M N PARMAR Vs. DEPUTY COMMISSIONER OF POLICE

JUDGEMENT

(1.) Heard the learned advocates. The petitioner before this court was appointed as an Armed Police Constable in or around the year 1980. In the year 1984, he had asked for casual leave for three days with effect from 9th May, 1984 after office hours. On expiry of the period of leave, he was supposed to report for duty on 15th May, 1984, however, he failed to do so and did not report for duty till 27th March, 1985, and until after a notice under section 145 of the Bombay Police Act was issued to him. After reporting for duty, he produced a medical certificate for part of the period he was absent from service. The period of his absence i.e. 316 days was later on regularised as leave without pay. On 23rd September, 1988, a chargesheet was issued upon the petitioner in respect of his absence of 316 days without leave. The said chargesheet was replied to by the petitioner. Since he did not admit his guilt, the disciplinary action was initiated against him. In course of the disciplinary action, he first sought time for engaging a next friend to represent him. However, inspite of several opportunities being granted to him, he did not engage a friend. On 10th January, 1989, he gave a writing to the Inquiry Officer admitting the imputation of charge made against him and expressed his desire not to contest the disciplinary action, but prayed for leniency. Relying on the said statement, the Inquiry Officer held the imputation of charge to be proved. In view of the charge proved against the petitioner, on 31st March, 1989, a notice was issued upon him to show cause why he should not be removed from service. The said notice was answered by the petitioner on 22nd April, 1989. The disciplinary authority under its order dated 30th June, 1989, directed that the petitioner be removed from service. The said order was confirmed in appeal by the appellate authority on 31st August, 1989. The revision preferred before the Government was dismissed as time-barred. Feeling aggrieved, the petitioner has preferred the present petition.

(2.) It is submitted that the petitioner having fallen ill had received medical treatment at Ahmedabad and the medical report was forwarded by him to the concerned Officer. Further, for the remaining period of his absence, he had produced a medical report in the month of March 1985 when he resumed the service. Besides, the period of absence has been regularised as an extra ordinary leave without pay. In that view of the matter, the cause of action would not survive, and no disciplinary action could have been initiated against the petitioner. It is further contended that the inquiry is grossly belated in as much as though the cause of action arose in the year 1985, the inquiry had not been initiated until the year 1988. This delay itself should vitiate the whole inquiry. It is next contended that the statement given by the petitioner on 10th January, 1989, was obtained under duress and by mis-representation. The said statement being involuntary, could not have been relied upon either by the Inquiry Officer or by the disciplinary authority. The finding of guilt based on the said statement is also vitiated. He submitted that this contention was taken by the petitioner even in his reply to the show cause notice dated 31st March, 1989, however, the same has not been considered by the disciplinary authority. Even if the petitioner had given such a statement voluntarily, in view of paragraph 448 (a) of the Bombay Police Manual, 1959, no finding of guilt could have been based on such statement. In any view of the matter, the punishment imposed upon the petitioner is shockingly disproportionate and unless a loss or prejudice was caused to the respondents on account of the absence of the petitioner, such harsh punishment could not have been imposed upon the petitioner. Further, while imposing the punishment upon the petitioner, the disciplinary authority has also taken into consideration the past service record of the petitioner. No reference to the past service record of the petitioner had been made in the show cause notice dated 31st March, 1989, and the same could not have been relied upon without the petitioner being given an opportunity to meet the same. Thus, the disciplinary authority has, while imposing the punishment, taken extraneous matter into consideration. The order of punishment, therefore, shall be held to be null and void. In support of his contention, Mr. Mehta has relied upon the judgments of the Supreme Court in the matters of STATE OF PUNJAB & ORS Vs. BAKSHISH SINGH [(1998) 8, SCC 222)], and of B.C. CHATURVDEDI Vs. UNION OF INDIA & ORS. [(1995) 6 SCC, 749)].

(3.) The petition is contested by the respondents. It is submitted that the inquiry has been conducted against the petitioner in consonance with the relevant rules and the principles of natural justice. Further, in exercise of its power of judicial review under Article 226 of the Constitution of India, this court ought not to sit in appeal over the finding of guilt recorded by the disciplinary authority, nor would the court interfere with the quantum of punishment unless it is shockingly disproportionate. Considering the nature of guilt and his past conduct and petitioner being a member of the Armed Police Force, the punishment imposed can not be said to be disproportionate or harsh in any manner. Mr. Pancholi also has relied upon the above referred judgment in the matter of B.C. Chaturvedi. He has also relied upon the judgment of the Supreme Court in the matter of INDIAN OIL CORPORATION LTD Vs. ASHOK KUMAR ARORA [(1997) 3 SCC, 72].