PETITIONER:
STATE OF U.P. & OTHERS
Vs.
RESPONDENT:
ASHOK KUMAR SINGH & ANR.
DATE OF JUDGMENT10/11/1995
BENCH:
VENKATASWAMI K. (J)
BHARUCHA S.P. (J)
CITATION:
1996 AIR 736 1996 SCC (1) 302
1995 SCALE (6)465
ACT
HEADNOTE
JUDGMENT
JUDGMENTK. Venkataswami. J.
Delay condoned.
Leave granted.
Heard counsel on both sides.
This appeal by special leave is directed against the Order of the Allahabad High Court in W.P. No. 9547/90 dated 12.8.1991.
The first respondent was a police constable and he was removed from service pursuant to a duly conducted departmental enquiry by Order dated 6.5.1985. The first respondent challenged the order of removal before the U.P. Public Services Tribunal No.5, Lucknow Bench. The Tribunal by its detailed and considered order dated 29.6.1990 declined to interfere with the order of removal for reasons set out therein. Still aggrieved, the first respondent moved the Allahabad High Court under Article 226 of the Constitution of India by filing W.P. No. 9547 of 1990 challenging the order of removal as confirmed by the U.P. Public Services Tribunal.
Before the learned Judge, the order of removal was challenged mainly on the ground that the first respondent was not given a reasonable opportunity in the departmental enquiry. The learned Judge rejected the above contention by observing that ’the plea of reasonable opportunity is not open to the petitioner’ as the High Court was satisfied that full opportunity was given to the petitioner. Further the High Court concurred with all the findings of the Tribunal rendered on the charges levelled against the first respondent.
Strangely, the High Court interferred with the punishment of removal, while concurring with the findings rendered against the first respondent on the charges levelled against him, by observing as follows :-
"The Presiding Officer of the Tribunal
has passed a very detailed order in
which he enumerated the circumstances
under which the inquiry was conducted.
The enquiry officer found the petitioner
to have absented from duty on several
occasions, totalling 251 days during the
year 1981-82 while posted at police
station Ram Sanehi Ghat, 93 days in 1982
while posted at police station
Safdarjang and from 28.2.84 onwards on
being subsequently posted at police
station Ram Sanehi Ghat. The petitioner
has submitted before the Tribunal as
well as here that during all this long
period he had fallen ill and he sent
regular applications for grant to leave
along with the medical certifications
for grant to such proof was ever filed
by the petitioner before the Tribunal.
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In the present case the only charge
against the petitioner was that he
absented himself from duty for long
periods although it was his case that he
applied for grant of leave. Even if it
is assumed that the petitioner, against
whom there appears to be no charge of
misconduct of grave nature, is proved
his absence from duty would not amount
to such a grave charge for which the
extreme penalty of dismissal may be
imposed. In view of the fact that the
petitioner has offered not to claim
arrears of salary as well as he
assurance (sic) this Court that he would
discharge his duties faithfully and
sincerely this Court is of the view that
extreme penalty imposed against the
petitioner does not commensurate with
the gravity of the charge, hence this
writ petition deserves to succeed on
this point. However, it will be open for
the opposite parties to impose any minor
punishment against the petitioner.
In view of what has been indicated
hereinabove the writ petition succeeds.
The order of dismissal passed against
the petitioner contained in Annexure-3
is quashed. The opposite parties will
re-instate the petitioner on duty.
However, it will be open for the
opposite parties to impose any minor
punishment upon the petitioner
considering the charges. It is made
clear that the petitioner will be
entitled only to extent one fourth of
amount as back wages."
We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having notices the fact that the first respondent has absented himself from duty without level on several occasions, we are unable to appreciate the High Court’s observation that ’his absence from duty would not amount to such a grave charge’. Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that ’the punishment does not commensurate with the gravity of the charge’ especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out.
For all these reasons, we set aside the impugned order of the High Court in W.P.No.9547/90 and restore the order of the u.p. Public Services Tribunal, The appeal is allowed. No order as to costs.