This order addressed a writ petition under Article 226 seeking quashing of an order removing an Armed Police Constable. The Court rejected the claim of double jeopardy, finding the absenteeism willful despite prior tolerance, and dismissed the petition, holding no case was made out for interference.
Petition dismissed; rule discharged with no order as to cost.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/SCA/11196/2006 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11196 of 2006
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S A MALIK
Versus
STATE OF GUJARAT
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Appearance:
MR UT MISHRA(3605) for the PETITIONER(s) No. 1
MR. BHARGAV PANDYA, ASST. GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 18/12/2018
ORAL ORDER
India for the purpose of following reliefs:-
“(A) Quashing and setting aside the order dated 30.4.2002, order dated 24.09.2002/17-19.10.2002 passed in appeal, order dated 05.06.2003 passed in revision application and order dated 28.09.2005 passed in revision application of the petitioner and to reinstate the petitioner with consequential benefits including back wages with 10 interest.
(B) During the pendency and final disposal of this petition, respondent no. 2 may b directed to reinstate the petitioner in service.
(C) To grant such other benefits as may be deemed fit.”
Armed Police Constable on 13.01.1981 in S.R.P. Group No. 11 Vav and
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C/SCA/11196/2006 ORDER
he served as such till he came to be dismissed/removed from service by
the order dated 30.04.2002. With respect to dereliction of duty and absenteeism on 24.07.2001 a charge-sheet came to be issued after holding departmental inquiry on the main allegation about remaining absent in duty w.e.f. 20.11.2000 to 30.11.2000. During the course of inquiry, an Inquiry Officer was appointed and according to the petitioner without full fledge departmental inquiry a report was submitted and ultimately on the basis of findings given by the Inquiry Officer a second show-cause notice came to be issued asking the petitioner as to why he should not be removed from the service and his period of absence should not treated as leave without pay. Petitioner replied the said show-cause notice on 14.02.2002 and ultimately vide order dated 30.04.2002 the respondent no. 2 authority has removed the petitioner from service and the period of 11 days leave was treated as leave without pay.
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28.09.2005 and against such decisions, present petition came to be filed which appears to have been admitted on 07.11.2006 and after completion of pleadings the same has come up for consideration.
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cannot be treated as serious misconduct.
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petitioner is well aware about the same. In spite of the fact that the authority has tolerated all this for 79 times still, there is no improvement in the behavior of the petitioner which necessitated the authority to discontinue the services of the petitioner and therefore, in no circumstance the petitioner has made out any case.
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“24. The question of interference on the quantum of punishment
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has been considered by this Court in a catena of judgments and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, ant thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur v. Union of India [(1987) 4 SCC 611], this Court observed as under: (SCC pp.620-21, paras 25 & 27)
“25. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.
27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.” (emphasis supplied)
26. In V. Ramana v. A.P. SRTC [(2005) 7 SCC 338], this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the Court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be “shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards.” In a normal course, if the punishment imposed is shocking disproportionate, it would be appropriate to direct the disciplinary authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the court itself can impose appropriate punishment by recording cogent reasons in support thereof.”
stated herein before, the Court is of the considered opinion that no case is made out by the petitioner.
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(A.J. SHASTRI, J)
Bhoomi
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3 issues framed by the court
Whether the High Court should interfere with the departmental order removing a police constable for willful absenteeism given prior consistent conduct.
Whether the petitioner is entitled to relief based on the principle of double jeopardy for a short period of absence.
Whether the quantum of penalty imposed is disproportionate or shocking to the conscience of the court.
S A Malik
State of Gujarat
A.J. Shastri
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
