S.K.Singh - (1.) -By means of this writ petition, the petitioner has prayed for issuance of a writ in the nature of certiorari quashing the termination order dated 5.9.1994 (Annexure-4 to the writ petition) passed by the respondent No. 1 and the order passed by respondent No. 2 dismissing the petitioner's appeal (Annexure-6 to the writ petition).
(2.) THE petitioner has served as Constable in Civil Police for about 16 years. When the petitioner was posted as Constable in Civil Police at Police Station, Police Lines, Agra, it has been stated that due to domestic reasons, he applied for leave from 1.6.1992 to 8.7.1992 and again from 30.10.1992 to 6.12.1992. It is said that the petitioner was never communicated by the officials that whether the leave has been sanctioned or not but as there was unavoidable circumstances, the petitioner has to go on leave. It is for this unauthorised absence, the petitioner appears to have been proceeded in which the petitioner has been punished with the order of termination which has been confirmed by the appellate authority. Learned counsel for the petitioner submits that there was no proper enquiry as after furnishing explanation by the petitioner, the enquiry officer has not afforded opportunity to cross examine the witness. It has been submitted that the petitioner was given assurance that if he accepts his guilt, lesser punishment will be given and therefore, without affording any opportunity to cross-examine the witnesses, without supplying materials sought to be relied upon against the petitioner, the enquiry officer submitted report on the basis of which, disciplinary authority has taken decision to terminate the petitioner's services. Lastly, it has been submitted that misconduct on the part of the petitioner was not so grave, warranting extreme punishment. In response to the aforesaid submission, learned standing counsel, on the facts so stated in the counter-affidavit argues that the petitioner being employed in a disciplined force has proceeded unauthorisedly for quite some long time and therefore, after affording adequate opportunity, appropriate decision has been taken by the concerned authorities. Learned counsel submits that quantum of punishment, in the particular facts is a question of fact to which this Court should not intervene.
(3.) IN the light of the aforesaid submission, material as has come on record, has been examined. It appears from the reply as has been submitted by the petitioner to the show cause notice issued by the respondent No. 1, that he has worked in the department for about 16 years. The charge on which the petitioner has been proceeded relates to his absence for the period 1.6.1992 to 8.7.1992 and 30.10.1992 to 6.12.1992. In respect to the aforesaid absence on receipt of show cause notice, the petitioner has submitted his detailed explanation. It has been specifically stated in paras 4, 6 and 11 of the writ petition that the petitioner was assured by the enquiry officer that in the event of accepting charges, he will be awarded minor punishment and it is for this, the petitioner could not get any opportunity in the departmental proceedings to get the witnesses cross-examined. It has also been pointed out that the petitioner was never supplied with copy of the statement of witnesses and other materials which were relied against the petitioner. The reply to this averments as has been made in the writ petition, is contained in para 6 of the counter-affidavit which appears to be vague. The averments made in other paragraphs of the counter-affidavit are more vague. The respondents have not given any detail in respect to the dates on which the petitioner has been given opportunity to cross-examine the witnesses and whether the documents sought to be relied against the petitioner have been given to him. The report of the enquiry officer on closure of examination, speaks that it has placed reliance on certain findings and observations as has been made by the concerned authorities at the time of preliminary enquiry. The preliminary enquiry is just a fact-finding enquiry for the purposes to start proceeding and it cannot be relied and cannot be made basis for giving finding in final enquiry report. It appears that the enquiry officer has based his report placing reliance on the facts as has come in preliminary enquiry. The enquiry report itself shows that the petitioner has not cross-examined any witnesses and the petitioner was not present in the enquiry proceedings. It does not appear to reason that why the petitioner will give in writing that he is not interested to cross-examine the witnesses and to adduce witnesses. The petitioner is simply a Constable and it appears that charge against him was not so serious and, therefore, the averments as have been made by the petitioner that he under bona fide impression that he will be receiving lesser punishment was not to participate in the proceedings and, therefore, appropriate consideration was expected from the concerned authorities in respect to the quantum of punishment, which was specifically mentioned by concerned authorities also, in the show cause notice dated 12.4.1994 that on receipt of explanation petitioner will be considered sympathetically. In response to the show-cause notice issued by the respondent No. 1 dated 12.4.1994, the petitioner submitted his reply on 11.7.1994 (Annexure-2) in which it was clearly stated by the petitioner about the explanation/ contention as has been submitted before this Court as referred above in respect to improper enquiry. The petitioner has also clearly explained in respect to his absence. The petitioner has also clearly stated in his reply dated 11.7.1994 that he was never given copy of the preliminary report, the documents, statements of witnesses and he was never permitted to participate in the enquiry proceedings. In view of the aforesaid facts as is clear from the record, it appears that the enquiry has not proceeded in a fair manner and the petitioner has not been afforded proper opportunity to participate in the enquiry proceedings and the enquiry officer placed reliance on some preliminary enquiry report, the copy of which was admittedly not given to the petitioner. There is no averment by the respondent in the counter-affidavit that the petitioner has been given all the documents, preliminary enquiry report, relied upon against him, during the course of enquiry. In view of this, there appears to be violation of principle of natural justice and thus on this count impugned action against the petitioner appears to be not justified. Otherwise also, in respect to the alleged absence, passing of impugned order, awarding extreme punishment of dismissal appears to be not proper. Although this Court, cannot be said to be in a position to assess the quantum of punishment and it is for the disciplinary authority to assess but this has also been repeatedly said by the Apex Court as well as by this Court that the punishment, should appear to be proportionate and should commensurate with the gravity of charge. Reference can be made to the recent decision of this Court as has been referred in Shiv Prakash Rai v. State of U. P., 2001 (90) FLR 837, which takes note of catena of decisions.;