Mohd. Ayoub vs Union Territory of J&K and others

Judgmenttag-judgment

Javed Iqbal Wani, J

The petitioner in the instant petition filed under Article 226 of the Constitution has prayed for the following reliefs:

i. Allow the Writ Petition.

ii. Issue an appropriate writ, order or direction in the nature of Certiorari for Quashment of the Order No. 331 of 2020 dated 25.06.2020 passed by the respondent No. 4 to the extent, whereby the services of the petitioner has been disengaged as SPO w.e.f. 19.03.2020.

iii. With a further appropriate writ, order or direction in the nature of mandamus commanding the respondents to reinstate the petitioner as a SPO No. 186 w.e.f. 19-03-2020 when the services of the petitioner had been disengaged along with all consequent service benefits.

iv. Any other appropriate relief which this Hon’ble Court may deem fit and proper in the given facts and circumstances of the case be filed in favour of the petitioner as against the respondents.

Facts on the strength of which the aforesaid reliefs have been prayed and as are stated in the petition are that the petitioner was appointed as Special Police Officer(SPO) by the respondents vide order No. 322 of 2012 dated 19.04.2012 and on 19.03.2020, the petitioner proceeded on five days casual leave duly sanctioned by his immediate officer ASI, Naresh Singh in order to fetch some ayurvedic medicines from Aligarh for the treatment of his ailing mother and while availing the said casual leave for the said purpose, the petitioner got held up due outbreak of COVID-19 pandemic and consequent lockdown with effect from 27.03.2020 at Aligarh and on his return therefrom Aligarh also came to be quarantined at Kathua, while entering the then State of Jammu and Kashmir in the month of May, 2020, as such, could not resume his duties after availing the said casual leave and that the petitioner thereafter resumed his duties on 04.06.2020 duly endorsed by respondent 4 herein, however, respondent 4 ordered initiation of a departmental enquiry against the petitioner for his absence with effect from 19.03.2020 till 08.05.2020, upon completion which enquiry, the enquiry officer though recommended respondent 4 that a double monthly honorarium drawn by the petitioner be recovered from him for the period the petitioner remained absent from duty and be transferred to some other Range as a measure of deterrence in future, yet the respondent 4 herein, while disagreeing with the recommendation of the enquiry officer, in terms of order No. 331 of 2020 dated 25.06.2020 ordered disengagement of the petitioner as SPO with effect from 19.03.2020.

The petitioner has challenged the impugned order in the instant petition on the following grounds:

a. That though there are no service rules governing the appointment, terms and conditions of SPO but the respondents have not complied strictly with the rules of natural justice nor have grant reasonable opportunity to the petitioner to prove his absence which was neither deliberate nor intentional, as such the impugned order shakes the juridical conscience is liable to be set aside.

b. That though the inquiry officer had recommended that the amount of honorarium amount for four months i.e. double the unauthorized absence be recovered from his monthly honorarium and he may be transferred to other range to serve him deterrent in future, as the said recommendation was commensurate to the unintentional absence of the petitioner. The respondent No. 4 however without any cogent reasons and be a non speaking order has disagreed with the recommendation of the inquiry officer. It is submitted that the respondent No. 4 under law could have disagreed with the recommendation of the inquiry officer but in the given facts and circumstances of the case there was no occasion or justifiable reason to disagree with the recommendation of the inquiry officer as such the impugned order to the extent of disengagement of the petitioner is liable to be set aside.

c. That it was incumbent under law upon the respondent No. 4 to issue prior notice to the petitioner before passing the impugned order, as the respondent No. 4 being a disciplinary authority had disagreed which the recommendation of the inquiry officer. It is submitted that the inquiry officer had only recommended recovery of honorarium amount for four months and transfer of the petitioner to another range, which was not accepted by the respondent No. 4. It is submitted that since the respondent No. 4 had passed a punishment of dismissal i.e. disengaging the services of the petitioner, the petitioner under law was entitled to a hearing before passing the order of punishment of disengagement as such the impugned order is liable to be set aside.

d. That the respondent No. 4 has awarded punishment which is shockingly disproportionate to the misconduct if any attributable to the petitioner. It is submitted that the petitioner proceeded on leave for purchase of some Ayurvedic Medicines from Aligarh for the treatment of the aged mother of the petitioner who is solely dependent on the petitioner. The petitioner had submitted in this behalf while replying to the charge sheet which has been consistent plea that the petitioner had never intentionally or deliberately abandoned his services. Moreover, the absence of the petitioner was occasioned due to the COVID lockdown and he was further quarantined in Kathua on entering J&K for a period of 16 days. The petitioner as such for reasons beyond his control could not resume his duties as such there has been no deliberate absence on the part of the petitioner. The punishment awarded by the respondent No. 4 is not commensurate with the reasons behind the absence of the petitioner as such the petitioner seeks kind indulgence of the Hon’ble Tribunal to set aside the impugned order.

e. That in the same departmental inquiry for which ASI Barkat Ali No. EXJ876066 was charge sheeted by the inquiry officer along with the petitioner, the respondents have awarded lesser punishment to ASI Barkat Ali by forfeiture of two annual increments but reinstated him. However, in the same departmental inquiry arising out of the same facts in which the petitioner was also charge sheeted the petitioner was also charge sheeted the petitioner has been disengaged. The petitioner submits that the evaluation of the misconduct attributable to the petitioner and ASI Barkat Ali is not objective and the same has resulted in hostile discrimination to the petitioner. In this behalf the petitioner relies upon case tilted LIC vs. Triveni Sharan Mishra reported in 2014 (10) SCC 346 wherein, it has been held that punishment to similarly situated employee for the same misconduct has to be identical. It is accordingly submitted that the respondents have not considered the special facts and the circumstances of the case in regard to the misconduct attributable to the petitioner in an objective manner and as such the impugned order is liable to be set aside.

f. That the departmental inquiry has not been conducted in accordance with the minimum standards as envisaged under service jurisprudence. The inquiry officer has not given reasonable opportunity of hearing to the petitioner to defend himself, The procedure adopted by the inquiry officer has gravely prejudiced the rights of the petitioner as in the absence of effective reasonable hearing to the petitioner, the same has resulted in violation of rules of natural justice, as such the impugned order is liable to be set aside.

g. That as submitted above in the light of the facts on record the absence of the petitioner was neither intentional nor deliberate. The petitioner was a disciplined member of J&K Police and could never dream of abandoning his services willfully, intentionally or deliberately. The absence has occurred due to his ailing aged mother and as a dutiful son was bound to look after her for her medical treatment. It is submitted that the respondent have failed to take into compassion which should have accrued in favour of petitioner who as a dutiful and obedient son sought treatment of his mother during the period of his leave for which the petitioner had obtained prior and requisite permission, as such the impugned order is liable to se set aside.

Reply to the writ petition has been filed by the respondents, wherein the petition is being opposed, INTER ALIA, on the premise that the petitioner deliberately absented himself from duties and proceeded outside without any permission and during the course of enquiry, failed to even produce any evidence in support of his version, whereupon the disciplinary authority ordered his termination in terms of the impugned order.

Heard learned counsel for the parties and produced the record.

Mr. Gagan Basotra, learned senior Advocate appearing for the petitioner while making his submissions, reiterated the case set up by the petitioner in the instant petition contending that the petitioner had proceeded on leave for purchase of ayurvedic medicine for the ailment of his mother from Ailgarh and as ill-luck would have it, the petitioner got held up there at Aligarh on account of outbreak of COVID-19 pandemic and consequent lockdown and was even quarantined on his return therefrom Aligarh at Kathua for a period of 16 days and as such his absence from duty was neither deliberate nor intentional. Mr. Basotra in order to buttress his submissions, invited the attention of this Court to the order of the Apex Court passed on account of outbreak of COVID-19 pandemic in case, titled as Suo Motu Writ Petition (C) No. 3 of 2020 and would contend that even the Apex Court having regard to the outbreak of COVID-19 pandemic and on account of the impact of surge of said pandemic on public health as also the adversities faced by the people under said conditions intervened and while taking judicial cognizance of the situation extended the period of limitation prescribed under any general or special law in respect of all judicial and quasi-judicial proceedings. Mr. Basotra would thus submit that the respondents under these circumstances were bound to have taken into account the plea of the petitioner and considered the same, on similar lines and condoned the absence of the petitioner and least taken into consideration the recommendations of the enquiry officer which, however, having not done, the respondent 4 instead terminated the services of the petitioner being shockingly disproportionate to the absence of the petitioner.

It is an admitted fact that the COVID-19 pandemic out broke in the beginning of the year 2020 bringing to halt the entire nation including public life as also the functioning of the Government and its departments.

It is also an admitted fact that the Hon’ble Apex Court took the cognizance of said situation and intervened in Suo Motu Writ Petition (C) No. 3 of 2020 (supra) in the matter of extension of period of limitation in larger public interest. Indisputably, from the month of March 2020 till the month of May, 2020 was the peak of the COVID-19 pandemic and the petitioner otherwise could not have attended his duties had he not gone to Aligarh. Since record reveals that the respondents herein have not been able to discard or dispute the plea of the petitioner that he had gone to Aligarh with effect from 19.03.2020 till 10.05.2020 for fetching medicine for his mother and got held up there and late at Kathua, it cannot by any stretch of imagination be said that the petitioner had made any wrong statement in this regard.

In view of aforesaid position obtaining in the matter and in particular, the recommendations made by the enquiry officer in the enquiry conducted in the matter against the petitioner, the question that would arise for consideration of this Court would be as to whether the punishment awarded to the petitioner is proportionate to the absence from duty or not. Law in this regard stands settled by the Apex Court in case tilted as Parveen Kumar vs Union of India and others, reported in (2020) 9 SCC 471, wherein at para 36, following has been held:

“36. …….It is a settled legal proposition that the Disciplinary Authority has wide discretion in imposing punishment for a proved delinquency, subject of course to principles of proportionality and fair play. Such requirements emanate from Article 14 itself, which prohibits State authorities from treating varying degrees of misdeeds with the same broad stroke. Determination of such proportionality is a function of not only the action or intention of the delinquent, but must also factor the financial effect and societal implication of such misconduct. But unlike in criminal cases, in matters of disciplinary proceedings Courts only interfere on grounds of proportionality when they find that the punishment awarded is inordinate to a high degree, or if the conscience of the Court itself is shocked. Thus, whereas imposition of major penalty (like dismissal, removal, or reduction in rank) would be discriminatory and impermissible for trivial misdeeds; but for grave offences there is a need to send a clear message of deterrence to the society. Charges such as corruption, misappropriation and gross indiscipline are prime examples of the latter category, and ought to be dealt with strictly.”

It is significant to mention herein that it is not the case of the respondents that the misconduct alleged against the petitioner was on account of corruption or gross indiscipline or that the petitioner was involved in the commission of a grave offence, but indisputably has been his absence from duty for a short span of time i.e. with effect from 19.03.2020 till 10.05.2020, this Court is of the considered opinion that the punishment awarded to the petitioner in the facts and circumstances of the case is shockingly disproportionate.

Viewed thus, what has been observed, considered and analyzed hereinabove, the instant petition succeeds, as a consequence whereof, the impugned order No. 331 of 2020 dated 25.06.2020 is set aside and the respondents are commanded to reinstate the petitioner back in service and extend him all benefits to which he is entitled thereto except the honorarium for the period the petitioner did not attend to his duty.