Ex. Astt.Sub Inspector Kehar ... vs Uoi & Ors.
2013 Latest Caselaw 5851 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                Date of Decision: December 18, 2013
+                          W.P.(C) 3421/2001
        EX. ASTT. SUB INSPECTOR KEHAR
        SINGH                                         ..... Petitioner
                   Represented by: Ms.Jyoti Singh, Sr.Advocate with
                                   Ms.Ripika, Ms.Tinu Bajwa and
                                   Ms.Saahila Lamba, Advocates

                                        versus

        U.O.I. & ORS.                                    ..... Respondents
                   Represented by:      Mr.R.V.Sinha, Advocate for R-1
                                        Mr.Sachin Chopra, Advocate with
                                        Mr.Anuj Tyagi, Advocate for
                                        GNCTD

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V. KAMESWAR RAO

PRADEEP NANDRAJOG, J. (Oral)

1. Order dated December 04, 2009 passed in the instant writ petition reads as under:-

"The contention of learned counsel is that the punishment awarded to the Petitioner is too harsh and disproportionate. It is submitted that other persons who have remained unauthorizedly absent from duty have been given a punishment much lesser than that of dismissal from service.

We had requested learned counsel for the Respondents to check up the service record of the Petitioner and she informs us today that the service record of the Petitioner was unblemished, until the incident which is the subject matter of the writ petition.

While it is true that the punishment to be awarded is entirely within the discretion of the disciplinary authority, however, that discretion must be exercised on some basis and on some principles. There cannot be a huge variation in the exercise of discretion on more or less similar facts.

Under these circumstances, it might be appropriate for the Respondents to consider the punishment imposed upon the Petitioner taking the overall facts into consideration, as well as the fact that the Petitioner has crossed the age of superannuation and therefore, there is no question of his coming back into service.

Learned counsel for the Respondents says that she requires about 2-3 weeks‟ time to take instructions and assures that the matter will be reconsidered in all fairness to the Petitioner.

Adjourned to 11th January, 2010 in the category of „Regular Matters‟ as per its own turn."

2. Regretfully, till date the respondents have not reconsidered the matter on the subject of penalty and thus we proceed to judgment after hearing arguments.

3. The petitioner joined service in Delhi Police on March 16, 1964 and served without a blemish for 34 years when penalty of dismissal from service was inflicted upon him on March 04, 1998 on the charge of unauthorized absence.

4. The evidence led at the inquiry has proved the fact that petitioner left police post Sarita Vihar falling under jurisdiction of PS Badarpur on July 21, 1996 to visit Rampur, in connection with an investigation concerning theft of a motor vehicle for which FIR No.368/1994 was registered at PS Badarpur and till when the summary of allegations were served upon him as

required by the Delhi Police (Punishment & Appeal) Rules, 1980 which was on or around October 25, 1996, he did not report for duty.

5. The petitioner was unrepresented at the inquiry because he chose not to appear.

6. Undisputedly the charge of being unauthorizedly absent stands proved.

7. But the question is : Whether the penalty of dismissal from service is shockingly disproportionate.

8. The purpose of a penalty is two-fold. To punish the wrong doer for the misdemeanour. To set an example to others to be careful. A soft penalty may encourage others to indulge in the same wrong. Too harsh a penalty may breed unrest. Thus, while exercising discretion to levy penalty one has to be careful.

9. It is trite that past service record can be considered while determining the quantum of punishment to be levied. The nature of the wrong and whether there is a moral turpitude involved have also to be considered. The circumstances enwombing the wrongful act have also to be kept in mind.

10. Through the medium of appeal filed by the petitioner against the order levying penalty, being the order dated March 04, 1998, the petitioner had annexed documents showing he was in a state of acute mental depression occasioned by the unfortunate incident which took place in the house of the in-laws of his daughter : she was burnt alive.

11. The circumstances enwombing the absence coupled with the fact that the petitioner had rendered 34 years unblemished service and that there is no moral turpitude in the wrong compels us to hold that the penalty of dismissal from service is grossly disproportionate.

12. Born on April 02, 1945, the petitioner would have superannuated from service on the afternoon of April 30, 2005, because he attained the age of superannuation which is 60 years on April 02, 2005.

13. Ordinarily, after setting aside the penalty of dismissal from service we would have remanded the matter to the Disciplinary Authority requiring a penalty to be imposed, but keeping in view the passage of time, we would prefer to adopt the course chartered by the Supreme Court in the decision reported as (2004) 4 SCC 560 Sh.Bhagwan Lal Arya Vs. Commissioner of Police Delhi & Ors. wherein, on the charge of unauthorized absence penalty of removal from service was opined to be harsh because of the enwombing circumstance of Bhagwan Lal Arya's health becoming his compulsion not to report for work, the penalty levied was quashed and none was levied for the reason the period interregnum removal from service till reinstatement was directed to be treated not to be counted for purposes of service. In other words Bhagwan Lal Arya got no wages from December 31, 1994 till when he was reinstated in the year 2004 pursuant to the order passed by the Supreme Court.

14. We dispose of the writ petition quashing the order dated March 04, 1998. The petitioner would not be reinstated in service pursuant to our order because he would be deemed to have superannuated on April 30, 2005 since he attained the age of 60 years on April 02, 2005. The period post March 04, 1998 till petitioner would have superannuated from service would be treated as period not spent on duty. The petitioner would be entitled to pension keeping in view pensionable service of 34 years, with effect from May 01, 2005, and the same shall be with reference to his last drawn salary. Arrears of pension and other dues to which petitioner would be entitled

pursuant to the present order shall be paid to the petitioner within 16 weeks from today.

15. No costs.

(PRADEEP NANDRAJOG) JUDGE

(V. KAMESWAR RAO) JUDGE DECEMBER 18, 2013 mamta