CAV Order

1. The order under assail in this petition is dated 21.08.2014 (Annexure P-1) passed by Superintendent of Police, Dhamtari (Respondent No. 3) terminating the services of the petitioner who was working as Constable (GD) since 06.07.2010 with his posting in the official residence of Deputy SP, Dhamtari, on the ground that he remained unauthorizedly absent from duty for 335 days i.e. from 26.07.2011 to 03.09.2012.

2. The facts: Having received an information on 25.07.2011 about his father being seriously attacked by the Naxalites (Maoists) with lethal weapon, the petitioner herein left for his native village on 26.07.2011 and that being in mental stress he could not even intimate to his department about the same. His village is stated to be the Naxal infested area and the disturbance prevailing there over was well within the knowledge of police. The petitioner is also stated to have sought certain information under the Right to Information Act, 2005 ("RTI Act" for short) regarding the Naxal movement in the concerned area. A certificate dated 10.09.2014 said to be issued by the Sarpanch in this respect is also enclosed with the petition. From the documents which were made available by the State in pursuance of the order passed by this Court on 18.04.2023 it emerges that the first step was taken by the State in a bid to ensure presence of the petitioner on 21.08.2012 by which he was directed to report on duty. The said notice was served on 23.08.2012 but the petitioner did not turn up. The charge-sheet was issued to the petitioner, a full fledged inquiry was conducted where the delinquent employees had also participated in the same and thus having adopted a due procedure of law, the inquiry report was submitted and the penalty of dismissal from service was imposed upon him vide order dated 21.08.2014 Annexure P-1 passed by the Superintendent of Police, Dhamtari, whereby the services of the petitioner were terminated. Against that order, the petitioner preferred a statutory appeal before the Inspector General of Police, Raipur Range, which came to be rejected vide order dated 21.10.2014. Thereafter, the petitioner submitted a mercy appeal dated 15.07.2015 before the Director General of Police seeking reinstatement on the post of Constable (G.D.). However, the orders passed by SP and that of the IG remained undisturbed all along. Hence, this petition.

3. Learned counsel for the petitioner submits that the circumstances the petitioner landed in were as such that he did not have the breathing time to think about intimating to the department before proceeding on leave and therefore the stand of the respondents that he remained unauthorizedly absent for a sufficient long time does not come true on the touchstone of law. She submits that having proceeded on leave, the circumstances did not attenuate, which impelled the petitioner to stay back in the midst of his family and therefore as the circumstances beyond his control, he cannot be treated to be in the habit of absenteeism, and for that his absence from duty as above cannot be termed as either willful or deliberate. She further submits that, even if the absence is held to be unauthorised, the extreme penalty of termination is wholly disproportionate which may be reduced appropriately. In support of her submissions, she placed reliance on the decision of the Supreme Court in the matter of Shri Bhagwan Lal Arya Vs Commissioner of Police Delhi and others reported in (2004) 4 SCC 560.

4. On the contrary, learned State counsel submits that looking to the act of the petitioner where he chose to stay away from duty for a substantial period of time without there being any backing material in his favour, the penalty imposed on him after conducting a detailed inquiry and giving opportunity to the petitioner to participate in the same does not appear to be disproportionate. He submits that the petitioner being a member of a disciplined police force remained unauthorisedly absent for 335 days which is unbecoming of the assignment he took over. He submits that the alleged Naxal attack upon the father of the petitioner could not be substantiated by any credible material and in any event did not justify the absence of 335 days. It is also pointed out that despite issuance of notice on 21.08.2011 directing the petitioner to report for duty, he did not bother to join. He further submits that such unauthorised absence of the petitioner is violative of the police Regulation No. 64 and the relevant conditions of service. He submits that after receiving the enquiry report, Superintendent of Police, Dhamtari issued a show cause notice to the petitioner on 02.07.2014 (Annexure R-2) and while submitting the reply thereto he duly admitted that on account of family problems and Naxal activities in the village he remained in mental stress and for that remained unauthorizedly absent for a period of 335 days. By way of additional return, the State counsel stressed on the fact that the petitioner was still a temporary employee and his services were not regularised, he remained on unauthorised absence for a long duration, which speaks about utter indiscipline on his part. Learned State counsel further submits that the finding recorded by the disciplinary authority remained undisturbed at the appellate and mercy petition stage all along which weakens the argument of the petitioner that the absence from duty on his part was bona fide. After advancing the argument on merits, learned State counsel also made a submission about the petition having been filed with delay of about 4 years, and for that the law keeps him away from its protective arms.

5. Heard learned counsel for the parties and perused the record.

6. The question that arises for consideration is whether the finding of unauthorised absence recorded against the petitioner and the consequent punishment of dismissal of services warrant interference in exercise of the jurisdiction under Article 226 of the Constitution of India.

7. The documents on record establish that the petitioner remained absent from duty with effect from 26.07.2011 to 03.09.2012. In the departmental proceedings, it was duly established that the petitioner remained absent from duty without prior intimation or approval to the department for a period of 335 days. Factum of long absence has even been admitted by the petitioner while submitting the reply to the show cause notice dated 02.07.2014 issued by the Superintendent of Police. Though the petitioner has taken a defence that on account of his father having been attacked by the naxalites fatally, the circumstances did not permit him to report back to duty yet he did not file any document to fortify his stand that the picture portrayed by him was indeed correct. Rather some of the correspondences made by the petitioner justifying his absence themselves mention a different ground making him remain absent for the period alleged by the department. Not only this, such a defence of Naxalite attack on his father was never taken during the departmental enquiry. Though he claims to have applied for certain documents in support of the naxalites activities going on in and around his native place yet nothing like this forms part of the record. No document much less the medical one in support of the fact that his father was subjected to naxalite attack has been produced by him. In other words, the petitioner's stand that it is the unavoidable circumstances which made him stay away from duty appear to be without legs to stand. It is further reflected from the record that by virtue of his appointment in 2010 he had barely put in four years of service up-till his termination. This shows that when he was supposed to be a little careful so as to ensure a smooth service career but in the beginning itself he got deviated from the right and rightful path. This aggravates the situation against him for the reason that he did not file any document to show that his absence was not willful or deliberate. Being all this, the finding of the enquiry officer in arriving at the conclusion that the petitioner remained unauthorisedly absent for a period of 335 days shows his lackadaisical attitude towards his duty which can be termed as gross negligence on his part, appear to be fully justified.

8. The distinction between the circumstance which occasioned the initial departure and the circumstances which allegedly compelled the petitioner to remain absent for the subsequent 335 days is of considerable significance. The Court is not required to record a finding in these proceedings as to the truth or otherwise of the alleged Naxal attack as an independent factual controversy particularly when it was not the issue during the departmental enquiry, and has to go by the procedure adopted by the enquiry officer until and unless something glaring is there to demonstrate any material irregularity or lacuna in the same, which in this case is completely amiss. This Court took note of the decision cited by the Counsel for the petitioner but as the facts involved including the duration of absence are variable, the same does not provide a supporting hand to the petitioner.

9. As regards the quantum of punishment, this Court is conscious of the limited scope of judicial review in such matters. In B.C. Chaturvedi v. Union of India reported in (1995) 6 SCC 749, the Supreme Court has held that the disciplinary authority and the appellate authority are ordinarily vested with the discretion to impose an appropriate punishment having regard to the magnitude and gravity of the misconduct, and that the High Court, while exercising judicial review, cannot normally substitute its own conclusion regarding the penalty. Interference is warranted only where the punishment imposed is such as to shock the conscience of the Court. Though the circumstance pleaded by the petitioner regarding the serious assault upon his father could furnish a mitigating factor and explain his initial departure from duty, since this defence was not taken by him in the departmental enquiry, the hands of this Court in harping upon this venture are tied up while exercising the writ jurisdiction. The disciplinary authority and the appellate authority have duly considered the material and the explanation offered by the petitioner while maintaining the punishment. The punishment imposed cannot, having regard to the nature of the service and the gravity and duration of the proved misconduct, be characterised as so disproportionate as to shock the conscience of this Court.

10. Consequently, this Court finds that the finding of the enquiry officer in holding the petitioner to be on unauthorised absence for a period of 335 days is supported by the material on record, the punishment imposed cannot be said to be shockingly disproportionate so as to warrant interference under Article 226 of the Constitution.

11. The writ petition thus fails and is hereby dismissed.

12. No order as to costs.