Madhya Pradesh High Court
Uday Bhan Singh Tomar vs The State Of Madhya Pradesh on 28 September, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 28th OF SEPTEMBER, 2022
WRIT PETITION (S) NO.21268 OF 2017
Between:-
UDAY BHAN SINGH TOMAR S/O SHRI
RADHE KISHAN SINGH TOMAR, AGED
ABOUT 25 YEARS, OCCUPATION:
SERVICE 14TH BATTALION, SAF
GWALIOR (MADHYA PRADESH)
........PETITIONER
(BY SHRI ALOK KATARE-- ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THROUGH THE PRINCIPAL
SECRETARY, DEPARTMENT O HOME,
GOVT. OF MADHYA PRADESH,
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
2. THE DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTER,
JAHANGEERABAD, BHOPAL (MADHYA
PRADESH)
3. THE INSPECTOR GENERAL OF POLICE
CHAMBAL RANGE, GWALIOR (MADHYA
PRADESH)
4. THE SUPERINTENDENT OF POLICE
BHIND BHIND (MADHYA PRADESH)
2
........RESPONDENTS
(BY SHRI S.K. SHARMA- GOVERNMENT ADVOCATE)
----------------------------------------------------------------------------------------
This petition coming on for hearing this day, the Court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has been filed seeking following reliefs :-
(i) That, the present petition filed by the petitioner may kindly be allowed;
(ii) That, the order dated 28.09.2015 Annexure P/1, order dated 20.03.2016 Annexure P/2 and the order dated 31.1.2017 Annexure P/3 passed by the respondents may kindly be directed to be set aside.
(iii) That, any other just, suitable and proper relief, which this Hon'ble Court deems fit, may also kindly be granted to the petitioner. Costs be also awarded in favour of the petitioner.
The facts necessary for disposal of the present petition in short are that the petitioner is working as a Constable in the Police Department. A charge-sheet was issued on the allegations that he had remained on unauthroized absence from 21.12.2014 to 04.03.2015 and, accordingly, the petitioner submitted his reply and contended that he was suffering from Hepatitis and was under medical treatment and, therefore, he could not attend his service. The defence taken by the petitioner could not find 3 favour with the enquiry officer and, accordingly, the enquiry officer by his enquiry report dated 14.08.2015 found that the charges framed against the petitioner are proved. Thereafter, a show-cause notice against the proposed punishment was issued and after inviting reply from the petitioner, punishment of one increment with cumulative effect was imposed.
Being aggrieved by the order dated 28.09.2015, the petitioner preferred an appeal, which too was dismissed by order dated 23.02.2016 passed by the Appellate Authority. Thereafter the petitioner preferred a mercy appeal before the Police Headquarter, which too was dismissed by Director General of Police by order dated 31.01.2017.
Challenging the orders passed by the authorities below, it is submitted by the counsel for the petitioner that as per Regulation 226, the stoppage of increment with cumulative effect is not proper. Accordingly, the Director General of Police has also issued a circular dated 02.06.2012 directing all Superintendents of Police that the Regulation 226 should always be kept in mind while imposing punishment. However, it is submitted that by ignoring the provisions of Regulation 226 as well as the order dated 02.06.2012, the one increment with cumulative effect has been withheld. It is further submitted that the petitioner has relied upon the medical fitness certificate issued by the doctors and the enquiry officer did not get it verified and, therefore, the defence of the petitioner has suffered a severe jolt.
Per contra, the petition is vehemently opposed by the counsel for the State. It is submitted that police is a uniform disciplined force and unauthorized absence for 74 days is a serious misconduct. The authorities 4 have already adopted a very lenient view by withholding one increment with cumulative effect. The police Regulation 226 does not mandate that increment with cumulative effect cannot be withheld at all. It is further submitted that Police Regulation 214 provides the punishment of dismissal from service also, therefore, when a major penalty of dismissal from service can also be imposed, then any interpretation that for every misconduct, initially the stoppage of one increment without cumulative effect should be imposed would not be in consonance with the discipline as well as the provisions of Article 311 of the Constitution of India and Police Regulations 214 and 226. Furthermore, it is submitted that it was for the petitioner to prove that he was undergoing some physical ailment. He could have examined the doctor, who had issued the fitness certificate, but he did not examine any witness to prove the documents. Even the OPD register of the government hospital was not produced to show that the petitioner had ever taken treatment from the government hospital.
Heard the learned counsel for the parties.
So far as the charges are concerned, the petitioner has already admitted the same. Now, the only question for consideration is as to whether the petitioner has given a plausible explanation for remaining on unauthorized absence or not. It is the case of the petitioner that he was suffering from physical ailment and had filed the copies of fitness certificate issued by the doctors from time to time. However, there is nothing on record to show that the petitioner had ever applied for medical leave or had ever informed the Department with regard to his ailment. Furthermore, the petitioner has not examined the doctor, who had issued 5 the medical fitness certificate. It is true that the strict proof of Evidence Act is not applicable to the departmental proceedings, but the document has to be proved by examining the witness, who had executed the same. So far as the quantum of punishment is concerned. Police Regulations 214 and 226 read as under:-
214. Punishment- Kinds of- Without prejudice to the provisions of any law or any special orders for the time being in force, the following penalties may, for good and sufficient reasons, be imposed upon any member holding a post in a Subordinate Police Service:-
(i) Withholding of promotion:
(ii) Withholding of increments of pay including stoppage at an efficiency bar or stagnation allowance;
(iii)Reduction to a lower post or time scale or reduction to a lower stage in the time scale of pay for a specified period with further direction as to whether or not the member of the Subordinate Police Service will earn increments of pay or the stagnation allowance, as the case may be, during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the further increments of his pay or stagnation allowance;
Note.- The expression "reduction to a lower stage in the time scale of pay" shall also include reduction of pay from the stage of pay drawn by a member of the Subordinate Police Service account of grant of stagnation allowance if any.
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government or to any fund maintained for the welfare of the Police by negligence or breach of orders;
(v) Removal from the service, which does not disqualify from future employment;
(vi) Dismissal from the service, which ordinarily disqualifies for future employment;
(vii) Suspension is not punishment;
(viii) Compulsory retirement.
6226. Punishments- Offences for which given.- The following rules should be observed in determining what penalty should be awarded for any particular offence:-
(i) (a) Dismissal is the last resource and should, ordinarily not be inflicted until all other means of corrections have failed.
(b) If dismissal is considered too severe a punishment for sub-Inspector he should be removed from the service (This does not amountto dismissal.) Note- Dismissal order would be effected on the same date when it is passed or on the same day when the dismissed person relieved and shifted from the service.
(ii) The vacancy of an officer dismissed should not be filled in the case of a Constable or permanently in the case of a Head Constable and above until the period of appeal has expired.
(iii) Reduction in rank is a suitable punishment for incompetence, or cases of serious dereliction of duty in which dismissal or removal is considered to be too severe a punishment.
As a general rule Sub-Inspectors who are directly recruited should not be punished by reduction to Assistant Sub- Inspector. The reduction to Assistant Sub-Inspector or Sub Inspector who were appointed by promotion from the rank of Head Constable or Assistant Sub Inspector is permitted.
(iv) With holding of increment either temporary or permanent (or grade reduction in the case of head Constables) is a suitable punishment for all cases of serious dereliction of duty. It may also be inflicted for culpable ignorance of police procedure, laziness or apathy in conducting the work of the police station, and the like. Fair warning should be given in every instance and opportunity for amendment afforded before the punishment is awarded.
In the case of a Constable the period of deprivation shall not exceed a year nor is it advisable that a constable should be deprived of more than or Increment at a time. if After a departmental enquiry for a subsequent offence it is found 7 advisable to inflict. This punishment on a constable already under reduction the proper order to pass is one extending the reduction by a period not exceeding one year. Note- When an officer in a graded posts is reduced permanently his place in the grade or to which he is reduced must be determined at the time of passing the order if reduction with due regard to the amount of punishment deserved.
(v) An increment which has fallen due may be withheld for a definite period for inefficiency or unsatisfactory service. In the case of a Constable, it shall not be withheld for more than one year in the first instance. If a subsequent offence Justifies extension of this period, a departmental enquiry is necessary.
Note:-In all case where orders are passed withdrawing or withholding an increment, it must be clearly stated whether subsequent increments are to be postponed or not. In the cases of Constables they should not be postponed.
(vi) Fine is an appropriate punishment for repeated carelessness and disobedience of orders. Unpunctuality and the like. Fines should be moderate in amount; the loss of half a month's pay is the utmost that should ever be inflicted, save in very exceptional circumstance. The fining of constables is prohibited.
(vii) In the case of head constables and constables, minor offences against discipline should be dealt with firstly, by warning, and if this proves ineffectual, by the infliction of the minor punishments specified in regulations 216 and 217
(b), or by detailing the offender to a course of more irksome and unpopular duties.
(viii) The transfer of a police officer to an unhealthy or unpopular post as a punishment is strictly forbidden. Withholding of increment with cumulative effect is a major penalty, whereas withholding of increment without cumulative effect is a minor penalty, as per the CCA Rules. Police Regulation 214(ii) speaks about withholding of increments of pay including stoppage at an efficiency bar or stagnation allowance and Police Regulation 226(iv) 8 speaks about withholding of increments whether permanent or temporary. Regulation 214(vi) provides for dismissal from service. Regulation 214
(v) provides for removal from service. Even otherwise, the punishment has to be in the light of the seriousness of the charges. Police is a disciplined force in uniform, which is primarily responsible for maintenance of law and order in the society. Unauthorized absence will certainly reduce the police force, which may affect the maintenance of law and order. Therefore, unauthorized absence cannot be said to be a minor misconduct having no gravity. It is well established principle of law that after considering the allegations against the delinquent officer if the Court comes to the conclusion that the punishment imposed by the disciplinary authority is disproportionate or is shocking to the conscience of the Court only then this Court can interfere with the penalty imposed by the authorities. This Court has already come to a conclusion that remaining on unauthorized absence is a serious misconduct. When a punishment of dismissal can also be awarded to the delinquent officer including the Constable, then laying down a law that for the first misconduct the authorities are under obligation to award only a minor punishment of stoppage of one increment without cumulative effect would lead to an absurdity. Such interpretation would encourage indiscipline in the force itself. It will certainly take away the discretion of the disciplinary authority to decide the question of punishment independently. Any interpretation which takes way the discretion should always be avoided. It is well established principle of law that any interpretation of provision which leads to absurdity should be avoided. Even otherwise, Police Regulation 226 does not provide that for every 9 major misconduct, the authority cannot award the punishment except the stoppage of one increment without cumulative effect.
Accordingly, this Court is of the considered opinion that the punishment of stoppage of one increment with cumulative effect cannot be said to be disproportionate to the misconduct committed by the petitioner or contrary to Regulations 214 and 226 of the Police Regulations. No case is made out for interference. The petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE (Avi) ABHISHEK CHATURVEDI 2022.09.30 16:17:03 +05'30'