1. I have heard learned counsel for the petitioner and the standing counsel for the respondents and have perused the record. As pleadings have been exchanged, with the consent of the counsel for the parties, the petition is being finally disposed of at the admission stage.
2. By this writ petition, the petitioner, who was a Constable in the Provincial Armed Constabulary, has challenged the dismissal order dated 21.07.2000, as also the appellate order of affirmance dated 28.02.2001, passed by the Commandant, 20th Battalion, P.A.C., Azamgarh and the Deputy Inspector General, P.A.C., Varanasi Range, Varanasi respectively.
3. The facts, in brief, are that while the petitioner was posted as a Constable at 20th Battalion, P.A.C., Azamgarh in the year 2000, he was served with a charge-sheet dated 16.3.2000 wherein it was alleged that while the petitioner was posted as constable at 20th battalion PAC, Azamgarh, in the night of 8.1.2000, he was assigned guard-duty along with chief guard Bir Bahadur Singh for the first night shift starting from 20.00 hrs to 24.00 hrs. During the course of duty, it was alleged, at about 20.30 hrs, the petitioner refused to perform his duty despite request of the guard commander, and left the place of duty, after leaving the SLR rifle and 50 rounds of bullets, without the permission of the competent authority, and thereafter remained unauthorisedly absent for 11 days, 14 hours and 10 minutes up to 19.1.2000. As a result, the petitioner was charged for violation of the orders, and for gross dereliction of duties. For ready reference, the charge levelled against the petitioner as quoted in the enquiry report, which has been enclosed with the writ petition as Annexure No.1, is being reproduced below:-
" fd vki tc o"kZ 2000 esa vkj{kh ds in ij ,p-,y 20oha okfguh ih-,l-lh- vktex<+ esa fu;qDr Fks vkSj okfguh fM;wVh esa dk;Zjr Fks rks fnukad 8-1-2000 dks vkidh fM;wVh okfguh ifjlj esa ,fj;k izFke ds izFke flIV esa le; 20-00 ls 2400 cts rd eq[; vkj{kh chj cgknqj flag eq[;ky; 'kk[kk ds lkFk yxh Fkh rks le; 20-30 cts okfguh jk'ku 'kki ds ikl fM;wVh ds nkSjku xknZ dek.Mj ds le>kus ds ckn Hkh vkius fM;wVh djus ls bUdkj fd;k vkSj ,l0,y0vkj0 0,oa0 oky j[kdj fM;wVh NksM+dj fcuk fdlh vuqefr] vuqKk] vodk'k ds okfguh Qseyh xsV ls le; 21-30 cts okfguh ls ckgj pys x;s rFkk Lor% euekus 4. On the aforesaid allegations, enquiry was held wherein nine witnesses were examined to prove the allegations leveled against the petitioner. The petitioner also examined two witnesses, namely, Mohan Kumar Mishra and Ajay Kumar Singh so as to prove that in the night of 08.01.2000 he had received a telephone call from his native village at district Gautambudh Nagar, as a result of which, he had to rush back to his native place for sorting out some urgent matters. The enquiry officer after considering the evidence led against the petitioner, as well as the defense evidence, found the allegations against the petitioner proved, and with respect to his defense came to the conclusion that although it was proved that some telephone call had come from the residence of the petitioner but it could not be proved that the matter was so urgent that the petitioner could not have waited for obtaining proper leave so as to go to his residence. In the enquiry it was also proved that the petitioner had left the SLR Rifle and 50 Rounds of Bullets with the other Guard, who was on duty with the petitioner, without depositing at the right place.
5. After concluding the enquiry, the enquiry officer submitted his report on 17.06.2000, thereby finding the petitioner guilty of the charges. On the said report, a show cause notice along with the enquiry report was issued to the petitioner, on 28.06.2000, thereby inviting explanation from him as to why he should not be dismissed from service on the proven charges.
6. In absence of any reply from the petitioner to the show cause notice, the Commandant, 20th Battalion, P.A.C., Azamgarh by his order dated 21.7.2000 dismissed the petitioner from service. Aggrieved by the order of dismissal, the petitioner preferred an appeal before the Deputy Inspector General, P.A.C., Varanasi Range, Varanasi.
7. In his appeal, the petitioner stated that on the fateful night a phone call had come from his residence which necessitated immediate journey of the petitioner to his native village, therefore, the petitioner after informing the Guard Commander, who directed the petitioner to deposit the rifle and the bullets with the Constable next in duty namely, Mohan Kumar Mishra, left the station and since it was late night, he could not get in touch with any officer for seeking leave. He further stated that there was no willful absenting from duty, therefore, his case may be viewed sympathetically, and that he may be pardoned for the mistake.
8. The appellate authority affirmed the order of dismissal with observation that the police force is a disciplined force and since the petitioner left the station during the course of his duty, without informing or seeking permission from the competent authority, and also by leaving his weapon and the bullets in the custody of a fellow constable without making any attempt to deposit the same with a competent authority, there was no occasion to view the misconduct of the petitioner in a sympathetic manner.
9. Aggrieved by the order of rejection of the appeal, the petitioner has filed this petition. The stamp reporter reported that the petition was delayed by 1074 days. The petitioner sought to explain the delay by stating that he was in a penurious condition and could not earlier manage money to meet the expenses required for filing a writ petition.
10. Initially, on 21.05.2004, this petition was dismissed on the ground that no one had appeared to press the petition, as also for lack of cogent explanation with regard to the delay of 1074 days reported by the stamp reporter. However, this order was recalled on 28.04.2006 and the petition was restored. Later, it appears, that the petitioner filed a supplementary affidavit, on 31.07.2006, thereby enclosing two documents, namely, a memorial dated 09.02.2004 addressed to the Governor against the order of the appellate authority and a letter dated 01.01.2005 disclosing that the memorial was rejected as not maintainable. In the aforesaid background, I am of the view that the petitioner was pursuing his cause, therefore, cannot be held to be guilty of laches.
11. Coming to the merit of the case, the counsel for the petitioner has not seriously challenged the findings recorded by the enquiry officer or the manner in which the enquiry was held. The only ground pressed by the counsel for the petitioner was that the order of dismissal was shockingly disproportionate to the charges leveled against the petitioner. He contended that in the enquiry it was proved that there was a phone call from his native village, which demanded immediate presence of the petitioner at his native village, therefore, it could not be said that the absence of the petitioner was willful so as to warrant a major penalty of dismissal. The counsel for the petitioner has further submitted that the absence was of about 12 days only and that immediately after returning from home the petitioner had submitted a joining application thereby informing the authorities that there was a phone call informing him of some quarrel relating to his house and land, therefore, he had to rush back to his home. The petitioner's counsel has placed reliance on a judgment of the Apex Court in the case of KRUSHNAKANT B. PARMAR V. UNION OF INDIA AND ANOTHER reported in (2012) 3 SCC 178. In addition to the aforesaid decision, the petitioner has also relied on the judgment of this Court in the case of CONSTABLE NO. 850774845, LALJI PANDEY V. DIRECTOR GENERAL, C.R.P.F., NEW DELHI & Ors. reported in [2003 (2) LBESR 947 (All)] as well as the decision of the Apex Court in the case of UNION OF INDIA AND Ors v. GIRIRAJ SHARMA reported in AIR 1994 SC 215.
12. In the case of Krushnakant B. Parmar v. Union of India (supra), the Apex Court, in paragraph Nos. 17, 18 and 19, observed as follows:-
"17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.
19. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty."
13. Relying upon the aforesaid observations of the Apex Court, the counsel for the petitioner submitted that in the instant case also there were compelling circumstances justifying the immediate movement of the petitioner from the place of his duty to his residence and, therefore, it could not be said that the absence of the petitioner was willful. The counsel for the petitioner further submitted that the charge against the petitioner of leaving the SLR Rifle with 50 rounds of Bullets cannot be said to be totally established inasmuch as admittedly the petitioner had left the Rifle and the Bullets in the custody of a fellow Constable and it is not that the Rifle and the Bullets were left abandoned.
14. On the basis of the above submissions, the counsel for the petitioner stated that the punishment of dismissal was shockingly disproportionate and the ends of justice would be served if the petitioner is awarded some minor punishment.
15. Per contra, the Standing Counsel appearing for the respondents submitted that the police force, and in particular the Armed Police Force, is a disciplined force where refusal to perform duty would be a serious misconduct. He submitted that the petitioner was not only charged with absence from duty, but was also charged with refusal to perform duty, which has been proved in the enquiry report. If the charge had been only for remaining absent from duty, then the punishment of dismissal could have been challenged on ground of being disproportionate. However, since the charge in the present case was not only of absence from duty but also of refusal to perform duty, therefore, the punishment of dismissal cannot be said to be disproportionate.
16. Having considered the submissions of the parties and having gone through the record, I find that the charge proved against the petitioner is not simply that of abstaining or absenting from duty, but is also that of refusal to perform duty, which was assigned to the petitioner in the night of 8.1.2000. It has been proved that the petitioner while on duty, despite request from the guard commander, refused to continue with his duty and left the place after leaving his weapon and the bullets in the presence of his fellow constable on duty. Once the enquiry officer upheld the charge of refusal to perform duty coupled with absence from duty, that too by a member of the Police Armed Constabulary, which is a disciplined force, the punishment of dismissal from service cannot be said to grossly disproportionate. The judgment of the Apex Court in the case of Krushnakant B. Parmar v. Union of India (supra) has to be considered in the light of the facts of that case, as would be evident from paragraph Nos. 12, 13 and 14 of the said judgment, which are being reproduced below:-
"12. The records suggest that on 11th August, 1995, the appellant requested the respondents to transfer him from Palanpur to any nearest place at Ahmedabad or Nadiad or Anand which was accepted by respondents and an order of transfer was issued by the respondents on 21-8-1995 transferring the appellant to the office of DCIO, Nadiad with immediate effect. On 25-8-1995, the Joint Assistant Director, SIB ordered to release the appellant from Palanpur to join duty at Nadiad with effect from 31-8-1995. In view of such order the appellant was relieved and joined at Nadiad. However, the order of transfer was cancelled by the respondents on 4-9-1995 and he was transferred at a distance place which was challenged by him before the Central Administrative Tribunal.
13. After cancellation of the order of transfer the appellant sent a complaint on 18-9-1995 before the authorities that the DCIO, Palanpur, Mr. P. Venkateswarlu was not allowing him to join duty. The order of transfer was challenged by him before the Central Administrative Tribunal, Ahmedabad alleging bias against Mr. Venkateswarlu, DCIO, Palanpur, in-charge of the office which was accepted by the Central Administrative Tribunal and the order of transfer was set aside. Thereafter appellant joined duty on 11-12-1995 and proceeded on leave for 11 days due to illness of his father.
14. The Inquiry Officer noticed the aforesaid facts and held the appellant was unauthorisedly absent between 3-10-1995 and 7-11-1995; 9-11-1995 and 10-12-1995; 10-12-1995 and 2-8-1995. However, while coming to such contention, the authority failed to decide whether such absence amounted to misconduct. The evidence led by the appellant in support of his claim that he was prevented to sign the attendance register and to perform duty though noticed the Inquiry Officer on presumption and surmises, held the charge proved."
17. So far as the judgments in the cases of CONSTABLE NO. 850774845, LALJI PANDEY V. DIRECTOR GENERAL, C.R.P.F., NEW DELHI & Ors. (supra) and UNION OF INDIA AND Ors v. GIRIRAJ SHARMA(supra) are concerned, the facts were different. There the incumbent had gone on a sanctioned leave and had remained unauthorisedly absent by overstaying the period of leave. Whereas in the instant case the petitioner had not only refused to perform night duty for which he was provided with a Rifle and 50 rounds of bullets, but, in spite of request by the Guard Commander, left his Rifle with 50 rounds of bullets and proceeded to leave station without obtaining permission or leave from the competent authority. Such being the fact, the conduct of the petitioner reflected gross indiscipline and in a uniformed service, such as in the case of the petitioner, it could justify imposition of a major punishment including that of dismissal.
18. The Apex Court in the case of Mithilesh Singh v. Union of India and Ors reported in (2003) 3 SCC 309, dealt with a similar controversy, as is in the present case, which would be evident from paragraph No.3 of the judgment, which reads as follows:-
"The appellant was appointed as Constable in the Railway Protection Special Force on 16.4.1978. Disciplinary proceedings were initiated against him by issuing notice under Section 9(1) of the Railway Protection Force Act 1957 (in short 'the Act') read with Rule 44 of the Railway Protection Force Rules, 1959 (in short 'the Rules'). Gravamen of charge against him was that he had left duties as well as the Tarantaran Station without permission. He was detailed with others for Quarter Guard cum Station Static Guard duty on 22.5.1987. At about 11:25 hrs. he asked the Guard Commander to keep his arms and ammunition telling that he was proceeding home. The Guard Commander asked him not to go without permission. But disobeying the orders, he left his duty as well as the Station Tarantaran without any permission. This was considered to be an act of indiscipline and carelessness in duty. His defence was that he was required to attend the wedding of his brother-in- law and, therefore, he had to leave the Station in any case. It was further stated by him that he asked the Inspector in-charge that Adjutant had assured him about grant of leave, but the Inspector in-charge refused to grant leave. Faced with this situation he had to leave with a view to keep his family commitments. It was also stated by him that he had handed over his arms and ammunition for safe custody. He returned after 25 days for which he had asked for leave. The authorities on completion of the disciplinary proceedings found that the charge was proved and penalty from removal from service was awarded."
The Apex Court while considering the quantum of punishment in the said case, in paragraph Nos. 9 and 10 of the judgment, observed as under:-
"9. The only other plea is regarding punishment awarded. As has been observed in a series of cases, the scope of interference with punishment awarded by a disciplinary authority is very limited and unless the punishment appears to be shockingly disproportionate, the Court cannot interfere with the same. Reference may be made to a few of them. See: B.C. Chaturvedi v. Union of India and Ors., [1995] 6 SCC 749, State of U.P. and Ors. v. Ashok Kumar Singh and Anr., [1996] 1 SCC 302. Union of India and Anr. v. G. Ganayutham, [1997] 7 SCC 463; Union of India V. J.R. Dhiman, [1999] 6 SCC 403 and Om Kumar and Ors. v. Union of India, [2001] 2 SCC 386.
10. We find from the factual position, which is undisputed that the appellant was posted at Tarantaran in Punjab, a terrorist affected area and was, at the relevant time, working in the Railway Protection' Special Force. Any act of indiscipline of such an employee cannot be lightly taken. In Ashok Kumar Singh's case supra, the employee was a police constable and it was held that act of indiscipline by such a person needs to be dealt with sternly. As noted by the Division Bench of the High Court, penalty of removal of service is statutorily prescribed. It is for the employee concerned to show that how penalty was disproportionate to the proved charges. No mitigating circumstance has been placed by the appellant to show, as to how the punishment could be characterized as disproportionate and/or shocking. On the contrary as established in the discipline proceedings, the appellant left the arms and ammunition unguarded and not in any proper custody. This aggravated the aberrations. Therefore, the order of removal from service cannot be faulted. There is no reason to interfere with the orders of the Division Bench of the High Court."
19. From the record of the instant case, I find that the petitioner has not been able to produce sufficient material either before the enquiry officer or even before the appellate authority to justify his refusal to perform duty, as also absenting from duty, by leaving the station for journey to his native village, without even informing or obtaining leave from the competent authority, as also without keeping the weapon and the bullets at the right place. He has not been able to prove that he was under such compelling circumstances that there was no option left for him than to act in the manner in which he did. The only explanation provided by the petitioner for such an act of indiscipline is receipt of a phone call from the native village demanding his presence there. The petitioner, despite full opportunity, has not proved in the enquiry or even before the appellate authority that the phone call was in respect of some death in the family or that the ground was so urgent that without immediately rushing to his native village, he could not have achieved the purpose of his journey, or that somebody was so grievously injured or ill that if he had not reached immediately, things could have gone beyond control or repair. In fact, the enquiry officer in his report has recorded a finding to the effect that although the petitioner has been able to prove that there was a phone call from his native village, but he had failed to prove the urgency for leaving the station immediately, in the manner that he did. In the given circumstances, I do not find any mitigating factor which may suggest that the punishment awarded to the petitioner was so shockingly disproportionate, which could be interfered with in exercise of power under the writ jurisdiction of this court.
20. It would be necessary to note that while judicially reviewing an order of punishment imposed upon a delinquent employee the writ court would not assume the role of an appellate authority. The Apex Court in the case of Charanjit Lamba v. Commanding Officer, Army Southern Command, reported in (2010) 11 SCC 314, in paragraph No.20, observed as follows:-
"What is clear is that while judicially reviewing an order of punishment imposed upon a delinquent employee the writ court would not assume the role of an appellate authority. It would not impose a lesser punishment merely because it considers the same to be more reasonable than what the disciplinary authority has imposed. It is only in cases where the punishment is so disproportionate to the gravity of charge that no reasonable person placed in the position of the disciplinary authority could have imposed such a punishment that a writ court may step in to interfere with same."
21. Considering the facts and circumstances of the case, I am of the view that the punishment of dismissal awarded to the petitioner was one of the possible punishment that could be awarded to him considering the nature of his conduct and the fact that he was a member of a uniformed service, accordingly, it is not permissible for me to interfere with the same in exercise of power of judicial review.
22. For the reasons aforesaid, the petition lacks merit and is hereby dismissed.
23. No order as to costs.
Order Date :- 13.04.2012 Sunil Kr Tiwari