

1. 9.11.91 to 26.1.92 78 days LWP vide order No. 2659-61/SIP/NW dated 20.3.92.

2. 2.5.92 to 8.5.92 6 days LWP vide order No. 9096-98/SIP/NW dated 29.7.92.

3. 15.3.93 to 1.4.93 16 days LWP vide order No. 8463-65/HAP/NW dated 3.6.93."

5. The petitioner in the aforementioned departmental proceedings was found guilty of gross misconduct. A copy of Enquiry Report was served on him and a representation thereagainst was also made. By an order dated 12.09.1996, the disciplinary authority upon taking into consideration the materials on records held :-

"He left his duty on 18.12.1995 unauthorisedly and without any information to the department. As many as 8 absentee notices were issued to him but the same evoked no response from him. A messenger had to be sent to his native place to serve the absentee notice compelling him to remain absent from duty for such a long period. The Constable who visited him at residence there in a span of three months never reported anything to the department about alleged sickness of the defaulter. His subsequent statement in the D.E. to the effect that the defaulter was ill seems to have been promoted by a producing from the defaulter to say something in his favor.

The evidence on record unambiguously proved that the defaulter was willfully and unauthorisdely absent from duty for 150 days. This was without any justification.

6. The defense documents submitted by the petitioner had also been taken into consideration and inter alia it was noticed that despite directions, he did not appear even before the Civil Surgeon, Civil Hospital. It was held :-

"The defense pleas add by the defaulter have not weight in the light of above, I am of the considered view that the delinquent constable Mohar Singh was absent from duty willfully and without proper sanction or information. This shows he has no serious interest in serving the department.

Police is an arduous job and a person who has no temperament and aptitude can hardly do justice when there is a call of duty. This call can come at any time and any day. Failure to respond has grave implication for law and order maintenance.

I am of the opinion that delinquent constable as dealt with for his gross misconduct of willful absence for long period. I, therefore, imposed the penalty of removal from service upon the delinquent constable with immediate effect. The absence period be treated as L.W.P."

7. The petitioner preferred an appeal thereagainst and the appellate authority by an order dated 11.11.1996 rejected the said appeal. The petitioner had also been given a personal hearing.

The petitioner thereafter filed the original application, which was dismissed.

8. Mr. Sachin Chauhan, the leaned counsel appearing on behalf of the petitioner, would contend that the learned Tribunal committed an illegality in passing the impugned judgment insofar as it failed to take into consideration that the disciplinary authority as also the appellate authority failed to consider the doctrine of proportionality.

9. According to the learned counsel, it was obligatory on the part of the respondents to consider the question as to whether the absence of the petitioner should have been considered having regard to the fact that he had been serving the Department for a long time and was entitled to leave and as such, no case for passing an order of dismissal has been made out.

10. The learned counsel would contend that the disciplinary authority as well as the appellate authority failed to take into consideration the effect of Rule 10 of the Delhi Police (Punishment & Appeal) Rules, 1980.

11. It was contended that the fact that the petitioner had been suffering from T.B. is admitted and as such keeping in view the fact that the petitioner, while on duty in 6th Battalion, DAP could not have got any rest and thus by force he had to take his treatment at his native place.

12. It was contended that the tribunal heard the matter on 12.01.1998 and delivered its order on 24.07.1998 and that may be the reason why the other contentions raised by the petitioner had not been considered.

13. Ms. Pinki Anand, the learned counsel appearing on behalf of the respondents would, however, support the judgment of the learned Tribunal.

14. A bare perusal of the charges levelled against the petitioner would clearly go to show that he was unauthorizedly absent on eight occasions in the year 1995-96. He was also a habitual absentee inasmuch as he was unauthorizedly absent for 78 days from 09.11.1991 to 26.01.1992; 6 days from 02.05.1992 to 08.05.1992; and 16 days from 15.03.1993 to 01.04.1993. In the disciplinary proceedings, all the witnesses named in the summary of allegations had been examined.

15. The charges against the petitioner had been found to be proved both by the disciplinary authority and the appellate authority on the basis of the materials, which were produced in the disciplinary proceedings.

16. It is not correct to contend that the disciplinary authority has not assigned any reason. Keeping in view the fact that he has agreed with the findings of the Enquiry Officer, he was not required to assign reasons in great details. However sufficient and cogent reasons, in our opinion, have been assigned by the disciplinary authority.

17. The question, which arises for consideration, is as to whether in the facts and circumstances, the disciplinary authority and the appellate authority have complied with the provisions of Rule 10 of the Rules, which reads as under:-

"10. Maintenance of discipline -- The previous record of an officer, against whom charges have been proved, if shows continued misconduct indicating incorrigibility and complete unfitness for police service, the punishment awarded shall ordinarily be dismissal from service. When complete unfitness for police service is not established, but unfitness for a particular rank is proved, the punishment shall normally be reduction in rank."

18. It may be true that the order imposing punishment does not expressly state that he has been found unfit to hold any post or rank, but we are of the opinion that there has been substantial compliance therewith. It has been held that the petitioner had no serious interest in serving the Department. It was further held that Police Service being an arduous one, the person, who does not have any temperament and aptitude, can hardly do any justice when there is a call of duty, particularly when such call can come at any time on any day and failure to respond thereto may give rise to failure in maintenance of law and order, which, in our opinion, sub-serves the requirement of law.

19. A finding has also been arrived at keeping in view the fact that the delinquent Constable should be dealt with suitably for his gross misconduct and willful absence for a long period.

20. The appellate authority also dealt with all the contentions raised by the petitioner. It has not been disclosed by the petitioner as to what other contentions having a direct bearing on the issue had been raised before the appellate authority and were not considered.

21. As regards the applicability of the doctrine of proportionality, having regard to the decision of the Apex Court in Om Kumar and Ors. v. Union of India (2001) 2 SCC 386, the same is required to be considered in the light of Wednesbury Unreasonableness. Only in the event, it is found that the order of punishment is wholly irrational insofar as no reasonable person can arrive at the said finding that the Court can interfere with the quantum of punishment. Normally, neither the Tribunal nor the High Court would do so.

In Om Kumar's case (Supra), it was held:-

"69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article 14.

70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, this Court referred to "proportionality" in the quantum of punishment but the court observed that the punishment was "shockingly" disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Union of India v. Ganayutham .

71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under Article 14, the court is confined to Wednesbury principle as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment."

The said decision has been followed in Commandant, IV Battalion, APSP Mamnoor Lines, Warangal and Anr. v. Jabbar Hussain and Anr. 2001 (3) ALT 552.

22. There cannot be any doubt whatsoever having regard to the decision of the Apex Court in Anil Kumar v. Presiding Officer and Ors. that the question as to whether how far and to what extent reasons are required to be recorded in writing would vary from case to case, but it is equally well settled that the principles of natural justice are not to be applied rigidly. The same would depend upon facts and circumstances of each case.

23. So far as the contention of the learned counsel for the petitioner that by reason of the order of the appellate authority the petitioner has been prejudiced, we are of the opinion that having regard to the fact that the petitioner had not been able to place before us any material to show that any other question had been raised before it, which was considered, and thus, the order of the learned Tribunal cannot be set aside only because the same was passed after abut 6 months.

24. The petitioner may be correct that he had been suffering from T.B. It may also be true that he was entitled to leave, but having regard to the fact that he was unauthorizedly absent for a long time and that he even did not answer to the absentee notices served on him, nor did he get himself examined by the Civil Surgeon, we are of the opinion that the findings of the authorities that he has committed a gross misconduct, cannot be faulted.

25. We are, therefore, of the opinion that having regard to the development in medical science normally proper treatment for a few months would have been sufficient for the petitioner to get rid of the said disease.

26. For the reasons aforementioned, we do not find any merit in this writ petition, which is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no orders as to cost.