Uttarakhand High Court
Suman Kishor Tamta S/O Late Shri Bachchi ... vs State Of Uttarakhand Through Secretary on 4 May, 2021
Author: Ravindra Maithani
Bench: Ravindra Maithani
Reserved
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 1289 of 2015
Suman Kishor Tamta S/o Late Shri Bachchi Ram
Tamta R/o Village Hanera, Post Office Gangolihaat,
District Pithoragarh ......... Petitioner
Vs.
1. State of Uttarakhand through Secretary
Home, Civil Secretariat Dehradun.
2. Inspector General of Police, Kumaon Range,
I. G. Office, Tallital, Nainital.
3. Divisional Inspector General of Police, Kumaon
Range, DIG Office, Mallital, Nainital.
4. Superintendent of Police, District Almora,
Uttarakhand. .......Respondents
Present:
Mr. Rajeev Sharma, Advocate for the petitioner.
Mr. P.C. Bisht, Standing Counsel for the State/respondents.
JUDGMENT
Per: Hon'ble Ravindra Maithani, J.
The petitioner, challenges the order by, which he was removed from service.
2. It is the case of the petitioner that he was appointed as Constable Police on 30.10.1998. On 17.04.2013, the petitioner was on duty for the Purnagiri Mela. A Sub-Inspector suspected that the petitioner was in intoxicated condition on that date. He was directed to report back to the Kotwali. The petitioner was directed to undergo the medical examination for intoxication. On 18.04.2013, the petitioner was withdrawn from the mela duty and directed to report at Police Line Almora. On 29.04.2013, the petitioner was suspended and following two charges were leveled against him.
(i) Being in intoxicated state after consuming liquor on duty and misbehaving with the tourists/travelers on 17-04-2013.2
(ii) Absent without leave from 18.04.2013 till rejoining on 01-05-2013 without authorized leave.
3. It is the case of the petitioner that after leaving the mela duty on 18.04.2013, he fell ill, therefore, could join department only on 01.05.2013. The petitioner was provided charge sheet on 12.08.2013, which he replied. The departmental inquiry was conducted and the Inquiry Officer by his report dated 05.10.2013 found the petitioner guilty of intoxication, while on duty on 17.04.2014 and also absent without leave from 18.04.2013 to 01.05.2013.
4. Subsequent to it, the petitioner was terminated from service on 18.11.2013. This order was challenged by the petitioner and the departmental appeal, which was also dismissed on 15.03.2014. The petitioner again challenged this order in revision, which was dismissed on 09.10.2014.
5. Aggrieved by his termination from service and the orders by which his appeal and revision were dismissed, the petitioner filed a writ petition before this Court bearing Writ Petition (S/S) No. 267 of 2015 ("the first petition"). In the first petition, the petitioner raised an issue that the punishment was in violation of the Uttarakhand Police Act, 2007(for short, "the Act"). Particularly, reference was made to Section 85 (h) of it, where the maximum punishment for such acts is fine, which may extend to an amount equal to three months' salary, or with imprisonment of either description which may extend to three months or with.
6. The Court disposed of the first petition with a liberty to the petitioner to file fresh appeal stating all the points which were raised in the first petition. It appears that the petitioner again filed the appeal but it was rejected on 23.06.2015. The petitioner has impugned the order terminating his service dated 18.11.2013; the order passed in appeal dated 15.03.2014; the order dated 09.10.2014 passed in the revision and order dated 23.06.2015 passed after disposal of the first petition.
37. State has filed its counter affidavit. The factual position is not much in dispute. According to the respondents, action was not taken against the petitioner under the provisions of the Act, but departmental proceedings were initiated against the petitioner under the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules,1991 (for short, "the Punishment Rules, 1991").
8. Heard learned counsel for the parties and perused the record.
9. Learned counsel for the petitioner would submit that under Section 85 of the Act, the maximum punishment for the acts allegedly committed by the petitioner is a fine or imprisonment upto three months or with both but termination from service is not provided thereunder. It is also argued that after having been directed to report at Almora, the petitioner fell ill and he could resume his duties on 01.05.2013. Therefore, it is argued that punishment imposed is disproportionate.
10. In support of his claim, learned counsel for the petitioner placed reliance upon the principles of law, as laid down in the case of Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and others, (2004) 4 SCC560.
11. In the case of Bhagwan Lal Arya (supra), a Police Constable remained absent from duty on medical grounds with proper medical certificate from Government Doctors. Having considered those facts, the Hon'ble Supreme Court under the facts and circumstances of that case held that "No reasonable disciplinary authority would term absence on medical grounds with proper medical certificates from Government Doctors as grave misconduct..... Non application of mind by quasi judicial authorities can be seen in this case. The very fact that the respondents have asked the appellant for re-medical clearly establishes that they had received the appellant's application with medical certificate. This can never be termed as willful absence 4 without any information to competent authority and can never be termed as grave misconduct".
12. On the other hand, learned State counsel would submit that departmental proceedings were undertaken in accordance with the Rules; the petitioner was found guilty of all the charges; the petitioner, in the past, had bad service records; he was awarded adverse entries in the years 2010 and 2011 for his absence from duty, work and conduct. In the year 2013 also, his work and conduct was bad. In the year 2013, he was punished with reducing to the minimum of pay scale. In the year 2007, he had stolen sound system from Police orchestra team, therefore, he was censured. In the year 2011, on various occasions he remained absent. Therefore, his salary was deducted and on various other occasions he was imposed with minor penalty. Therefore, it is submitted that in view of these facts the punishment may not be termed as disproportionate.
13. The question which requires determination is as to whether in this case provisions of the Act, would be applicable or the provisions of the punishment Rules, 1991 are applicable.
14. The Uttarakhand Police Act was enacted in the year 2007. It repeals the Indian Police Act, 1861 in its application to the State of Uttarakhand by virtue of Section 86 of it. But, Section 86 (2) of it, makes provisions with regard to savings, which is as hereunder:-
"86. Repeal and savings (1)....................
(2) The repeal under sub-section (1) shall not affect the previous operation of the enactments so repealed and anything done or action taken or deemed to have been done or taken earlier (including any appointment or delegation made or notification, order, direction or notice issued). Rules or Regulations made under the provisions of the said Act shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been made under the corresponding provisions of this Act, and shall continue to be in force unless and until superseded by anything done or action taken under the Act."
15. The above sub Section (2) of Section 86 of the Act makes it abundantly clear that any Rules or Regulations made under the provision of India Police Act, 1861 in so far as it is not inconsistent with the 5 provision of the Act, be deemed to have been made under the corresponding provisions of the Act and they shall remain in force.
16. The Punishment Rules, 1991 were made under the provisions of the Indian Police Act, 1861. The Punishment Rules, 1991 were made with a view to regulate the departmental proceedings, punishment and appeals of the Police Officers of the subordinate ranks. Rule 4 of it provides for punishment, which is as hereunder:-
"4. Punishment.- (1) The following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officer, namely-
(a) Major penalties-
(i) Dismissal from service.
(ii) Removal from service.
(iii) Reduction in rank including reduction to a lower-scale or to a lower stage in a time scale.
(b) Minor penalties-
(i) Withholding of promotion.
(ii) Fine not exceeding one month pay.
(iii) Withholding of increment, including stoppage at an efficiency bar.
(iv) Censure.
(2) In addition to the punishments mentioned in sub-rule (1) Head Constables and Constables may also be inflicted with the following punishments-
(i) Confinement to quarters (this term includes confinement to Quarter Guard for a term not exceeding fifteen days extra guard or other duty).
(ii) Punishment Drill not exceeding fifteen days.
(iii) Extra, guard duty not exceeding seven days.
(iv) Deprivation of good conduct pay.
(3) In addition to the punishments mentioned in sub-rules (1) and (2) Constables may also be punished with Fatigue duty, which shall be restricted to the following tasks:
(i) Tent pitching:
(ii) Drain digging:
(iii) Cutting grass, cleaning jungle and picking stones from parade grounds:
(iv) Repairing huts and butts and similar work in the lines:
(v) Cleaning Arms."
17. Rule 5 provides for procedure for award of punishment, Rule 6 about place of inquiry, Rule 7 powers of punishment, Rule 8 dismissal and removal and there are other Rules which regulate the procedure for conducting departmental proceedings.6
18. Section 85 of the Act, provides for penalties for neglect of the duty by the police officer etc. It is as hereunder:-
"85. Penalties for neglect of duty by police officer etc. Every Police Officer-
(a) who is guilty of violation of any duty or of willful breach or of neglect of any rule or regulation of lawful order by a competent authority; or
(b) who has withdrawn from the duties of his office without permission or without having given prior notice; or
(c) who, being absent on leave, has failed, without reasonable cause, to report himself/herself to duty on the expiration of such leave; or
(d) who has engaged himself/herself, without authority, in any employment other than his police duty; or
(e) who is found guilty of cowardice; or
(f) who has been found inflicting any unwarranted personal violence to any person in his custody; or
(g) who, without lawful reasons, fails to register a First Information Report, as required by section 154 of the Code of Criminal Procedure, 1973; or
(h) who is found in a state of intoxication, while on duty; or
(i) who acts in any other manner, unbecoming of a Police Officer;
shall be punished with a fine, which may extend to an amount equal to three month salary, or with imprisonment of either description which may extend to three months, or with both.
(j) (i) Any proceeding under this section shall be instituted by the Appointing Authority or District Superintendent of Police.
(ii) The finding of the legal proceedings, instituted under this section, shall be entered in the personal service records of the concerned Police personnel."
19. Bare perusal of Section 85 of the Act, makes it categorically clear that it provides for punishment of an imprisonment. When it comes to imprisonment, definitely it is jurisdiction of a criminal court of competent jurisdiction. Sub Section (j) of Section 85 of the Act, makes it clear that proceedings under that Section may be instituted by the Appointing Authority or District Superintendent of Police. It also provides that the findings of the legal proceedings, instituted under section 85, shall be entered in the personal service records of the concerned Police personnel. It further makes it abundantly clear that the proceedings under Section 85 of the Act, are to be taken before the criminal court of competent jurisdiction.
20. In the instant case, the department did not proceed under Section 85 of the Act against the petitioner. Does it make the departmental proceeding bad?
721. As stated hereinbefore, Regulations made under Indian Police Act, 1861 shall remain in force insofar as they are not inconsistent with the provision of the Act.
22. The Punishment Rules 1991 were made under India Police Act, 1861. They regulate the departmental proceedings. Section 85 of the Act is not departmental proceeding. It is a criminal prosecution for the acts of neglect etc. Whereas, the Punishment Rules 1991 regulates the departmental proceedings and provides for major and minor punishments. Both, the provision of the Act and the Punishment Rules, 1991 act in different sphere. They are not one and the same.
23. If departmental proceedings are initiated under the Punishment Rules, 1991, it cannot be said that the punishment provided thereunder may not be imposed in view of the provisions of Section 85 of the Act. As stated, the provisions of Section 85 of the Act are distinct. They make the act of the police officer criminal because there is a provision for imprisonment as well. Therefore, it cannot be said that since under Section 85 of the Act, the punishment or fine or imprisonment is given, in the departmental proceedings under the Punishment Rules, 1991, the punishment of removal from service cannot be made. The argument made on this behalf has no substance. The department could very well initiate departmental proceedings under the Punishment Rules, 1991 and that is what has been done in the instant case.
24. No argument has been raised with regard to the procedure. It is argued that the punishment is excessive and disproportionate. The proportionality of the punishment can definitely be seen in judicial review, as in the instant case.
25. The principles of law, as laid down in the case of Shri Bhagwan Lal Arya (supra) are not as such applicable in the instant case, because in that case the police officer was absent on medical ground having filed medical certificate from the Government Doctor. It is not in 8 the instant case. In the petition, the petitioner has stated that on 17.04.2013, he was directed to report at Police line Almora, but he fell sick. Therefore, he could rejoin his duties in Almora on 01.05.2013. But, this averment in the writ petition and this argument is apparently false on the basis of the documents, which has been filed by the petitioner himself. The petitioner has stated that when charge sheet was served upon him, he submitted a reply to it, which is Annexure 6 dated 12.08.2013 and in para 2 of it, the petitioner has stated that on 19.04.2013, he started from mela duty and reached Almora on 20.04.2013, but he was not allowed to join at Almora. The petitioner in his response to a charge sheet has not stated that he was sick, therefore, he resumed the duties on 01.05.2013. The ground of sickness as taken in the instant petition was never taken by the petition in response to the charge sheet which was given to him. A false explanation was tried to be advanced on behalf of the petitioner. An inquiry was conducted in the matter and the petitioner was found guilty of having intoxicated in the mela duty and he was also found guilty of absence from the duty without any authority.
26. In the case of Govt. of T.N. and others Vs. S. Vel Raj, (1997) 2 SCC708, a Police Constable was on duty, but he was drunk and was in "mufti". An inquiry was conducted it was proved that such police officer was in a drunken condition and was in "mufti" at that relevant time. He was compulsorily retired from the service. The Hon'ble Supreme Court observed "the police force has to be a disciplined force and the member of the police force has to behave in a disciplined manner particularly when he was on duty. The respondent even though he was sent for official work and was on duty returned to the police station in "mufti" and in a drunken condition after consuming "arrack". He had returned to the police station to report to his superior officer as to what happened to the work which was entrusted to him. Under these circumstances, his behavior has to be regarded as an act of gross misconduct. It is difficult to appreciate how the Tribunal could persuade itself to take a contrary view. In view of the facts and circumstances of this case it is not possible to 9 say that the punishment which was imposed upon him was highly excessive. The appellate authority after considering his previous record and after giving him an opportunity to show cause against the proposed enhancement had passed the order of punishment. Though the Tribunal has held that the enquiry was not conducted by the appellate authority as required by the rules it has not been point out which requirement of the rule had not been complied with. The Tribunal was, therefore, wrong on this count also. In the result, this appeal is allowed and the order passed by the Tribunal is quashed and set aside. In view of the facts and circumstances of the case, however, there shall be no order as to costs."
27. In the case of State of Karnataka and others Vs. H. Nagaraj, (1998) 9 SCC 671, the Hon'ble Supreme Court referred to the judgment in the case of Union of India Vs. G. Ganayutham, (1997) 7 SCC463, in which, it was held that "the principle of proportionality can be invoked regarding punishment only in a case where the punishment was totally irrational in the sense that it was in outrageous defiance of logic or moral standard."
28. Generally, in such cases interference is not to be made, unless undoubtedly a punishment is totally irrational; outrageous defiance of logic or moral standards. The petitioner was a Constable Police. He was deputed in mela duty. There he was found in intoxicated state. He was required to report back to Police line Almora on 17.04.2013, but he joined there on 01.05.2013, without any reason. The ground of sickness, which the petitioner has tried to take in the instant petition is false because this ground was never taken by the petitioner in reply to the charge sheet which is annexure 6 to the writ petition. Instead, in response to the charge sheet he has stated that on 20.04.2013 he had reached Almora, but was not allowed to join there.
29. During the course of arguments, on behalf of the State it has also been stated that in the past also on various occasions the petitioner was warned and departmentally punished. Duty of police is definitely a 10 disciplined job. The kind of acts as found to have been committed by the petitioner, definitely constitute gross misconduct for a police Constable.
30. Having considered all these facts, this Court is of the view that the punishment as imposed upon the petitioner is not disproportionate. There is no merit in this writ petition and it deserves to be dismissed.
31. The writ petition is dismissed.
(Ravindra Maithani, J.) 04.05.2021 Jitendra