STATE OF U.P. & ORS. v. MADHAV PRASAD SHARMA

The Judgment of the Court was delivered by E P. SATHASIVAM, J. 1. Leave granted. •""

2Copy pinpoint2. his appeal is directed against the final judgment and -,,.- - order dated 29.06.2009 passed by the High Court of · Judicature at Allahabad in Special Appeal No. 614 of 2009 F whereby the Division Bench of the High Court dismissed the special appeal preferred by the appellants herein.

3Copy pinpoint3. Brief facts:

G (a) The respondent was appointed as Police Constable--4 - 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 H

'! STATE OF U.P. & ORS. v. MADHAV PRASAD 271 SHARMA [P. SATHASIVAM, J.] initiation of departmental proceedings, the Disciplinary Authority A 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. B 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 before the c 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, 0 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 E 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 F Inspector General of Police (in short "the DIG"), 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 J.-" writ petition being C.M.W.P. No. 53909 of 2003 before the High G 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, H, .

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A vide its order 29.06.2009, dismissed the special appeal on the . ground of maintainability. Aggrieved by the said order, the ~. · appellants have pr~ferred this appeal by way of special leave before this Court.

4 . Heard Mr. Shail Kr. Dwivedi, learned Additional B Advocate General for the State of U.P. and Mr. V. Shekhar, learned senior counsel for the respondent.

5Copy pinpoint5. Without going into the merits of the charges leveled against the respondent, let us consider the following two c 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? D (ii) Even if we answer the first question in the negative, A , whether the order of the learned single Judge quashing the order of termination d·ated 23.11.2002 of the petitioner therein is sustainable. E

6Copy pinpoint6. 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:- ;f£

"You left Police Station Sikandarpur Vaishya on F 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." G ~ 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

STATE OF U.P. & ORS. v. MADHAV PRASAD-- 273 SHARMA [P. SATHASIVAM, J.]

. •> 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 J1,1~ge, after finding that the respondent herein had been sanctioned leave without pay and subsequently his . B 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 the merits of the order of the learned single Judge while considering the second issue. c About the First Issue:·

7Copy pinpoint7. 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 D 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 jurisdicti,on 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 exer.cise of appellate or revisional jurisdiction H -- ------ ---

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A under any such Act of one Judge."

8Copy pinpoint8. 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 B 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 C 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 D 20.11.2009, after hearing the arguments of either side, we ·intend to consider the merits of the order of the learned single Judge dated 17.09.2008.

About the Second Issue:- E 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.

STATE OF U.P. & ORS. v. MADHAV PRASAD 275 SHARMA [P. SATHASIVAM, J.]

• >- 9. Rule 4 of the Rules prescribes the mode of punishment A 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:- B (a) . Major Penalties:-. (i) Dismissal from service

(ii) Removal from service c - (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 D

(ii) Fine not exceeding one month's pay (iii) With-holding of increment, including stoppage at an efficiency bar. E (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:- F (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. G

(iii} Extra guard duty not exceeding seven days.

(iv) Deprivation of good conduct pay. H

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A (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;

B (ii) Drain digging;

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

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

(v) Cleaning Arms."

We are not concerned about other rules. The perusal of major D 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 E 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 Rul~s which deals with the major penalties and minor penalties. De-nialof 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 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.

10Copy pinpoint10. Doctrine of double jeopardy enshrined in Article 20(2) H of the Constitution of India has no application in the event of

STATE OF U.P. & ORS. v. MADHAV PRASAD 277 SHARMA [P. 'SATHASIVAM, J.] there being only one punishment awarded to the respondent A ~ >- 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 Unga 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. B

11Copy pinpoint11. In State of Punjab & Ors. v. Bakshish Singh, AIR 1999 = SC 2626 (1998) 8 sec 222, this Court has dealt with a case wherein the Trial Court as well as the First Appellate Court and the High Court had taken the view that in case unauthorized absence from duty had been regularized by treating the period c 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 D * 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 E 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 1st Appellate Court to the punishing authority for imposing the fresh punishment. This Court held as under: F

"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 )-. G 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 H

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A 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.

12Copy pinpoint12. 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 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 witti no order as to costs.

R.P. Appeal Partly allowed.