Ram Charan Sisodiya vs The State Of Madhya Pradesh
2024 Latest Caselaw 3443 MP

Madhya Pradesh High Court

Ram Charan Sisodiya vs The State Of Madhya Pradesh on 6 February, 2024

Author: Vivek Agarwal

Bench: Vivek Agarwal

                                                           1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                              ON THE 6 th OF FEBRUARY, 2024
                                             WRIT PETITION No. 17862 of 2012

                           BETWEEN:-
                           RAM CHARAN SISODIYA S/O LATE SHRI LALLI LAL
                           SISODIYA, AGED ABOUT 58 YEARS, OCCUPATION: EX
                           HEAD CONSTABLE NO. 122, R/O WARD NO.5, PANNA
                           NAKA, DEVENDRA NAGAR, DISTT. PANNA, (MADHYA
                           PRADESH)

                                                                                      .....PETITIONER
                           (BY SHRI MAHENDRA PATERIYA - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH THROUGH
                                 THE PRINCIPAL SECRETARY, DEPARTMENT OF
                                 HOME (POLICE) VALLABH BHAWAN BHOPAL
                                 (MADHYA PRADESH)

                           2.    DIRECTOR GENERAL OF POLICE, MADHYA
                                 PRADESH      POLICE,     HEADQUAARTER,
                                 JEHANGIRABAD, BHOPAL (MADHYA PRADESH)

                           3.    INSPECTOR GENERAL OF POLICE, SAGAR ZONE,
                                 SAGAR (MADHYA PRADESH)

                           4.    DEPUTY INSPECTOR GENERAL, CHHATARPUR
                                 RANGE, CHHATARPUR (MADHYA PRADESH)

                           5.    SUPERINTENDANT OF POLICE, PANNA, DISTT.
                                 PANNA (MADHYA PRADESH)

                                                                                    .....RESPONDENTS
                           (BY SHRI MANAS MANI VERMA - GOVT. ADVOCATE)

                                 T h is petition coming on for orders this day, t h e cou rt passed the
                           following:
                                                            ORDER

Petitioner is aggrieved of order dated 16/4/2005 passed by the Dy. Inspector General of Police, Chhatarpur Range, Chhatarpur whereby petitioner has been inflicted with punishment of termination from service. He is also aggrieved of the order dated 09/12/2005 passed by the Inspector General of Police, Sagar Zone, Sagar confirming the punishment imposed by the Dy. Inspector General of Police. Petitioner is also aggrieved of order dated 10/05/2006 passed by Director General of Police, Madhya Pradesh whereby the Director General of Police dismissed the mercy appeal of the petitioner and thereafter petitioner is also aggrieved of the order dated 12/08/2008 passed by the State Government, Home Department whereby State Government too has

dismissed the mercy petition filed by the petitioner.

2. Petitioner's contention is that vide order dated 25/07/2004 Superintendent of Police, Panna had imposed penalty of stoppage of one increment with cumulative affect for a period of one year on account of unauthorised absence from 09/04/2003 to 28/08/2003 i.e. for a period of 141 days. Thereafter this matter was taken up in suo moto revision by the Dy. Inspector General Police who, without affording any opportunity of hearing, passed orders of dismissal of the petitioner on 16/04/2005 as contained in Annexure-P/2.

3. Reliance is placed on the orders of Coordinate Bench of this Court in W.P. No.17585/2019 decided on 23rd August, 2023 (Ashish Mishra Vs. State of M.P. and others) so also in W.P. No.8268/2013 (R.K. Dixit Vs. State of M.P. and others) decided on 19 July, 2023 whereby the impugned order of penalty was quashed and the matter was remitted to the disciplinary authority to pass order afresh imposing any other penalty which is in proportion to and in consonance with the charges.

4. Shri Manas Mani Verma, learned Govt. Advocate, submits that

petitioner's contention that no opportunity of hearing was given to him is factually incorrect. Petitioner was given a show cause notice and thereafter it has been noted by the Superintendent of Police as well as DIG that when show cause notice was issued to the petitioner, he did not file any reply and not produce any representation. Thereafter presuming that petitioner was not interested in giving any defence, impugned order was passed by the Superintendent of Police stopping one increment with cumulative effect for a period of one year. The Dy. Inspector General of Police found the punishment to be disproportionate and thereafter reiterating the charges gave an opportunity to produce evidence as is evident from his communication dated 11/01/2005. It is submitted that petitioner had not produced relevant material though he had submitted his reply on 27/11/2005 as is available on record and then the impugned was passed by the Dy. Inspector General of Police. These orders have been affirmed by the Inspector General of Police, Director General of Police and the State Government as is submitted by the petitioner's counsel. It is submitted that looking to the fact that petitioner was guilty of one major penalty and 33 small penalties during his period of service, therefore, looking to his period of unauthorised absence, he has been punished.

5. It is also pointed out that there is ambiguity in the medical certificate produced by the petitioner before the disciplinary authority. First certificate is

from one Dr. V.K. Srivastava, M.B.B.S., M.D. of Kanpur certifying that he was suffering from Hepatitis with Accute Abdomen from 06/04/2003 to 14/05/2003 and was advised to bed rest for 39 days w.e.f.06/04/2003 to 14/05/2003. No medical prescriptions or bills for purchasing medicines or undergoing the test so to diagnose Hepatitis were produced to substantiate this medical certificate.

Later on another medical certificate dated 07/07/2003 was produced as was issued by one Dr. O.R. Kalantri of Culaba Market, Mumbai showing that petitioner was under his treatment from 20/05/2003 to 20/07/2003. There is gap of about five days when earlier certificate was issued by Dr.V.K. Srivastava and one which was issued by Dr. O.R. Kalantri.

6. Thereafter another certificate of fitness was produced as was issued by the Authorised Medical Officer of Primary Health Centre, Devendranagar, Distt. Panna on 22/07/2003 showing that petitioner had attained fitness to join his duties on 22/07/2003. But as is evident from the impugned order (Annexure- P/1) petitioner had remained unauthorisedly absent from 09/04/2003 to 28/08/2003. Thus, petitioner is required to explain that when he was given fitness on 22/07/2003, then why he was absconding from work uptill 28/08/2003 when he had given his joining. There is no explanation for such absence though another certificate has been produced by the same doctor dated 25/08/2003. It is not clear that how a same doctor could have issued two certificates, one on 22/07/2003 and another on 25/08/2003, which is a serious matter which needs investigation in regard to conduct of the doctor, but, that being not the subject-matter of this Court, it is submitted that the conduct of petitioner justifies imposition of such major penalty.

7. The law laid down in the case of Union of India and others Vs. P. Gunasekaran, (2015) 2 SCC 610 is that only under certain circumstances, Court can interfere with the disciplinary proceedings. It is held that High Court in exercise of its powers under Articles 226 and 227 of the Constitution of India cannot venture into reappreciation of evidence or interfere with conclusions in enquiry proceedings if the same are conducted in accordance with law, or go into reliability/adequacy of evidence, or interfere if there is some legal evidence

on which findings are based, or correct error of fact, however, grave it may be, or go into proportionality of punishment unless shocks conscience of Court.

8. When these facts are taken into consideration, looking to the fact that petitioner had put in 27 years of service and was visited only with major penalty and 33 small penalties, order of termination cannot be sustained in the eyes of law especially when Hon'ble Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India and another, 2012 AIR SCW 1633 has observed as under :

"16. The question whether 'unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful 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 wilful.

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

9. In view of such ratio of judgment and law laid down in case of Chandra Vilash Rai Vs. State of Bihar and Others, (2003) 11 SCC 741 , wherein Supreme Court has permitted intervention in the form of judicial review

considering the mitigating factors and looking to the punishment which has been imposed by the appellate authority in a suo moto revision, being shockingly disproportionate, is set aside.

10. Hon'ble Supreme Court in Union of India and Ors. Vs. Const. Sunil Kumar 2023 Live Law (SC) 49 has held that even in a case where the punishment is found to be disproportionate to the misconduct committed and proved the matter is to be remitted to the disciplinary authority for imposing appropriate punishment/penalty which as such is the prerogative of the disciplinary authority.

11. In view of such facts, instead of substituting this Court's own judgment, matter is remitted to the disciplinary authority to examine the aspect of proportionality of the punishment inflicted on the petitioner and impose appropriate punishment commensurate with the gravity of the offence. Let this order be passed within forty five days from the date of receipt of certified copy of the order being passed today.

12. In above terms, this petition is allowed in part and disposed of.

(VIVEK AGARWAL) JUDGE ts