JUDGMENT Sudhir Agarwal, J.
1. Heard Shri Pankaj Shukla, learned Counsel for the petitioner and learned standing counsel for the respondents.
2. The pleadings are complete and therefore with the consent of learned Counsel for the parties, this writ petition has been heard and is being decided finally under the Rules of the Court.
3. The petitioner has filed this writ petition under Article 226 of the Constitution of India against the removal order dated 7,12.1988 (Annexure 4 to the writ petition) passed by the Senior Superintendent of Police, Jalaun, and the order dated 5.12.2003 passed by the Appellate Authority rejecting his appeal.
4. The brief facts, which gave rise to this petition, are that a charge sheet dated 15.7.1988 was served upon the petitioner, which contained two charges. The first charge is that while posted as Head Constable at Thana Kotwali Hamirpur he sought to appear before Inspector General of Police who visited Hamirpur in connection with inauguration of a building. The aforesaid act on the part of the petitioner was unauthorised and without prior permission from the higher authorities, showed indiscipline and being a member of Police force constituted misconduct. The second charge is that on 12.5.1988, in the evening at about 7:00 or 7:30 p.m. when Inspector General of Police was going to leave Kotwali Hamirpur premises the petitioner lie down on the road near Kotwali wherefrom the Inspector General of Police was to pass and despite persuasion by higher officials who were present at the site, created a scene in presence of Senior Police Officials and respectable persons of the Society causing loss to the image of the Police and this act of the petitioner amount to gross indiscipline unexpected from a Police Official. The aforesaid charge sheet was issued by S.S.P., Jalaun himself and he himself conducted disciplinary enquiry. The petitioner submitted reply to the charge sheet on 25.7.1998 stating that before making any enquiry against the petitioner's conduct it would be appropriate for the authorities to make an enquiry into the reasons, which compelled the petitioner to resort to such activity. He further stated that he could not tolerate injustice caused to him and in such mental disturbance showed conduct as alleged in the charge sheet but his aforesaid conduct cannot be inquired without the orders of Inspector General of Police. He also demanded copies of the documents sought to be relied in support of the charges. He further stated that he may submit further reply after receiving the aforesaid documents. The Senior Superintendent of Police, Jalaun conducted enquiry and thereafter-passed punishment order dated 7.12.1988 imposing punishment of removal upon the petitioner. Appeal preferred under Rule 20 of the U.P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules 1999, was rejected by Deputy Inspector General of Police by order dated 5.12.2003.
5. Counter affidavit has been filed on behalf of the respondents wherein it has been stated that the petitioner was given adequate opportunity to defend himself in the departmental enquiry but despite repeated information he did not attend oral enquiry before the Enquiry Officer/Disciplinary authority and therefore oral enquiry was completed in his absence where-after order of punishment was passed since charges found proved are grave. It is also contended that there is no error in decision making process and therefore writ petition is liable to be dismissed. It is also contended that the petitioner has a statutory alternative remedy by filing claim petition under Section 4 of the U.P. Service (Tribunal) Act, 1976, which has not been availed by him, therefore, this writ petition is liable to be dismissed on the ground of alternative remedy.
6. Learned Counsel for the petitioner vehemently contended that before passing the impugned order a preliminary enquiry was conducted by one Shri Vijay Kumar Dikshit, Circle Officer against whom the petitioner was making complaint and in the said preliminary enquiry he was not afforded any opportunity therefore the entire proceedings are vitiated in law. He further contended that the petitioner was not given any information regarding date of oral enquiry which is said to have been fixed on 7.8.1988 and 10.8.1988 therefore, he could not participate in the oral enquiry. The ex-parte proceeding they conducted by the Enquiry Officer/Disciplinary authority is wholly illegal and liable to be set aside.
7. Coming to the first submission about the opportunity in preliminary enquiry, it is a settled legal position that preliminary enquiry is conducted only to find out prima facie case in respect to acts and omissions complained against the Government servant, and there is no requirement of affording any opportunity of hearing to the concerned public servant at that stage.
8. As evident from the words "preliminary enquiry/it means a kind of investigation made by the concerned authority to collect material for forming a tentative opinion as to whether an employees, against whom some complaint of misconduct has been received, has any substance or not In other words, the object is to form an opinion whether a full-fledged enquiry should be initiated against the delinquent officer. The purpose of the preliminary enquiry is to verify the correctness or otherwise of the allegations reaching to the delinquency on the part of the Government servant. In this view of the matter, it is evident that a preliminary enquiry and a formal disciplinary enquiry is mutually exclusive and cannot go together. If a preliminary enquiry against a delinquent employee fails to prima facie substantiate the allegations the regular disciplinary enquiry would not be necessary. The evidence from the material collected during the course of preliminary enquiry is generally without giving an opportunity to the concerned employee and on the basis thereof the delinquent employee as such cannot be punished, unless it is made the basis to launch disciplinary enquiry wherein the delinquent employee is afforded an opportunity to rebut the aforesaid evidence. Therefore, the only purpose of preliminary enquiry is to provide the authority concerned a platform to make up his mind whether it is necessary in the circumstances of the case to initiate formal disciplinary enquiry against a delinquent employee and if the charges are so serious that continuance of such delinquent employee in office may prejudice the enquiry or otherwise, the disciplinary authority find it necessary, he may place the Government servant under suspension. Therefore, a preliminary enquiry is also sometimes termed as a fact-finding enquiry in contradiction to the regular disciplinary enquiry. The nature of the preliminary enquiry is, therefore, as informal probe or fact finding in nature preceding the initiation of a formal disciplinary enquiry. Normally when a complaint is received against a delinquent enquiry, the disciplinary authority try to find out prima facie correctness of those allegations and, therefore, direct for a fact finding enquiry where-after if the allegations are found to be prima facie correct a decision for regular enquiry is taken and at this stage the delinquent employee may be placed under suspension if so decided by the disciplinary authority. However, this by itself would not mean that without holding preliminary enquiry a delinquent employee cannot be placed under suspension. If disciplinary authority on the basis of the complaint as well as the material available before it is satisfied that a prima facie charge constituting misconduct has been made out against the Government servant and the charges are so serious that his continuance in the office may prejudice the public interest or otherwise would not be in the interest of the administration, the disciplinary authority can initiate formal departmental enquiry and place such Government servant under suspension without holding any preliminary enquiry at all. This view finds support from an earlier judgment of this Court in Ram Prakash Tripathi v. Sub-divisional Magistrate in Writ Petition No. 31444 of 2002 decided on 7th June 2006. Moreover, the factum of preliminary enquiry, in my opinion, has no application in the case in hand for the reason that the preliminary enquiry and its report, if any, is not at all a document relied by the disciplinary authority in the proceedings conducted against the petitioner. A perusal of the charge sheet dated 15.7.1988 (Annexure - 2 to the writ petition) shows that the same is not based on any alleged preliminary enquiry conducted by Shri Vijay Kumar Dikshit and neither the preliminary enquiry report has been referred nor has been relied upon in support of the charges. On the contrary, the charges contained in the charge sheet relates to the petitioner's conduct shown in public function attended by his Senior Officers like I.G., D.I.G., etc., wherein the petitioner showed gross indiscipline by creating a scene in the public function. Neither the charge sheet nor punishment order nor any other material on record show that the alleged preliminary enquiry either has been relied by the authorities to prove charge against the petitioner or the petitioner in any manner is otherwise prejudiced on account of the alleged report. In fact, there is nothing on record to show that any such preliminary enquiry was conducted in pursuance whereto the disciplinary proceeding was initiated against the petitioner. Therefore, the first submission that the petitioner was not afforded any opportunity in the preliminary enquiry and therefore regular proceedings are vitiated in law has no force and is accordingly rejected.
9. Coming to the next submission that the petitioner was not informed about the date of oral enquiry the Court found that there is no pleading of this fact. There is no averment in the writ petition that the petitioner was never informed of oral hearing and therefore he could not participate. The question as to whether the petitioner was informed or not about the date of oral enquiry is a factual aspect and unless pleaded in the writ petition, the learned Counsel cannot be permitted to make submission in respect thereto. In the absence of any pleading, the respondents also have no occasion to reply on this aspect.
10. Though there is no pleading in the writ petition but even then from the documents annexed with the writ petition, I have permitted learned Counsel for the petitioner to show and support his contention that he was not informed of the date fixed by the enquiry/disciplinary authority for oral hearing.
11. The learned Counsel for the petitioner could not place any thing before the Court to show that the petitioner was not informed about the date of oral enquiry. On the contrary, the record shows that the date of oral enquiry was repeatedly informed to the petitioner and it was duly acknowledged by him also but he abstained from participation.
12. The order passed by the Disciplinary Authority shows the documents sought by the petitioner were made available to him on 1.8.1988. Thereafter 7.8.1988 was fixed as first date for oral hearing. The date of oral enquiry was communicated to the petitioner vide letter dated 30.7.1988 which was received by the petitioner and signed on 30.7.1988 but he chose not to present himself on the said date on which a number of witnesses were examined and their statements were recorded. Thereafter again the next date of oral hearing was fixed on 10.8.1988 and information again was served upon the petitioner by Special Messenger which was acknowledged by him on 9.8.1988 and still he did not present himself on 10.8.1988. Lastly, oral hearing took place on 26.8.1988 and information of the said date was communicated to the petitioner by Special Messenger on 19.8.1988 but on the said date also he decided not to participate at all. After completion of the departmental witnesses and closure of their statement a letter dated 31.8.1988 was served upon the petitioner informing that departmental witnesses have already deposed their statement and now petitioner may present himself within eight days and produce his defence. He was categorically informed that in case he failed to appear in the enquiry proceedings, the matter shall be concluded and proceeded ex-parte. The aforesaid letter dated 31.8.1988 was acknowledged by the petitioner on 3.9.1988 but he decided not to participate in the proceedings and thereafter the disciplinary authority proceeded to consider the matter and passed final order.
13. In these circumstances, the submission of the petitioner that he was not offered any opportunity of hearing to participate in the oral proceedings is not only incorrect but contrary to material on record and there is no contradiction on the part of the petitioner either in the pleadings or by placing any relevant material on record or even otherwise. No doubt, a major penalty like dismissal should not be inflicted upon a Government servant without offering him adequate opportunity of defence. This is a statutory right as well as constitutional right under Article 311(2) of the Constitution of India. However, if a Government servant despite repeated information and notices failed to participate in the enquiry proceedings and abstain, he cannot subsequently come and complain denial of such opportunity. The conduct of the petitioner firstly by abstaining himself from participating in oral enquiry and subsequently to argue that oral opportunity was denied to him is highly condemnable and cannot be appreciated.
14. Learned Counsel for the petitioner further contended that before passing the impugned order he was not offered opportunity by making representation against inquiry report. Submission is misconceived inasmuch as the requirement of supply of enquiry report before passing punishment order is applicable only in such cases where the enquiry has been conducted by an authority other than punishing authority but where the punishing authority himself has conducted enquiry, there is no occasion for him to furnish any copy of the enquiry report inasmuch enquiry report and final order is one and the same and there is no occasion to apply the aforesaid principle. A Constitution Bench of the Apex Court in case of Managing Director E.C.I.L., Hyderabad v. B. Karunakaran held that a Government servant is entitled of opportunity of submitting representation on the enquiry report before passing punishment order where the enquiry has been conducted by a person or authority other than the punishment authority. The Apex Court held:
Hence, it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the enquiry officers report before the disciplinary authority arrives at its conclusion with regard to the guilt or innocence of the employee with regard to the charges levelled against him....
15. In this view of the matter the contention of the petitioner that he was not furnished copy of the enquiry report has no substance, therefore rejected.
16. Lastly, learned Counsel for the petitioner contended that assuming that the allegations made against him are correct, it cannot be said that the alleged misconduct is so grave and serious as to warrant a major penalty of removal from service. He therefore, contended that punishment awarded to the petitioner is excessive, harsh and grossly disproportionate, therefore arbitrary and violative of Article 14 of the Constitution of India.
17. I am unable to agree with the aforesaid submission. In a matter where the charges are found proved, the scope of judicial review on the quantum of punishment is very narrow. In Om Kumar and ors v. Union of India 2001 (2) SCC 386 the Apex Court while considering the question as to when interference on quantum of punishment would be justified, observed that in determining the quantum, role of administrative authority is primary and that of Court is secondary, confined to see if discretion exercised by the administrative authority caused excessive infringement of the rights. The Court may interfere only if it finds that the punishment awarded is shockingly disproportionate. In V. Ramana v. APSRTC and Ors. . In para 11 of the judgment observed as under:
The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case, the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision for that of the Administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
18. The aforesaid view has been followed by the Apex Court in State of Rajasthan v. Mohd. Ayub Naz .
19. In Chairman-cum-Managing Director T.N.C.S. Corporation Ltd. and Ors. v. K. Meerabai the Apex Court reiterated that the scope os judicial review in the matter of quantum of punishment is very limited. It further observed that sympathy or generosity as a factor is impermissible. Once an employee has lost confidence of the employer and that being a primary factor, the amount of money misappropriated was irrelevant to judge as to whether punishment of dismissal was justified or not. In Maharashtra State Seeds Corporation Ltd. v. Haridas and Anr. it was reiterated that in the matter of quantum of punishment the Court will interfere only if the punishment is shockingly disproportionate to the charge found proved. The Apex Court has followed the aforesaid view in its recent judgments namely; Govt. of A.P. and Ors. v. Mohd. Nasrullah Khan ; L.K. Verma v. H.M.T. Ltd., and Anr. ; Karnataka Bank Ltd. v. AL Mohan Rao 2006 (1) SCC 63; Hombe Gowda Educational Trust and Anr. v. State of Karnataka and Ors. ; Damoh Panna Sagar Rural Regional Bank and Anr. v. Munna Lal Jain ; State of U.P. v. Shiv Shanker Lal Srivastava and Ors. ; A. Sudhakar v. Post Master General, Hyderabad and Ors. ; P.D. Agarwal v. State Bank of India and Ors. ; Chairman & M.D. Bharat Petroleum Corporation Ltd and Ors. v. T.A. Raju ; V.C., Banaras Hindu University and Ors. v. Shrikant Civil Appeal No. 4147of 2003 with 248 of 2004 decided on 12.5.2006; North-Eastern Karnataka RT Corporation v. Ashappa (2006) 5 SCC137; Divisional Controller N.E.K.R.T.C. v. H. Amaresh Civil Appeal No. 7993 of 2004, decided on July 17, 2006 ; Amrit Vanaspati Co. Ltd.r v. Khem Chand and Anr. Civil Appeal No. 6677 of 2004 decided on 12th July 2006.
20. Applying the aforesaid principle in the case in hand, it is found that the petitioner was a member of a disciplined force. He was posted as Head Constable at Hamirpur. Being a member of disciplined force, it was his duty to maintain law and order and prevent any person causing any distress in law and order. On the contrary, the petitioner himself resorted to a conduct amounted to serious indiscipline causing embarrassment to senior officials of the Department in the eyes of the public as well as in the eyes of high dignitaries of the Department who visited Hamirpur Kotwali on the said date. Occurrence of the incident and the conduct shown by the petitioner is not disputed but what he has tried to explain is that alleged indiscipline caused by him was for certain reasons compelling him to resort to such conduct. In a disciplined force, such conduct cannot be said to be of a lesser degree of misconduct. In case, if such conduct is allowed to go unpunished suitably, it may spread and encourage others to show such indiscipline. Once charge is found proved, and the employee himself admits his guilt, it cannot be said that the decision of the competent authority in imposing punishment of removal is so disproportionate to the gravity of the charges as to justify any interference under Article 226 of the Constitution of India. In my view the punishment is neither excessive nor unjust.
21. In the result, there is no force in the writ petition, it lacks merits, as such no interference is called for under Article 226 of the Constitution, It is accordingly dismissed with no order as to costs.