U.P. & Ors Vs. Ashok Kumar Singh
& Anr  INSC 654 (10 November 1995)
K. (J) Venkataswami K. (J) Bharucha S.P. (J) K. Venkataswami. J.
1996 AIR 736 1996 SCC (1) 302 1995 SCALE (6)465
counsel on both sides.
appeal by special leave is directed against the Order of the Allahabad High
Court in W.P. No. 9547/90 dated 12.8.1991.
first respondent was a police constable and he was removed from service
pursuant to a duly conducted departmental enquiry by Order dated 6.5.1985. The
first respondent challenged the order of removal before the U.P. Public
Services Tribunal No.5, Lucknow Bench. The Tribunal by its detailed and
considered order dated 29.6.1990 declined to interfere with the order of
removal for reasons set out therein. Still aggrieved, the first respondent
moved the Allahabad High Court under Article 226 of the Constitution of India
by filing W.P. No. 9547 of 1990 challenging the order of removal as confirmed
by the U.P. Public Services Tribunal.
the learned Judge, the order of removal was challenged mainly on the ground
that the first respondent was not given a reasonable opportunity in the
departmental enquiry. The learned Judge rejected the above contention by
observing that 'the plea of reasonable opportunity is not open to the
petitioner' as the High Court was satisfied that full opportunity was given to
the petitioner. Further the High Court concurred with all the findings of the
Tribunal rendered on the charges levelled against the first respondent.
the High Court interferred with the punishment of removal, while concurring
with the findings rendered against the first respondent on the charges levelled
against him, by observing as follows :- "The Presiding Officer of the
Tribunal has passed a very detailed order in which he enumerated the
circumstances under which the inquiry was conducted.
enquiry officer found the petitioner to have absented from duty on several
occasions, totalling 251 days during the year 1981-82 while posted at police
station Ram Sanehi Ghat, 93 days in 1982 while posted at police station Safdarjang
and from 28.2.84 onwards on being subsequently posted at police station Ram Sanehi
Ghat. The petitioner has submitted before the Tribunal as well as here that
during all this long period he had fallen ill and he sent regular applications
for grant to leave along with the medical certifications for grant to such
proof was ever filed by the petitioner before the Tribunal.
present case the only charge against the petitioner was that he absented
himself from duty for long periods although it was his case that he applied for
grant of leave. Even if it is assumed that the petitioner, against whom there
appears to be no charge of misconduct of grave nature, is proved his absence
from duty would not amount to such a grave charge for which the extreme penalty
of dismissal may be imposed. In view of the fact that the petitioner has
offered not to claim arrears of salary as well as he assurance (sic) this Court
that he would discharge his duties faithfully and sincerely this Court is of
the view that extreme penalty imposed against the petitioner does not
commensurate with the gravity of the charge, hence this writ petition deserves
to succeed on this point. However, it will be open for the opposite parties to
impose any minor punishment against the petitioner.
view of what has been indicated hereinabove the writ petition succeeds.
order of dismissal passed against the petitioner contained in Annexure-3 is
quashed. The opposite parties will re-instate the petitioner on duty.
it will be open for the opposite parties to impose any minor punishment upon
the petitioner considering the charges. It is made clear that the petitioner
will be entitled only to extent one fourth of amount as back wages." We
are clearly of the opinion that the High Court has exceeded its jurisdiction in
modifying the punishment while concurring with the findings of the Tribunal on
facts. The High Court failed to bear in mind that the first respondent was a
police constable and was serving in a disciplined force demanding strict
adherence to the rules and procedures more than any other department. Having
notices the fact that the first respondent has absented himself from duty
without level on several occasions, we are unable to appreciate the High
Court's 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 for interference with the punishment is made out.
all these reasons, we set aside the impugned order of the High Court in
W.P.No.9547/90 and restore the order of the u.p. Public Services Tribunal, The
appeal is allowed. No order as to costs.
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