State of U.P. &
Ors. Vs Madhav Prasad Sharma
JUDGMENT
P. Sathasivam, J.
1.
Leave
granted.
2.
This
appeal is directed against the final judgment and order dated 29.06.2009 passed
by the High Court of Judicature at Allahabad in Special Appeal No. 614 of 2009whereby
the Division Bench of the High Court dismissed the special appeal preferred by
the appellants herein.
3.
Brief
facts:(a) The respondent was appointed as Police Constable at Police Lines,
Aligarh vide order dated 01.02.1978. On19.10.2001, the respondent had gone for
some official work and left the Police Station, Sikandarpur Vaishya and thereafter
came back on his duty on 28.01.2002 after 101days. After initiation of
departmental proceedings, the Disciplinary Authority issued notices to the
respondent on various dates for seeking explanation for his unauthorized absence
from duty. On 23.03.2002, the Deputy Superintendent of Police (in short
"the DSP") issued charge sheet against the respondent by leveling
charges and directed him to submit the reply by 01.04.2002. As the respondent
did not reply to the notice, the DSP issued another notice to the respondent on
04.04.2002. After giving several opportunities to the respondent, the Disciplinary
Authority fixed the date as 01.07.2002 for recording of evidence but the
respondent did not appear before the Presiding Officer. Finally, the respondent
appeared before the Presiding Officer on 16.09.2002 and informed that he has no
defence witness.
After completion of
the enquiry, the Presiding Officer, vide his order dated09.10.2002, submitted
his report to the Disciplinary Authority. Agreeing with the enquiry report, the
Disciplinary Authority issued show cause notice dated25.10.2002 to the
respondent along with the copy of the enquiry report for his comments/reply on
the findings recorded therein. On 06.11.2002, the respondent submitted his
reply stating that he had accepted the findings on the charge of unauthorized
absence from duty on the ground of illness.(b) The Sr. Superintendent of Police
(in short "the SSP"),Etah, vide order dated 23.11.2002, terminated
the service of the respondent. Feeling aggrieved by the said order, the respondent
preferred Departmental Appeal before the Deputy Inspector General of Police (in
short "the DIG"),
Agra Zone, Agra. Vide
order dated 27.02.2003, the DIG rejected the appeal filed by the respondent
herein.(c) Aggrieved by the said order, the respondent preferred writ petition
being C.M.W.P. No. 53909 of 2003 before the High Court which was allowed by the
learned single Judge vide his order dated 17.09.2008. Against the said order, the
appellants herein preferred special appeal being S.A.No. 614 of 2009 before the
High Court. The Division Bench of the High Court, vide its order 29.06.2009,dismissed
the special appeal on the ground of maintainability. Aggrieved by the said order,
the appellants have preferred this appeal by way of special leave before this
Court.
1.
2.
3.
4.
Heard
Mr. Shail Kr. Dwivedi, learned Additional Advocate General for the State of
U.P. and Mr. V. Shekhar, learned senior counsel for the respondent.
5.
Without
going into the merits of the charges leveled against the respondent, let us
consider the following two questions:-
i.
Whether
the Special Appeal No. 614 of 2009 preferred by the State before a Division
Bench against the order of the learned single Judge allowing the writ petition
filed by the petitioner therein is maintainable?
ii.
Even
if we answer the first question in the negative, whether the order of the
learned single Judge quashing the order of termination dated 23.11.2002 of the
petitioner therein is sustainable.
1.
2.
3.
4.
5.
6.
In
view of the limited issues, there is no need to traverse all the factual
details. However, it is relevant to refer the charge leveled against the
respondent herein which reads as under:- "You left Police Station
Sikandarpur Vaishya on 19.10.2001 for the Office of Circle Officer in connection
with some departmental work and thereafter you came back on 28.01.2002 and thus
remained unauthorizedly absent for 101 days from your service without any sanctioned
leave/permission in this regard." Pursuant to the Charge Memo, the
delinquent was asked to show cause and ultimately enquiry was conducted and the
Enquiry Officer submitted his report.
The Disciplinary Authority,
namely, the SSP, by order dated 23.11.2002terminated the service of the
respondent with immediate effect. By order dated 27.02.2003, the Appellate Authority,
i.e., the DIG, Agra also dismissed the appeal filed by the respondent herein. Against
the said order, the respondent filed Writ Petition No. 53909 of 2003before the
High Court. By order dated 17.09.2008, the learned single Judge, after finding
that the respondent herein had been sanctioned leave without pay and subsequently
his service was terminated on the same ground and as such two punishments were
inflicted for one charge which is not permissible in law, quashed the order of
termination dated 23.11.2002. We will consider the merits of the order of the
learned single Judge while considering the second issue. About the First
Issue:-
7.
Against
the order of the learned single Judge, the State Government filed Special
Appeal No. 614 of 2009 before the Division Bench of the High Court. Rule 5 of
Chapter VIII of Allahabad High Court Rules, 1952 speaks about Special Appeal
which reads as under:- "Special Appeal.--An appeal shall lie to the Court
from a judgment not being a judgment passed in the exercise of appellate
jurisdiction in respect of a decree or order made by a Court subject to the
Superintendence of the Court and not being an order made in the exercise of revisional
jurisdiction or in the exercise of its power of Superintendence or in the
exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by
Article 226 or Article 227 of the Constitution in respect of any judgment,
order or award (a) of a tribunal Court or statutory arbitrator made or
purported to be made in the exercise or purported exercise of jurisdiction
under any Uttar Pradesh Act or under any Central Act, with respect to any of
the matters enumerated in the State List or the Concurrent List in the Seventh
Schedule to the Constitution, or (b) of the Government or any Officer or
authority, made or purported to be made in the exercise or purported exercise
of appellate or revisional jurisdiction under any such Act of one Judge."
8.
It
is fairly admitted that in view of the fact that against the order of
termination the delinquent availed departmental appeal to the DIG, after the
order of the learned single Judge no further appeal by way of special appeal
before the Division Bench would lie. The materials placed and in view of the
fact that the order of the S S P was considered and disposed of by the Appellate
Authority, i.e., DIG and also of the fact that the order impugned in the writ
petition was passed in exercise of appellate jurisdiction in terms of
The Uttar Pradesh Subordinate
Police Officers/Employees (Punishment and Appeal) Rules, 1991 (hereinafter
referred to as "the Rules"), we concur with the conclusion arrived at
by the Division Bench of the High Court in the impugned order. However, in view
of the fact that this Court issued notice in the special leave petition as
early as on 20.11.2009,after hearing the arguments of either side, we intend to
consider the merits of the order of the learned single Judge dated 17.09.2008.About
the Second Issue:-The learned single Judge, without going into the merits of the
claim made by both the parties with reference to the charge leveled against the
delinquent, enquiry proceedings, order of the SSP and DIG, quashed the order of
termination on the simple ground that the delinquent was inflicted with two punishments
which is not permissible in law. In the second paragraph, the learned single
Judge after pointing out that due to illness of the delinquent the Department
has sanctioned his leave without pay and thereafter his service has been terminated
for his absence which amounts to two punishments for one charge and quashed the
order of termination. On going through the relevant rules, we are of the view
that the learned single Judge committed an error in arriving at such a
conclusion
9.
Rule
4 of the Rules prescribes the mode of punishment which reads as under: "4.
Punishment.--(a) The following punishments may, for good and sufficient reasons
and as hereinafter provided, be imposed upon a Police Officer, namely:--
a.
Major
Penalties:--
i.
Dismissal
from service
ii.
Removal
from service
iii.
Reduction
in rank including reduction to a lower-scale or to a lower stage in a
time-scale.
a.
b.
Minor
Penalties:--
i.
With-holding
of promotion
ii.
Fine
not exceeding one month's pay
iii.
With-holding
of increment, including stoppage at an efficiency bar.
iv.
Censure
1.
2.
In
addition to the punishments mentioned in sub-rule (1) Head Constables and
Constables may also be inflicted with the following punishments:--
i.
Confinement
to quarters (this term includes confinement to Quarter Guard for a term not exceeding
fifteen days extra guard or other duty).
ii.
Punishment
Drill not exceeding fifteen days.
iii.
Extra
guard duty not exceeding seven days.
iv.
Deprivation
of good conduct pay.
3.
In
addition to the punishments mentioned in sub- rules (1) and (2) Constables may
also be punished with Fatique duty, which shall be restricted to the following tasks:-
i.
Tent
pitching;
ii.
Drain
digging;
iii.
Cutting
grass, cleaning jungle and picking stones from parade grounds; 10
iv.
Repairing
huts and butts and similar work in the lines;
v.
Cleaning
Arms."
We are not concerned
about other rules. The perusal of major and minor penalties prescribed in the
above Rule makes it clear that "sanctioning leave without pay" is not
one of the punishments prescribed, though, and under what circumstances leave
has been sanctioned without pay is a different aspect with which we are not
concerned for the present. However, Rule 4 makes it clear that sanction of
leave without pay is not one of the punishment prescribed. Disciplinary
authority is competent to impose appropriate penalty from those provided in
Rule 4 of the Rules which deals with the major penalties and minor penalties.
Denial of salary on the ground of `no work no pay' cannot be treated as a
penalty in view of statutory provisions contained in Rule 4 defining the
penalties in clear terms. Rule 7 empowers the Government or any Officer of the
Police to award the punishment mentioned in Rule 4. Rule 8 provides for
punishment of dismissal and removal. Thus the punishment of dismissal from the service
is the punishment which has been awarded to the Respondent in accordance with
Rules 4 and 8 of the Rules. There is no question of awarding two punishments in
respect of one charge.
4.
5.
6.
7.
8.
9.
10.
Doctrine
of double jeopardy enshrined in Article 20(2)of the Constitution of India has
no application in the event of there being only one punishment awarded to the respondent
under the Rules on charges being proved during the course of disciplinary
enquiry. The law laid down by this Court in the case of Union of India vs. Datta
Linga Toshatwad (2005) 13 SCC 709 and Maan Singh vs. Union of India, (2003) 3
SCC 464 fully apply in the facts and circumstances of the present case.
11.
In
State of Punjab & Ors. v. Bakshish Singh, AIR1999 SC 2626 = (1998) 8 SCC
222, this Court has dealt with a case where in the Trial Court as well as the
First Appellate Court and the High Court had taken the view that in case
unauthorized absence from duty had been regularized by treating the period of
absence as leave without pay, the charge of misconduct did not survive. However,
without examining the correctness of the said legal proposition, this court
allowed the appeal on other issues. As the said judgment gave an impression
that this Court had laid down the law that once unauthorized absence has been
regularized, the misconduct would not survive.
The matter was
referred to the larger bench in Mann Singh's case (supra) wherein this Court
clarified that the earlier judgment in Bakshish Singh (supra) did not affirm
the said legal proposition and after following the judgment of this court in
State of M.P. v. Hari Har Gopal & Ors., (1969) 3 SLR 274 (SC) disposed of
the case clarifying that this court in Bakshish Singh (supra)dealt with only on
the issue of remand by the High Court as well as by the Ist Appellate Court to
the punishing authority for imposing the fresh punishment. This Court held as
under: "Bakshish Singh's case is not an authority for the proposition that
the order terminating the employment cannot be sustained inasmuch as in the
later part of the same order the Disciplinary Authority also regularized unauthorized
absence from duty by granting an employee leave without pay."This Court
further held that the law laid down by this court in Hari Har Gopal (supra)
wherein it had been held that in absence of regularization of unauthorized
absence it may not be possible for the employer to continue with the
disciplinary proceedings as there would be break in service and thus,
regularization of such absence even without pay is justified. It is so
necessary to continue with the disciplinary proceedings.
12.
In
such circumstances, the conclusion of the learned single Judge that the
delinquent had suffered two punishments cannot be sustained. At present, we are
not inclined to go into the validity or otherwise of the order of termination
in this proceeding. Inasmuch as learned single Judge quashed the order of
termination only on the ground that it is impermissible to impose two punishments,
we set aside the order of the learned single Judge dated 17.09.2008 and remit
the matter to the learned single Judge for fresh disposal. Both parties are permitted
to put forth their claim with regard to the outcome of the charge, order of the
original and appellate authority for which we express no opinion and it is for
the learned single Judge to consider and dispose of the same as expeditiously
as possible, preferably within a period of six months from the date of receipt
of the copy of this judgment. Civil Appeal is allowed to this extent with no order
as to costs
.
..........................................J. (P. SATHASIVAM)
..........................................J.
(DR. B.S. CHAUHAN)
NEW
DELHI;
JANUARY
10, 2011.
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