Rajendra Kumar Dohare vs State of M.P. and Others

Sujoy Paul, J.—By filing this petition under Article 226 of the Constitution of India, challenge is made to the disciplinary proceedings, the punishment order and the appellate orders whereby the appeals of the petitioner were dismissed by the competent authorities. Shri Chetan Kanungo, learned counsel for the petitioner submits that the petitioner was served with a charge sheet dated 14.3.2008 (Annexure R-1). Only three charges were alleged against the petitioner. After conducting enquiry, the petitioner was inflicted with a punishment of compulsory retirement. The petitioner''s appeal and mercy appeal are rejected by the respondents. Criticizing the disciplinary proceedings, Shri Kanaungo submits that interference by this Court is warranted on four counts:-

(i) The respondents, although mentioned partially in the charge sheet about his past conduct but did not make a specific charge in this regard. In absence thereof, the said past record could not have been a reason to punish the petitioner.

(ii) The past record contains certain awards given to the petitioner which were totally ignored while imposing the punishment.

(iii) The petitioner was not given second show cause notice before imposition of punishment and, therefore, the punishment is liable to be interfered with.

(iv) The punishment is extremely disproportionate and is not commensurate to the misconduct committed by the petitioner. In support of his submissions, Shri Kanungo relied on following judgments:-

(i) S.R. Tewari Vs. Union of India (UOI) and Another, .

(ii) WP(C) No. 5226/2005 (Satender Pal Singh Vs. Union of India and others)

(iii) N. Hanumantha (No. 920990014) Vs. Union of India (UOI) and Others,

(iv) Satpal Singh and others Vs. State of Haryana and others,

(v) Lekhram Sharma Vs. Union of India and others, .

Per contra, Mrs. Patankar, learned Govt. Advocate supported the disciplinary proceedings and the impugned orders. It is contended that the scope of judicial review by the writ court is limited. This Court is not obliged to act as an appellate authority to re-weigh and re-appreciate the entire evidence. Judicial review is confined to the decision making process and not on the decision itself. She produced the relevant record of the disciplinary proceedings and relied on the statement of the petitioner to submit that as per this statement, it is clear that the charges are established on the petitioner and the petitioner remained unauthorizedly absent for a considerable long time. He was also absent from duty on a very important day of Dusshera. The police personnels were required to look after the law and order of the town. In addition, it is submitted that the petitioner was a member of a disciplined force and continuously remained absent from 21.10.2007 to 29.11.2007, which is a serious misconduct. In addition, it is contended that the petitioner remained absent unauthorizedly from 30.11.2007 to 14.3.2008. There is no leave obtained for this purpose, nor the petitioner provided any medical certificate explaining the entire period. On the strength of this, it is contended that the punishment cannot be said to be shockingly disproportionate warranting interference by this Court in writ jurisdiction. No other point is pressed by the parties.

I have heard the learned counsel for the parties and perused the record.

Before dealing with the rival contentions, I deem it proper to quote the charges alleged against the petitioner, which reads as under:-

I deem it proper to deal with the contentions of the parties raised pointwise.

Point No. (i): The contention is that although in the charge sheet respondents have mentioned a part of past record but did not make it a specific charge. The past record in absence of its specific mention cannot be taken into account. The petitioner has relied on the judgment of this Court in N. Hanumantha (supra). In para 10 of the judgment, this Court has opined that past record can be taken into consideration in order to inflict punishment. The past record itself cannot be made subject matter of a charge. Thus, it is clear that the past record can be taken into account. In the present case, it is the mandate of Regulation 225 of M.P. Police Regulations to take into account the past record. The said provision reads as under:-

The object to be aimed at in adjudicating punishment is that, while the punishment shall be adequate to the offence, it shall also be appropriate to the circumstances of the offender. What is a light punishment to one man may be most severe on another and in awarding punishments, therefore, careful consideration must be given to the character, antecedents and length of service of the offender. Frank confession of a fault should always be taken into account in mitigation of punishment, while lying and false defences should be considered as a grave aggravation of an offence.

The present case is different from the other cases where there exists no statutory provision, which mandates that past record/antecedents must be taken into consideration. Thus, as per the statutory provision, no flaw can be found in the action of the respondents in taking into account the past record. This has not caused any prejudice to the petitioner because it is not contended by the petitioner that past record which is taken into consideration is erroneously taken into consideration or there is any factual error in such consideration. The Apex Court in Union of India (UOI) and Others Vs. Bishamber Das Dogra, held that the disciplinary authority can taken into account the past record. It was held that even in absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require (Para 30). In Mohd. Yunus Khan Vs. State of U.P. and Others, the Apex Court after taking stock of various judgments on the point opined that in case of misconduct of a grave nature even in the absence of statutory rules, the authority may take into consideration the indisputable past record of the delinquent for adding the weight to the decision for the purpose of imposing the punishment (Para 35). On the basis of the statutory Police Regulations and the judgments of Supreme Court, the judgment of Punjab & Haryana High Court in Satpal Singh (supra) is of no assistance to the petitioner. A general principle is laid down by Delhi High Court in Satender Pal Singh (supra). It is held in the said judgment that disciplinary authority needs to examine the gravity of charge and there cannot be a straitjacket formula which may deal all cases in different circumstances.

Reliance on the judgment of S.R. Tiwari (supra) is also of no assistance to the petitioner. Reliance was placed on para 30 of the judgment. The past record cannot be said to be an irrelevant consideration when it is mandate of the rule and the judgments on this point permit the authorities to take into account. In the light of aforesaid legal position, the judgment of Lekhram Sharma (supra) is also of no assistance to the petitioner.

In view of the judgments of Supreme Court quoted above, no fault can be found in the action of the respondents in taking into account the past record.

Point No. (ii): The contention that certain prizes given to the petitioner were not taken into account is factually incorrect. The punishment order, Annexure P-3, dated 15.6.2008 shows that the disciplinary authority has considered the entire service record which contains the prizes and punishments both. Thus, this contention of the petitioner is devoid of merits and runs contrary to the record.

Point No. (iii): The petitioner has contended that second show cause before imposition of punishment was not given to him. In the considered opinion of this Court, the second show cause notice proposing the punishment is not any statutory or constitutional requirement. As held in S.P. Mehta vs. Union of India and others, reported in : 1994 Supp (2) SCC 467, second show cause notice is no more legal requirement. In this view of the matter, no fault can be found on this score.

Point No. (iv): The last question is whether punishment is harsh or disproportionate. This is settled in law that this Court is not required to sit as an appellate authority while deciding the question of quantum of punishment. It can interfere only when the punishment is shockingly disproportionate/excessive. In the present case, the petitioner remained absent on 20.10.2007, day of Dusshera when he was deputed to maintain law and order. He remained absent from 21.10.2007 to 29.11.2007 and from 30.11.2007 to 14.3.2008. In the departmental enquiry, the petitioner deposed his statement on 14.5.2008. He admitted that he had not informed about his ailment to the department. He further accepted that he does not have any receipt of any application seeking leave. The petitioner did not produce any medical prescription in the departmental enquiry. He stated that he was taking medicine as per his own decision. He further admitted that he has not produced any medical certificate or relevant form before the department. On a specific question, the petitioner informed the enquiry officer that he has not produced any x-ray report etc. He further admitted that after 21.10.2007 the petitioner did not inform about his absence to the department. Thus, the defence taken by the petitioner about his ailment also cannot be accepted. The leave of employees are governed by statutory provision. Leave cannot be claimed as a matter of right. One has to obtain leave and the statutory requirement for this purpose has to be satisfied. The petitioner has not shown any material even in the enquiry which can substantiate his case of ailment/sickness etc.

The petitioner was a member of Police Force. In the said Force stricter principles of discipline are required to be followed. The period of absence of the petitioner is also very long. In State of U.P. and others Vs. Ashok Kumar Singh and anothers, the Apex Court opined as under:-

Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, one cannot appreciate the High Court''s observation that "his absence from duty would not amount to such a grave charge". Even otherwise on the facts of the case, there was no justification for the High Court to interfere with the punishment holding that "the punishment was not commensurate with the gravity of the charge" especially when the High Court concurred with the findings of the Tribunal on facts.

The same view was taken by Supreme Court in Bishamber Das Dogra (supra).

In Mithilesh Singh Vs. Union of India (UOI) and Others, a member of armed force was inflicted with the punishment of removal from service. The allegation against the said employee was that he remained absent for 25 days and left the duty without any permission. The Apex Court opined that any act of indiscipline of an employee cannot be lightly taken. A mere application for grant of leave cannot be construed to be a proper intimation of absence. Absence from duty without proper intimation is a grave offence warranting removal of service which is statutorily prescribed. The punishment of removal for remaining absent for 25 days was affirmed by Supreme Court.

As analyzed above, the petitioner''s absence for long spells must be treated as unauthorized absence. The petitioner remained absent on a very important day of Dusshera when police officials are required to shoulder the responsibility of maintenance of law and order.

On the basis of charges proved against the petitioner and on the basis of aforesaid legal position, I am unable to hold that punishment of compulsory retirement against the petitioner is disproportionate or extreme in nature. In the opinion of this Court, the respondents have leniently dealt with the petitioner while imposing punishment of compulsory retirement. On the basis of aforesaid, no interference is warranted by this Court. The petition is meritless and is hereby dismissed.