Janki Devi vs State of Haryana and Others

Rajiv Narain Raina, J.—Written statement filed on behalf of respondents No. 1 to 4 in Court is taken on record. Copy thereof has been handed over to the counsel opposite who has perused the same. He does not wish to file replication. Heard for final disposal.

The period of absence without information for which the husband of the petitioner, a cook in the police department, was inflicted the severest punishment of dismissal was that on 16.7.1998 he disappeared at 7.05 PM and reported back for duty on 6.8.1998 after absenting himself for 20 days 17 hours and 5 minutes. He again absented himself from duty without any prior permission/leave on 23.8.1998 to 30.8.1998 for 6 days 11 hours and 45 minutes. He further absented from duty from 14.9.1998 to 16.11.1998 for 57 days 7 hours and 50 minutes. For this misconduct, the husband of the petitioner was dismissed from service on 15.6.1999 after having put in about 22 years of service. He died in 2002.

The widow is before this Court praying for setting aside of the dismissal order so that she is able to claim family pension for herself including pensionary and retiral benefits which would have accrued to the husband of the petitioner had it not been dismissed. Applying the test of proportionality on quantum of punishment, this Court finds that the punishment order is far too harsh and disproportionate to the misconduct or the charges levelled. I say so because I have dealt with many police matters in the present Haryana service roster relating to cases of punishments inflicted on policeman where in cases of rank corruption, graft, absence from duty police officials/officers have escaped dismissal when the deserved it but got benefit of reduction in punishment as they went up the appellate and revision ladder. The husband of the petitioner after all was a small cook in the police department who had served for over two decades. There is no other defect of character pointed out or adverse service record apart from absences which could be easily taken care of by withholding salary for the periods etc. It would thus seem too harsh to deprive the widow of family pension etc for no fault of hers.

A perusal of the written statement would reveal that the husband of the petitioner remained absent innumerable times and periods in the past. However, the charge-sheet was not issued for the past absence but for the period aforesaid in 1998. Therefore, it can be assumed that the previous period stands condoned or waived off. The dismissal order has also been passed without looking to his past service which may have justified grant of pension and the focus had centered around an enquiry into the misconduct. The petitioner for some reason had filed reply to the charge sheet but had not joined the enquiry proceedings which culminated in the order of dismissal on 15.6.1999. After his death in 2002, the appeal against the dismissal order was filed by the widow which failed before the Inspector General of Police Gurgaon Range, Gurgaon on 30.9.2003. The review petition before the Director General of Police, Haryana was rejected and the petitioner was informed accordingly vide letter dated 19.6.2004. Aggrieved, the petitioner is before this Court fighting for survival.

In the totality of facts and circumstances of this case, this Court is of the view that the punishment imposed is too harsh in its results on the family. The husband of the petitioner was a low paid and marginalized employee. He may have been compelled by force of circumstances to intermittently keep back from work. This Court is conscious that imposition of punishments is a matter which remains in the domain of the punishing authority but the magnitude of the dismissal order on the petitioner pricks the conscience of this Court, I, therefore feel that the ends of justice would be served if the impugned order of punishment and all consequential orders passed thereon are quashed and the matter remitted to the Deputy Commissioner of Police, Faridabad to re-examine the matter sympathetically and choose any punishment lesser than the punishment of dismissal from the range of the punishments available to him. He would necessarily have to examine and decide whether but for the dismissal order the husband of the petitioner was entitled to pension in accordance with rules. The order proceeds on the assumption that pension was payable but for dismissal. In case the finding is to the contrary then no further action is required to be taken and all directions in this order would automatically stand vacated.

It is ordered accordingly.

Let a fresh decision be taken holistically on principles of equity within two months from the date of receipt of a certified copy of this order. In case the Deputy Commissioner of Police, Faridabad feels that it is necessary to hear the petitioner he may call upon the widow and offer an opportunity of oral hearing to her. She may also be, in the discretion of the disciplinary authority, permitted to be represented by counsel as a special case being presumably an uneducated widow and the wife of an ex cook. It would be open to the Deputy Commissioner of Police, Faridabad to sustain claim for family pension and yet deny DCRG in moulding the relief, for which the petitioner would make no complaint since this court has passed the present order in exercise of its equity jurisdiction to save a widow from future want. Therefore, in venturing to do justice it would always be open to the Deputy Commissioner of Police, Faridabad to balance out equities and limit arrears of family pension to the petitioner w.e.f. 38 months prior to the date of this petition or to run them from the date of this petition or from any other suitable date in his discretion or not at all retroactively. Similarly, the setting aside of the dismissal order or for it to be substituted by any lesser punishment will not entitle the widow/petitioner per se to lay claim on the arrears of salary post dismissal and up to the death of the husband of the petitioner, which would be decided in accordance with rules. This order is not intended to go that far or to entrench upon further discretion of the punishing authority since its purpose is mostly ameliorative and pegged to a survival based issue. The writ petition is for the reasons aforestated partly allowed to the limited extent indicated above and the impugned orders stand quashed for fresh consideration and the matter is disposed of with the above directions and with the pious hope in the administrator of his striking a golden mean between the interests of the widow and the State.