- (1.) THE petitioner was a Constable in Kolkata Police. He served about 16 years. His all authorised leave were eaten up. In first 14 years he was absent for about 900 days on 25 occasions. On 24 occasions he was either cautioned or fined for a paltry sum. He did not change his attitude. On 25th occasion he was proceeded with departmentally however, imposed a lesser punishment. Fact remains, on 25th occasian he was absent unauthorisedly for 900 days. THE next lap of two years would denote that the petitioner was absent for about 178 days on many occasions. THE Authority proceeded against him departmentally upon giving adequate opportunity of defending himself. Even during enquiry he absented himself unauthorisedly as would appear from the pleadings. He was inflicted a punishment of dismissal from service. By the order of dismissal the Disciplinary Authority, after agreeing with finding of the enquiry, regularised the leave by treating those period totalling about 178 days, spent as "extraordinary leave" under Rule 175(5) of the West Bengal Service Rule, Part-I. THE last paragraph of the order of the Disciplinary Authority appearing at page 28 of the petition is quoted below: "THE period of unauthorised absence for 15 days from 3.10.00 to 17.10.00, for 02 days from 29.10. 00 to 30.10.00, for 149 days from 18.12.00 to 15.5.2001 and for 12 days from 16.5.2001 to 27.5.2001 totalling 178 days (one hundred seventy eight) is treated as spent on E.D.L. u/r 175(5) of W.B.S.R. Part-I.)"
(2.) THE petitioner approached the Tribunal. THE Tribunal rejected the prayer of the petitioner for setting aside of the order of dismissal. While doing so, the Tribunal relied on the Apex Court decision in the case of State of Punjab v. Sukhwinder Singh, reported in (2007) 10 SCC 511. In the said decision the Apex Court observed in paragraph 5 as follows: "5. THE High Court was right in noting that the respondent was a member of a disciplined force and that absence form duty was unbecoming of a member of such force. It was in that light that the High Court should have looked at the repeated acts of the respondent's absence from duty. THE fact that the respondent is a member of the Scheduled Castes is neither here nor there for the purposes of considering whether or not he is guilty of misconduct and breach of discipline, nor the fact that he had gone to give his pay to his mother and was detained on account of her illness. It is necessary that members of the police forces should attend the duties which they have been allocated and not absent themselves. This is a paramount public interest that must overweigh private considerations. THE High Court was, therefore, in patent error in looking benignly at the numerous acts of absence of the respondent." Being aggrieved, the petitioner has approached by filing the instant application, inter alia, praying for setting aside the judgment and order of the Tribunal and for his reinstatement after quashing the order of the Disciplinary Authority so merged with the order of the Appellate Authority. Mr. Amal Baran Chatterjee, learned counsel, appearing for the petitioner, has contended as follows: i) Since the Disciplinary Authority treated the period of absence as extraordinary leave the leave stood sanctioned and there could be no punishment. ii) The punishment, even if held to be valid, was disproportionate to the offence committed by the petitioner, as according to him unauthorised absence could not be said to be a grave misconduct. iii) The Authority committed illegality in the decision making process by condoning the absence on one hand and imposing the punishment on the other.
(3.) HE relied on two Apex Court decisions in the case of Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and Ors., reported in (2004)4 SCC 560 and in the case General Manager, Appellate Authority, Bank of India and Anr. v. Mohd. Nizamuddin, reported in (2006)7 SCC 410. Mr. Chatterjee has prayed for setting aside of the order of the Tribunal coupled with the order of reinstatement by quashing the order of the Disciplinary Authority so merged with the order of the Appellate Authority.;