JUDGMENT R.B. Misra, J.
1. In this writ petition, the petitioner has prayed to quash the orders dated 4.7.1996, 19.2.1998 and 26.3.1998 (Annexures-7A, 9 and 10 to the writ petition), i.e., dismissal order dated 4.7.1996 (Annexure-7A) by S.S.P., order dated 19.2.1998 (Annexure-9) rejecting the appeal by D.I.G. and order dated 26.3.1998 (Annexure-10) rejecting the revision by Inspector General of Police.
Heard Sri K. M. Misra, learned counsel for the petitioner as well as learned standing counsel for the respondents.
2. The brief facts necessary for adjudication of the writ petition are that the petitioner is a permanent constable of Civil Police and after putting more than 22 years in service on transfer from Allahabad to Jalaun was supposed to join on 12.7.1995. It appears that petitioner got ill and information about his illness was given to the Senior Superintendent of Police, Allahabad on 10.7.1995 through U.P.C., on request of the petitioner's wife, the D.I.G. stayed the transfer order on 31.7.1995 for a period of one year. On submission of a medical certificate of Dr. D. K. Srivastava, of M.L.N. Medical College, Allahabad, the petitioner was allowed to join on 29.10.1995. It appears a preliminary enquiry was conducted on 19.12.1996 by the Assistant Superintendent of Police {Annexure-1 to the writ petition) and a decision was taken to permit the petitioner to avail leave without pay for 109 days, i.e., from 4.7.1995 to 29.10.1995 with censure notice. The petitioner was served with a charge-sheet on 27.1.1996 mainly on the ground that he was absented from the duty for 109 days without giving information to the respondents committed negligence and dereliction in duty. The reply of the petitioner was submitted before the Inquiry Officer on 26.2.1996. The Inquiry Officer in his inquiry report, recommended for a minor punishment of reduction to the minimum in the petitioner's pay scale for a period of three years (Annexure -5 to the writ petition). The disciplinary authority, Superintendent of Police, Allahabad disagreeing with the Inquiry report, issued a show cause notice dated 27.4.1996 to the petitioner for a major punishment of dismissal, after obtaining the reply of the petitioner on 25.5,1996, the disciplinary authority by its order dated 4.7.1996 (Annexure-7A) disagreeing with the inquiry report, inflicted major penalty of dismissal, without examining the concerned doctor or to get his certificate verified by the C.M.O. (Chief Medical Officer) by its order dated 4.7.1996. The departmental appeal preferred by the petitioner was also dismissed on 19.2.1998 by the D. I. G., Allahabad Range (Annexure-9 to the writ petition) affirming the dismissal order. The revision preferred against the said order was also dismissed on 26.3.1998 by Inspector General of Police, Allahabad Zone (Annexure-10 to the writ petition). These three orders are impugned in the present writ petition.
3. The counter-affidavit has been filed on behalf of the respondents. According to the counter-affidavit, the petitioner neither informed nor applied for any kind of leave for his ailment and remained absent continuously even on information dates of inquiry for 8.3.1996 and 15.3.1996, the petitioner did not turn up where he was expected to produce the evidence and submit the names and address of witnesses for cross-examination. It was pointed out that the petitioner had submitted a letter dated 27.3.1996 saying that he might not place any other defence except the reply dated 22.2.1996. According to the respondents, the petitioner was given sufficient opportunity but, he neither produced any evidence in his defence nor participated in the enquiry proceedings. It has been averred In the counter-affidavit that the petitioner was in a habit of making absence for which he was punished several times for his unauthorised absence. Therefore, the inquiry officer was correct in giving his report on available records and the Disciplinary Authority was fully justified in passing the punishment order.
4. It has also been contended on behalf of the respondents that since the petitioner had remained absent from duty against the service conduct rules, he had been removed from the service. It has also been asserted that the quantum of punishment is not disproportionate on the gravity of the misconduct.
5. The petitioner has tried to assail the findings recorded by the disciplinary authority as well as appellate authority negativing the defence set up by the petitioner. I have carefully perused the enquiry report as well as the orders passed by the disciplinary authority as well as the appellate authority. The concurrent findings rejecting the defence of the petitioner are based on an appraisal of evidence and materials on the record which findings do not appear to suffer from any such legal infirmity which may justify, interference by this Court exercise the extraordinary jurisdiction under Article 226 of the Constitution of India.
6. It has been urged on behalf of the petitioner that the punishment awarded to the petitioner for his unauthorised absence for a period of 109 days in the circumstances of the case is grossly disproportionate to the gravity of the misconduct. The petitioner's service is, governed by the provisions contained in the Police Act, 1861 and the provisions contained in the Police Regulations framed thereunder as applicable in the State of U. P. as well as the provisions contained in U. P. Subordinate Police Officers (Punishment and Appeal) Rules, 1991.
7. A perusal of the provisions contained in Section 7 of the Police Act indicate that the Inspector-General, Deputy Inspector General, Assistant Inspector-General and District Superintendent of Police may at any time dismiss, suspend or remove any police officer of the subordinate ranks who they shall think remiss or negligent in the discharge of his duty or unfit for the same. The provisions contained in the aforesaid section further provide that the said authorities may award any one or more of the punishment specified therein to any police officer of the subordinate rank who will discharge their duty in a careless or negligent manner or who by any act of his own shall render himself unfit for the discharge thereof. Under the aforesaid provision, the nature of the remissness or negligence which will entail in dismissal and the nature of remissness or negligence which may entail awarding of the lesser punishment provided for in the second part of the section have not been indicated and the question of determining in the quantum of punishment commensurate with the gravity of the remissness or negligence, etc., is left subject to the provisions contained in the Regulations at the discretion of the punishment authority.
8. In the rejoinder-affidavit, the arguments of writ petition were reiterated.
9. It has been contended on behalf of the petitioner that on the basis of the sole allegation (hat the petitioner absented himself from the duty for 109 days without any information, the punishment of dismissal is too harsh and excessive, particularly in view of the petitioner's explanation that he had been under medical treatment during the said period. In reference to the above submission, the petitioner has placed reliance on Union of India and others v. Girt Raj Sharma, AIR 1994 SC 215, where the punishment of dismissal on the ground of overstaying leave period by employee subsequent to order of rejection of application for extension of leave was taken as no wilful intention to flout the order and the punishment was treated as harsh and disproportionate and the relief of reinstatement with all monetary and service benefits granted with liberty to visit minor punishment by the department.
10. In Syed Zahir Hassain v. Union of India and others, 1999 (2) AWC 1183 (SC) : JT 1999 (1) SC 319, as observed in decision of this Court rendered by a Division Bench in the case of Lalta Prasad v. Inspector General of Police and others, AIR 1954 All 438. The use of the word 'think' in Section 7 referred to above is somewhat deliberate. As clarified by this Court in the aforesaid decision, the process by which the authorities mentioned in Section 7 of the Act must 'think' have been indicated by the regulations and it is through the essential process as prescribed in the regulations that they are required to arrive at their thought.
11. It may further be noticed that the provisions contained in the regulations clearly indicate that the punishment authority, while determining the quantum of punishment, has to consider whether the punishment to be inflicted is absolutely necessary in the interest of discipline and whether the delinquent has become incorrigible or that his conduct has rendered his retention in the force undesirable.
12. Obviously, therefore, there has to be an application of mind to assess as to whether the punishment proposed is commensurate to the gravity of the misconduct and as to whether the delinquent has become incorrigible and his retention in the force is undesirable. In this connection, it will not be out of place to notice that in the exercise of disciplinary jurisdiction in departmental proceedings, punishment is not and cannot be the 'end' in itself. The punishment for the sake of punishment is never contemplated. It should not be overlooked that ordinarily the main purpose of a punishment is to correct the fault of the employee concerned by making him more alert in the future and to hold out a warning to the other employees to be careful in the discharge of their duties so that they may not expose themselves to similar punishment. The degree of the severity of the punishment varies with the gravity of the misconduct.
13. As observed by this Court in its decisions in the case of Shamsher Bahadur Singh v. State of U. P. and others, (1993) UPLBEC 488, ordinarily the maximum penalty resulting in an economic death of an employee could be awarded only in cases of grave charges where lesser punishment would be inadequate and may not have any curative effect or where the charge is such that in the exigencies of the case, a lesser punishment may not be found fit in the interest of administration or where considering the charge and the conduct of the delinquent indicating his incorrigibility and complete unfitness for police* service ; it becomes necessary to dispense with the services of the delinquent.
14. In Syed Zahir Hussain v. Union of India and others. 1999 (2) AWC 1183 (SO : JT J999 (1) SC 319. the appellant therein was absent from duty from 9.1.1985 to 15.1.1985 unauthorisedly. When he tried to resume his duties, he was placed under suspension and after departmental enquiry, he was dismissed from service. The petitioner went to the Tribunal, which took a view that the punishment of dismissal was grossly disproportionate but declined to interfere in exercising of its jurisdiction. The Supreme Court after having considered the facts and circumstances of the case viewed that "the punishment of dismissal from service is too harsh and on the contrary, it is required to be substituted by an appropriate lesser punishment." With these observations, the Supreme Court passed the following order :
"In our view, ends of justice will be served if we set aside the order of dismissal of the appellant and instead direct reinstatement of the appellant in service with continuity and with all other benefits save and except withdrawing 50 per cent of back wages from the date of dismissal, i.e., 11.10.1988 till today. In our view, this punishment which will involve substantial monetary loss to the appellant will meet the ends of justice and will be a sufficient corrective measure for the appellant. The request of learned counsel for the respondents that two future increments may also be withheld without cumulative effect does not appear to us to be justified on the peculiar facts and circumstances of the case. In our view, the aforesaid monetary loss to the appellant will meet the ends of justice so that he may be careful in future. It is ordered accordingly."
15. In case of R. N. Mail u. Union of India and another, 1994 (3) ESC 162 (All), the petitioner was a military personnel granted leave from 20.8.1985 to 2.9.1985 to visit his village in District Azamgarh to see his ailing mother who became more serious and shifted to Gola Bazar, Gorakhpur. The petitioner, who had to attend his mother, applied for extension of his leave, which was expiring on 2.9.1985 ; the petitioner received no communication from the respondents, he suffered mental stroke due to illness of his mother and family feud. The petitioner was dismissed from service on the charge of desertion. This Court, after having considered the facts and circumstances of that case, found as under :
"The punishment awarded to the petitioner, if tested on the doctrine of proportionality, is not commensurate with the gravity of the charges levelled against him. hence the punishment of dismissal is arbitrary and is, therefore, violative of the provisions of Article 14 of the Constitution of India."
With the above findings, the Court quashed the Impugned orders of dismissal with the liberty to the opposite parties to award any minor punishment to the petitioner of that case without holding any further inquiry.
16. The identical controversy arose in Writ Petition No. 11850 of 1994, Satyendra Singh v. Union of India and another, decided on 29.7.1997. In that case, the petitioner was absent from service for 44 days for which he was subjected to inquiry and thereafter punishment of removal from service was imposed. This Court applying the ratio of the decision in R. N. Mall's case (supra), came to the conclusion that the punishment of removal appears to be disproportionate and excessive in the background that the petitioner had absented himself without leave for 44 days on account of illness of his mother of which he has submitted Medical Certificate, resultantly the order of removal, being unsustainable in law, was set aside with liberty to the respondents other than removal or dismissal.
17. The petitioner has referred the above judgment of N. K. Musafir Yadau v. Commandant 47. Bn. C. R. P. F. Gandhi Nagar (Gujarat) and another, 2001 ESC 1701 (All), where this Court has held that the petitioner a constable in C. R. P. F. proceeded on leave and reported for duty having overstayed 60 days after expiry of sanctioned leave because he was to appear before Judicial Magistrate, who without having affording opportunity of defence convicted him and same day the commandant passed order of dismissal on charge of overstaying the leave, though he had sent an application for extension of leave with medical certificate, the order of dismissal was treated disproportionate and excessive arbitrary and unsustainable and were liable to be replaced by a minor punishment with reinstatement with 50% of emoluments (back wages) C. R. P. F. Act.
18. In Narendra Kumar Jain v. Food Corporation of India and others, 2001 (3) AWC 2157 : 2001 (3) UPLBEC 2121, where this Court had observed that the order of dismissal on ground of charge of misconduct, allegations that petitioner failed to serve corporation honestly and sincerely, he did not supervise depot operation, etc., which caused damages to stocks kept therein, etc. etc., this order was found to be unjust and unfair, because it was passed merely on the basis of inspection note and without considering facts that at