Shiv Vir Singh Vs. State of U.P. and Another

Shiv Vir Singh vs State of U.P. and Another

Type Court Judgment Court Allahabad Decided Aug 06, 1997

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Citation: sooperkanoon.com/447684
Court: Allahabad High Court
Judge: O.P. Garg, J.
Decided On: Aug 06, 1997
Case Number: C.M.W.P. No. 2209 of 1994
Subject: Service

Case Summary

AI-generated summary - not the official court judgment text.

Service - removal from service - Section 7 of Police Act, 1861 - petitioner was responsible official of department manning post of Sub-Inspector - absent from duty to period of 26 days in unauthorized manner - commits gross misconduct on part of his duty - Order of punishment of removal from service - cannot be disp...

Key legal issue: Service
Acts & sections: Plice Act, 1861 - Sections 7; Constitution of India - Article 226

Parties & Advocates

Appellant / Petitioner

Shiv Vir Singh

Advocate Rajendra Prasad Tiwari, Adv.

Respondent

State of U.P. and Another

Advocate S.C.

Legal References

Acts: Plice Act, 1861 - Sections 7; Constitution of India - Article 226
Reported In: 1998(1)AWC42

Excerpt

.....entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 1. heard learned counsel for the petitioner as well as learned standing counsel on the question of admission, or, otherwise of the present writ petition. 4. i have perused the order of dismissal as well as order passed in appeal and find that the reply submitted by the petitioner was duly considered. ashok kumar singh and others, air 1996 sc 736. the apex court disapproved the order passed by this court modifying the order of punishment on the ground that it was not commensurate with gravity of offence. in para 8, the supreme court observed as follows :we are clearly of the opinion that the high court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the tribunal on facts. the high court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedure more than any other department. the law laid down by apex court in ashok kumar singh's case (supra) clearly covers the point in hand......with gravity of offence. in para 8, the supreme court observed as follows :'we are clearly of the opinion that the high court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the tribunal on facts. the high court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedure more than any other department. having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the high court's observations that his absence from duty would not amount to such a grave charge. even otherwise on the facts of this case, there was no justification for the high court to interfere with the punishment holding that the punishment does not commensurate with the gravity of the charge especially when the high court concurred with the findings of the tribunal on the facts. no case for interference with the punishment is made out' learned counsel for the petitioner placed reliance of union of india and others v. giriraj sharma, air 1994 sc 215. in that case, the petitioner, who was electrician, was absent from duty without leave for 10 days. he applied for extension of leave for 12 days more. hon'ble supreme court observed as follows:'.....the incumbent while admitting the fact that he had overstayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. we are of the opinion that the punishment of dismissal for over staying the period of 12 days in the said circumstances which have not been controverted in the counter is harsh since the circumstances show that it was not his intention to wilfully flout the order but the circumstances force him to do so.' 6. the observations made above are in entirely different set of circumstances......

Full Judgment

O.P. Garg, J.

1. Heard learned counsel for the petitioner as well as learned standing counsel on the question of admission, or, otherwise of the present writ petition. With the consent of both the parties, the present petition is being disposed of finally.

2. The petitioner--Shiv Vir Singh was employed as Sub-Inspector of Police in the Government Railway Police and was, at the relevant time, posted at Moradabad. He absented from duty during the period 23.6.1990 to 13.7.1990 (20 days). Subsequently, he was also absented from duty during the period 9.9.1990 to 14.9.1990 (6 days). On account of unauthorised absence of the petitioner, departmental proceedings were initiated against him under the provisions of Section 7 of the Police Act. After due enquiry and show cause notice the petitioner was dismissed from service on 16.10.1993. He filed a statutory appeal, which too was dismissed on 13.5.1996, i.e., after the filing of the present petition.

3. Learned counsel for the petitioner urged that the order of punishment of removal from service is shockingly disproportionate to the gravity of charge against the petitioner and, therefore, the order of dismissal Is liable to be set aside. A passing reference was also made to the effect that the reply to the show cause notice submitted by the petitioner was not considered.

4. I have perused the order of dismissal as well as order passed in appeal and find that the reply submitted by the petitioner was duly considered. It was found that the petitioner was delinquent employee who has misconducted himself and was not fit to be retained in service. The half-hearted plea taken by the petitioner that his explanation was not properly considered Is wide off the mark.

5. As regards the other point that the punishment is disproportionate to the alleged unauthorised absence of the petitioner for a total period of 26 days, the learned standing counsel placed reliance on State of U. P. and others v. Ashok Kumar Singh and others, AIR 1996 SC 736. The Apex Court disapproved the order passed by this Court modifying the order of punishment on the ground that it was not commensurate with gravity of offence. In para 8, the Supreme Court observed as follows :

'We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedure more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observations that his absence from duty would not amount to such a grave charge. Even otherwise on the facts of this Case, there was no justification for the High Court to interfere with the punishment holding that the punishment does not commensurate with the gravity of the charge especially when the High Court concurred with the findings of the Tribunal on the facts. No case for interference with the punishment is made out'

Learned counsel for the petitioner placed reliance of Union of India and others v. Giriraj Sharma, AIR 1994 SC 215. In that case, the petitioner, who was Electrician, was absent from duty without leave for 10 days. He applied for extension of leave for 12 days more. Hon'ble Supreme Court observed as follows:

'.....The incumbent while admitting the fact that he had overstayed the period of leave had explained the circumstances in which it was Inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. We are of the opinion that the punishment of dismissal for over staying the period of 12 days in the said circumstances which have not been controverted in the counter is harsh since the circumstances show that it was not his intention to wilfully flout the order but the circumstances force him to do so.'

6. The observations made above are in entirely different set of circumstances. They do not apply on all fours to the facts of the present case.

7. The petitioner was a member of a disciplined force. As a responsible official of the department manning the post of Sub-Inspector, he could not have afforded the luxury of remaining absent in an unauthorised manner. It was grossest misconduct on the part of the petitioner to have absented himself on two occasions totalling to a period of 26 days in an unauthorised manner. The order of punishment of removal from service cannot be said to be disproportionate to the gravity of the delinquency committed by the petitioner. The law laid down by Apex Court in Ashok Kumar Singh's case (supra) clearly covers the point in hand.

8. In the light of the facts and circumstances mentioned above, no interference in the writ jurisdiction under Article 226 of the Constitution is warranted in the present case.

9. In the result, the writ petition falls and is dismissed.

Same Court & Year Allahabad · 1997 Same Parties Shiv Vir Singh vs State of U.P. and Another Same Subject Service Same Judge O.P. Garg, J. Acts & Sections Plice Act, 1861 - Sections 7; Constitution of India - Article...

Service