1,580 days absent: Rajasthan High Court rejects ex-constable’s 20-year legal battle over ‘compulsory retirement’

“The petitioner has a long history of wilful absence running into several years, for which she has been repeatedly punished by imposing minor as well as major penalties on six different occasions for similar allegations of absenteeism for as many as 1580 days,” the order held.

It was further highlighted that she did not show any improvement and repeated a similar misconduct. “Habitual absenteeism in a disciplined force like the police undermines discipline and efficiency,” the court added.

Findings

• The disciplinary proceedings are conducted by the employer in exercise of its administrative authority to maintain discipline, integrity, and efficiency in service.
• The departmental enquiry was conducted as per the prescribed procedure, where the petitioner was afforded “adequate opportunity” at every stage, but she failed to cooperate.
• Allegations of mala fides or bias against an enquiry officer in disciplinary proceedings cannot be advanced in a casual, cursory or bald manner, and the petitioner did not provide any specific details of any incident, conversation, or prior grudge suggesting that the enquiry officer was personally “biased, annoyed or predisposed” against her.
• Petitioner’s attempt to invite re-evaluation of the evidence or substitute a different factual conclusion is “wholly impermissible”.
• The disciplinary authority has taken into consideration the gravity of misconduct, the petitioner’s past service record and the impact of her conduct on the discipline of the force.
• The penalty of compulsory retirement reflects a lenient and sympathetic approach rather than a punitive one
• ‘Shockingly disproportionate, arbitrary punishment’
• The petitioner’s counsel, advocate Tanmay Dhand, stated that the punishment of compulsory retirement imposed on his client, in the obtaining facts and circumstances, is “shockingly disproportionate and arbitrary”. The other key arguments of the counsel are:
• The enquiry officer recorded statements of the state’s witnesses in her absence, and she was neither supplied copies of the statements nor afforded any opportunity to cross-examine the witnesses.
• Denial of cross-examination and refusal to permit defence evidence strikes at the very root of a “fair enquiry” and makes the entire proceedings “null and void”.

• Consistent denial of documents, selective recording of evidence, refusal to follow statutory rules and haste in concluding the enquiry unmistakably suggest a “predetermined mindset”.
• An enquiry conducted by a “biased authority” is not an enquiry in the eyes of the law.

‘Fair enquiry, justified punishment’

• On the contrary, the state’s advocate, deputy government counsel Saumitra Chaturvedi, argued that the scope of judicial review in disciplinary matters is “extremely limited”. The other major arguments by the state’s counsel are:
• Enquiry was fair, the findings are supported by evidence, and the penalty imposed is commensurate with the “gravity of misconduct” and “past service record”.
• The petitioner was afforded adequate opportunities to inspect records, participate in the enquiry proceedings and submit her defence. However, she deliberately adopted a non-cooperative attitude, repeatedly sought adjournments, refused to sign proceedings and failed to submit her reply within the stipulated time.
• The punishment of compulsory retirement is proportionate and justified, considering the disciplinary authority’s categorical finding that she was a habitual wilful absentee who had shown complete indifference towards discipline.
• Allegation of non-supply of documents or denial of opportunity is factually incorrect and misleading.
• The record reveals continuous indiscipline, negligence and disregard for the norms of a disciplined police force by the petitioner.

Background

• The petitioner was appointed as a constable in 1990 and was later promoted to the post of head constable in after passing the qualifying examination. 
• During her services, she was sanctioned casual leave for around 15 days in October 2007, and later she applied for privilege leave from the October end to the first week of Novermber followed by Deepawali holidays.
• As per the prosecution, she allegedly fell sick on October 22 and informed the office superintendent and duty officer telephonically.
• It was further argued that she was treated as absent without informing the authority concerned, leading to her suspension in November 2007, following a departmental enquiry.
• The prosecution alleged that a preliminary enquiry was ordered on November 27, 2007, which was conducted in a “quite cursory manner” without disclosing charges or supplying documents. 
• This preliminary enquiry followed a report recommending departmental action in December 2007. 
• She was allegedly served with a chargesheet in March 2008, pointing charges of willful absence from October 2007, with past instances of prolonged absence for which punishments had earlier been imposed.
• It was also mentioned in the charge sheet that the petitioner was a habitual absentee with charges of misbehaviour with neighbours in police quarters, bringing disrepute to the department. 
• In August 2008, the enquiry officer submitted an enquiry report stating that all the charges were proved.
• The penalty of compulsory retirement was imposed on the petitioner via a September 2008 order. 
• Aggrieved by this decision, the petitioner moved the appellate authority in 20o9, and later moved to the review authority in 2012, but her plea was rejected.