1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.605/1995 Hira Singh vs. State & Anr. Date of order : 5/2/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ashish Kishore Saxena for the petitioner. Shri Zakir Hussain, Addl. Govt. Counsel for the respondents. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioner challenging the order dated 18.6.1993 by which he was awarded penalty of stoppage of three grade increments with cumulative effect by Superintendent of Police and the order dated 21.10.1993 by which his appeal against the aforesaid order of penalty was dismissed by the Deputy Inspector General of Police, Ajmer. The petitioner was serving as Constable with the Superintendent of Police, Ajmer. He was served with a charge sheet on 15.6.1992 inter alia on the charges that he willfully absented from duties from 7.3.1992 till 11.5.1992. He was sent for training to Rajasthan Police Training Centre, Jodhpur for Buglar Course on 10.2.1992, but during such training he absented without permission 2 on 7.3.92 and when he again appeared before the Training Centre, Jodhpur on 7.5.1992, he was sent to his district where instead of reporting on 8.5.1992, he reported on 11.5.1992. Shri Ashish Kishore Saxena, learned counsel for the petitioner has argued that the charge against the petitioner was not proved even by the evidence led by the respondents. Petitioner was not willfully absent and it was owing to certain information sent by his relatives that his mother was seriously ill at Ajmer, which he received while he was at Jodhpur and that the petitioner had to immediately leave to his native on 7.3.1992. Learned counsel submitted that even though the enquiry officer has noticed number of communications sent by petitioner to the respondents with regard to the illness of his mother and the fact that the petitioner during the aforesaid period also appeared in Higher Secondary Examination for which he was duly granted permission by the competent authority vide order dated 11.12.1991, no finding has been recorded by the 3 disciplinary authority on this aspect. Reference was made to the telegram dated 11.3.1992, which the petitioner sent to the Principal of Training Centre, Jodhpur informing him about the illness of his mother and the letter dated 21.3.1992 and receipt of the registry and photo state copy of another letter and it was argued that though the Enquiry Officer noticed all these documents in concluding part of receipt but has failed to give finding on that part of charge that the petitioner remained willfully absent for a long period without informing either the Training Centre and continued to so remained absent. Learned counsel argued that even the disciplinary authority has failed to notice this aspect of the matter. He also referred to the application dated 3.4.92 and 4.5.92 and photo copy of the postal receipt showing that these documents were sent to the Principal of the Training Centre, Jodhpur. Learned counsel submitted that absence of the petitioner could not be treated willful, although technically he may be absent. When the petitioner by his application requested 4 the Principal of the Training Centre to grant him leave giving reason of illness of his mother, the period subsequent thereto could not be treated as willful absent and that the petitioner should have been granted leave thereafter. Even the appellate authority has failed to apply his mind on these aspects. The penalty of stoppage of three grade increments is too harsh keeping in view the charge. Learned counsel prayed that the writ petition be allowed. Shri Zakir Hussain, learned Additional Government Counsel submitted that even if the mother of the petitioner was ill, the petitioner being a member of the Police force was first required to submit a written application and obtain permission from leaving the Headquarters. The petitioner abruptly left the training post and reported back after 62 days. Learned counsel argued that by the time, petitioner reported back at Jodhpur, the training had already come to an end. He was asked to go back to the District. The petitioner thereupon presented himself on duty at police line on 11.5.1992, thus he remained willfully absent for 64 5 days. It was argued that the illness of the mother of the petitioner is not the only cited reason. During the aforesaid period, he appeared in Higher Secondary Examination, but mere grant of permission to appear in the examination could not be treated as sanctioned leave. So long as the leave was not sanctioned, the petitioner would be treated as willfully absent, whatever may have been the cause. Learned counsel argued that the disciplinary authority has already taken lenient view of the matter considering the aforesaid communications and the fact that the petitioner absented for 64 days which is why penalty of stoppage of three grade increments with cumulative effect was awarded and not that of removal / dismissal. Having heard the learned counsel for the parties and perused the material on record as also the order of the disciplinary authority and the enquiry report, I find that although it is true that petitioner has shown to have sent some applications / communication to the Principal of the Training Centre with regard to illness of his mother and subsequently also 6 incorporating the fact with regard to his appearance in the Higher Secondary Examination, but at the same time, it is also clearly evident that petitioner absented from the training course on 7.3.1992. Even if what is contended by the petitioner that he had to suddenly leave owning to serious illness of his mother, it was required of him to apply for grant of leave and then proceed for his native place. The petitioner being a member of disciplined police force, could not be expected to behave in this manner. Sending some applications / communications citing the reason of illness of his mother and for appearance in Higher Secondary Examination for absence may somewhat show why he was absent but at the same time, it will not completely obliterate the misconduct or justify the absence of the petitioner without getting the leave sanctioned and without the headquarter permission. At the same time, keeping in view the fact that the charge was a composite one, not only with regard to willful absence of the petitioner but also that he did not give any intimation 7 about his absence to the training centre and continued to remain absent and since later part of charge even though on evidence is not substantiated because the petitioner is shown to have sent number of communication to the Principal of the Training Centre at Jodhpur, but no finding has been given on that part of the matter by the Enquiry Officer, nor even by the disciplinary authority. The charge to that extent does not appear to have been fully proved and is proved only in part. The gravity of the charge is thus somewhat proportionately reduced. It would therefore be appropriate that the quantum of penalty that has been awarded to the petitioner also is suitably reduced. In the result, this writ petition is partly allowed. While upholding the order of penalty levied by the appellate authority in part, I deem it appropriate to alter the penalty of stoppage of three grade increments with cumulative effect to that of two grade increments with cumulative effect. (MOHAMMAD RAFIQ), J. RS/