Kaushar Ali vs State of U.P. and Others

Sudhir Agarwal, J.—Heard Sri D.S. Srivastava learned Counsel for the petitioner and learned Standing Counsel for the respondents.

The petitioner is aggrieved by the order of dismissal dated 29.10.2010 passed by Commandant, 36/49 Battalion, P.A.C., Varanasi/Mau pursuant to the charges of habitual unauthorised absence and dereliction of duty proved against the petitioner as well as the appellate order dated 23.1.2008 passed by the D.I.G., P.A.C. Varanasi Range, Varanasi dismissing his appeal.

Learned Counsel for the petitioner contended that the enquiry officer has held the petitioner guilty of misconduct of absence for 15 days from 16.11.2006 to 30.11.2006, though it was not a charge levelled against the petitioner and, therefore, the petitioner has been punished against a charge which was not the part of the charge sheet and in respect whereto no opportunity was afforded to him. He further submitted that merely on account of absence for 15 days, major penalty of dismissal is disproportionate to the charges proved against him and placed reliance on Shri Bhagwan Lal Arya v. Commissioner of Police Delhi and Ors. 2004 (3) SC 384.

However, I find no force in any of the above submissions.

A copy of the charge sheet dated 7.3.2007 is Annexure 1 to the writ petition and a perusal thereof shows that the charges levelled against the petitioner were as under:

(1) He was absent in evening parade on 17.8.2006.

(2) He was transferred to 49th Battalion P.A.C. and when he was called on 10.11.2006 in the order room, he did not complied with said order on the pretext that he did not have uniform with him. Thereafter, on 17.11.2006, he was again called in the order room but it was found that from 16.11.2006, he was gone to his residence and accordingly voluntarily violated the orders issued by the authorities.

(3) Despite being member of disciplined force, he is guilty of disobeying the orders, dereliction of duty, indiscipline, inaction etc.

The charge sheet shows that from 16.11.2006, the petitioner did not attend the Battalion Head Quarter but has gone to his house and this charge sheet was issued on 7.3.2007 showing that till the date of charge sheet issued to the petitioner, he had not returned back to his duty. However, in the oral enquiry conducted against him, it appears to have been found that he was absent from 16.11.2006 but that absence was only for 15 days, i.e., upto 30.11.2006 and not till the charge sheet was issued. Therefore, it is wrong to suggest that 15 days'' absence was not a part of the charge sheet inasmuch from a careful reading of the charge sheet, it is evident that there was an allegation of absence for a more longer period, i.e., from 16.11.2006 till the date of charge sheet which has been reduced in the enquiry report and got confined only to 15 days.

Now coming to the second submission, i.e., the punishment is disproportionate to the charges levelled against the petitioner, I find that the charge sheet itself shows three occasions of indiscipline and unauthorised absence on the part of the petitioner. The authorities have found that the petitioner was habitual of dereliction of duty, disobedience etc. This charge has been found proved against him. The judgment in Shri Bhagwan Lal Arya (supra) has no application to the case in hand inasmuch therein due to illness, the delinquent employee fell down on the parade ground wherefrom he was taken to police dispensary and thereafter he returned to his residence whereat he remained under treatement of Government doctors and sent applications for medical leave. These facts distinguishes the aforesaid judgment making it inapplicable in the case in hand. In a matter of police force, lack of discipline, inaction or dereliction of duty cannot be treated lightly, if they are found proved. The petitioner being a member of disciplined force was bound to show a well regulated and disciplined conduct. His repeated absence from duty cannot be said to be a minor or petty lapse. Even otherwise it is now well settled that the Courts in exercise of power of judicial review would not ordinarily interfere with the quantum of punishment and shall be very slow unless it is found to be shocking to its conscience. (See: State of U.P. Vs. Sheo Shanker Lal Srivastava and Others, Hombe Gowda Edn. Trust and Another Vs. State of Karnataka and Others,

In view of the above, I find no reason to interfere with the order impugned in this writ petition. Dismissed.