* THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH + WRIT PETITION No.503 of 2006 % Dated:10.08.2010 Md. Moinuddin, S/o.Zahad Ali, Aged about 47 years, Ex.Police Constable, P.C.779, SAR CPL, ‘A’ Copy, Hyderabad .. Petitioner And The Additional Director General of Police (Administration), Andhra Pradesh, Hyderabad and others .. Respondents ! Counsel for the Petitioner: Mr. V.Mallik ^ Counsel for Respondents: Government Pleader for Services-I for respondents 1 to 3 <Gist: >Head Note: ? Citations: 1. (1994) SC 215 2. (1999) 9 SCC 86 3. (2009) 13 SCC 102 4. (2007) 8 SCC 656 5. AIR 1964 SC 506 : (1964) 4 SCR 540 THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION No.503 of 2006 Dated:10.08.2010 Between: Md.Moinuddin .. Petitioner And The Additional Director General of Police (Administration), A.P., Hyderabad ad others .. Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION No.503 of 2006 ORDER: (per Hon’ble Sri Justice Ghulam Mohammed) This Writ Petition is filed seeking a Mandamus to declare the order, dated 22.11.2005 passed in O.A.No.1165 of 2004 by the Andhra Pradesh Administrative Tribunal, Hyderabad, as illegal and arbitrary, and a consequential direction to set aside the proceedings, dated 13.12.2002 issued by the 3rd respondent, as confirmed by the 2nd and 1st respondents, vide proceedings dated 26.03.2003 and 21.10.2003, respectively, was also prayed for. The petitioner was appointed as Police Constable on 12.09.1982, by the respondents. He was posted at Goshamahal Police Stadium for duties, and without seeking permission or leave, he remained absent from duty, continuously for more than 21 days, from 18.10.2001 onwards. Later, on 01.12.2001, he made a request stating that due to his family and financial problems he could not attend the duties. Pending the departmental enquiry, he was taken on duty. Subsequently, by proceedings, dated 20.12.2001, the respondents framed charges and an Enquiry Officer was appointed. Based on his findings, a memo was issued on 30.10.2002. The petitioner, in turn, submitted his defence on 09.11.2002. The 3rd respondent issued proceedings, dated 13.12.2002, imposing the penalty of dismissal from service against the petitioner. Aggrieved thereby, the petitioner filed a statutory appeal before the 2nd respondent and the same was rejected vide proceedings, dated 21.06.2003. Questioning the same, he filed a revision before the 1st respondent, which was also rejected on 21.10.2003. After exhausting the departmental remedies, he approached the Andhra Pradesh Administrative Tribunal, Hyderabad. However, through its order, dated 22.11.2005, the Tribunal dismissed the O.A. Hence, this Writ Petition. The respondents filed a detailed counter-affidavit, narrating the circumstances that led to dismissal of the petitioner from service. It is stated that, though the petitioner was provided adequate opportunity to defend himself in the enquiry, he failed to prove his case. It is submitted that the enquiring authority proved the charges beyond all reasonable doubt and basing on the enquiry report and duly following the procedure laid down in A.P.C.S. (C.C.&A) Rules, 1991 (for short ‘the Rules’), the impugned proceedings were issued. It is also stated that though the past conduct of the petitioner shows that he was a chronic absentee, the same has not been taken into account, while issuing the impugned proceedings, and the punishment imposed against the petitioner is proportionate to the charges framed against him. Therefore, there is no infirmity or error in the impugned proceedings, warranting interference by this Court. Learned counsel for the petitioner submits that, on the one hand, the disciplinary authority has given tabular statement, whereunder the past misconduct of the petitioner was referred to, and on the other, stated that the past record of the petitioner has not been taken into account, and the same amounts to violation of principles of natural justice. Learned counsel further submits that the Tribunal did not take into consideration the Andhra Pradesh Police Standing Order 211(8), according to which, the past conduct of an employee shall not be taken into account, while imposing the punishment. In support of his contention, he placed reliance upon the judgments of the Supreme Court in Union of India and others v. Giriraj Sharma[1] and Syed Zaheer Hussain v. Union of India[2], wherein it was categorically held that past misconduct cannot be taken into consideration. Therefore, the writ petition deserves to be allowed. Per contra, learned Government Pleader for Services-I submits that the petitioner remained absent from his duty without seeking any permission or leave and that the charges levelled against him are proved beyond all reasonable doubt. He contends that, the Enquiry Officer took into consideration the defence put forth by the petitioner, and gave report and based on such report and duly following the procedure prescribed under the Rules, the respondents imposed the punishment on the petitioner. Learned Government Pleader further submits that, in fact, the Disciplinary Authority has not taken into account the past record of the petitioner, while imposing punishment, though they placed a tabular statement in record. In support of his submissions, he has invited our attention to the judgments of the Supreme Court in Union of India and others v. Bishamber Das Dogra[3] and Government of Andhra Pradesh v. Mohd.Taher Ali[4]. We have considered the rival submissions made by the learned counsel for the parties and perused the record. In Union of India (1 supra), the Supreme Court at paragraphs 30 and 33 held that the indiscipline of a police force is intolerable, which reads as under: 30. In view of the above, it is evident that it is desirable that the delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require. 33. Admittedly, the respondent employee has not completed the service of six years and had been imposed punishment three times for remaining absent from duty. On the fourth occasion when he remained absent for ten days without leave, the disciplinary proceedings were initiated against him. The show cause notice could not be served upon him for the reason that he again deserted the LINE and returned back after fifty days. Therefore, the disciplinary proceedings could not be concluded expeditiously. The respondent submitted the reply to the show cause notice and the material on record reveal that during the pendency of the enquiry he further deserted the LINE for ten days. There is nothing on record to show any explanation for such repeated misconduct or absenteeism. The court/tribunal must keep in mind that such indiscipline is intolerable so far as the disciplined force is concerned. In Government of Andhra Pradesh (2 supra) also, the Supreme Court at paragraph No.5 reiterated the above stand, which reads under: Learned counsel appearing on behalf of the respondent submitted that in fact, the disciplinary authority while passing the order has taken into consideration the earlier absence of the respondent from the duty. He submitted that this could not have been taken into consideration as the respondent was not aware about these incidents and those were not the part of the charges leveled against him. In support of his submission learned counsel for the respondent has invited our attention to the judgment of this Court titled State of Mysore v. K.Manche Gowda[5] but in the present case we are satisfied that in fact the respondent deliberatey absented himself from duty and did not offer any explanation for his absence from election duty. It is not the respondent’s first absence. He also absented himself from duty on earlier occasions also. In our opinion there can be no hard-and-fast rule that merely because the earlier misconduct has not been mentioned in the charge sheet it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often only to reinforce the opinion of the said authority. The police force is a disciplined force and if the respondent is a habitual absentee then there is no reason to ignore this fact at the time of imposing penalty. Moreover, even ignoring the earlier absence, in our opinion, the absence of 21 days by a member of a disciplined force is sufficient to justify his compulsory retirement. Learned Government Pleader placed reliance upon Order No.299(2) to (4), wherein it was prescribed that, before proceeding on leave, all subordinate police officers should communicate the same to their immediate superiors, which reads as under: “Order No.299(2): All subordinate Police Officers, before proceeding on leave should communicate their address to their immediate superior and keep him informed of any change of address. Order No.299(3): No subordinate Police Officer may proceed on leave without sanction. Order No.299(4): Head Constables and Constables proceeding on leave shall invariably be furnished with passports.” A cursory reading of the same also shows that no subordinate police officer can proceed on leave without sanction and without furnishing the details of leave address etc. A perusal of the judgment rendered by the Tribunal shows that that the learned Member (Judl.) had considered the submissions of the learned counsel and the material placed before it, in detail, and observed as under: “I have perused the minutes of the enquiry officer’s report. It is seen that the applicant was given an opportunity to cross examine the witness. The department had let in two prosecution witnesses besides marking certain documents, which are germane for providing the charges. The charges are held proved beyond reasonable doubt. The applicant has not even chosen to let in any evidence on his behalf before the enquiry officer giving reasons for his unauthorized absence except stating that he was mentally suffered owning to family problems and did not attend to duty. No medical certificate is adduced in support of his contention. Thus, there was no other opinion open before the enquiry officer except to hold the charges as proved. The disciplinary authority having received the minutes from the enquiry officer has taken into consideration the entire facts and circumstances and has chosen to pass the impugned orders dismissing the applicant from service. It is seen that at para 3 of the impugned order, the above delinquencies have been referred to in a tabular form. The disciplinary authority himself has stated in unsustainable terms that the past delinquencies have been not taken into consideration. I have no iota of doubt in my mind that the applicant has been dismissed from service independently on the ground of proven charges alone and not on the basis of the past delinquencies. I have also perused the Orders passed by this Tribunal in O.A.No.10016/2002 with C.A.No.115/2002 dated 25.04.2000. The facts obtaining in the said case are totally different and distinct as the disciplinary authority in that case had taken into consideration the factum of pendency of other disciplinary proceedings wherein the applicant was facing disciplinary charges which were not concluded. That being the foundation of the order, this Tribunal opined that such circumstances cannot be taken into consideration without giving him opportunity to prove his innocence in the said disciplinary proceedings. The case on hand is totally different and distinct. The charges in the disciplinary proceedings as pointed out herein above are proved and such proven charges have led to the dismissal of the applicant from service and not the past delinquencies. I have perused the orders passed by the appellate authority. The appellate authority has passed the orders by taking into consideration the totality of circumstances involved in this case based on the evidence of record and this Tribunal do not find fault with the action of the respondents. Viewed from any angle, the applicant has not made out any case warranting interference of this Tribunal. The O.A. is devoid of merits and is accordingly dismissed.” Admittedly, the incumbent is a Police Constable. Being a member in the disciplined force, he is under obligation to seek permission or obtain leave from his superiors, before leaving the duties. There is also no dispute that he was absent from duty for more than 18 days. No explanation worth its name is forthcoming, except stating that due to financial and family problems, he could not attend the duties. The principal contention urged on behalf of the petitioner is that the respondents ought not to have taken his past conduct into consideration, while imposing punishment. In 211(8) of the Andhra Pradesh Police Standing Orders also it is stated as under: An officer’s past record shall not be taken into account in arriving as a finding as to the truth or otherwise of the charges against him. If, however, the enquiring officer considers that the past record of the accused officer is such that it should be taken into account in assessing the penalty to be imposed on him, the prescribed procedure shall be adopted. After the charge or charges have been proved, a further charge based on the previous record of the officer shall be framed, translated, if necessary, delivered to the accused officer and acknowledged by him. His explanation to this supplementary charge will then be obtained. In this explanation, the accused officer cannot question the propriety of the punishments already awarded to him, but he can claim extenuating circumstances. The record of the accused officer, which in most cases will be his defaulter sheet, will next be got filed by a witness. The finding on the supplementary charge will find a place in the minute. In the instant case, though the respondents placed a tabular statement showing the past conduct of the petitioner, they have not taken the same into consideration, while imposing the punishment of dismissal from service, which is evident from the proceedings of the 1st and 2nd respondents. On a perusal of the judgment of the Tribunal, it is seen that it had discussed the submissions and the precedents relied upon by the learned counsel, in detail, and held that the impugned proceedings do not suffer from any infirmity or irregularity. In view of the above facts and circumstances, we are of the view that the order of the Tribunal does not suffer from any infirmity, warranting interference by this Court. Hence, the Writ Petition is dismissed. There shall be no order as to costs. ___________________________ GHULAM MOHAMMED, J _____________________ G. CHANDRAIAH, J 10.08.2010 KH [1] (1994) SC 215 [2] (1999) 9 SCC 86 [3] (2009) 13 SCC 102 [4] (2007) 8 SCC 656 [5] AIR 1964 SC 506 : (1964) 4 SCR 540