SBCWP No.1686/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.1686/2002. Harish Chandra Vs. State of Rajasthan and ors. Date of Order:- 22 July 2008. HON’BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sanjeev Prakash Sharma for the petitioner. Shri Vijay Dutt Sharma, Deputy Government Counsel. ***** BY THE COURT:- Reportable Petitioner-Harish Chandra who was appointed in consideration of the fact that his father, who was also Constable, died while serving the respondents, has approached this Court challenging the order of his dismissal dated 19/1/2000 with the prayer that the aforesaid order be quashed and set-aside and respondents be directed to reinstate him in service with consequential benefits. 2) Learned counsel for the petitioner even though initially made submissions on merits but ultimately confined his argument on the question of disproportionate penalty. Matter is therefore examined on the limited aspect as to if the penalty of dismissal would not be disproportionate to the gravity of proven charge of absence of 44 days or it merited some other penalty. SBCWP No.1686/02. 2 3) Charge No.1 is to the effect that while the petitioner was undergoing basic training in Rajasthan Police Training Centre Jodhpur, the Principal of the Training Centre by his order dated 21/8/1999 required him to report to the 7th Batallion RAC Bharatpur for performing duties in the parliamentary elections but instead of reporting there, petitioner wilfully remained absent continuously from 22/8/1999 to 4/10/1999. Charge No.2 is to the effect that when petitioner was sent for training by the 7th Battalion RAC Bharatpur vide their order dated 24/9/1999, he did not attend such training. Charge No.2 actually is a charge for non reporting for training pursuant to the order dated 24/9/1999 which period is covered during absence for 44 days within charge No.1 itself. 4) According to Shri Sanjeev Prakash Sharma, the learned counsel for the petitioner, the basic charge that has been found proved against the petitioner is that he remained absented for 44 days. Learned counsel submitted that petitioner could not attend his duties because of his illness and he produced medical certificates of this entire period duly issued by the government doctors. Such medical certificates ought to have been considered by the disciplinary authority which however attached no credence to them. 5) Learned counsel for the petitioner relied on the judgment of Supreme Court in Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and others : (2004) 4 SCC 560 and argued that that was also a case where delinquent was a Constable of Delhi Police and SBCWP No.1686/02. 3 charge which was proved against him was for absence of 2 months and 7 days for which he too had applied for leave on medical ground. Supreme Court in that case held that dismissal on ground of alleged misconduct of such absence from duty, was excessive and disproportionate to the gravity of the charge. Therefore, while setting aside the order of penalty awarded by the disciplinary authority, direction for reinstatement of the delinquent was issued and the matter was sent back to the disciplinary authority for passing fresh order of punishment. Learned counsel for the petitioner submitted that the aforesaid judgment applies to the present case on all its four corners. The order of dismissal therefore should be set-aside and the matter should be remanded back to the disciplinary authority for consideration of the question of penalty afresh. 6) Shri Vijay Dutt Sharma, learned Deputy Government Counsel opposed the writ petition and argued that absence of 44 days of a Constable in police force has to be viewed rather seriously. Penalty of dismissal for such a grave charge can neither be said to be excessive nor disproportionate. He argued that the relied judgment of Supreme Court is wholly distinguishable. The petitioner wilfully absented from duties when he was required to perform during 13th Lok Sabha Elections. The writ petition therefore be dismissed. 7) I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and perused the material on record and cited SBCWP No.1686/02. 4 judgments. 8) It is no doubt true that absence of a member of police force has to be viewed seriously as compared to the absence of an ordinary government servant. But at the same time, the fact is that petitioner was appointed on compassionate grounds due to the death of his father and that he was the sole bread earner of the family and his absence for 44 days is sought to be explained by him with the medical certificates of the relevant period. This absence although proved but at the same time, whether in the context of fact situation arising out in the present case, could the penalty of dismissal from service be justified? The judgment of Supreme Court in Shri Bhagwan Lal Arya supra, provides sufficient guidelines, facts of which case are somewhat akin to the facts of the present case. Supreme Court noted that when the period of absence of the Constable in that case was regularised by sanctioning the leave, the employee's legitimate expectation would be that no stern action should be taken against him. In the present case too, the impugned-order of penalty indicates that while the order of dismissal would be effective from the date it was passed on 19/1/2000, petitioner was granted extraordinary leave for the period of absence. Furthermore, Supreme Curt in the above referred to case also noted that it was not the case of the respondents that appellant therein was habitual absentee. Likewise, in the present case also, no such assertion has been made by the respondents about any such conduct of the petitioner. SBCWP No.1686/02. 5 Their lordships therefore observed that punishment of dismissal/removal from service should be awarded only for acts of such grave nature which has cumulative effect of continued misconduct proving incorrigibility or complete unfitness from police service. Mere one incident of absence and that too because of bad health on valid and justified grounds/reasons, cannot become basis for awarding such a harsh punishment. It was observed that appellant in that case did not have any other source of income and will not get any other job at this age and with the stigma attached to him on account of the impugned punishment, as a result of which, not only he but also his entire family, which totally depended on him, will be forced to starve. Thus, the Supreme Court observed that according to the mitigating circumstances, it was warranted that punishment order of the disciplinary authority be set-aside. At the same time, Supreme Court directed that intervening period from the date of dismissal till the delinquent reported back to duty, would not be counted as a period spent on duty. 9) In my considered view, the ratio of the aforesaid case where delinquent was Constable in police force and was dismissed from service on charges for absence from duty for 2 months and 7 days, is fully applicable to the facts situation of the present case where the petitioner was dismissed from services of the police force on charges of having remained absent for 44 days. The petitioner was posted as Constable on compassionate ground in SBCWP No.1686/02. 6 consideration of service rendered by his father, who was also Constable in the police force, who died while in service. Petitioner was thus only earning member in the entire family. Petitioner submitted medical certificate of the government doctor to explain his absence from duty for 44 days but despite this, he was dismissed from service which punishment, looking to his misconduct, was too harsh and excessive and which penalty also shocks the conscious of the court because it is not proved by any other contemporaneous material that misconduct of the petitioner was so grave that would have the cumulative effect of continued misconduct proving his incorrigibility or complete unfitness for police service. Mere one incident of absence and that too because of ill health on valid and justified reasons, cannot become basis for awarding such a severe punishment. 10) In view of the discussion made above, the writ petition deserves to be allowed and is hereby allowed. 11) The impugned-order of penalty of dismissal dated 19/1/2000 (Ann.9) is quashed and set-aside. The matter is remitted back to the disciplinary authority for passing fresh order of any other penalty than the penalty of dismissal or removal in accordance with law and consistently with the principles laid down hereinabove. However, the petitioner shall only be entitled to notional benefits for the intervening period. In other words, he shall not be entitled to any actual benefit for the period i.e. from the date SBCWP No.1686/02. 7 of dismissal till he reports back to his duty pursuant to this judgment. Compliance of the judgment be made within a period of three months from the date the certified copy of the judgment is produced before the disciplinary authority. anil (MOHAMMAD RAFIQ), J.