Mansing Bodabhai Bariya Vs. Deputy Police Commissioner, Surat and Another - Court Judgment

Oral Judgment:

1. This is one matter wherein, even when the Court may have some sympathy or full sympathy for the petitioner, no relief can be granted to the petitioner, who is before this Court, praying that:

œYour Lordships may be pleased to issue appropriate writ order or direction and may be pleased to quash and set aside the order passed by the respondent No.1 (Deputy Police Commissioner, East Zone, Surat) dismissing the petitioner and order passed by the respondent No.2 (Additional Police Commissioner, Range-1, Surat) confirming the dismissal as being illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India?;

2. The petitioner has set out in the memo of petition in para 2.1 that he was appointed as Unarmed Police Constable by order dated blank October, 1983. The petitioner was transferred to Varacha Police Station in 1998.

3. The present petition is filed challenging the order by which he is dismissed from service for having remained unauthorizedly absent for 620 days starting from 4.10.1991 to 14.6.1993. Incidentally, the petitioner has not referred to in his memo of petition his earlier absence for 74 days starting from 1.4.1991 to 13.6.1991. The case of the petitioner is that on 3rd January, 1991, he was on duty at Matawadi Police Chowki. For every single thing, there are discrepancies in the petition and the documents which are produced along with petition starting with the date of duty i.e. 3.1.1991 because in the documents which are produced, it is mentioned that it was on 4.1.1991 that he was on duty from a.k.t. to 14.30, this is a notice given by the authority which is produced at Annexure-B which does not bear a date on the top (portion) of the notice but at the bottom, it is mentioned 17.2.1992. The learned advocate submitted that in appeal, a copy of which is at Annexure-I, page-34, relevant page is 36 (running page, internal page No.3), it is mentioned that, I (the petitioner) was served with the notice on 15.2.1992 bearing number:P.I.Varachha, Sr.No.141, dated 15.2.1992. It is further stated in that paragraph that, it was served by one Police Constable of Varachha Police Station, named Dalpatbhai Balvantbhai. What is stated further is that, I had accepted that notice on 17.2.1992 making an endorsement that my health is not improving and therefore, it is not possible for me to report for duty.

4. Reading the contents of this paragraph with the contents of document at Annexure-B, the date mentioned at the bottom can be taken to be the date of acceptance of this notice. But it cannot be said to be the date of the notice which appears to be 15.2.1992. What is important is that Annexure-B is a typed written copy of which original is not made available for perusal of the Court. The Court could not have the benefit of seeing the original with the endorsement part. The learned advocate for the petitioner vehemently submitted that this is a case wherein, the Presenting Officer, Presiding Officer (Inquiry Officer) was one and the same and in support of this submission, the learned advocate invited the attention of the Court to averments made in para 2.10 which reads as under:

œ2.10. The petitioner respectfully states that it is relevant to note here that P.I. Limbiyat was appointed as inquiry officer by the respondent. The petitioner states that the inquiry officer himself conducted the inquiry and also played the role of presenting officer.......?

(Emphasis supplied)

5. The learned advocate submitted that except the averments made in the documents produced, there is no independent evidence in the form of document to support these averments. In this regard, the learned advocate relied upon the very same appeal memo (Annexure-I, Page-34), filed by the petitioner; wherein, the petitioner has stated that, 'when I was discharging my duty at Varachha Road Police Station with reference to illness from 4.10.1991 to 14.6.1993 totaling days 620, I was on leave and from time to time ('Vakhotovakhat') by Registered Post A.D., Police Inspector, Varachha Police Station was intimated. Treating this period as period of absence, Deputy Police Commissioner, East Zone, Surat City by letter bearing No.TPS/591/94, dated 17.6.1994 served the charge-sheet and appointed P.I. Limbayat Police Station as Presiding Officer'. What is important and relevant is 'Limbayat' is a place. The reference of word 'Limbayat' is so made that it can be read as œP.I. Limbayat? or œPolice Station Limbayat?. Learned advocate is not able to clarify as to whether 'Limbayat' is referred to 'place' or as 'surname' of the officer.

6. This Court records with pains that very few such incomplete, insufficient and sketchy petition, the Court has come across. For every single thing, the learned advocate relies upon the averments made in the petition and when it is asked to support those averments by the document, either the document is not available or in case available, a novel interpretation in such is put that it is found not acceptable. There is no clarification on record which can make it clear whether word 'Limbayat' is mentioned in the appeal memo as 'P.I. Limbayat' or Police Inspector of Police Station was appointed as Presiding Officer.

7. Next comes a very bold statement and that bold statement is that, 'this Presiding Officer gave an instruction to the petitioner that this period is already decided to be treated as 'without pay' and as you have already intimated from time to time ('Vakhotovakhat'), there will be no punishment' and by saying so, (Presiding Officer) obtained a 'Kabulat' (admission) on 14.12.1994 and thereafter, the petitioner is dismissed from service by Deputy  Police Commissioner, East Zone, Surat by his order No.TPS/752, dated 31.5.1995.

8. This 'Kabulat' dated 14.12.1994 is not produced on record. At this juncture, learned AGP, Mr.Sharma, made available for perusal of this Court a document dated 14.12.1994 which is in form of a statement given by the petitioner before Presiding Officer and P.I. Limbayat Police Station, Surat (Even this document does not make it clear whether the word 'Limbayat' is referred as surname of P.I. or is referred to as place). This statement does not mention that the petitioner was given to understand that there will be no punishment. This statement of the petitioner is not to be the effect that, œhe was given to understand that there will be no punishment?. Learned AGP is requested to produce a copy of this statement on record so that it remains on record of the case.

9. Learned AGP Mr.Sharma relied upon a decision of the Hon'ble the Apex Court in the case of Om Prakash V/s. State of Punjab and Others reported in (2011) 14 SCC 682 in support of the contention that, 'assuming for the sake of argument that absence period of the petitioner starting from 4.10.1991 to 14.6.1993 totaling 620 days is regularized, it cannot be a ground for not imposing the appropriate penalty for having conducted himself in such manner'. Learned AGP submitted that offence assumes more gravity in absence of regular intimation about the same by the  member of uniform force. Learned AGP submitted that Hon'ble the Apex Court was pleased to observe in para-10, as under which is quoted for ready reference.

œ10. The next contention that is raised is that the period of absence of the appellant having been regularized, the aforesaid charge of unauthorized absence would fall through and, therefore, the order of punishment is required to be set aside and quashed. We are unable to accept the aforesaid contention as period of unauthorized absence was not condoned by the authority but the same was simply shown as regularized for the purpose of maintaining a correct record?.

10. Learned advocate for the petitioner made another bold statement that the period of absence was sanctioned as leave without pay. Neither in the petition any averment is made nor any document is produced in support of this statement. In this regard again, learned advocate asserted that averment made in para-2.7 be so construed. The contents of para-2.7 are; œthe petitioner respectfully states that when the petitioner joined the duties, his leave were sanctioned as 'leave without pay' by the respondent authorities?.

11.The Court is at loss as to why all possible vaguenesses is kept in para 2.7. It does not refer to period, it does not refer to number of days, it does not refer to any document communicating that his 'leave' is sanctioned as 'leave without pay'. Be that as it may. Today, during the course of arguments, learned advocate took out a xerox copy of one letter, it is from Deputy Administrative Officer of Police Commissioner Office, Surat City, dated 15.2.1994. The learned advocate is not able to establish the veracity of this document which has appeared all of a sudden before the Court from the file of the learned advocate for the petitioner. The question remains as to 'why this document was kept back by the petitioner at the time of filing of the petition which was filed in the year 1998'.

(Emphasis supplied)

12. The learned advocate for the petitioner next invited the attention of the Court to Annexure-E. It is an order dated 2/3 September, 1994 under the signature of Deputy Commissioner of Police (Administration.), Surat City. By this order, at the police headquarter, a new company is formed which is to be known as 'G' company. The subject of the order is, 'to start Reorientation Course'. After setting out the reason for starting the 'G' company and starting reorientation course, it is mentioned that '3' Unarmed Police Sub-Inspectors, 22 Un-Armed Head Constables and 78 Un-Armed Police Constables will be allocated to the police headquarter, Surat City establishment and they are appointed at the police headquarter in the newly formed 'G' Company. The object seems to be noble. The case of the petitioner in paragraph No.2.1, as mentioned by the petitioner is that he was appointed as Unarmed Police Constable by order dated blank October, 1983. In this œG? Company (newly formed) '3' Unarmed Police Sub-Inspectors and 22 Unarmed Head Constables and 78 Un-Armed Police Constables were allocated. Still, the question remains, 'what is significance of allocation of the petitioner to this newly formed 'G' company with reference to the disciplinary case initiated against the petitioner'.

13. Learned advocate for the petitioner did contend that the petitioner has produced the medical certificate intimating the nature of sickness, he was suffering for Gastric Ulcer with Heametemesis. Medical certificate dated 6.4.1992 is produced on record. But then, solitary document which is produced, does not mention that how long the petitioner was under the treatment. By which Doctor the petitioner was treated for the illness mentioned therein. In fact, the contents of the documents are:

œSickness Certificate (UNFIT)

I, Dr.M.R.Bhatia after careful examination of the case hereby certify that Mansinh Badabhai Baria whose signature is given above is suffering from gastric ulcer with heametemesis and to consider that period of absence from duty of 185 days with effect from 4.10.1991 to 6.4.1992 is absolutely necessary for restoration of normal health?.

14. The Court is reluctant to exercise its discretion in favour of a person of a uniform force particularly, on the ground that he remains absent from 4.10.1991 to 14.6.1993, the reason for remaining absent is already set out herein above but then what is important is that he was absent from 1.4.1991 to 13.6.1991 i.e. for 74 days, not a word disclosing reason for having remained absence for those 74 days is mentioned in the memo of petition or any of the document produced which would have enabled this Court to decide whether the petitioner deserves any discretionary relief or not.

15. Beside that, except acknowledgment receipt and one receipt of having sent Registered Post A.D. to the addressee, no other receipt or A.D. slip is produced to substantiate the say that he had from time to time ('Vakhotovakhat') intimated about his absence to the concerned authority.

16. The xerox copy of the receipt of sending communication by Registered Post A.D. and the copy of the A.D. Slip (as claimed by the learned advocate for the petitioner and the xerox copy of the cover bearing the name of the addressee are produced at page No.15), the submission made by learned advocate for the petitioner is not found to be correct.

17. It is submitted that A.D. slip bearing No.4956 is dated 3.11.1991. The date of receipt No.92 is not very legible, the date read by the Court on A.D. slip is dated 3.12.1991, whereas, the reference is about A.D. slip and RPAD letter is stated to be 3.11.1991 in the documents produced with the petition. The document produced by the learned advocate is returned with a request to produce the xerox copy of it on the record.

18. Even if benefit of doubt is given to the petitioner, then also, the fact remains that there is only one receipt and one A.D. slip, whereas, assertion is that he intimated the authorities from time to time ('Vakhotovakhat').

19. This Court cannot be unmindful to the fact that the petitioner had remained absent for 620 days (4.10.1991 to 14.6.1993) and this happened when he was facing the departmental proceedings for he having remained absent earlier for 74 days from 1.4.1991 to 13.6.1991.

20. Taking into consideration the aforesaid facts, this Court is the opinion that the petitioner does not deserve any sympathy and no discretionary relief can be granted. The order passed by the authorities below does not warrant any interference at the hands of this Court.

21. In the result, the petition is dismissed. Rule discharged with no order as to costs.