SUPREME COURT OF INDIA
Shri Bhagwan Lal Arya
Vs.
Commissioner of Police Delhi
C.A.No.1625 of 2004
(R.C.Lahoti and A.S.Lakshmanan JJ.)
16.03.2004
ORDER
Dr. A.R.Lakshmanan, J.
1. Leave granted.
2. The above appeal was filed against the final judgment/order dated 16.3.2002
passed by the High Court of Delhi in C.W.P. No. 6261 of 1998. The main issue
relates to the alleged unauthorised absence for 2 months and 8 days for which
penalty of removal from services was imposed by the respondents on the
appellant.
3. The appellant was recruited as a Constable in Delhi Police. While undergoing
the prescribed training, the appellant fell down on the parade ground on
7.10.1994. Thereupon, he was sent to police dispensary as ordered by the Chief
Drill Inspector of the parade. Since his condition did not improve, his
relative took him to his home town in Gwalior. He remained under treatment of
Government Doctors there and sent applications for leave on medical grounds
supported with the medical certificates from competent medical authorities in
accordance with the leave rules. The competent police authority passed on order
on 16.1.1995 sanctioning leave without pay for the period of his illness from
7.10.1994 to 14.12.1994 as no other leave was due to him. According to the
appellant since the competent authority had granted the leave, the question of
issuing any charge sheet subsequently for unauthorised absence for the same
period would not arise. On 15.11.1994, notice of termination from service was
issued stating that his services shall stand terminated with effect from the
date of expiry of a period of one month from the date notice is received by the
appellant. The appellant resumed duty on 15.12.1994 after submitting fitness
certificate from government dispensary, Gwalior, where he had taken treatment.
The services of the appellant were terminated with effect from 31.12.1994 under
Rule 5 of clause (1) of the Temporary Services Rules. On 16.1.1995, the
competent authority sanctioned leave without pay for his illness from 7.10.1994
to 14.12.1994 after the receipt of the termination order. The appellant made
representation for reinstatement. After a gap of more than 4 months, the
Commissioner of Police reinstated him in service forthwith with the provision
that intervening period from 1.1.1995 till he was reinstated will be decided at
the time of finalisation of his disciplinary enquiry. The appellant retained service
after reinstatement order dated 25.5.1995. However, he again fell ill and was
on leave for several days on medical grounds and was granted leave by the
respondents. On 24.7.1995, disciplinary enquiry was initiated against the
appellant under Delhi Police (Punishment & Appeal Rules, 1980). The
disciplinary enquiry observed served a charge sheet dated 24.2.1996 on the
appellant. The enquiry officer submitted his findings on 22.4.1996. The enquiry
officer concluded that acts of the appellant are highly reprehensible and
untenable and, therefore, the charge against him stands fully proved. On
25.6.1996, the disciplinary authority imposed the penalty of removal from
service on the appellant. The appellant submitted his appeal on 5.7.1996 which
was rejected by the 2nd respondent herein. The appellant submitted a fresh
revision and the mercy petition which were rejected on 2.6.1997 and 27.6.1998
respectively. The appellant approached the Central Administrative Tribunal, New
Delhi which also dismissed the O.A. No. 1195 of 1998. Thereupon the appellant
filed the writ-petition in the High Court which was also dismissed. Being
aggrieved, the appellant preferred this Special Leave Petition/Appeal.
4. The learned counsel for the appellant Mr. Harbans Lal Bajaj submitted that
the appellant never committed any misconduct as alleged in the charge sheet and
did not absent himself from duty willingly or deliberately or acts of
negligence and, therefore, the disciplinary authorities were wrong in holding
the appellant guilty. He further submitted that it is a case of absence from
duty due to appellant's long illness supported by application for leave along
with medical certificate by competent medical authority of government
department followed by fitness certificate which was countersigned by the CMO,
Gwalior. It is further contended that no reasonable disciplinary authority
would term absence on medial grounds with proper medical certificate from
Government Doctors as grave misconduct in terms of Delhi Police (Punishment
& Appeal Rules, 1980).
5. It is further submitted that the decision of competent authorities to remove
the appellant from service is against the spirit of Rule 8 and 10 of Delhi
Police (Punishment & Appeal Rules, 1980). It is also contended that the
punishment of removal from service awarded was totally unjust, unfair,
inequitable and arbitrary.
6. Per contra, Mr. Ashok Bhan, learned counsel for the respondents submitted
that the appellant had absented himself for a period of 2 months, 7 days and 17
hours unauthorisedly and wilfully without any information /permission of the
competent authority and left the station without any permission of the
competent authority. The disciplinary enquiry initiated against him was proper
and the punishment awarded is just and proper. It is contended that since the
disciplinary authority, appellant authority, revisional authority and the
Central Administrative Tribunal, New Delhi and the High Court rejected the
representation/ appeal, this Court shall not interfere with the orders passed
by the authorities and court.
7. We have perused the pleadings and the orders passed by all the authorities
including the High Court and the medical certificate and the fitness
certificate issued by the medical officer of the government department of
Gwalior, M.P. On the above pleadings, the following questions of law arise for
consideration:--
“(a) Whether the punishment of removal from service is grossly disproportionate
to the alleged acts of misconduct can be awarded to an employee of the police
organisation as government departments/ organisations are supposed to be model
employees?
(b) Whether the major penalty of removal from service inflicted on the
appellant is grossly disproportionate to the misconduct alleged against him
and, therefore, is totally unjust, unfair and inequitable as contended?
(c) Whether the punishment imposed is in breach of the relevant Rules 8 and 10
of the Delhi Police (Punishment and Appeal Rules, 1980) which provide that the
penalty aforementioned can be imposed only in cases of grave misconduct and
continued misconduct indicating incorrigibility and complete unfitness for
police servants?”
8. We have perused the relevant orders passed by the disciplinary authorities,
the Central Administrative Tribunal and of the High Court. It is seen from the
records that the domestic enquiry has been conducted properly and the
principles of natural justice has been strictly followed. There is no denial of
reasonable opportunity. We, therefore, hold that the findings are based on
evidence and is not liable to be interfered with. We also hold that
disciplinary action initiated against the appellant is in accordance with the
rules and regulations and not vitiated by any mala fides. However, we find that
there is merit and substance in regard to the next contention i.e. punishment
is totally disproportionate to the proved misconduct of the appellant. It is
contended that the punishment order passed is against the statutory provisions
of Rule 8 and 10 of the Delhi Police (Punishment & Appeal, Rules 1980).
9. Rule 8(a) and 10 of the Delhi Police (Punishment & Appeal, Rules
1980) reads as under:
'Rule 8. Principles for inflicting penalties - (1) Dismissal / Removal - The
punishment of dismissal or removal from service shall be awarded for the act of
grave misconduct rendering him unfit for police service.
xx xx xx
'Rule 10 Maintenance of discipline - The previous record of an officer, against
whom charges have been proved if shows continued misconduct indicating
incorrigibility and complete unfitness for police service, the punishment
awarded shall ordinarily be dismissal from service. When complete unfitness for
police service is not established, but unfitness for a particular rank is
proved, the punishment shall normally be reduction in rank."
xx xx xx
10. In the instant case, the appellant had absented himself for 2 months, 8
days and 17 hours on medical grounds. The above two rules provide that penalty
of removal can be imposed only in cases, if grave misconduct and continued
misconduct indicating incorrigibility and complete unfitness for police
service. The absence of the appellant on medical grounds with application for
leave as well as sanction of leave can under no circumstances, in our opinion,
be termed as grave misconduct or continued misconduct rendering him unfit for
police service.
11. The order dated 16.1.1995 passed by the respondents was produced by the
respondents themselves in their reply to C.W.P. before the High Court of Delhi
that they had sanctioned leave without pay for the period from 7.10.1994 to
15.12.1994, the period of alleged unauthorised absence. The High Court has
failed to appreciate and evaluate this aspect of the matter. The High Court
also did not appreciate that after issuing sanction for leave for the period in
question, the employees' legitimate expectation would be that no stern action
would be taken against him with respect to the alleged act of misconduct which
by no stretch of imagination can be considered act of gross misconduct or
continued misconduct indicating incorrigibility and complete unfitness for
police service. It is not the case of the respondents that the appellant is a
habitual absentee. He had to proceed on leave under compulsion because of his
grave condition of health, and therefore, the punishment of removal from
service is excessive and disproportionate. We are of the view that the
punishment of dismissal/removal from service can be awarded only for the acts
of grave nature or as cumulative effect of continued misconduct proving
incorrigibility of complete unfitness for police service. Merely one incident
of absence of that too because of bad health and valid and justified
grounds/reasons cannot become basis for awarding such a punishment. We are,
therefore, of the opinion that the decision of the disciplinary authority
inflicting a penalty of removal from service is ultra vires of Rule 8(a) and 10
of the Delhi Police (Punishment & Appeals Rules, 1980) and is liable to be
set aside. The appellant also does not have any other source of income and will
not get any other job at this age and the stigma attached to him on account of
the impugned punishment. As a result of not only he but his entire family
totally dependant on him will be forced to starve. These are the mitigating
circumstances which warrant that the punishment / order of the disciplinary
authority is to be set aside.
12. The disciplinary authority without caring to examine the medical aspect of
the absence awarded to him the punishment of removal from service since their
earlier order of termination of appellant's service under Temporary Service
Rules did not materialise. No reasonable disciplinary authority would term
absence on medical grounds with proper medical certificates from government
Doctors as grave misconduct in terms of Delhi Police (Punishment & Appeal
Rules, 1980). Non-application of mind by quasi-judicial authorities can be seen
in this case. The very fact that respondents have asked the appellant for
re-medical clearly establishes that they had received applicant's application
with medical certificate. This can never be termed as wilful absence without
any information to competent authority and can never be termed as grave
misconduct.
13. In B.C. Chaturvedi vs. Union of India ) (Three Judges Bench) the
question posed for consideration was as to whether the High Court / Tribunal
can direct the authorities to reconsider punishment with cogent reasons in
support thereof or reconsider themselves to shorten the litigation. In this
case, at para 18, this Court has observed as under:
"A review of the above legal position would establish that the
disciplinary authority, and on appeal the appellate authority, being fact
-finding authorities have exclusive power to consider the evidence with a view
to maintain discipline. They are invested with the discretion to impose
appropriate punishment keeping in view the magnitude or gravity of the
misconduct. The High Court / Tribunal, while exercising the power of judicial
review, cannot normally substitute its own conclusion on penalty and impose
some other penalty. If the punishment imposed by the disciplinary authority or
the appellate authority shocks the conscience of the High Court / Tribunal, it
would appropriately, mould the relief, either directing the disciplinary/
appellate authority to reconsider the penalty imposed, or to shorten the
litigation, it may itself, in exceptional and rare cases, impose appropriate
punishment with cogent reasons in support thereof."
14. Thus, the present, one is a case wherein we are satisfied that the
punishment of removal from service imposed on the appellant is not only highly
excessive and disproportionate but is also one which was not permissible to be
imposed as per the Service Rules. Ordinarily we would have set aside the
punishment and sent the matter back to the disciplinary authority for passing
the order of punishment afresh in accordance with law and consistently with the
principles laid down in the judgment. However, that would further lengthen the
life of litigation. In view of the time already lost, we deem it proper to set
aside the punishment of removal from service and instead direct the appellant
to be reinstated in service subject to the condition that the period during
which the appellant remained absent from duty and the period calculated upto
the date on which the appellant back to duty pursuant to this judgment shall
not be counted as a period send on duty. The appellant shall not be entitled to
any service benefits for this period. Looking at the nature of partial relief
allowed hereby to the appellant, it is now not necessary to pass any order of
punishment in the department proceedings in lieu of the punishment of removal
from service which has been set aside. The appellant must report on duty within
a period of six weeks from today to take benefit of this judgment.
15. The appeal is allowed in the terms abovesaid. No costs.