Unauthorized absence from duty must be proven willful to constitute misconduct; penalties must be proportionate to the offense and consider the employee's service record.

JUDGMENT :

Ravi Nath Tilhari, J.

Heard Sri G. Raju, learned Government Pleader for Services-I, for the petitioners and Sri Satya Sreenivasa Rao, learned counsel for the respondent.

2. This writ petition under Article 226 of the Constitution of India was filed by the petitioners, the Superintendent of Police, Krishna District, Machilipatnam and others challenging the Order dated 21.06.2005 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (in short ‘the Tribunal’) in O.A.No.2628 of 2002. The O.A. was filed by Sri A. Srihari, Ex.PC-807, the respondent herein. The Tribunal disposed of the O.A, setting aside the Orders impugned in O.A. and remanding the matter to the petitioner authorities to take a fresh view in the matter in imposition of punishment.

I. Facts:

3. The respondent was initially appointed as police constable on 15.06.1976. After he had put in service of 24 years, an enquiry was initiated against him for his absence from duty from 22.06.1998 unauthorizedly, as misconduct under Rule 3 of the Andhra Pradesh Civil Services (Conduct) Rules, 1964 (in short ‘the Conduct Rules’).

4. Article-I of charge reads as under:

“PC 807 A. Srihari has been working in Challapalli PS since 02.07.97. While working he was deputed to out-post PS on at Vakkalagadda to attend duties. He absented himself from duty from 22.06.98 FN unauthorisedly without any leave or permission from Vakkalagadda out post PS and completed the period of 21 days absence by 12.07.98 AN. He was declared a deserter from 22.06.98 FN as per Order No.224 of APPM, Volume-I.

PC.807 A. Srihari by his above acts exhibited gross neglect of duty, misconduct or misbehavious which is unbecoming of a police officer thereby violated rule 3 of A.P.C.S. (Conduct) Rules, 1964.”

5. The Deputy Superintendent of Police, Armed Reserve, Machilipatnam was appointed as Enquiry Officer to conduct oral enquiry. The enquiry was conducted and enquiry report was submitted on 01.06.2000. The Superintendent of Police vide proceedings dated 22.11.2000 dismissed the respondent from service, recording the finding that the charge was proved. The respondent had also absented unauthorizedly from duties on earlier three occasions as well. The departmental appeal was dismissed by the appellate authority on 21.03.2001 and his revision was also dismissed by the revisional authority on 18.10.2001. Challenging the aforesaid orders, the respondent filed O.A.No.2628 of 2002.

II. Judgment of Tribunal:

6. The Tribunal affirmed the finding on proof of charge. It observed that on earlier occasions also the respondent absented from duty and was meted out with punishment. However, at the same time, the respondent was also awarded rewards numbering 15. The Tribunal observed that no doubt, the police force was a disciplined force and unauthorized absence was an unpardonable act of misconduct, but being of the view that the punishment of dismissal was extreme punishment and was shockingly disproportionate, it allowed the O.A, with direction to the disciplinary authority to impose some other major penalty which would not result in loss of livelihood. The Tribunal also considered the length of service rendered by the respondent being 24 years. It, however, did not find any fault in conduct of enquiry, but allowed the O.A on the principle that the penalty imposed shall commensurate with the gravity of the charge and the charge was not of any corruption.

III (a). Submissions of learned GP:

7. Sri G. Raju, learned Government Pleader submitted that the charge of unauthorized absence from duty, negligence in discharge of duty and so misconduct under the conduct rules was established. It was proved and in view of such finding, formed by the departmental authorities and also by the Tribunal, also considering that the respondent, previously absented on three occasions for which the punishment was imposed, the Tribunal ought not to have interfered with the imposition of penalty of dismissal from service. He submitted that it i