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CASE NO.:

Appeal (civil) 1625 of 2004

PETITIONER:

Shri Bhagwan Lal Arya

RESPONDENT:

Commissioner of Police Delhi & Ors.

DATE OF JUDGMENT: 16/03/2004

BENCH:

R. C. Lahoti & Dr. AR. Lakshmanan

JUDGMENT:

J U D G M E N T

Arising out of SLP (C) No. 14614 of 2002

Dr. AR. Lakshmanan, J.

Leave granted.

The above appeal was filed against the final judgment/order dated 16.3.2002

passed by the High Court of Delhi in C.W.P No.6261 of 1998. The main issue relates to

the alleged unauthorised absence for 2 months and 8 days for which penalty of

removal from service was imposed by the respondents on the appellant.

The appellant was recruited as a Constable in Delhi Police. While undergoing

the prescribed training, the appellant fell down on the parade ground on 07.10.1994.

Thereupon, he was sent to police dispensary as ordered by the Chief Drill Inspector of

the parade. Since his condition did not improve, his relative took him to his home town

in Gwalior. He remained under treatment of Government Doctors there and sent

applications for leave on medical grounds supported with the medical certificates from

competent medical authorities in accordance with the leave rules. The competent

police authority passed an order on 16.1.1995 sanctioning leave without pay for the

period of his illness from 7.10.1994 to 14.12.1994 as no other leave was due to him.

According to the appellant since the competent authority had granted the leave, the

question of issuing any charge sheet subsequently for unauthorised absence for the

same period would not arise. On 15.11.1994, notice of termination from service was

issued stating that his services shall stand terminated with effect from the date of expiry

of a period of one month from the date notice is received by the appellant. The

appellant resumed duty on 15.12.1994 after submitting fitness certificate from

government dispensary, Gwalior, where he had taken treatment. The services of the

appellant were terminated with effect from 31.12.1994 under Rule 5 of clause (1) of the

Temporary Service Rules. On 16.1.1995, the competent authority sanctioned leave

without pay for his illness from 7.10.1994 to 14.12.1994 after the receipt of the

termination order. The appellant made representation for reinstatement. After a gap of

more than 4 months, the Commissioner of Police reinstated him in service forthwith with

the provision that intervening period from 1.1.1995 till he was reinstated will be decided

at the time of finalisation of his disciplinary enquiry. The appellant retained service aft

er

reinstatement order dated 25.5.1995. However, he again fell ill and was on leave for

several days on medical grounds and was granted leave by the respondents. On

24.07.1995, disciplinary enquiry was initiated against the appellant under Delhi Police

(Punishment & Appeal Rules, 1980). The disciplinary enquiry officer served a charge

sheet dated 24.02.1996 on the appellant. The enquiry officer submitted his findings on

22.04.1996. The enquiry officer concluded that acts of the appellant are highly

reprehensible and untenable and, therefore, the charge against him stands fully proved.

On 25.06.1996, the disciplinary authority imposed the penalty of removal from service

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on the appellant. The appellant submitted his appeal on 05.07.1996 which was rejected

by the 2nd respondent herein. The appellant submitted a fresh revision and the mercy

petition which were rejected on 02.06.1997 and 27.06.1998 respectively. The appellant

approached the Central Administrative Tribunal, New Delhi which also dismissed the

O.A. No.1195 of 1998. Thereupon the appellant filed the writ-petition in the High Court

which was also dismissed. Being aggrieved, the appellant preferred this Special Leave

Petition/Appeal.

The learned counsel for the appellant Mr.Harbans Lal Bajaj submitted that the

appellant never committed any misconduct as alleged in the charge sheet and did not

absent himself from duty willingly or deliberately or acts of negligence and, therefore,

the disciplinary authorities were wrong in holding the appellant guilty. He further

submitted that it is a case of absence from duty due to appellant's long illness

supported by application for leave along with medical certificate by competent medical

authority of government department followed by fitness certificate which was

countersigned by the CMO, Gwalior. It is further contended that no reasonable

disciplinary authority would term absence on medical grounds with proper medical

certificate from Government Doctors as grave misconduct in terms of Delhi Police

(Punishment & Appeal Rules, 1980).

It is further submitted that the decision of competent authorities to remove the

appellant from service is against the spirit of Rule 8 and 10 of Delhi Police (Punishment

& Appeal Rules, 1980). It is also contended that the punishment of removal from

service awarded was totally unjust, unfair, inequitable and arbitrary.

Per contra, Mr. Ashok Bhan, learned counsel for the respondents submitted that

the appellant had absented himself for a period of 2 months, 7 days and 17 hours

unauthorisedly and wilfully without any information/permission of the competent

authority and left the station without any permission of the competent authority. The

disciplinary enquiry initiated against him was proper and the punishment awarded is just

and proper. It is contended that since the disciplinary authority, appellant authority,

revisional authority and the Central Administrative Tribunal, New Delhi and the High

Court rejected the representation/appeal, this Court shall not interfere with the orders

passed by the authorities and court.

We have perused the pleadings and the orders passed by all the authorities

including the High Court and the medical certificate and the fitness certificate issued by

the medical officer of the government department of Gwalior, M.P. On the above

pleadings, the following questions of law arise for consideration :-

(a) Whether the punishment of removal from service is grossly

disproportionate to the alleged acts of misconduct can be

awarded to an employee of the police organisation as

government departments/organisations are supposed to be

model employees?

(b) Whether the major penalty of removal from service inflicted on

the appellant is grossly disproportionate to the misconduct

alleged against him and, therefore, is totally unjust, unfair and

inequitable as contended?

(c) Whether the punishment imposed is in breach of the relevant

Rules 8 and 10 of the Delhi Police (Punishment and Appeal

Rules, 1980) which provide that the penalty aforementioned

can be imposed only in cases of grave misconduct and

continued misconduct indicating incorrigibility and complete

unfitness for police servants?

We have perused the relevant orders passed by the disciplinary authorities, the

Central Administrative Tribunal and of the High Court. It is seen from the records that

the domestic enquiry has been conducted properly and the principles of natural justice

has been strictly followed. There is no denial of reasonable opportunity. We, therefore,

hold that the findings are based on evidence and is not liable to be interfered with. We

also hold that disciplinary action initiated against the appellant is in accordance with the

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rules and regulations and not vitiated by any mala fides. However, we find that there is

merit and substance in regard to the next contention i.e. punishment is totally

disproportionate to the proved misconduct of the appellant. It is contended that the

punishment order passed is against the statutory provisions of Rule 8 and 10 of the

Delhi Police (Punishment & Appeal, Rules 1980).

Rule 8 (a) and 10 of the Delhi Police (Punishment & Appeal, Rules 1980) reads

as under:

"Rule 8. Principles for inflicting penalties \026(1)

Dismissal/Removal \026 the punishment of dismissal or removal from

service shall be awarded for the act of grave misconduct rendering him

unfit for police service.

xxxx xxxx xxxx

"Rule 10. Maintenance of discipline \026 The previous record of an

officer, against whom charges have been proved, if shows continued

misconduct indicating incorrigibility and complete unfitness for police

service, the punishment awarded shall ordinarily be dismissal from

service. When complete unfitness for police service is not established,

but unfitness for a particular rank is proved, the punishment shall

normally be reduction in rank."

xxxx xxxx xxxx

In the instant case, the appellant had absented himself for 2 months, 8 days and

17 hours on medical grounds. The above two rules provide that penalty of removal can

be imposed only in cases, if grave misconduct and continued misconduct indicating

incorrigibility and complete unfitness for police service. The absence of the appellant

on medical grounds with application for leave as well as sanction of leave can under no

circumstances, in our opinion, be termed as grave misconduct or continued misconduct

rendering him unfit for police service.

The order dated 16.01.1995 passed by the respondents was produced by the

respondents themselves in their reply to C.W.P. before the High Court of Delhi that they

had sanctioned leave without pay for the period from 7.10.1994 to 15.12.1994, the

period of alleged unauthorised absence. The High Court has failed to appreciate and

evaluate this aspect of the matter. The High Court also did not appreciate that after

issuing sanction for leave for the period in question, the employee's legitimate

expectation would be that no stern action would be taken against him with respect to

the alleged act of misconduct which by no stretch of imagination can be considered act

of gross misconduct or continued misconduct indicating incorrigibility and complete

unfitness for police service. It is not the case of the respondents that the appellant is a

habitual absentee. He had to proceed on leave under compulsion because of his grave

condition of health and, therefore, the punishment of removal from service is excessive

and disproportionate. We are of the view that the punishment of dismissal/removal

from service can be awarded only for the acts of grave nature or as cumulative effect of

continued misconduct proving incorrigibility of complete unfitness for police service.

Merely one incident of absence and that too because of bad health and valid and

justified grounds/reasons cannot become basis for awarding such a punishment. We

are, therefore, of the opinion that the decision of the disciplinary authority inflicting a

penalty of removal from service is ultra vires of Rule 8 (a) and 10 of the Delhi Police

(Punishment & Appeals Rules, 1980) and is liable to be set aside. The appellant also

does not have any other source of income and will not get any other job at this age and

the stigma attached to him on account of the impugned punishment. As a result of not

only he but his entire family totally dependant on him will be forced to starve. These are

the mitigating circumstances which warrant that the punishment/order of the disciplinary

authority is to be set aside.

The disciplinary authority without caring to examine the medical aspect of the

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absence awarded to him the punishment of removal from service since their earlier

order of termination of appellant's service under Temporary Service Rules did not

materialise. No reasonable disciplinary authority would term absence on medical

grounds with proper medical certificates from government Doctors as grave misconduct

in terms of Delhi Police (Punishment & Appeal Rules, 1980). Non-application of mind

by quasi-judicial authorities can be seen in this case. The very fact that respondents

have asked the appellant for re-medical clearly establishes that they had received

applicant's application with medical certificate. This can never be termed as wilful

absence without any information to competent authority and can never be termed as

grave misconduct.

In B.C.Chaturvedi vs. Union of India [ AIR 1996 SC 484 , (\005three Judges

Bench) ] the question posed for consideration was as to whether the High

Court/Tribunal can direct the authorities to reconsider punishment with cogent reasons

in support thereof or reconsider themselves to shorten the litigation. In this case, at

para 18, this Court has observed as under:-

"A review of the above legal position would establish that the

disciplinary authority, and on appeal the appellate authority, being fact-

finding authorities have exclusive power to consider the evidence with

a view to maintain discipline. They are invested with the discretion to

impose appropriate punishment keeping in view the magnitude or

gravity of the misconduct. The High Court/Tribunal, while exercising

the power of judicial review, cannot normally substitute its own

conclusion on penalty and impose some other penalty. If the

punishment imposed by the disciplinary authority or the appellate

authority shocks the conscience of the High Court/Tribunal, it would

appropriately mould the relief, either directing the disciplinary/appellate

authority to reconsider the penalty imposed, or to shorten the litigation,

it may itself, in exceptional and rare cases, impose appropriate

punishment with cogent reasons in support thereof."

Thus, the present one is a case wherein we are satisfied that the punishment of

removal from service imposed on the appellant is not only highly excessive and

disproportionate but is also one which was not permissible to be imposed as per the

Service Rules. Ordinarily we would have set aside the punishment and sent the matter

back to the disciplinary authority for passing the order of punishment afresh in

accordance with law and consistently with the principles laid down in the judgment.

However, that would further lengthen the life of litigation. In view of the time already

lost, we deem it proper to set aside the punishment of removal from service and instead

direct the appellant to be reinstated in service subject to the condition that the period

during which the appellant remained absent from duty and the period calculated upto

the date on which the appellant reports back to duty pursuant to this judgment shall not

be counted as a period spend on duty. The appellant shall not be entitled to any

service benefits for this period. Looking at the nature of partial relief allowed hereby to

the appellant, it is now not necessary to pass any order of punishment in the

departmental proceedings in lieu of the punishment of removal from service which has

been set aside. The appellant must report on duty within a period of six weeks from

today to take benefit of this judgment.

The appeal is allowed in the terms abovesaid. No costs.