RAMJI YADAV Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner who was the Constable in the Civil Police was dismissed from service by the order dated 16th March, 2005 passed by the Superintendent of Police, Chandauli under Rule 4(1) of ''THE Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991' (hereinafter referred to as the ''Rules'). THE Appeal filed by the petitioner under Rule 20 of the Rules was dismissed by the Deputy Inspector General of Police, Varanasi by his order dated 9th November, 2005. THE Revision filed by him under Rule 23 of the Rules was also dismissed by Inspector General of Police, Varanasi Zone, Varanasi by the order dated 22nd April, 2006. THEse orders have been impugned in the present petition. While the petitioner was posted as a Constable at Chandauli, he was sanctioned 14 days leave by the Circle Officer on 30th May, 2002. He, however, did not report for duty on 17th June, 2002 after the expiry of the aforesaid leave and remained absent thereafter in an unauthorised manner. He was, therefore, suspended on 30th January, 2003 and a charge-sheet dated 23rd April, 2003 was served upon him. However, as there was some discrepancy in this charge-sheet, it was withdrawn and another charge-sheet dated 12th May, 2003 was served upon the petitioner. THE charge was that though he had been granted only 14 days leave on 30th May, 2002 and he was to report for duty on 17th June, 2002 but he did not do so and remained absent thereafter thereby exhibiting gross negligence and indiscipline and he had also not complied the order passed by the Superior Officer. THE petitioner was asked to submit his reply by 20th May, 2003 and indicate the names of the witnesses he would like to examine. THE documents in support of the charge-sheet were also mentioned in the charge-sheet. THE petitioner, however, did not submit any reply and nor did he participate in the enquiry despite repeated communications sent to him. THE Enquiry Officer submitted his report to the Disciplinary Authority holding the petitioner guilty of the charges levelled against him. A show cause notice with a copy of the enquiry report was served upon the petitioner who filed a reply. THE Disciplinary Authority, however, did not find the explanation satisfactory and, accordingly, the petitioner was dismissed from service. THE statutory Appeal and the Revision filed by the petitioner were also rejected. Sri C.K. Parekh, learned counsel for the petitioner submitted that the punishment imposed upon the petitioner was liable to set aside as the charge-sheet dated 12th May, 2003 was not served upon the petitioner; that the copy of the enquiry report was also not enclosed with the show cause notice; that no subsistence allowance was paid to the petitioner during the period of suspension and the punishment imposed upon the petitioner is disproportionate to the gravity of the charges levelled against the petitioner. Learned Standing Counsel appearing for the respondents, however, submitted that the enquiry against the petitioner was conducted in accordance with the Rules and despite service of the charge-sheet, the petitioner did not submit any reply and nor did he appear in the enquiry proceedings. He also submitted that the copy of the enquiry report was enclosed alongwith the show cause notice and the subsistence allowance was not paid to the petitioner since he had not complied with the conditions stipulated in the suspension order. He further submitted that the petitioner was a Constable and, therefore, the punishment of dismissal imposed upon him for remaining absent from duty unauthorisedly for a long period cannot be said to be disproportionate to the charges. I have carefully considered the submissions advanced by the learned counsel for the parties. Learned counsel for the petitioner submitted that in reply to the show cause notice the petitioner had specifically stated that copy of the charge-sheet had not been served upon him. However, a perusal of the reply to the show cause notice, which has been annexed as Annexure-RA-1 to the rejoinder affidavit shows that in paragraph 8 of the said reply the petitioner had categorically stated that the charge-sheet was served upon him. THE first contention of the learned counsel for the petitioner that charge-sheet dated 12th May, 2003 was not served upon the petitioner, therefore, cannot be accepted. THE second contention of the learned counsel for the petitioner is that the copy of the enquiry report was not served upon the petitioner. A perusal of the show cause notice dated 21st May, 2005 issued to the petitioner clearly shows that the copy of the enquiry report was enclosed alongwith it. In reply to the said show cause notice, the petitioner has not stated that the copy of the enquiry report was not served upon him. Infact in paragraph 2 of the reply the petitioner clearly stated that he had received a show cause notice alongwith the findings of the enquiry report. THErefore, this contention of the learned counsel for the petitioner cannot also be accepted. THE third contention of the learned counsel for the petitioner is that the enquiry stands vitiated as the subsistence allowance was not paid to the petitioner. In the first instance, such grievance was not raised by the petitioner in response to the show cause notice. THE petitioner has also not stated that he had raised any grievance before the Authorities for non-payment of subsistence allowance or that he had complied with the conditions mentioned in the suspension order. He, therefore, cannot be permitted to raise this grievance at this stage. THE last contention of the learned counsel for the petitioner is that the punishment of dismissal from service is disproportionate to the charges levelled against the petitioner and in support of this contention, he has placed reliance upon the decision of the Supreme Court in Union of India and Ors. Vs. Giriraj Sharma, AIR 1994 SC 215 and in Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and Ors., AIR 2004 SC 2131. THE records of the writ petition indicate that the petitioner had been granted leave for only 14 days on 30th May, 2002. He was, therefore, required to report for duty on 17th June, 2002 but he did not do so and thereafter continued to remain absent in an unauthorized manner for a long period of time as a result of which he was suspended from service on 30th January, 2003 and a charge-sheet dated 12th May, 2003 was also served upon the petitioner. Learned counsel for the petitioner contended that he should not have been dismissed from service merely because he remained unauthorisedly absent. In effect, his contention is that the punishment is disproportionate to the offence. THE scope of interference by Courts with the quantum of punishment has been the subject matter of a number of decisions and it has been repeatedly emphasised that interference cannot be done in a routine manner and that the principles relating to judicial review of administrative action have necessarily to be examined. THE decisions of the Supreme Court clearly emphasise that where the punishment in disciplinary cases is challenged as being arbitrary, the question that would arise for consideration would be whether the administrative order is "rational" or "reasonable" and the test then to be applied is the "Wednesbury" test. THE Courts will then be confined only to a secondary role to find out if the action satisfies the test. THE disciplinary authority and the appellate authority, being fact finding authorities, have the exclusive power to consider the evidence with a view to maintain discipline and they are vested with the discretion to impose appropriate punishment keeping in view the gravity of the misconduct. It has also been emphasised that the High Court while exercising the power of judicial review cannot normally substitute its own opinion and impose some other penalty unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court in the sense that it is in defiance of logic or moral standards. THE Supreme Court had an occasion to consider whether the removal of service in the case of a Police constable absenting himself from duty without leave was proportionate to the charges in State of U.P. and Ors. Vs. Ashok Kumar Singh and Anr. AIR 1996 SC 736 and it was observed:- "We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. THE High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to 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 this case, there was no justification for the High Court to interfere with the punishment holding that ''the punishment does not commensurate with the gravity of the charge' especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out." In the case of Shiv Vir Singh Vs. State of U.P. and Anr. 1998(1) AWC 42, a Sub-Inspector of GRP absented from duty unauthorisedly for 26 days on two occasions. THE punishment of dismissal was found not to be disproportionate of the gravity to the charges levelled against him. After placing reliance on the decision of the Supreme Court in the case of State of U.P. and others (supra) the Court observed as follows:- "THE petitioner was a member of a disciplined force. As a responsible official of the department manning the post of Sub-Inspector, he could not have afforded the luxury of remaining absent in an unauthorised manner. It was grossest misconduct on the part of the petitioner to have absented himself on two occasions totaling to a period of 26 days in an unauthorised manner. THE order of punishment of removal from service cannot be said to be disproportionate to the gravity of the delinquency committed by the petitioner. THE law laid down by the Apex Court in Ashok Kumar Singh's case (supra) clearly covers the point in hand." In view of the aforesaid decisions, it cannot be said that the punishment imposed upon the petitioner is disproportionate to the gravity of the offence. It cannot also be said that punishment is such which will shock the conscience of the Court as the petitioner who was a Constable in the Civil Police has to maintain discipline and he cannot just remain absent in an unauthorized manner for a long period of time. THE petitioner has placed reliance upon the decision of the Supreme Court in Shri Bhagwan Lal Arya (supra). Paragraphs 10 and 14 of the aforesaid decision shows that it is based upon Rule 8(a) and 10 of the Delhi Police (Punishment and Appeal) Rules, 1980 which provide that the punishment of dismissal from service shall be awarded for an act of grave misconduct rendering him unfit for police service. Under the Rules in question in the present petition, Rule 4 provides that the punishment of dismissal from service may be imposed upon the police officer for good and sufficient reasons. THE Rule does not provide that the punishment of dismissal from service shall be awarded for an act of grave misconduct rendering him unfit for police service. In Giriraj Sharma (supra), the person had overstayed leave for a period of 12 days only and that his intention was not to willfully flout the order as he had sent a request for extension of leave. This case also, therefore, does not help the petitioner. THEre is, therefore, no merit in the petition. It is, accordingly, dismissed.