Allahabad High Court
Awadesh Pandey vs Union Of India And Others on 30 March, 1998
Equivalent citations: 1998(3)AWC1658, [1998(79)FLR355]
JUDGMENT Aloke Chakrabarti, J.
1. The order dated 17.10.1992 (Annexure-1 to the writ petition) imposing a penalty of dismissal from service and the order dated 18.12.1993 (Annexure-3 to the writ petition) dismissing the appeal of the petitioner were challenged in this writ petition.
2. Learned counsel for the petitioner contended that the charge levelled against the petitioner being of not serious In nature, the extreme punishment of dismissal from service is grossly disproportionate. Reference was made to the charge levelled against the petitioner as contained in the charge-sheet (Annexure-1 to the rejoinder-affidavit). It is contended that from the materials available on record, it is apparent that the petitioner could not respond to the order to 'fall in' on the first call and thereafter the petitioner came to the spot after four or five minutes and also replied to the queries of Company Commander. It is stated that in view of the aforesaid facts, the charge itself was not very serious which could result In dismissal from service.
3. Learned counsel for the respondents contended that the petitioner being a member of disciplined force could not disobey the order of his superior officers and, therefore, in the facts of the case, the offence was serious and the Impugned order of dismissal was Justified.
4. After considering the aforesaid contentions, it appears that the only charge levelled against the petitioner was not complying with the order of superior officer to 'fall in' for checking of arms after V.I.P. duty. From the materials on record, it appears that after he attended the duty, he failed to comply with the direction to 'fall in' for checking of arms/ammunition on the first call although he obeyed the order of the authorities after few minutes. As a reason for this, the petitioner has contended that he was having headache and ill-health after his duty without taking any food and, therefore, he could not respond immediately after the first call. In the present writ proceeding, such facts cannot be considered upon reassessing the evidence as admittedly this is not a proceeding of appeal. Therefore, the justification pleaded by the petitioner for non-compliance on the first call cannot be considered afresh here. But, even according to the evidence of the head constable, the petitioner came to the spot though Initially he did not respond to the direction to "fall In' for inspection of arms/ammunition. Therefore, admittedly, on facts, I find that the petitioner though did not comply with the direction at the first Instance but within few minutes, he came to the spot and he replied to the queries of the Company Commander. In that view of the matter, on admitted facts, it appears that the punishment of dismissal on the aforesaid sole allegation relating to one incident of compliance of the order of superior officer few minutes, is disproportionate. The law in this connection has been decided in various cases including the case of Ranjit Thakur v. Union of India, AIR 1987 SC 2386 ; Ex-Naik Sardar Singh v. Union of India. (1991) 2 SCC 213 ; Ram Bachan Yadav v. Commandant P.A.C., 1997 All CJ 1514 and the case of R. N. Mad v. Union of India and another, (1994) 3 UPLBEC 1597.
5. The other contention of the petitioner as regards no reason in the appellate order, I find that the order of the appellate authority has not been annexed to the writ petition and the petitioner has only annexed a communication of the said appellate order. The said communication indicates that the petitioner's petition of appeal was dismissed by the Director General, Border Security Force. The petitioner has also not made out a case that he ever tried to obtain the aforesaid original order rejecting his petition of appeal. Therefore, the allegation that the appellate order contains no reason is not acceptable.
6. In view of the aforesaid facts and law, this writ petition is allowed. The impugned orders dated 17.10.1992 and 18.12.1993 at Annexures-I and III respectively to the writ petition are hereby quashed. But, it will be open to the respondents to complete the disciplinary proceeding and to award any punishment upon the petitioner lessor than the dismissal or removal from service without holding any further enquiry.