Allahabad High Court
Anjani Kumar vs State Of U.P. And Others on 1 March, 2013
Author: Tarun Agarwala
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 1 Case :- WRIT - A No. - 68242 of 2006 AFR Petitioner :- Anjani Kumar Respondent :- State Of U.P. And Others Petitioner Counsel :- P.C. Mishra Respondent Counsel :- C.S.C. Hon'ble Tarun Agarwala,J.
The petitioner was appointed as a constable in the year 1995 and was posted at Shahjahanpur on 11.3.2002. The petitioner was assigned Guard duty. Instead of doing his job as assigned to him, he left the place of work and went on an unauthorised leave. It is alleged that the petitioner made an attempt to submit a leave application to the Reserve Inspector, Police Lines, Shahjahanpur which was not accepted. The petitioner, in this manner, remained on unauthorised leave for 340 days and submitted his joining alongwith the medical certificates, etc, on 13.2.2003. The petitioner was allowed to join his services and subsequently on 28.6.2003, the petitioner was transferred to district Budaun.
The matter relating to unauthorised leave for 340 days was examined by the authorities and, on 12.2.2004, the Superintendent of Police, Shahjahanpur (hereinafter referred to as the SP) issued a charge sheet. The petitioner submitted his reply justifying his absence. The reply was not found to be satisfactory and accordingly an oral inquiry was ordered. The Enquiry Officer examined the witnesses and the documents and gave full opportunity to the petitioner to cross-examine the witness and defend himself. It transpires that 7.9.2004 was the date fixed for examining the witness of the prosecution on which date, the petitioner neither appeared nor moved an application for adjournment. As a result, the witness of the prosecution was examined and the evidence of the employer was closed. The record reveals that the Enquiry Officer had sent a notice to the petitioner indicating that if the petitioner wished to examine or wanted to produce his witness, he may do so. Since no reply came from the petitioner, the Enquiry Officer closed the enquiry proceedings and submitted his report which was duly examined by the disciplinary authority. The disciplinary authority, therefore, issued a show cause notice to the petitioner to show cause as to why he may not be awarded a punishment. The petitioner again submitted a reply defending himself and contended that the principles of natural justice was not followed by the Enquiry Officer. The competent authority, namely the SP, after examining the matter, passed two orders on 6.5.2005. By one order, the disciplinary authority affirmed the findings of the Enquiry Officer and, considering the gravity of the charge, and the discipline which is required to be maintained in the police force, passed an order of dismissal for the unauthorised absence from duty. By another order of the same date, the authority on the principle of 'No Work, No Pay', declined to grant pay for the period of his unauthorised absence.
Against the order of the dismissal, the petitioner preferred an appeal which was dismissed and thereafter he filed a revision which also met the same fate. The petitioner, being aggrieved by the aforesaid orders, has filed the present writ petition.
Heard the learned counsel for the parties at some length. The learned counsel for the petitioner has raised three grounds of attack, namely, that the petitioner was absent only for 340 days and such absence does not amount to a grave misconduct justifying the order of dismissal. The learned counsel submitted that the dismissal order was too harsh a punishment in the light of the circumstances explained by the petitioner giving reasons for his absence and further contended that no opportunity was given to cross-examine the witness of the employer and that there was violation of the principles of natural justice. This allegation has been spelled out in paragraph-17 of the writ petition wherein it was urged that because the petitioner was not relieved from district Budaun, he was unable to attend the proceedings on 7.9.2004 and was unable to cross examine the witness of the employer.
It was further contended that in view of para-479 (e) of the Police Regulations, the order of dismissal can only be passed by the Superintendent of Police, Badaun, where the petitioner was posted and consequently the order of dismissal passed by the SP, Shahjahanpur was wholly illegal and without jurisdiction inasmuch as the petitioner was not subordinate to the SP, Shajahanpur.
Lastly, it was urged that in view of the decision of the authority converting his unauthorised absence into 'leave without pay', the misconduct, if any, stood regularised and therefore, the question of issuing an order of dismissal on the ground of unauthorised absence no longer survives. In support of this contention, the learned counsel for the petitioner has placed reliance upon a decision of the Punjab and Haryana High Court reported in State of Punjab Vs. Chanan Singh; 1988 (3) All India Services Law Journal 216; wherein it was held that the period of absence if converted into as 'Leave Without Pay' would amount to regularising the absence, and consequently, the charge of absence would no longer survive. The learned counsel also placed reliance upon a decision of the Gujrat High Court in Bhursinh Hamsinh Rajput Vs. The State of Gujrat and others; 1982(1) All Indian Service Law Journal 697; in which it was held that once leave is sanctioned of whatever character it might be, the sting from that absence is taken away.
The counter affidavit reveals that the petitioner was awarded all opportunity to defend himself and to cross examine the witness. The petitioner was aware of the date 7.9.2004 on which date did he not appear nor he sent any adjournment application thereafter. No information was given that the petitioner could not be relieved nor any application was moved for the recall of the proceedings held on 7.9.2004, nor any application was filed seeking permission to cross examine the witness of the employers. It was further submitted that the SP Shahjahanpur was the competent authority and that proceedings were rightly initiated under Uttar Pradesh Police Officers Of the Subordinate Ranks (Punishment And Appeal) Rules, 1991 (hereinafter referred to as the Rules of 1991). It was also contended by the learned standing counsel that considering the gravity of the charge, the order of dismissal was justified.
Before proceeding further, it would be appropriate to consider the stand of the petitioner for his unauthorised absence of 340 days. It was contended that the petitioner received a telegram that his wife was seriously ill and that he left his work place all of sudden. It was contended that when he reached home, his wife was in a serious condition and that she was hospitalised. It was further contended that the petitioner himself fell ill and was advised bed rest up to 12.2.2002. Thereafter his wife was operated on 15.11.2002 and that his grand father died on 15.1.2003 and his grandmother died on 26.1.2003 and after completing all formalities was certified by the doctor to be fit and accordingly joined duty on 13.2.2003. Nothing has been stated nor any explanation has been given with regard to the intervening period, i.e., from the date when the petitioner became fit on 12.2.2002 till his wife was operated in November, 2003 and from November to January, 2004 when his grandfather had died.
In the light of the aforesaid, the court is of the opinion that the reply given by the petitioner did not justify his unauthorised absence for 340 days. Admittedly, the petitioner did not take any leave nor intimated the authorities during the intervening period about his leave, nor proof of such leave application, if any, was never filed.
From the perusal of the record and the impugned order, the Court finds that the principles of natural justice was fully followed and adequate opportunity was given to the petitioner to defend himself. The petitioner was aware of the date, i.e. 7.9.2004, on which date, a witness of the prosecution was to be cross examined. The petitioner did not appear nor moved any application seeking adjournment nor filed any application seeking recall of the proceedings to enable him to cross examine the witness of the prosecution. The Enquiry Officer intimated the petitioner that if he wished to examine any witness he may do so but he did not avail this opportunity. The contention of the petitioner that he could not be relieved from Budaun is not borne out from any record and, therefore, such contention cannot be accepted. The Court finds that the principles of natural justice was fully complied with and the submission of the learned counsel for the petitioner on this aspect can not be accepted.
On the question whether the SP, Shahjahanpur had the power to pass the order of punishment, it would be appropriate to have a look on some of the provisions of the Police Act, 1861, the Rules of 1991 and the Uttar Pradesh Police Regulations.
Section 7 of the Police Act gives power to various authorities, and one of them is, that the SP has the power to dismiss, suspend or reduce any police officer of the subordinate rank For facility, the provision is extracted hereunder:
"Section 7. Appointment, dismissal, etc. of inferior officers―Subject to provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time make under this Act, the "[Director-General-cum-Inspector General]. Deputy Inspectors General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same; or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof namely:
(a) fine to any amount not exceeding one month's pay;
(b) confinement to quarters for a term not exceeding fifteen day, with or without punishment―drill, extra guards, fatigue or other duty;
(c ) deprivation of good conduct pay;
(e) removal from any office of distinction or special emolument;
(e) withholding of increments or promotion including stoppage at any efficiency bar."
In exercise of the powers conferred under section 46 read with Section 2 and 7 of the Police Act, the Rules of 1991 were framed under Article 309 of the Constitution, which has the force of law. Rule 4 provides various kinds of punishment, namely major or minor penalties which can be imposed upon a police officer. For facility, Rule 4 is extracted hereunder:
"Rule-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's pay.
(iii) Withholding of increment, including stoppage at an efficiency bar.
(iv) Censure."
Rule 6 provides the place of inquiry and Rule 7 provides the power of punishment. For facility, these provisions are extracted hereunder:
"Rule-6. Place of enquiry―An enquiry against a Police Officer may be held either in the district in which the act or omission regarding which enquiry is proposed to be made took place or where the Police Officer may be posted at the time of institution of inquiry.
Rule7. Power of punishment―(1) The Government or any officer of police department not below the rank of the Deputy Inspector General may award any of the punishment mentioned in Rule 4 on any Police Officer.
(2)The Superintendent of Police may award any of the punishment mentioned in sub-clause (iii) of Clause (a) and Clause (b) of sub-rule (1) of Rule 4 on Inspector and Sub Inspectors.
(3)The Superintendent of Police may award any of the punishment mentioned in Rule-4 on such Police Officers as are below the rank of Sub-Inspectors.
(4)Subject to the provisions contained in these rules all Assistant Superintendents of Police and Deputy Superintendents of Police who have completed two years of service as Assistant Superintendent of Police and Deputy Superintendents of Polide as the case may be, may exercise powers of Superintendent of Police except the powers to impose major punishment under Rule 4.
(5)Notwithstanding anything contained in these rules Reserves Inspector, Inspector of Station Officer may award the punishment of drill and fatigue duty to any constable under his charge for a period not exceeding three days, but he shall inform the Superintendent of Police concerned of his order immediately and in any case within 24 hours of passing the order."
Under Rule 6, the inquiry against a police officer may be held in a district in which the act or omission regarding the inquiry takes place or where the police officer is posted at the time of inquiry. Under Rule 7 (3), the SP may award any of the punishment mentioned in Rule 4 on such police officer who are below the rank of a Sub Inspector.
From the aforesaid, it is clear that an inquiry can be instituted where the act or omission occurred or where the delinquent was posted at the time of the institution of the inquiry. This necessarily means that the competent authority where the act of omission occurred or where the delinquent was posted could institute such an inquiry. Admittedly, the misconduct occurred while the petitioner was posted at Shahjahanpur. The competent authority is the SP of Shahjahanpur and therefore he had the power to institute an inquiry.
Section 7 of the Act read with Rule 7 of the Rules gives a complete power to the SP to award any punishment specified in Rule 4 i.e. either a major penalty or a minor penalty on such police officer who are below the rank of a Sub Inspector. The petitioner, being a constable and subordinate to the SP could be subjected to a disciplinary action by the SP.
The moot question raised by the learned counsel for the petitioner is, that in view of para-479 (e) of the Regulation, the petitioner was only subordinate to the SP of Budaun and therefore the SP Budaun alone could have passed the order of dismissal. The submission of the counsel for the petitioner seems to be attractive in the first flush but on a closer scrutiny, the court is of the opinion that the submission of the learned counsel for the petitioner cannot be accepted. For facility, Para-479 (e) of the Regulation is extracted hereunder:
Para-479(e). The Superintendent may punish all head constables and constables temporarily or permanently subordinate to him.
The Court finds that para 479(e) of the Police Regulations is not applicable. Executive instructions cannot amend or supersede the statutory rule or add something therein, nor orders could be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory Rule nor does it have any force of law, while statutory rules have full force of law provided the same is not in conflict with the provisions of the Act as held by the Supreme Court in State of UP and others Vs. Babu Ram Upadhyaya, AIR 1961 SC 751; and State of Tamil Nadu Vs. M/s Hind Stone etc, AIR 1981 SC 711.
In Union of India Vs. Sh. Somasundaram Vishwanath, AIR 1988 SC 2255, the Supreme Court observed that if there is a conflict between the executive instruction and the Rules framed under the proviso to Article 309 of the Constitution, the Rules will prevail. Similarly, if there is a conflict in the Rules made under the proviso to Article 309 of the Constitution and the law, the law will prevail.
In the light of the aforesaid, it is clear that the Rules framed under the proviso to Article 309 of the Constitution would prevail over the Police Regulations. The court is of the opinion that para-479 (e) of the Police Regulations is not applicable and cannot be taken into consideration in view of the Rules of 1991.
In any case, even assuming that the Police Regulations are applicable in the instance case, para-479 (e) reiterates that the SP has the power to punish the Head Constable or a Constable who is subordinate to him. Section 7 of the Act states that the SP may, at any time, dismiss, suspend or reduce any police officer of the subordinate rank and this is what is also specified in para-479 (e) of the Regulations. Further, in view of Rule 6 of the Rules of 1991, the court is of the opinion that when the inquiry has been validly instituted on account of the act or omission which has occurred in a place under the competent authority, the same competent authority may pass an order of punishment irrespective of the fact that the delinquent officer has been transferred to another place. This view is further fortified by Section 7 of the Police Act read with section 7(3) of the Rules of 1991 which stipulates that the SP will have the power to pass an order of punishment on such police officer who are below the rank of a Sub Inspector. It does not state that the SP of that district where the delinquent officer is posted can alone pass the order of punishment contemplated under Rule 4 of the Rules, 1991. In the light of the aforesaid, the submission of the learned counsel for the petitioner on this aspect can not be accepted.
In State of MP Vs. Harihar Gopal 1969 SLR 274 (SC), it was clearly held that an order passed only for the purpose of regularising leave would not have the effect of wiping out the punishment. Subsequently in State of Punjab Vs. Bakshish Singh 1998(8) SCC 222, the Supreme Court observed that the period of absence having been regularised as leave without pay would automatically set at naught, the order of dismissal, and therefore, expressed a view contrary to Harihar Gopal's case (Supra). Noticing the conflict in the two judgments, the matter was referred to a larger bench of the Supreme Court in Maan Singh Vs. Union of India 2003 SCC (L & S) 464. A three judges bench of the Supreme Court, after considering both these judgment held that in Bakshish Singh (Supra) the Supreme Court did not decide the question as to the effect of regularisation of leave on the punishment order. In that case, the Supreme Court considered the scope of power of remand and did not consider the question as to whether the view expressed by the first appellate court in affirming the order of the trial court was justified or not. Consequently, the larger bench, following Harihar Gopal's case (Supra) held:
"In Harihar Gopal case this court notices that the delinquent officer in failing to report for duty and remaining absent without obtaining leave had acted in a manner irresponsibly and un justifiedly; that, on the finding of the enquiry officer, the charge was proved that he remained absent without obtaining leave in advance; that the order granting leave was made after the order terminating the employment and it was made only for the purpose of maintaining a correct record of the duration of service and adjustment of leave due to the delinquent officer and for regularising absence from duty subsequent to termination of employment had the effect of invalidating termination."
The larger Bench, while confirming the view taken in Harihar Gopal's case also over ruled a large number of judgement of various High Courts which have taken a contrary view including the judgments cited by the learned counsel for the petitioner. The larger Bench upheld the decision taken in Harihar Gopal's case and held that in the absence of any rule governing the service conditions of the employee, an order regularising the absence from duty subsequent to termination of employment does not have the effect invalidating its earlier order of punishment. In State of Punjab and others Vs. Charanjit Singh 2003 (8) SCC 458 the Supreme Court reiterated the view laid down in Harihar Gopal's case (Supra) and Maan Singh's (Supra) and held:
'In State of Punjab Vs. Bakshish Singh which was relied upon by the Courts below in holding that the misconduct stood condoned, was explained in Maan Singh. No law has been laid down in Bakshish Singh to the effect that only in the event, leave without pay is directed to be granted while passing an order of punishment, the leave having been regularised the order of punishment also becomes bad in law and void abinitio. While deciding Bakshish Singh this Court had not taken in to consideration an earlier binding precedent in State of MP Vs. Harihal Gopal wherein it has clearly been stated that such an order is passed only for the purpose or regularising the leave and there by the effect of punishment is not wiped out. In Maan Singh it was held that the period of absence when treated as leave without pay, was with a view to regularise the leave and not for non donation of misconduct."
Similar view was also taken by a division Bench of this Court in WP NO. 5469 (SB) of 1994, State of UP and another Vs. Shyam Lal Verma and another; 2007 (8) ADJ 699 DB (LB) and in Chandra Pal Singh Vs. State of UP and otehrs, 2001 (2) UPLBEC 728.
In the light of the aforesaid, the Court is of the view that the order of payment of salary was only confined with regard to the length of service so that the period of unauthorised absence may or may not be included in the length of service. The order granting salary or denying him salary does not amount to a punishment contemplated under Rule 4 of the Rules of 1991. In the instant case, the competent authority passed an order that the petitioner would not be entitled for salary on the principle of 'no work, no pay'. It does not mean that the authority has passed an order sanctioning 'Leave Without Pay' or has adjusted the leave. The order passed only for the purpose of maintaining a correct record of the duration of service. These are totally two different concepts and merely because the petitioner has been denied the salary does not mean that his leave has been sanctioned. Further, the denial of leave is not a punishment. Consequently, the decisions cited by the learned counsel for the petitioner stands impliedly overruled.
The contention that the punishment awarded did not commensurate with the misconduct is patently erroneous. The petitioner went on unauthorised leave for 340 days. The explanation given by him does not inspire any confidence. The petitioner is serving in a disciplined force which demands strict adherence to the Rules and Procedure. For the misconduct committed by the petitioner, the Court is of the opinion that the order of dismissal, in the facts of the present case, was fully justified. Similar view was also given by the Supreme Court in State of UP and others Vs. Ashok Kumar Singh and another; 1996 (1) SCC 302, and in State of Punjab Vs. Ram Singh, AIR 1992 SC 2188 .
In the light of the aforesaid, the court does not find any error in the impugned order. The writ petition fails and it is dismissed.
The original records which was produced and which is in the custody of the Court is now being handed over to Sri Raj Kumar Pandey, the standing counsel, who in turn will return it to the department concerned.
Order Date :- 1.3.2013 SKS