AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr.A.Mohendro, learned counsel for the petitioner and Mr. Samarjit Hawaibam, learned counsel for the State respondents.
In this writ petition, the petitioner has challenged the order dated 23.3.1999 by which he was dismissed from service and the order dated 02.6.2015 passed by the appellate authority by which the appeal preferred by the petitioner was rejected.
The brief facts of the case, as may be relevant, may be stated as follows. The petitioner joined service as a rifleman in the year 1982 and thereafter, after serving for about 12 years, the petitioner was placed under suspension vide order dated 26.11.1994 on the ground that he remained absence unauthorisedly for 57 days without any leave or permission and the departmental enquiry was instituted against him. The departmental enquiry was held against the petitioner ex-parte and in course of the departmental enquiry, it was held proved that the petitioner had remained absent for the aforesaid period. Accordingly, on the basis of the findings given in the enquiry report, the impugned order of dismissal was issued on 23.3.1995. Though the petitioner filed an appeal against the final order of appeal before the appellate authority on 5.01.1998, the same was not disposed of by the authorities. In the meantime, however, because of the acute shortage of manpower in connection General Election of 15th Lok Sabha Election, 2009, the service of the petitioner was recalled and he was reinstated from suspension with immediate effect subject to the outcome of the Court cases pending against him as per order dated 23.3.2009. Accordingly, the petitioner rejoined service as a rifleman which he continued to serve till now. The aforesaid order dated 23.3.2009 was apparently issued by the Commandant on the assumption that the petitioner still under suspension.
Be that as it may, the fact remains that the petitioner was reinstated in service vide order dated 23.3.2009. In the meantime, the petitioner has also filed a writ petition being W.P(C) No.1025 of 2000 seeking a direction from this Court to the authorities for disposal of the appeal preferred by the petitioner on 5.01.1998. The said writ petition, W.P(C) No.1025 of 2000 was disposed by this Court on 26.02.2015 with the observation that the appellate authority will consider the appeal sympathetically in the light of the observation made in the said judgment and order so that in the end, the petitioner may get the pensionary benefits. Accordingly, the aforesaid judgment and order dated 26.02.2015 passed in W.P(C) No.1025 of 2000 is reproduced hereinbelow for better appreciation of the issue involved in this writ petition.
"Though this writ petition was filed in the year 2000 challenging the order of dismissal passed by the Disciplinary authority on 23.3.1995 on the ground of absence of 57 days, this writ petition has come up for hearing today as this writ petition along with other writ petitions had to suffer the journey to Supreme Court. The Hon''ble Supreme Court in a batch of SLP including the one involving the present writ petition, by an order dated 20.4.2006 had directed for rehearing of the writ petitions, including the present petition directs that the respondents before the Hon''ble Supreme Court (the present writ petitioner) shall be deemed to be under suspension who would be entiteld to subsistence allowance in accordance with law deeming to be suspended from the date of suspension.
In the course of hearing it has been noted that though the petitioner had preferred a statutory appeal before the authority on 5.1.1998, the same had not been disposed of.
It has been submitted by by Mr.Mohendro, learned counsel for the petitioner that the petitioner was in fact absent for only 27 days as clearly evident from the suspension order itself which mentions that the petitioner was absence w.e.f. 1.10.1994 till the date of issue of the suspension order, which is 26.11.1994. Therefore, it is evidently a gross mistake on the part of the authorities to allege absence of 57 days, which indicates non application of mind by the authorities.
It is the case of the petitioner that the petitioner was indisposed during teh aforesaid period because of which he could not report for duty in time, resulting in the aforesaid departmental proceeding. It has been submitted that it is not the case of gross abuse of his power or misconduct involving security of the State or any activity involving moral turpitude but mere absence on account of his illness.
Mr. Mohendro, also submits that the petitioner was suspended in the year 1994 and has crossed the age of 55 years and only a few years are left to reach the age of superannuation. Therefore, it has been submitted that, even if the petitioner is successful in the writ petition and de novo enquiry is held at this stage after a period of about 20 years of suspension, it may create a great prejudice for an offence of mere absence as mentioned above. It has been also submitted that the petitioner, in normal course, would have retire within a year or so and accordingly he may be allowed to pursue the statutory appeal preferred by him.
Considering the peculiar nature of the case that the petitioner was dismissed from service only on the ground of absence for the aforesaid days, which does not involve any serious act of misconduct or moral turpitude or security of the State or involve any loss of property or life and considering the fact that otherwise, the petitioner is on the verge of attaining the age of superannuation, this Court is of the view that it would be in the fitness of things that the order of dismissal be reverssed by imposing any other penalty other than dismissal/removal from service so that the petitioner may enjoy certain pensionary benfits after his retirement.
In view of the above, the present writ petition is disposed of with the direction to the appellate authority, i.e. the concerned Deputy Inspector General of Police , who is the appellate authority, will consider the appeal sympathetically in the light of the observation made above so that the petitioner may, in the end, get certain pensionary benefits.
Accordingly, the writ petition is disposed of with the direction to the appellate authority, i.e. concerned Deputy Inspector General of Police to do the needful by considering the representation and pass appropriate orders in the light of the observation made above, preferably within a period of three months from the date of receipt of a certified copy of this order, along with a copy of the appeal and relevant documents.
With the above observation, the writ petition stands disposed of."
However, the Appellate Authority rejected the appeal as without any merit and accordingly, the present writ petition has been filed challenging the dismissal order dated 23.3.1995 as well as the order dated 2.6.2015 passed by the Appellate Authority.
Mr. Mohendro, learned counsel for the petitioner submits that the fact remains that the petitioner was dismissed from service on account of absence for 57 days without leave as mentioned in the charges. However, this penalty of dismissal is disproportionate to the charge which has been held proved. Though the petitioner has not raised any grievance as regards the findings in the Departmental Enquiry but he contends that the penalty imposed is too harsh and it should have shaken the conscience of the Court. Apart from that , Mr.Mohendro submits that while passing any penalty, the disciplinary authority should take into consideration the facts and situation under which the unauthorised absence occurred. In this regard, Mr.Mohendro has referred to the decision of the Hon''ble Supreme Court in the case of Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in (20154) 10 SCC 301 in which the Hon''ble Supreme Court having regard to the period of absence, in the facts and circumstance of the case, converted the unauthorised absence of period as leave without wages rather than approving upholding the termination order as it was found to be disproportionate to the gravity of the misconduct alleged. Accordingly, it has been also contended that in the present case, the penalty of dismissal is disproportionate to the charge proved and ought to have converted to a lesser penalty so that the petitioner can enjoy the pensionary benefits.
This contention of the petitioner has been objected to by Mr. Samarjit H., learned Government Advocate by relying on the decision of this Court passed in W.P(C) No.602 of 2013 whereby this Court declined to interfere with the penalty of dismissal which was imposed on the petitioner therein who was found to be absent for 61 days. Mr. Samarjit submits that in this case though the petitioner did not take part in the departmental enquiry and dismissal for absence of 57 days without leave cannot be said to be disproportionate and he submits that no case has been made out for interference by this Court with the impugned dismissal order. However, it may be noted that in the said judgment and order passed in W.P(C) No.602 of 2013, the petitioner therein was found to be a habitual absentee having been awarded 18 times EOL on different occasions for 520 during his 8 years 5 months 20 days. However, there is no such allegation that the petitioner had remained absent on earlier occasions for such a long time though it has been submitted by Mr. Samarjit that the petitioner had been awarded minor penalties before. Therefore, this Court is of the view that in the fact and situations in both the cases are not exactly the same.
However, in the present case, it has to be noted that the petitioner inspite of such dismissal order being passed against him, was taken back into service vide order dated 23.3.2009. Therefore, if the petitioner has been so undeserving person to be dismissed from service, this Court fails to understand why the petitioner was taken back into service on 23.3.2009 and allowed to continue till date. Therefore, this Court is of the view that the fact and situations occurring in the said W.P(C) No.602 of 2013 are different from the present fact situations obtained in the present case as indicated above.
This Court also has observed that the petitioner after being reinstated has continued to serve as a rifleman till now and as such, he has rendered his service for about 8(eight) years after he was reinstated in service and prior to that, the petitioner had rendered about 12 years of service. In other words, by this time, if the break in service is not taken into account, the petitioner would have served about 20 years in service. It has been submitted by Mr. Mohendro, learned counsel for the petitioner that the petitioner is going to retire very soon, however, because of the break in service from 1995 to 2009, the petitioner may be deprived of any pensionary benefits.
Having heard the learned counsel for the parties and also considering the materials on record, this Court is of the view that in the peculiar circumstances of the case as narrated above, the impugned order of dismissal can be converted to any other minor penal except for the major penalty of removal or dismissal from service so that the petitioner can be deemed to be in service continuously only for the purpose of pensionary benefits. This Court would like to clarify that the petitioner would not be entitled to any arrear pay or any benefit for the period from 1995 upto 2009 but this period shall be counted for the purpose of pensionary benefits only.
Accordingly, the petition stands allowed to the extent indicated above.