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2023 Supreme(Online)(MP) 7233
1 W.P. No.9333/2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 22nd OF DECEMBER, 2023
WRIT PETITION No. 9333 of 2021
BETWEEN:-
MANOJ KHARE S/O LATE SHRI DOULAT KHARE,
AGED
ABOUT
41
YEARS,
OCCUPATION:
EX
CONSTABLE R/O ARJUN NAGAR KAITAL THANA
BETUL DISTRICT BETUL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRASHANT SHRIVAS - ADVOCATE )
AND
1.
THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETATY HOME DEPARTMENT
(POLICE DEPARTMENT) VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2.
DIRECTOR GENERAL OF POLICE (POLICE
MAHANIDESHAK)
M.P.
POLICE
HEAD
QUARTERS
JEHANGIRABAD
DISTRICT
BHOPAL (MADHYA PRADESH)
3.
INSPECTOR GENERAL OF POLICE (POLICE
MAHA NIRIKSHAK) HOSHANGABAD DISTRICT
HOSHANGABAD (MADHYA PRADESH)
4.
SUPERINTENDENT OF POLICE (M.P. POLICE
DEPARTMENT
PARIPRICHHA)
BETUL
DISTRICT BETUL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI GAJENDRA PARASHAR – PANEL LAWYER )
............................................................................................................................................
This petition coming on for admission this day, the court passed the
following:
Prashant Shrivas,Advocate General
The quantum of punishment to be imposed in a disciplinary proceeding is within the exclusive domain of the departmental authorities, and the Court cannot assume the function of departmental authorities to decide the quantum of punishment.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 226 - COMPULSORY RETIREMENT - DISPROPORTIONATE PUNISHMENT - JUDICIAL REVIEW - PRINCIPLES - UNAUTHORIZED ABSENCE - DISCIPLINARY PROCEEDINGS - QUANTUM OF PUNISHMENT - DEPARTMENTAL AUTHORITIES' DISCRETION - LIMITED JUDICIAL REVIEW - PROPORTIONALITY PRINCIPLE - PAST CONDUCT - DOUBLE JEOPARDY - REAPPRAISAL OF EVIDENCE - DIES NON.
Fact of the Case:
Petitioner, a Constable, was compulsorily retired for unauthorized absence and other acts of indiscipline. He challenged the order, arguing that the punishment was disproportionate to the allegations.
Finding of the Court:
The Court held that the punishment was not disproportionate considering the petitioner's past conduct of unauthorized absence and his unauthorized absence during the Ujjain Singhasth Mahakumbh Mela, 2016. The Court also held that the disciplinary authorities have the discretion to determine the quantum of punishment and that judicial review is limited to cases where the punishment is shockingly disproportionate.
Issues: 1. Whether the punishment of compulsory retirement was disproportionate to the allegations against the petitioner?2. Whether the disciplinary authorities have the discretion to determine the quantum of punishment?3. Whether judicial review is limited to cases where the punishment is shockingly disproportionate?
Ratio Decidendi: 1. The punishment of compulsory retirement was not disproportionate considering the petitioner's past conduct of unauthorized absence and his unauthorized absence during the Ujjain Singhasth Mahakumbh Mela, 2016.2. The disciplinary authorities have the discretion to determine the quantum of punishment.3. Judicial review is limited to cases where the punishment is shockingly disproportionate.
Final Decision: The petition was dismissed.
ORDER
This Petition under Article 226 of Constitution of India has been filed seeking following reliefs:
“(7.1) That the Hon’ble High Court may kindly be order dated 11.02.2019 (Annexure P/1), order dated 14.08.2018 (Annexure P/2) and order dated 22.06.2018 (Annexure P/3) order passed against petitioner be set aside.
(7.2) That the Hon’ble High Court may kindly be directed to respondents to be given permission to rejoin his post during the pendency of this petition.
(7.3) That, the Hon’ble High Court may kindly be grant any other writ, direction or order which this Hon’ble court may be deem fit.”
2. Petitioner was appointed as Constable by order dated 01.09.1994.
A charge sheet was issued against petitioner on the following charges:
(i) From 02.01.2016 to 26.05.2016, he remained on unauthorized absence for a period of 146 days thereby showing his gross negligence in discipline, which made him unfit for Police services.
(ii) On 17.07.2016, he was relieved for Police Station Bijadehi but he did not give his joining on 17.07.2016 and gave his joining on 13.08.2016 and accordingly, he remained on unauthorized absence for 27 days, which is an indicative of gross negligence in discipline and dereliction of duties making him unfit for Police services.
(iii) During Singhasth Mahakumbh Mela organized in the year
2016, he did not report for duty and remained on unauthorized absence, is an indicative of his gross negligence and dereliction of duty.
(iv) Petitioner is habitual of remaining on unauthorized absence and in spite of multiple opportunities to improve his conduct, he did not show any improvement and accordingly, he has made himself unfit for Police services.
3. A departmental enquiry was conducted and all the four charges were found proved and accordingly, by impugned order dated 22.06.2018 he was compulsorily retired and period of his unauthorized absence was decided in accordance as per Rule 24 of M.P. Civil Services (Leave) Rules 1977.
4. Being aggrieved by the said order, petitioner preferred an appeal, which was dismissed by Inspector General of Police, Hoshangabad Zone by order dated 14.08.2018. Thereafter, a mercy petition was filed, which was dismissed by Director General of Police by order dated
11.01.2019.
5. Challenging the orders passed by authorities below, it is submitted by counsel for petitioner that punishment of compulsory retirement is disproportionate to the allegations made against petitioner and accordingly, petitioner may be granted lesser punishment. To buttress his contention, counsel for petitioner has relied upon the judgment passed by this Court in the case of Mahesh Kumar Shrivastava Vs. State of M.P. and Another reported in 2007(3) MPHT 362 Shailendra Vs. State of M.P. and Another decided on 08.07.2019 in W.P. No.7434/2006 (Indore Bench).
6. Per contra, petition is vehemently opposed by counsel for the State. It is submitted that petitioner was habitual in remaining on unauthorized absence. Even during Singhasth Mahakumbh Mela, 2016 when services of petitioner were required for maintenance of law and order where lakhs of people had gathered, he went on unauthorized absence, which clearly shows that he was not interested in performing his duties. In fact petitioner had deserted his service. Even otherwise, the authorities have adopted a very lenient view by compulsorily retiring him instead of dismissing him from service. 7. Heard the learned counsel for parties.
8. From the order of compulsory retirement, it is clear that on earlier occasions also petitioner was awarded two major punishments and 20 minor punishments for remaining on unauthorized absence. Therefore, it is clear that petitioner was habitual in remaining on unauthorized absence. Police is a disciplined Force in uniform. One of the charge against petitioner was that he was deputed for Mela duty in Singhasth Mahakumbh Mela, Ujjain in the year 2016. Lakhs of people had gathered there. Police Force was required for maintenance of law and order but even
