IMPORTANT POINT
For only one misconduct in 15 years the employee may be compulsorily retired rather than dismissed.

ORDER :

The appellant, a Police Constable, was dismissed from service on grounds of misconduct by order dated 19.08.2004, pursuant to a departmental proceeding. The order of dismissal was challenged unsuccessfully before the State Public Services Tribunal and the High Court.

2. Learned counsel for the appellant submits that the departmental inquiry stands vitiated as the preliminary inquiry report relied upon by the inquiry officer was not furnished to the delinquent. Dismissal after 15 years of service for mere absence from duty for 11 hours and 36 minutes is grossly disproportionate and unsustainable. The charge of intoxication has not been proved. The punishment being grossly disproportionate requires interference.

3. Despite valid service of notice, none has appeared on behalf of the respondents to contest the appeal.

4. We have considered the submissions. The appellant was appointed as a constable in 1989. He was placed under suspension on 28.03.2004. The charge memo dated 14.05.2004 stated that on 26.03.2004 while posted at C.I.R. Police Line Bijnor, on being called for duty assignment he was not available and remained absent for about 11 hours 35 minutes. He was again not available on 27.03.2004 and was found lying in a drunken condition near a pit made for storing molasses on circle road near sugar mill. His conduct reflected gross negligence/slackness/indiscipline and amounted to tarnishing the image of police department. The charge named 10 witnesses. The appellant submitted his written statement taking a defence that he had gone to Meerut for medical treatment and that he had not committed any misconduct deliberately or intentionally. He had not taken any intoxicant but had suffered dizziness because of medication and had fallen down and become unconscious.

5. The Inquiry Officer found the charges to be proved. A second show cause notice dated 07.08.2004 was served on the appellant along with a copy of the inquiry report duly replied to, after which the order of dismissal was passed by the superintendent of police on 19.08.2004 under the U.P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules,1991 (hereinafter called ‘the Rules’). In his reply, the appellant did not allege any procedural irregularity or illegality in conduct of the departmental proceedings much less any prejudice caused to him. No issue with regard to non-supply of any preliminary inquiry report was alleged. The final order of dismissal also records that the medical examination confirmed his intoxication.

6. The Appellate Authority, the Deputy Inspector General of Police, Moradabad examined all the grounds raised in appeal including non-supply of any materials as also the defence of illness, the medical examination at the hospital and in the entirety came to the conclusion that there was no procedural lacuna in the conduct of the departmental proceedings calling call for any interference with the punishment in exercise of appellate powers under the Rules. The order also states that a preliminary inquiry was held to determine if a full fledged departmental inquiry was required after which the charge memo was served with full opportunity of defence. The non-furnishing of the preliminary inquiry report has therefore not prejudiced the appellant in any manner or vitiated the departmental proceedings.

7. The State Public Service Tribunal also did not find any procedural infirmity or irregularity in the conduct of the departmental proceedings much less any prejudice caused to the appellant thereby and dismissed the challenge on 02.02.2009.

8. Before the High Court, the appellant raised the only issue of the punishment being grossly disproportionate to the charge contending that it was the first misconduct committed by him in 15 years of service. Noticing from the record, that twice earlier he had been “censured” the High Court declined to interfere with the quantum of punishment holding that even otherwise it was the prerogative of the employer.

9.