The main points raised in this Writ Petition are, "(a) Whether the Disciplinary Authority has to issue a show cause notice, before inflicting a major penalty of removal, dismissal, compulsory retirement or reduction in rank, when he takes into consideration the previous penalties suffered by a delinquent.
(b) Whether it is obligatory on the Disciplinary/Appointing Authority to include the previous penalties, as part of a charge memo."
2. It is the case of the petitioner that he joined the Police Department as Grade-II Police Constable on 15.01.1995 and was dismissed from service, even before the completion of his training. Pursuant to the directions of the Government, he was reinstated in service. Thereafter, he was served with a charge memo in P.R.No.23/97, alleging that he had deserted the force without prior permission. The Deputy Superintendent of Police, Armed Reserve, enquiry officer, in his report, dated 15.04.1997, held that the charge as proved. A memo, dated 27.04.1997 was issued to the petitioner, calling upon him to submit his further representation on the said report. The Superintendent of Police, Kancheepuram District, third respondent herein, dismissed the petitioner from service, on the ground of desertion. According to the petitioner, the appeal preferred to the DIG of Police, Chengalpet Range, second respondent herein, was rejected on 24.10.1997 by a non-speaking order. Statutory Review Petition, dated 02.03.1998, submitted to the Inspector General of Police, Law and Order, Chennai, first respondent herein, was also rejected on 06.08.1998. Assailing the orders passed by the statutory authorities, the petitioner has come forward with the present Writ Petition.
3. Referring to the observations of the disciplinary Authority that the petitioner was a chronic deserter absentee and that he had earned three punishments, including dismissal from service, reduction of pay and Black Mark during the Training period of the years 1976, 1993 in P.R.Nos.84/76, 52/93 and 132/93 respectively and the further observations that inspite of heavy punishments already awarded to the delinquent, he had not mended his ways, but continued to repeat his delinquency of desertion, learned counsel for the petitioner submitted that when the disciplinary authority had considered the past conduct of the petitioner as one of the reasons for imposing a major penalty of dismissal from service, he should have given an opportunity to the petitioner to explain the cause or facts, which lead to imposition of penalties stated supra and failure to do so, has resulted in violation of
Article 311(2) of the Constitution of India.
4. Learned counsel for the petitioner further submitted that if the previous conduct of the petitioner forms part of the major penalty, the same ought to have been put on notice to him, before inflicting the penalty and that would have helped the delinquent to putforth, before the disciplinary authority, many mitigating circumstances or some other reasonable explanation, as to why those punishments were awarded to him or subsequent to the punishment, he had served with the satisfaction of the authority till the initiation of the present disciplinary proceedings, which culminated into a major penalty of dismissal from service. According to him, it is incumbent on the part of the disciplinary authority to give the government servant, at the second stage, a reasonable opportunity to show cause, if the proposed punishment is based on previous punishments or past record of service. Reliance is based on a Constitutional Bench decision of the Supreme Court in State of Mysore v. K. Manche Gowda reported in AIR 1964 SC 506.
5. Per contra, Mr.S.Gopinathan, learned Additional Government Pleader submitted that after the 42nd Amendment Act to the Constitution of India, there is no legal requirement to give a second show cause notice to the delinquent on the proposed penalty and therefore, even if past record is not mentioned in the charge memo or in the notice calling for further explanation on the enquiry report, that would not amount to violation of the principles of natural justice. He further submitted that it is purely the discretion of the disciplinary authority to take into consideration the past conduct of the petitioner, while inflicting the penalty and what is taken away by the 42nd Amendment, cannot be revived by issuing a notice, calling for explanation from the delinquent on the proposed penalty. For the above said reasons, he prayed for dismissal of the Writ Petition.
Heard the learned counsel for the parties and perused the materials available on record.
6. Before the 15th Amendment to the Constitution of India,
Article 311(2) provided that, "No such person as aforesaid shall be dismissed or removed or reduced in rank unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."
7. The 15th amendment to the Constitution of India came into effect from 06.10.1963, by which, Sub-
Article 2 of
Article 311 was amended to the following effect:
"311. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry."
8. By virtue of 42nd Amendment of the Constitution of India, which came into force in the year 1976, the right of a person holding Civil post to make a representation on the proposed penalty, no longer exists. Article 311(2), after amendment, reads as follows:
"No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
Provided that where it is proposed, after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
9. K. Manche Gowda's case (cited supra) relied on by the learned counsel for the petitioner is a decision prior to the 42nd Constitutional Amendment. In that case, the Supreme Court considered a question, whether a reasonable opportunity of showing cause was to be given, when the proposed punishment was mainly based on the previous record of the government servant. At Paragraph 7, the Apex Court, held as follows:
"7. Under
Art. 311(2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges leveled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action : see the decision of this Court in the State of Assam v. Bimal Kumar Pandit, Civil Appeal No.832 of 1962 D/- 12-2-1963 : (AIR 1963 SC 1612). If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment : he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what Acts or omissions of his in a particular period would be considered. It that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishment he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry," as their acceptance will be subversive of the principle of "reasonable opportunity". We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation."
(emphasis supplied)
10. In Union of India v. Tulsiram Patel reported in 1985 (3) SCC 398, the Supreme Court analysised the law and the impact of the amendment to
Article 311(2) and at Paragraph 68 of the judgment, the Constitutional Bench considered the effect of the amendment, as follows:
"68. The question which then arises is, "Whether the Constitution (Forty-second Amendment) Act, 1976, which further amended the substituted Clause (2) of
Article 311 with effect from 1st January 1977, has made any change in the law?" The amendments made by this Act are that in Clause (2) that portion which required a reasonable opportunity of making representation on the proposed penalty to be given to a government servant was deleted and in its place the first proviso was inserted, which expressly provides that it is not necessary to give to a delinquent government servant any opportunity of making representation on the proposed penalty. Does this affect the operation of the original proviso which, by the Constitution (Forty-second Amendment) Act, became the second proviso? Such obviously was not and could not have been the intention of Parliament. The opening words of the second proviso remain the same except that the word 'further' was inserted after the word 'Provided', because the original proviso by reason of the insertion of another proviso before it became the second proviso. It should be borne in mind that the show cause notice at the punishment stage was originally there as a result of the interpretation placed by the Judicial Committee in Lal's case and by this Court in Khem Chand's case upon the phrase "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him". Clause (2) as substituted by the Constitution (Fifteenth Amendment) Act merely reproduced the substance of what was held in Khem Chand's case. The words which originally found a place in Clause (2),"a reasonable opportunity of showing cause against the action proposed to be taken in regard to him", do not any more feature in Clause (2). All that Clause (2) now provides is an inquiry in which the government servant is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Clause (2) taken by itself even without the first proviso does not provide, expressly impliedly, for any opportunity to make a representation against the proposed penalty. After the Constitution (Fifteenth Amendment) Act this second opportunity formed a separate part of Clause (2), which part was deleted by the Constitution (Forty-second Amendment) Act. Thus, when the second proviso states in its opening words that "Provided further that this clause shall not apply" it means that whatever safeguards are to be found in Clause (2) are wholly taken away in a case where any of the three clauses of the second proviso is attracted. In this connection, the following observations of this Court in the Case of Suresh Koshy George v. The University of Kerala and Ors. (at page 326-7) are pertinent:
"There seems to be an erroneous impression in certain quarters evidently influenced by the provisions in
Article 311 of the Constitution particularly as they stood before the amendment of that article that every disciplinary proceeding must consist of two inquiries, one before issuing the show cause notice to be followed by another inquiry thereafter. Such is not the requirement of the principles of natural justice. Law may or may not prescribe such a course.""
(emphasis supplied)
11. Thus, the law is settled in the Constitutional Bench judgment in Tulsi Ram's case that a person holding a civil post, has no Constitutional right to make a further representation on the proposed penalty, in a disciplinary proceedings.
12. As regards the contention as to whether past record should form part in the charge memo or in the notice calling for further representation on the enquiry report, it would be appropriate to consider the case in The Govt. of A.P. and Ors. Vs. Mohd. Taher Ali reported in 2007 (8) SCC 656, where a Police Constable, detailed for election duty, was charged for unauthorised absence without leave or permission and for the offence of desertion. The enquiry officer held the charge as proved and further recorded that it was not a solitary incident. The policeman was also found guilty on couple of occasions and therefore, the Superintendent of Police issued orders for compulsory retirement with immediate effect. The Tribunal which tested the correctness of the order, did not interfere with the findings of the Enquiry officer, but remitted the matter back to the Disciplinary Authority for re-consideration on the question of punishment. The appeal filed by the State was dismissed. At Paragraph 4, the Supreme Court has observed as follows:
"4. ..........We fail to understand the reason for the Administrative Tribunal or for the High Court to have remitted the matter back to the disciplinary authority for reconsideration of the punishment of compulsory retirement imposed on the respondent."
13. While considering the submission of the respondent-policeman, based on the judgment in K.Manche Gowda's case that a disciplinary authority ought not to have taken into consideration the past conduct, ie.., earlier absence of the delinquent from duty, the Supreme Court, at Paragraph 6, observed that, "but in the present case we are satisfied that in fact the respondent deliberately absented himself from duty and did not offer any explanation for his absence from election duty. It is not the respondent's first absence. He also absented himself from duty on earlier occasions also. In our opinion there can be no hard and fast rule that merely because the earlier misconduct has not been mentioned in the chargesheet it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often only to reinforce the opinion of the said authority. The police force is a disciplined force and if the respondent is a habitual absentee then there is no reason to ignore this fact at the time of imposing penalty. Moreover, even ignoring the earlier absence, in our opinion, the absence of 21 days by a member of a disciplined force is sufficient to justify his compulsory retirement."
(emphasis supplied)
14. In the case on hand, earlier the petitioner had been inflicted with a penalty of dismissal from service, reduction of pay and black mark during the Training period of the years 1976, 1993 in P.R.Nos.84/76, 52/93 and 132/93 respectively. He was also found absent from duty on many occasions. The disciplinary officer has observed that his indisciplinary conduct would pave way to the other recruits of the disciplined force to follow his bad principle. He has further observed that in spite of heavy punishments already awarded, he has not mended his ways, but continued to repeat his delinquency of desertion.
15. Habitual absenteeism is a gross violation of discipline, as held in Burn & Co. Ltd. and Ors. Vs. Their Employees reported in AIR 1959 SC 529. In the said case, an employee, who absented without leave or permission, was dismissed from service, following a domestic enquiry. The Industrial Tribunal directed re-instatement. When the matter was adjudicated before the Supreme Court, it was held that absence of a workman without permission and without any leave application for the same, amounts to gross violation of discipline, entailing dismissal from service. The Supreme Court further held that if such a workman is dismissed by his employer, Industrial Tribunal should not order for reinstatement. The Apex Court held that, "Where a workman is almost in the habit of loitering outside his place of work without the permission of his departmental head and does not desist from doing so even though warned, his services can be dispensed with. In such a case it cannot be said that the employer was actuated by any improper motive to victimise him for his Union activities."
16. In L and T Komatsu Ltd. Vs. N. Udayakumar reported in 2008 (1) SCC 224, the Supreme Court, reiterating the views expressed in Burn's case and having regard to the past record of the respondent therein, who was found guilty of unauthorised absence for several times, held that the Industrial Tribunal/High Court ought not to have interfered with the order of dismissal from service treating it to be harsh.
17. In the light of the above decisions of the Supreme Court, it is now well settled that desertion in a disciplined force is a serious lapse, which cannot be treated lightly. It is the categorical finding of the enquiry officer that the previous punishment imposed on the petitioner did not give the desired effect of correction. But he had repeated the act of desertion, for which, he has been dismissed from service.
18. While furnishing a copy of the enquiry officer's report, the delinquent is given an opportunity to make his further representation, not only on the findings recorded by the enquiry officer, but he can also point out the procedural flaw, violating the principles of natural justice. The 42nd Constitutional amendment has taken way the right of a delinquent to put forth his plea on the proposed penalty and therefore, he cannot insist that at the time of calling for further representation, if the disciplinary authority had proposed to consider his past misconduct and record of service, he should indicate his mind in the said notice. Therefore, while imposing the punishment, it is permissible to take into consideration the past record of a delinquent, even if it is not mentioned in the notice, calling for further representation or in the punishment order. The consideration of past record is only to reinforce the opinion of the disciplinary authority on the quantum of penalty. It is also not necessary for the disciplinary authority to include the past record of service in the charge memo or in any notice, before inflicting the penalty.
19. Even in the absence of any statutory rule, still it is open to the disciplinary authority to take into consideration the past record of service for inflicting the penalty, which only adds weightage to his decision. If the charge entails a major penalty independently, even without reference to the past record, then the disciplinary authority can always impose such penalty, commensurate with the misconduct for which the subsequent disciplinary proceedings are taken. When the right of the delinquent to make his further representation on the penalty has been taken away by the Constitutional amendment, even if the disciplinary authority has taken into consideration the past record of the delinquent, that would not vitiate either the disciplinary proceedings or the penalty imposed on him and there is no violation of principles of natural justice.
20. In view of the above, the penalty imposed on the petitioner is sustained for the gross habitual absenteeism in a disciplined force and therefore, the Writ Petition is dismissed. No costs.
17.06.2009 skm To
1. Inspector General of Police, Law and Order, Chennai-2.
2. Deputy Inspector General of Police, Chengalpet Range, Chennai-18.
S. MANIKUMAR, J.
skm
3. Superintendent of Police, District Police Office, Kancheepuram District.
W.P.No.38595 of 2006 17.06.2009