9911796707
TMI Blog2010 (9) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court of Allahabad (Lucknow Bench), dismissing the Writ Petition No. 782 of 2007 filed by the appellant against the judgment and order of the U.P. State Public Services Tribunal, (hereinafter referred to as the `Tribunal') Lucknow dated 25th May, 2007, by which the Tribunal dismissed the Claim Petition No. 837 of 2003 filed by the appellant and upheld the order of dismissal of the appellant from service by the Statutory Authorities. 3. Facts and circumstances giving rise to this case are that the appellant was appointed as a Constable in the Provincial Armed Constabulary (hereinafter referred to as `PAC') on 10th February, 1969 and promoted to the post of Head Constable vide order dated 5th May, 1983. The appellant was posted with 30th Battalion PAC in G- Company in the year 2002. On 29th September, 2002, the appellant was on duty as Guard Commander along with another Head Constable named Rama Nand. At around 6.20 A.M., the appellant left his post and came back after 25 minutes after having tea and medicine in the canteen. His departure from his post was duly recorded in the register maintained for the purpose by the other guard, Head Constable Rama Nand. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court which was dismissed vide impugned judgment and order dated 12th July, 2007 in a cursory manner without considering the issues raised by the appellant, merely on the ground that charge of disobedience of the orders of the higher authority stood proved and the enquiry had been conducted in accordance with law. Hence, this appeal. 8. Shri Tripurari Ray, learned counsel appearing for the appellant has raised large number of submissions, inter-alia, the absence from duty for a short - specified period, when other guard is present on duty, is permissible under the Guard and Escort Rules. The appellant had left his duty for only 25 minutes and it was so recorded in the register at the spot. If such an absence is permissible in law, imposing the punishment of 10 days' punishment drill was unwarranted. More so, it had been awarded without giving a proper opportunity of hearing to the appellant. The appellant's protest against such an arbitrary imposition of punishment could not be the ground for enhancing the punishment to 10 days confinement in a cell; depriving him of his personal liberty was totally unwarranted and uncalled for, particularly, in view of the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h regard to this absence the Second Guard Commander H.C.39074 Rama Nand told that you have gone to take tea and medicine. This was mentioned by the Platoon Officer G Platoon in the Inspection Book. With regard to this absence your explanation was sought by the Platoon Officer G Platoon, when you did not give satisfactory explanation and you sought that your explanation be placed before the Senanayak, in your explanation you alleged violation of rules and standing orders by the Platoon Officer G Platoon, which was submitted by the Platoon Officer G Platoon on 3.10.2002 with his comments before the Senanayak to produce you in his chamber. 2. On 4.10.2002 when you appeared before the Senanayak in the Orderly Chamber, after the hearing 10 days' P.D. was awarded to you which you declined. On this you were punished by the Senanayak for violation of his order passed in the Orderly Chamber with 10 days cell punishment, which you the H.C. did not accept and after saluting the Commandant you voluntarily went out of the chamber. 12. The inquiry officer conducted the enquiry and on its conclusion held that the appellant was guilty on both counts. The Disciplinary Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hhittar Singh v. State of Punjab Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Anil Kumar v. Presiding Officer Ors., AIR 1985 SC 1121; Moni Shankar v. Union of India Anr. (2008) 3 SCC 484; and Union of India Ors. v. Prakash Kumar Tandon, (2009) 2 SCC 541). 16. The Tribunal has categorically held that absence of the appellant from duty for such a short span of time was permissible in view of the statutory rules and was bona fide. That finding was not challenged by the respondents any further and attained finality. This finding of the Tribunal leads us to the questions that in case the first punishment of 10 days punishment drill was unwarranted and illegal; whether any protest against such punishment, authorised the Commandant to enhance the punishment to 10 days confinement in a cell; and whether further disobedience thereof, ought to have enabled the Commandant to initiate the disciplinary proceedings against the appellant. These questions have to be considered keeping in mind that the appellant was a member of disciplined force and the Appellate Authority as well as the Tribunal had very heavily relied on the past conduct of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no scarcity of examples in history, and we see it in day-to-day life also, that even in disciplined forces, forced morale and discipline without assured justice breeds defiance and belligerency. Our Constitution protects not only the life and liberty but also the dignity of every person. Life convicts and hardcore criminals deprived of personal liberty are also not wholly denuded of their Constitutional rights. Arbitrariness is an anathema to the principles of reasonableness and fairness enshrined in our constitutional provisions. The rule of law prohibits the exercise of power in an arbitrary manner and/or in a manner that travels beyond the boundaries of reasonableness. Thus, a statutory authority is not permitted to act whimsically/arbitrarily. Its actions should be guided by the principles of reasonableness and fairness. The authority cannot be permitted to abuse the law or to use it unfairly. 21. Rule 13 of the Rules 1991 reads as under: Officer not competent to conduct disciplinary proceedings- A gazetted officer of the Police Force who is either a prosecution witness in the case or has either conducted a preliminary enquiry in that case shall not conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance upon the judgment in Ashok Kumar Yadav Ors. v. State of Haryana Ors., (1985) 4 SCC 417, and held that no person should adjudicate a dispute which he or she has dealt with in any capacity. The failure to observe this principle creates an apprehension of bias on the part of the said person. Therefore, law requires that a person should not decide a case wherein he is interested. The question is not whether the person is actually biased but whether the circumstances are such as to create a reasonable apprehension in the minds of others that there is a likelihood of bias affecting the decision. 26. The existence of an element of bias renders the entire disciplinary proceedings void. Such a defect cannot be cured at the appellate stage even if the fairness of the appellate authority is beyond dispute. (Vide: S. Parthasarthy v. State of Andhra Pradesh, AIR 1973 SC 2701; and Tilak Chand Magatram Obhan v. Kamla Prasad Shukla Ors., 1995 Supp. (1) SCC 21). 27. In Arjun Chaubey v. Union of India Ors., AIR 1984 SC 1356, a Constitution Bench of this Court dealt with an identical case wherein an employee serving in the Northern Railway had been dismissed by the Deputy Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , first as of punishment drill and subsequently of confinement to a cell. However, after appearing as a witness in the enquiry, he also passed the order of punishment, i.e., dismissal of the appellant from service on 8.4.2003. This issue has been agitated by the appellant throughout but none of the authorities or the courts below had taken it into consideration. Appellant has made crystal clear pleadings before this Court also in this regard and the same have not been denied in the counter affidavit by the respondents, rather a very vague and evasive reply has been filed stating that the disciplinary proceedings had been concluded strictly in accordance with law. 30. An order in violation of the principles of natural justice may be void depending on the facts and circumstances of the case. (Vide Raja Jagdambika Pratap Narain Singh v. Central Board of Direct Taxes Ors., AIR 1975 SC 1816; Smt. Maneka Gandhi v. Union of India Anr., AIR 1978 SC 597; Krishan Lal v. State of J K, (1994) 4 SCC 422; State Bank of Patiala Ors. v. S.K. Sharma, AIR 1996 SC 1669; Union of India Anr. v. M/s. Mustafa Najibai Trading Co. Ors., AIR 1998 SC 2526; and Vishnu Dutt Ors. v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysore v. K. Manche Gowda, AIR 1964 SC 506; Colour-Chem Ltd. v. A.L. Alaspurkar Ors., AIR 1998 SC 948; Director General, RPF v. Ch. Sai Babu, (2003) 4 SCC 331, Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, (2005) 2 SCC 489; and Govt. of A.P. Ors. v. Mohd. Taher Ali, (2007) 8 SCC 656 and came to the conclusion that it is desirable that the delinquent employee be informed by the disciplinary authority that his past conduct could be taken into consideration while imposing the punishment. However, in case of misconduct of a grave nature, even in the absence of statutory rules, the Authority may take into consideration the indisputable past conduct/service record of the delinquent for adding the weight to the decision of imposing the punishment if the fact of the case so required. 35. The appellant joined the service on 10.2.1969 and his services stood terminated vide order dated 8.4.2003. Therefore, the benefit of service rendered by the appellant for more than 34 years stood forfeited. At the time of his removal from service, the appellant was 54 years of age. Thus, he had been visited with serious punishment on the verge of retirement. 36. In view of the above, we reach t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
