Rajasthan High Court - Jaipur
Hanuman Sahai vs State Of Raj & Ors on 9 December, 2016
Author: Alok Sharma
Bench: Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
S.B CIVIL WRIT PETITION NO.16670/2010
Hanuman Sahai S/o Shri Gordhan, aged about 34 years, R/o Village Raheda Post
kalyanpura Khurd, Tehsil Kotputli, District, Jaipur.
...Petitioner
Versus
1. The State of Rajasthan through its Principal Secretary, Department of Home,
Secretariat, Jaipur.
2. The Inspector General of Police, Range-1, Mini Secretariat, Bani Park, Jaipur.
3. The Superintendent of Police, (H.Q) Jaipur city, Collectorate, Bani Park, Jaipur.
4. Deputy Secretary, Department of Home (Gr.11) Government of Rajasthan,
Secretariat, Jaipur.
...Respondents
Date of Order: December 09, 2016.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Hemant Sharma, for the petitioner.
Mr. P.C. Yadav on behalf of
Dr. A.S. Khangarot, GC for respondents.
BY THE COURT:
A challenge has been made to the orders dated 3-8-2007, 28-2- 2008 and 4-5-2010, whereby service of the petitioner has been terminated from the post of constable following a departmental enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeals) Rules, 1958 (hereinafter `the Rules of 1958').
The facts of the case are that the petitioner a constable was appointed on probation on 28-4-1997. He was confirmed vide order 2 dated 6-5-2000 w.e.f. 4-7-1999. On 7-11-2006 a disciplinary enquiry under Rules 16 of the Rules of 1958 was initiated against the petitioner on the ground of (i) his willful absence for a period of 142 days w.e.f. 15-2- 2006 to 6-7-2006, (ii) for not reporting on duty despite serving of notice, and (iii) remaining absent on 15 occasions.
The petitioner did not file reply to the charge-sheet. Ex parte proceedings were initiated. The Inquiry Officer found all the three charges proved against the petitioner. Thereupon the Disciplinary Authority after the second notice under Article 311(2) of the Constitution of India vide order dated 3-8-2007 terminated the services of the petitioner. The petitioner's appeal thereagainst was dismissed on 28-2- 2008, so also was the review petition on 4-5-2010. Hence this petition.
Considered.
Having heard counsel for the petitioner and having perused the impugned orders dated 3-8-2007, 28-2-2008 and 4-5-2010, I find no illegality in the same. The report of the Inquiry Officer was fact based. The petitioner was found guilty of misconduct alleged on evidence on record which remained uncontroverted, the petitioner remaining ex parte. It was proved that the petitioner was a habitual absentee, who remained absent on 15 occasions and faced four other inquiry proceedings. Even in the appeal the petitioner took contradictory grounds i.e. on the one hand he pleaded sickness due to an accident, on the other he alleged a partition dispute with his family members as reason for unauthorised absence. Repeated unauthorised absence being proved, punishment of removal 3 from service cannot be held to be disproportionate. Reliance placed by the counsel for the petitioner on the judgment in case of Shri Bhagwan Lal Arya Vs. commissioner of Police Delhi [JT 2004(3) SC 384] is of no avail. Punishment in each case relate to its facts. There cannot be uniformity in punishments in different cases with varied facts. The legal test is to ascertain perversity in finding of misconduct and disproportionate ness in punishments. On the facts of the case at hand neither of the two tests are breached. No plausible defence obtained before the Enquiry Officer and Disciplinary Authority for repeated absence by a constable from duty. The finding of fact has been arrived at by the Disciplinary Authority, the Appellate Authority and the Reviewing Authority is not even remotely perverse and warrants no interference in a petition under Article 226 of the Constitution of India. Nor is the penalty of removal disproportionate in the facts of the case. And in the case of Om Prakash vs. State of Punjab [(2011)14 SCC 682] unauthorized absence of even 39 days by a Head Constable of Punjab Police was found sufficient by the Apex Court to upheld his dismissal.
No merit. Dismissed.
(Alok Sharma), J.
arn/ 4 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.