Vikas Kumar vs State of U.P. and Others

V.K. Shukla, J.—Present writ petition has been filed by the Petitioner questioning the validity of order dated 18.08.2008 passed by Senior Superintendent of Police, Saharanpur, placing the Petitioner for two years on minimum pay scale and forfeiting the salary for the period of 48 days.

Brief background of the case is that the Petitioner applied for three days leave since 10.05.2007 and left the Head Quarter Sarsawan on 09.05.2007 in the afternoon. On 12.05.2007 his wife committed suicide. His in-laws lodged F.I.R. against the Petitioner and his family, which was registered as case crime No. 137 of 2007, u/s 304B I.P.C. read with Section 3/4 of Dowry Prohibition Act. Petitioner gave this information to Senior Superintendent of Police, Saharanpur and other departmental authorities on 22.05.2007 by speed post as well as by telephonic message. Thereafter, Petitioner was suspended vide order dated 30.06.2007. The Circle Officer conducted preliminary inquiry and sent report to the Senior Superintendent of Police, who recommended for departmental proceedings under Rule 14(1) of the U.P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991. In the Criminal case, Petitioner was acquitted by the learned Sessions Judge vide judgment and order dated 05.10.2007 and initiated proceeding u/s 340 Code of Criminal Procedure Against the prosecution for registration of false F.I.R. Petitioner joined his duties on 10.10.2007 and started performing his duties with devotion. Thereafter, Petitioner was reinstated in service vide order dated 25.10.2007 by the Senior Superintendent of Police. On 31.03.2008, Petitioner was served with charge sheet dated 03.04.2008, to which Petitioner submitted his reply on 15.04.2008. Thereafter, C.O. City-II, Saharanpur sent a letter dated 12.05.2008 requiring the Petitioner to file his defence, as prosecution evidence was complete. On 26.04.2008 Petitioner gave his reply stating the circumstances under which he could not join his duty. After completing departmental enquiry the Enquiry Officer submitted his report finding the Petitioner prima facie guilty recommended punishment for placing the Petitioner on lower pay scale for two years and forfeiting the salary for the period for which he remained absent on the principle of -No Work No Pay". On 06.07.2008, Senior Superintendent of Police issued two show cause notices to the Petitioner in respect of punishment; one in relation to -No Work No Pay" and the second for placing the Petitioner on lower pay scale for two years. Petitioner submitted separate replies to the aforesaid two notices. Petitioner submits that the Disciplinary Authority without considering the reply imposed punishment placing the Petitioner on lower pay for two years and forfeiting salary for 48 days. Aggrieved, Petitioner filed appeal under Rule 20 of the 1991 Rules, which has been rejected. At this juncture, present writ petition has been filed.

Pleadings inter se parties have been exchanged, and thereafter, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri S.K. Srivastava, learned Counsel for the Petitioner, contended with vehemence that in the present case there were valid reasons for absence of Petitioner from service without applying for leave and such reasons ought to have been considered and the Petitioner ought to have been exonerated in the departmental proceedings, so undertaken against him and consequently, the punishment so awarded, in the facts of the case, is not at all commensurate to the charges, as such writ petition deserves to be allowed.

Countering the said submissions, learned standing counsel, on the other hand, has contended that cogent reasons have been given for accepting the guilt of the Petitioner and the punishment so awarded is commensurate to the charges levelled against him, and as such no interference should be made.

After respective arguments have been advanced, factual position which emerges and to which there is no dispute, is that Petitioner applied for 3 days'' leave since 10.05.2007 and left the Head Quarter Sarsawan on 09.05.2007 in the afternoon. On 12.05.2007 his wife committed suicide and F.I.R. Was lodged against the Petitioner and his family by the uncle of the wife of the Petitioner, which was registered as case crime No. 137 of 2007, u/s 304B I.P.C. read with Section 3/4 of Dowry Prohibition Act. After the said incident had taken place, it is reflected that there is nothing on record to suggest that the Petitioner had ever applied for extension of his leave or ever reported for duties and record in question further reflects that in criminal case competent court of law proceeded to pass order of acquittal against the Petitioner and specific directives were issued for releasing the Petitioner and other co-accused from jail, as the Petitioner was in judicial custody since 16.07.2007. The Petitioner after being released reported for duty and was reinstated back in service on 25.10.2007, and then disciplinary proceedings were undertaken against him in exercise of Rule 14(1) of the U.P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 by mentioning that the Petitioner without any reason and without taking any leave or5 permission absented himself and that criminal case had been lodged against him, wherein he was named accused, and in order to save himself from being arrested, Petitioner absented and being member of disciplined force complicity of Petitioner in such type of cases amounts to dereliction of duty. Petitioner submitted his reply in the domestic enquiry and thereafter inquiry report had been submitted, which was accepted by the Disciplinary Authority. Petitioner was given full opportunity. Finding of guilt returned against the Petitioner in the present case, as far as his absence without taking leave or permission cannot be faulted, for the simple reason that the Petitioner had proceeded on leave on 09.05.2007 and the leave was sanctioned only for three days. The Petitioner being member of disciplined force, whatever were the circumstances prevailing in his family same ought to have been intimated to the authority concerned. Though in his reply, Petitioner has submitted that he had sent information by speed post as well as telephonically qua the family problems, but the fact of the matter is that the same are not supported by any evidence, whereas repeated opportunity was given to him. Petitioner had intended to produce one Som Pal Rathi, but the said incumbent also did not turn up. Once such is factual scenario that full opportunity had been afforded to the Petitioner. Prosecution witnesses appeared and supported the charges that after expiry of three days from 09.05.2007 no further application for leave had been applied or sanctioned. Finding recorded on this score cannot be faulted, as such in the facts of the case charge of absence from duty without taking any leave has been substantiated, which is not liable to be interfered with.

The next issue sought to be raised by the Petitioner is in respect of punishment awarded to him by placing him on lower pay scale for two years and forfeiting salary for 48 days. As far as forfeiting salary for 48 days is concerned, qua the same no serious challenge has been made and entire emphasis has been to show and demonstrate that the punishment awarded is not commensurate to the charges. Placing an incumbent on minimum pay scale for two years has been held to be major penalty by Hon''ble Apex Court in the case of Kulwant Singh Gill Vs. State of Punjab, of the said judgment being relevant is being quoted below:

Withholding of increments of pay simpliciter undoubtedly is a minor penalty within the meaning of Rule 5(iv). But Sub-rule (v) postulates reduction to a lower stage in the time-scale of pay for a specified period with further directions as to whether or not the Government employee shall earn increments of pay during the period of such reductions and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay. It is an independent head of penalty and it could be imposed as punishment in an appropriate case. It is one of the major penalties. The impugned order of stoppage of two increments with cumulative effect whether would fall within the meaning of Rule 5(v)? If it so fails Rules 8 and 9 of the Rules require conducting of regular enquiry. The contention of Shri Nayar, learned Counsel for the State is that withholding two increments with cumulative effect is only a minor penalty as it does not amount to reduction to a lower stage in the time-scale of pay. We find it extremely difficult to countenance the contention. Withholding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rule 5(iv) of the Rules. But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the timescale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order, by necessary implication, is that the Appellant employee is reduced in his time-scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years'' increments would not be counted in his time-scale of pay as a measure of penalty. The words are the skin to the language which if pealed off its true colour or its resultant effects would become apparent. When we broach the problem from this perspective the effect is as envisaged under Rule 5(v) of the Rules. It is undoubted that the Division Bench in Sarwan Singh v. State of Punjab and Ors. ILR 1985 P&H. 193, P.C. Jain, A.C.J. speaking for the division bench, while considering similar question, in paragraph 8 held that the stoppage of increments with cumulative effect, by no stretch of imagination falls within clause (v) of Rule 5 or in Rule 4.12 of Punjab Civil Services Rules. It was further held that under clause (v) of Rule 5 there has to be a reduction to a lower stage in the time-scale of pay by the competent authority as a measure of penalty and the period for which such a reduction is to be effective has to be stated and on restoration it has further to be specified whether the reduction shall operate to postpone the future increments of his pay. In such cases withholding of the increments without cumulative effect does not at all arise. In case where the increments are withhold with or without cumulative effect the Government employee is never reduced to a lower stage of time scale of pay. Accordingly it was held that clause (iv) of Rule 5 is applicable to the facts of that case. With respect we are unable to agree with the High Court. If the literal interpretation is adopted the learned Judges may be right to arrive at that conclusion. But if the effect is kept at the back of the mind, it would always be so the result will be the conclusion as we have arrived at. If the reasoning of the High Court is given acceptance, it would empower the disciplinary authority to impose, under the garb of stoppage of increments, of earning future increments in the time scale of pay even permanently with expressly stating so. This preposterous consequences cannot be permitted to be permeated. Rule 5(IV) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry and following the prescribed procedure. Then the order would be without jurisdiction or authority of law, and it would be per se void. considering from this angle we have no hesitation to hold that the impugned order would come within the meaning of Rule 5(v) of the Rules; it is a major penalty and imposition of the impugned penalty without enquiry is per se illegal.

The question of interference on the quantum of punishment has been subject matter of consideration by Hon''ble Apex Court in catena of judgments, and therein view has been taken if the punishment awarded is disproportionate to the gravity of misconduct, it would be arbitrary and the same would violate the mandate of Article 14 of the Constitution. This proposition has been summed up in the case of B.C. Chaturvedi Vs. Union of India and others, In the said judgment earlier view of Hon''ble Apex Court in the case of Ranjit Thakur Vs. Union of India (UOI) and Others, has been relied upon, and conclusion has been that in exercise of power of judicial review court cannot substitute its own conclusion on penalty. However, if the penalty imposed by the authority shocks the conscience of the Court, it may appropriately mould the relief either directing the authority to reconsider the penalty imposed or in exceptional cases and rarest of rare cases in order to shorten the litigation itself impose appropriate punishment with cogent reasons in respect thereof. While examining the issue of proportionality the Court should also consider the circumstances under which misconduct was committed and in a given case the prevailing circumstances which might have forced him to do so, for which he had no intention to do so, the court may further examine the fact and if it is satisfied the penalty may be substituted by some other penalty. Said view has been followed in the cases of Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and Others, V. Ramana Vs. A.P.S.R.T.C. and Others, State of Meghalaya and Others Vs. Mecken Singh N. Marak, Hon''ble Apex Court in the case of State of M.P. and Others Vs. Hazarilal, has taken the view that proportionality may also be adhered to by the court and the court should be clear with the order of determination.

On the parameters of the aforesaid decisions, it is amply clear that while exercising power of judicial review the Court should normally not substitute its own conclusion, but in cases where penalty imposed by the authority shocks the conscience of the court, the relief can be appropriately moulded either by directing the authority to reconsider the penalty imposed and in exceptional cases and rare of rarest cases in order to shorten the litigation itself impose penalty with cogent reasons. The Court at the said point of time has to consider the circumstances under which misconduct was committed as in a given case the circumstances might have forced him to do an act for which he had no intention to do so, and punishment has to suit the misconduct committed and the corresponding punishment has to be awarded to the delinquent employee also to maintain internal discipline within the establishment.

From this point of view the matter has been examined, and this is accepted position that the Petitioner proceeded on leave which was duly sanctioned for three days and as his luck would have been, on 12.05.2007 his wife committed suicide, which gave rise to a criminal case, wherein Petitioner along with his entire family was roped. Petitioner being a member of disciplined force ought to have informed his superiors qua the mis-happening which took in his family and ought to have given reasons why he could not report for duty. Though it has been stated that such step was undertaken by the Petitioner, but the fact of the matter is that such averments have not been s