State Of U.P.& Ors vs Madhav Prasad Sharma

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3) Brief facts:

(a) The respondent was appointed as Police Constable at

Police Lines, Aligarh vide order dated 01.02.1978. On

19.10.2001, the respondent had gone for some official

work and left the Police Station, Sikandarpur Vaishya and

thereafter came back on his duty on 28.01.2002 after 101

days. After initiation of departmental proceedings, the

Disciplinary Authority issued notices to the respondent on

various dates for seeking explanation for his unauthorized

absence from duty. On 23.03.2002, the Deputy

Superintendent of Police (in short "the DSP") issued

charge sheet against the respondent by leveling charges

and directed him to submit the reply by 01.04.2002. As

the respondent did not reply to the notice, the DSP issued

another notice to the respondent on 04.04.2002. After

giving several opportunities to the respondent, the

Disciplinary Authority fixed the date as 01.07.2002 for

recording of evidence but the respondent did not appear

2 before the Presiding Officer. Finally, the respondent

appeared before the Presiding Officer on 16.09.2002 and

informed that he has no defence witness. After completion

of the enquiry, the Presiding Officer, vide his order dated

09.10.2002, submitted his report to the Disciplinary

Authority. Agreeing with the enquiry report, the

Disciplinary Authority issued show cause notice dated

25.10.2002 to the respondent along with the copy of the

enquiry report for his comments/reply on the findings

recorded therein. On 06.11.2002, the respondent

submitted his reply stating that he had accepted the

findings on the charge of unauthorized absence from duty

on the ground of illness.

(b) The Sr. Superintendent of Police (in short "the SSP"),

Etah, vide order dated 23.11.2002, terminated the service

of the respondent. Feeling aggrieved by the said order, the

respondent preferred Departmental Appeal before the

Deputy Inspector General of Police (in short "the DIG"),

3 Agra Zone, Agra. Vide order dated 27.02.2003, the DIG

rejected the appeal filed by the respondent herein.

(c) Aggrieved by the said order, the respondent preferred

writ petition being C.M.W.P. No. 53909 of 2003 before the

High Court which was allowed by the learned single Judge

vide his order dated 17.09.2008. Against the said order,

the appellants herein preferred special appeal being S.A.

No. 614 of 2009 before the High Court. The Division

Bench of the High Court, vide its order 29.06.2009,

dismissed the special appeal on the ground of

maintainability. Aggrieved by the said order, the

appellants have preferred this appeal by way of special

leave before this Court.

4) Heard Mr. Shail Kr. Dwivedi, learned Additional

Advocate General for the State of U.P. and Mr. V. Shekhar,

learned senior counsel for the respondent.

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5) Without going into the merits of the charges leveled

against the respondent, let us consider the following two

questions:-

(i) Whether the Special Appeal No. 614 of 2009 preferred

by the State before a Division Bench against the order of

the learned single Judge allowing the writ petition filed by

the petitioner therein is maintainable?

(ii) Even if we answer the first question in the negative,

whether the order of the learned single Judge quashing

the order of termination dated 23.11.2002 of the petitioner

therein is sustainable.

6) In view of the limited issues, there is no need to

traverse all the factual details. However, it is relevant to

refer the charge leveled against the respondent herein

which reads as under:-

"You left Police Station Sikandarpur Vaishya on 19.10.2001 for the Office of Circle Officer in connection with some departmental work and thereafter you came back on 28.01.2002 and thus remained unauthorizedly absent for 101 days from your service without any sanctioned leave/permission in this regard."

5 Pursuant to the Charge Memo, the delinquent was asked

to show cause and ultimately enquiry was conducted and

the Enquiry Officer submitted his report. The Disciplinary

Authority, namely, the SSP, by order dated 23.11.2002

terminated the service of the respondent with immediate

effect. By order dated 27.02.2003, the Appellate

Authority, i.e., the DIG, Agra also dismissed the appeal

filed by the respondent herein. Against the said order,

the respondent filed Writ Petition No. 53909 of 2003

before the High Court. By order dated 17.09.2008, the

learned single Judge, after finding that the respondent

herein had been sanctioned leave without pay and

subsequently his service was terminated on the same

ground and as such two punishments were inflicted for

one charge which is not permissible in law, quashed the

order of termination dated 23.11.2002. We will consider

6 the merits of the order of the learned single Judge while

considering the second issue.

About the First Issue:-

7) Against the order of the learned single Judge, the State

Government filed Special Appeal No. 614 of 2009 before

the Division Bench of the High Court. Rule 5 of Chapter

VIII of Allahabad High Court Rules, 1952 speaks about

Special Appeal which reads as under:-

"Special Appeal.--An appeal shall lie to the Court from a judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."

7 8) It is fairly admitted that in view of the fact that

against the order of termination the delinquent availed

departmental appeal to the DIG, after the order of the

learned single Judge no further appeal by way of special

appeal before the Division Bench would lie. The materials

placed and in view of the fact that the order of the SSP

was considered and disposed of by the Appellate

Authority, i.e., DIG and also of the fact that the order

impugned in the writ petition was passed in exercise of

appellate jurisdiction in terms of The Uttar Pradesh

Subordinate Police Officers/Employees (Punishment and

Appeal) Rules, 1991 (hereinafter referred to as "the

Rules"), we concur with the conclusion arrived at by the

Division Bench of the High Court in the impugned order.

However, in view of the fact that this Court issued notice

in the special leave petition as early as on 20.11.2009,

after hearing the arguments of either side, we intend to

8 consider the merits of the order of the learned single

Judge dated 17.09.2008.

About the Second Issue:-

The learned single Judge, without going into the merits of

the claim made by both the parties with reference to the

charge leveled against the delinquent, enquiry

proceedings, order of the SSP and DIG, quashed the order

of termination on the simple ground that the delinquent

was inflicted with two punishments which is not

permissible in law. In the second paragraph, the learned

single Judge after pointing out that due to illness of the

delinquent the Department has sanctioned his leave

without pay and thereafter his service has been

terminated for his absence which amounts to two

punishments for one charge and quashed the order of

termination. On going through the relevant rules, we are

of the view that the learned single Judge committed an

error in arriving at such a conclusion.

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9) Rule 4 of the Rules prescribes the mode of punishment

which reads as under:

"4. Punishment.--(a) The following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officer, namely:--

(a) Major Penalties:--

(i) Dismissal from service

(ii) Removal from service

(iii) Reduction in rank including reduction to a lower-scale or to a lower stage in a time-scale.

(b) Minor Penalties:--

(i) With-holding of promotion

(ii) Fine not exceeding one month's pay

(iii) With-holding of increment, including stoppage at an efficiency bar.

(iv) Censure

(2) In addition to the punishments mentioned in sub-

rule (1) Head Constables and Constables may also be inflicted with the following punishments:--

(i) Confinement to quarters (this term includes confinement to Quarter Guard for a term not exceeding fifteen days extra guard or other duty).

(ii) Punishment Drill not exceeding fifteen days.

(iii) Extra guard duty not exceeding seven days.

(iv) Deprivation of good conduct pay.

(3) In addition to the punishments mentioned in sub-

rules (1) and (2) Constables may also be punished with Fatique duty, which shall be restricted to the following tasks:-

(i) Tent pitching;

(ii) Drain digging;

(iii) Cutting grass, cleaning jungle and picking stones from parade grounds;

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(iv) Repairing huts and butts and similar work in the lines;

(v) Cleaning Arms."

We are not concerned about other rules. The perusal of

major and minor penalties prescribed in the above Rule

makes it clear that "sanctioning leave without pay" is not

one of the punishments prescribed, though, and under

what circumstances leave has been sanctioned without

pay is a different aspect with which we are not concerned

for the present. However, Rule 4 makes it clear that

sanction of leave without pay is not one of the punishment

prescribed. Disciplinary authority is competent to impose

appropriate penalty from those provided in Rule 4 of the

Rules which deals with the major penalties and minor

penalties. Denial of salary on the ground of `no work no

pay' cannot be treated as a penalty in view of statutory

provisions contained in Rule 4 defining the penalties in

clear terms. Rule 7 empowers the Government or any

Officer of the Police to award the punishment mentioned

11 in Rule 4. Rule 8 provides for punishment of dismissal

and removal. Thus the punishment of dismissal from the

service is the punishment which has been awarded to the

Respondent in accordance with Rules 4 and 8 of the

Rules. There is no question of awarding two punishments

in respect of one charge.

10) Doctrine of double jeopardy enshrined in Article 20(2)

of the Constitution of India has no application in the event

of there being only one punishment awarded to the

respondent under the Rules on charges being proved

during the course of disciplinary enquiry. The law laid

down by this Court in the case of Union of India vs.

Datta Linga Toshatwad (2005) 13 SCC 709 and Maan

Singh vs. Union of India, (2003) 3 SCC 464 fully apply in

the facts and circumstances of the present case.

11) In State of Punjab & Ors. v. Bakshish Singh, AIR

1999 SC 2626 = (1998) 8 SCC 222, this Court has dealt

with a case wherein the Trial Court as well as the First

12 Appellate Court and the High Court had taken the view

that in case unauthorized absence from duty had been

regularized by treating the period of absence as leave

without pay, the charge of misconduct did not survive.

However, without examining the correctness of the said

legal proposition, this court allowed the appeal on other

issues. As the said judgment gave an impression that this

Court had laid down the law that once unauthorized

absence has been regularized, the misconduct would not

survive. The matter was referred to the larger bench in

Mann Singh's case (supra) wherein this Court clarified

that the earlier judgment in Bakshish Singh (supra) did

not affirm the said legal proposition and after following the

judgment of this court in State of M.P. v. Hari Har

Gopal & Ors., (1969) 3 SLR 274 (SC) disposed of the case

clarifying that this court in Bakshish Singh (supra)

dealt with only on the issue of remand by the High Court

as well as by the Ist Appellate Court to the punishing

13 authority for imposing the fresh punishment. This Court

held as under:

"Bakshish Singh's case is not an authority for the proposition that the order terminating the employment cannot be sustained inasmuch as in the later part of the same order the Disciplinary Authority also regularized unauthorized absence from duty by granting an employee leave without pay."

This Court further held that the law laid down by this

court in Hari Har Gopal (supra) wherein it had been held

that in absence of regularization of unauthorized absence

it may not be possible for the employer to continue with

the disciplinary proceedings as there would be break in

service and thus, regularization of such absence even

without pay is justified. It is so necessary to continue with

the disciplinary proceedings.

12) In such circumstances, the conclusion of the learned

single Judge that the delinquent had suffered two

punishments cannot be sustained. At present, we are not

inclined to go into the validity or otherwise of the order of

termination in this proceeding. Inasmuch as learned

14 single Judge quashed the order of termination only on the

ground that it is impermissible to impose two

punishments, we set aside the order of the learned single

Judge dated 17.09.2008 and remit the matter to the

learned single Judge for fresh disposal. Both parties are

permitted to put forth their claim with regard to the

outcome of the charge, order of the original and appellate

authority for which we express no opinion and it is for the

learned single Judge to consider and dispose of the same

as expeditiously as possible, preferably within a period of

six months from the date of receipt of the copy of this

judgment. Civil Appeal is allowed to this extent with no

order as to costs.

..........................................J. (P. SATHASIVAM)

..........................................J. (DR. B.S. CHAUHAN)

NEW DELHI;

JANUARY 10, 2011.

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