Mahendra Singh v. Public Service Tribunal others

Petitioner challenged the dismissal order in appeal, which was dismissed vide order dated 30.07.2008 by the Inspector General, Garhwal Range. Petitioner thereafter filed a revision petition, which too was dismissed by the Additional Director General of Police vide order dated 20.02.2009. 1

2. Petitioner approached Uttarakhand Public Service Tribunal by filing a claim petition, which was numbered as Claim Petition No.129 of 2009. The Tribunal has dismissed the claim petition vide judgment dated 04.08.2014, which is under challenge in this petition. Petitioner has also challenged order of dismissal, order passed in appeal and revision, also, in this writ petition. Before learned tribunal, petitioner contended; i. that charge sheet was not issued by the Disciplinary Authority but by the Inquiry Officer. ii. Petitioner was not given opportunity to cross examine the departmental witnesses during inquiry proceedings. iii. Absence of petitioner was not willful or deliberate but it was due to sudden illness. iv. The dismissal order as well as order passed by Appellate Authority and Revisional Authority, are based on surmise and conjuncture. vi. The punishment imposed is too harsh and disproportionate to the misconduct committed by the petitioner.

3. Learned tribunal has dealt with all contentions raised on behalf of petitioner. Regarding first contention it was held that applicable Rules, namely, U.P. Police Officers of Superintendent Ranks (Punishment and Appeal) Rules, 1991 are silent 2 regarding the authority, who is competent to issue the charge sheet, therefore, in the absence of any prohibition in the Rules, there is nothing wrong if Deputy Superintendent of Police, who held the inquiry, issued charge sheet. Rule 7(4) of the aforesaid Rules provides that all Assistant Superintendents Police Deputy Superintendents of Police, who have completed two years of service as such, may exercise powers of Superintendents of Police except the powers to impose major punishment under Rule 4. Rule 7 of the aforesaid Rules, is extracted below:- Powers punishment.-(1) The “7. Government or any officer of police department not below the rank of Deputy Inspector-General may award any of the punishments mentioned in Rule 4 on any police officer. (2) The Superintendent of Police may award any of the punishments mentioned in sub-clause (iii) of clause (a) and clause (b) of sub-rule (1), of Rule 4 on Inspectors and Sub-Inspectors. (3) The Superintendent of Police may award any of the punishments mentioned in Rule 4 on such police officers as are below the rank of Sub- Inspectors. (4) Subject to the provisions contained in these rules all Assistant Superintendents of Police and Deputy Superintendents of Police who have completed two years of service as Assistant Superintendents and Deputy Superintendents of Police as the case may be, may exercise powers of Superintendent of Police except the powers to impose major punishments under Rule 4.” Police

4. A Division Bench of this Court had an occasion to consider similar argument in the case of 3 Secretary, Home Department and Another vs. Narendra Kumar and Others 2012 (1) UD 178 and it was held that where a minor penalty is to be made, the same can be imposed by Superintendent of Police provided he has completed two years of service on the post, however, when a major penalty is to be imposed, then same can be imposed by Superintendent of Police. It is not the case of petitioner that Deputy Superintendent of Police, who issued charge sheet had not completed two years of service, therefore, by virtue of Rule 7(4) Deputy Superintendent concerned could very well exercised powers available Superintendent of Police. The Disciplinary Authority, in respect of petitioner, is Superintendent of Police, who passed punishment order, therefore, learned tribunal was justified repelling contention, raised on behalf of petitioner. Regarding second contention, learned tribunal held that petitioner did not participate in disciplinary inquiry even though charge sheet was duly served upon him, therefore, he cannot now complain that copies of the departmental witnesses were not supplied to him. Learned tribunal further held that petitioner could have requested for copy of the statement of departmental witnesses even after conclusion of inquiry, but he never made such request. Moreover, gist of deposition of witnesses was contained in the inquiry report, which was supplied to the petitioner, 4 therefore, he cannot now complain that deposition of departmental witnesses was not supplied to him. Regarding the contention that past conduct of petitioner was considered by Inquiry Officer, learned Tribunal held that no observation was made by the Inquiry Officer regarding petitioner’s past conduct and it was further held that Disciplinary Authority also has not taken into account past conduct of petitioner. Regarding third contention, learned Tribunal held that unauthorized absence from duty in itself is a misconduct and inquiry officer is under no obligation to return a further finding that absence from duty was deliberate or willful. Regarding the contention that due to illness petitioner could not report for duties, learned Tribunal held that petitioner, who was a member of disciplined force, remained absent from duty between 07.03.2007-17.05.2007 without any application or intimation and as per Rules, he was required to report his illness to the Competent Authority, which he did not do nor he got himself medically examined in a police or government hospital. It was further held that the orders impugned cannot be said to be based on conjectures or surmises.

5. Learned Tribunal has considered and discussed all relevant aspects for arriving at the conclusion that it cannot be said to be a case of no evidence so as to warrant interference with punishment order. 5 Learned Tribunal further held that disciplinary inquiry was held as per the applicable Rules and principles of natural justice were also followed and accordingly, dismissed the claim petition.

6. Learned counsel for petitioner raised same contentions, which were raised on behalf of petitioner before learned Tribunal, however, we are not persuaded to take a view different from the view taken by learned Tribunal. Petitioner is a member of disciplined force therefore he was expected to strictly abide by rules of conduct meant for Police officers. The punishment of dismissal from service imposed upon petitioner cannot be said to be disproportionate or excessive. Hon’ble Apex Court in the case of State of U.P. vs. Ashok Kumar Singh (1996) 1 SCC 302 has held as follows:- procedures more “8. We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the finding of the Tribunal on facts. The High Court failed to bear in mind that the find respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are the High Court's unable observation that "his absence from duty would not amount to such a grave charge". Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that "the punishment does not commensurate with the gravity of the charge" especially when the High Court concurred with the findings of the Tribunal on facts. No case punishment is made out.” interference with t appreciate 6

7. Thus, we refuse to interfere with the judgment and orders, impugned in this writ petition. Learned counsel for petitioner then submitted that learned Tribunal has not considered the provisions contained in Regulation 353 of Civil Service Regulations, which is extracted below:- “353. No pension may be granted to an officer dismissed or removed for misconduct, insolvency or insufficiency; but to the officer so dismissed or removed compassionate allowance may be is deserving of special granted when he consideration: provided that he allowances granted to any officer shall not exceed two-third of the pension which would have been admissible to him if he had retired on invalid pension.”

8. Although the said contention was not raised before learned Tribunal and it has no bearing on the merits of the case, however we dispose of the writ petition with liberty to petitioner to make representation to the competent authority claiming benefit of Regulation 353 of the Civil Service Regulations. If petitioner makes representation within two weeks, decision thereupon shall be taken within four months from the date of receipt of certified copy of this order. (Ashish Naithani, J.) (Manoj Kumar Tiwari, J.) Arti

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