IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 4014 of 2009 Between: G. Vinod Kumar S/o. Visveswer Rao from Service), Ananthapur. R/o. Visakhapatnam District. ..... PETITIONER AND 1 The Superintendent of Police Ananthapur Ananthapur District. 2 The Deputy Inspector General of Police Ananthapur Range Ananthapur. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an order, writ or direction more particularly in the nature of Writ of Certiorari or any other appropriate Writ of direction calling the for the records relating the order passed by the Administrative Tribunal, Hyderabad in O.A.No.6033 of 2004 dated 07-09-2006 and quash the same as illegal and arbitrary. Counsel for the Petitioner:MR.M.K.RAJ KUMAR Counsel for the Respondent No.: GP FOR SERVICES I The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed challenging the order-dated 7.9.2006 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad in O.A.No. 6033 of 2004 and to quash the same as illegal. By virtue of that order, the Tribunal upheld the order of removal passed by the disciplinary authority as confirmed by the appellate authority on the ground of unauthorized absence without any sanction of leave for a period of two years one month and two days. Brief facts of the case are that the petitioner is a Police Constable and on the allegation of unauthorized absence, he was placed under suspension pending enquiry. During the pendency of the said disciplinary proceedings, he came to be reinstated to duty on 11.8.2003. The Superintendent of Police, Ananthapur District –first respondent herein issued a charge Memo dated 18.4.2002 for which the petitioner submitted his explanation. Having not satisfied with the explanation so submitted by the petitioner, the first respondent appointed an Enquiry Officer to conduct enquiry and the Enquiry Officer after conducting the enquiry held that the following charges are proved. “Exhibited gross dereliction of duty in absenting from duty from 15.4.2001 AN without leave or permission and continued to be absent for duty for a period of 21 days and committing the offence of desertion” According to the Statement of imputation of misconduct or misbehavior the charged Officer (delinquent) PC 2299 Sri G. Vinod Kumar of District Armed Reserve Anantapur went on medical leave from 15.10.2000 to 15.4.2001 on medical grounds as he was due for duty on 15.4.2001. But he did not report for duty and continued to be absent for duty without leave or permission un-authorisedly and continued to be absent for duty without leave or permission unauthorisedly and continued to be absent for a period of 21 days and completed the period of desertion by 6.5.2001. He was declared as a deserter with effect from 15.4.2001 vide DO No. 575/2001 dated 4.6.2001 of Superintendent of Police, Anantapur.” There after, the petitioner submitted his explanation and the first respondent issued the orders of removal from service. Aggrieved by the same, the petitioner filed an appeal before the Deputy Inspector General of Police, Ananthapur Range, Ananthapur-second respondent herein and the second respondent confirmed the order of punishment. It is the case of the petitioner that the Enquiry Officer in his report has not found any fault with the medical certificates submitted by him and he could not attend the duties on health grounds. The Enquiry Officer having held the medical certificates as genuine and on technical ground of non-applying of leave, the respondents ought not to have inflicted the extreme penalty of removal from service. The petitioner was declared as deserter as per Order No. 224 of A.P. Police Manual. In fact, the petitioner was granted casual leave for seven days by Additional Superintendent of Police, Administration, Ananthapur from 11.10.2000 to 18.10.2000 on the ground that he had to attend his sick father and after availing the casual leave, the petitioner did not report for duty and he went to Rapthadu Police Station on 18.10.2000 at 11 AM and obtained sick pass port and admitted as inpatient at Government Hospital , Ananthapur and discharged on the same day and got recommended rest for 45 days from 18.10.2000 to 2.12.2000. He was un-authorizedly absent from 15.4.2001 to 28.5.2003. Thus the period of absence is more than two years. The Tribunal after considered all the aspects elaborately relying on the judgment of the Apex Court reported in BHAGWAN LAL ARYA VS. COMMISSIONER OF POLICE, DELHI[1] declined to exercise its jurisdiction and held that the unauthorized absence involved in this case is more than two years and the respondents have rightly punished the applicant on the basis of proven charge and accordingly dismissed the O.A. The learned counsel appearing for the petitioner contended that though the petitioner initially applied for three months leave but nonetheless he absented from duty for a period of more than two years one month and two days on health grounds. Learned counsel relying on the judgment of the Apex Court in Civil 1625 of 2004 dated 16th March 2004, would contend that in the said judgment, Apex Court considered the judgment of three Judges Bench, reported in B.C. CHATURUEDI VS. UNION OF INDIA , wherein at paragraph 18 held 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.” The Apex Court in Civil No.1625 of 2004 further at paragraph 14 held as under: “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 up to the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spend 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 departmental 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.” The appellant therein was a constable and fell down during parade, and at police dispensary also his condition did not improve his relatives took him to home town, wherein he took treatment and the appellant absented for only two months 8 days for which penalty of removal from service was imposed. The Apex Court on consideration of the material on record held that the punishment of removal was not permissible to be imposed as per the Service Rules in that case but in the present case the petitioner absented himself for more than two years. The another judgment of a Division Bench of this Court in in W.P.No. 19690 of 2004 relied on by the petitioner counsel is also not applicable to facts and circumstances of the case, as the Division Bench of this Court dismissed the Writ Petition filed by the Government holding that reasonable opportunity has not been given and further at any rate the penalty of imposition of compulsory retirement, is shockingly disproportionate to the charge with which the respondent-applicant therein had been charged with that he did not report for duty on 2.9.1999 along with other men and absented himself unauthorisedly without leave or permission with effect from 2.9.1999 and committed misconduct of desertion. Be that as it may, in the present case, the Tribunal after following the view expressed by the Apex Court in BHAGWAN LAL ARYA VS. COMMISSIOENR OF POLICE, DELHI (supra-1) held that the impugned order does not suffer from any infirmity and is sustainable in the eye of law and accordingly, dismissed the O.A. In the present case the petitioner was leave from 15.10.2000 to 15.4.2001 on medical grounds as he was due for duty on 15.4.2001 but the petitioner did not report for duty and continued to be absent from 15.4.2001 to 28.5.2003, i.e., more than two years. Therefore, we do not find any infirmity or jurisdictional error to interfere with the order passed by the Tribunal under Article 226 of the Constitution of India. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED, J ______________________________ SANJAY KUMAR , J Dt. 2.03.2009 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Superintendent of Police Ananthapur Ananthapur District. 2 The Deputy Inspector General of Police Ananthapur Range Ananthapur. 3 2 CCs to G.P. for Services-1, High Court of A.P. Buildings, Hyderabad OUT 4. 2 CD copies [1] AIR 2004 SUPREME COURT 2131