(J.K. Maheshwari and Sanjay Karol, JJ.)
State of Uttar Pradesh and Others ___________________ Appellant(s);
v.
Vishwa Vijay Singh _______________________________ Respondent.
Civil Appeal No. 5955 of 2016, decided on May 2, 2024
The Order of the court was delivered by
Order
1. In the present case, the Respondent, who was appointed as a Constable in the Police Department, State Government of UP, [hereinafter “Department”] on 26th February, 1975 and subsequently promoted to the post of Head Constable in 1984, was subjected to disciplinary proceedings, initiated on 09.12.2009, for misconduct on account of overstay of leave, initially for a period of 154 days between 20th November, 2006 to 23rd April 2007, and later for about 3 years between 25th June, 2007 to 20th June 2010. After a preliminary inquiry, the chargesheet was issued to the Respondent and Departmental Inquiry was conducted, wherein he was found guilty, and the Inquiry Officer recommended the punishment of ‘dismissal from service’. Consequently, the Disciplinary Authority and the Appellate Authority have imposed the major penalty of ‘dismissal’ on the Respondent.
2. Respondent assailed his dismissal before the High Court, which vide Order dated 3rd August, 2015, in the peculiar facts and circumstances of the case, had found the punishment of dismissal to be harsh and set it aside, directing reinstatement and extension of all consequential benefits notionally, including retiral and pensionary benefits, but not salary. The aforementioned order of the learned Single Judge came to be challenged in this appeal. It was contended, inter alia that reinstatement, in the facts of the case, where the Respondent had overstayed the leave and after joining, again absented for about 3 years is not proper, particularly when he himself has not participated in the Inquiry proceedings to put forth his explanation for his absence from duty. Therefore, the inquiry as directed, the report, and the consequential major penalty of dismissal imposed on the Respondent is based on evidence which should not have been vitiated by the stroke of a pen by the High Court directing the reinstatement of the Respondent with consequential benefits.
3. On the other hand, learned counsel representing the Respondent submits that the Respondent, prior to the order of his dismissal on 20th June, 2010, had served the Department for about 31 years. The overstaying of leave was on account of medical as well as other unavoidable circumstances. He submits that he was not given due opportunity during the Inquiry and the major penalty of dismissal was rightly found too harsh by the High Court and rightly set it aside.
4. We have heard learned counsel for the parties at length and perused the facts of the case. On perusal, we find some substance in the argument of learned counsel appearing on behalf of the Appellant. In our view, in the facts of the case, in which the Respondent has overstayed the leave on the second round for a period of about 3 years to which no plausible explanation has been put forward despite opportunity having been given to him. Therefore, the allegation of absence from duty has rightly been proved by the Department.
5. We have further seen that on the date of imposing the penalty, i.e. 20.06.2010, the Department itself has regularized the period of absence of respondent as ‘leave without pay’, treating him on duty. It is further appealing to us that the Respondent has served the Department for more than 31 years, with an unblemished record except for the allegation of misconduct which has eventually led to his dismissal which is the subject of this litigation. Therefore, even on proving the alleged misconduct, in the peculiar facts of the case, throwing out the Respondent from service by way of dismissal appears to be too harsh in this case.
6. Ordinarily when we find that the penalty as imposed is disproportionate, we relegate the matter to the authorities to pass appropriate orders in the facts of the case. However, in the present case, the Respondent was dismissed from service on 20th June, 2010, otherwise he would have served three years more, until August, 2013 when he would have retired, and now more than 10 years have elapsed from the date of his retirement. Considering all the facts and circumstances of the case, and particularly in view of the above facts, we are also of the opinion that major penalty ought to be imposed for such a misconduct, but in place of dismissal, we are of the view that reversion of the Respondent from the post of Head Constable to the post of Constable would be equitable and justiciable.
7. In view of the above, we allow the appeal in part. The impugned order of reinstatement to grant all consequential benefits notionally is modified. We direct that the Respondent be reverted from the post of Head Constable to the post of Constable from the date of imposition of the penalty, i.e. 20th June, 2010 and in consequence, he would be reinstated to the post of Constable from the date of penalty till attaining the age of superannuation. He would not be entitled for any back-wages but he shall be treated retired from the post of Constable. In consequence, the benefits attached to the post of Constable, including notional increments shall be fixed by the Government and accordingly, the post-retiral and pensionary benefits being compulsorily retired constable will be decided within a period of three months from the date of communication of this order. Accordingly, this appeal is allowed in part, modifying the judgement of the learned Single Judge. In view of the above, it is made clear that this order has been passed in the peculiar facts and circumstances of the case, as narrated above, and may not be treated as a precedent.
———
