Promotion wipes past adverse records: Madhya Pradesh High Court remands head constable’s termination for fresh penalty

The high court also pointed out that it is not acceptable for any police officer to remain absent as per his request and later request for adjustment of leave. 

“If this system is given approval by the court, it would disturb the entire discipline in the police department,” the court noted.

‘Past records considered at promotion’

• Verma was initially appointed as a constable and was later promoted to head constable. 
• Any punishment given to him, whether minor or major, adverse confidential reports, etc., had already been taken into consideration by the department before promoting him to the post of head constable.
• Therefore, his adverse records could not have been taken into consideration for awarding the punishment of dismissal from service.
• The punishment of dismissal from service should not have been imposed upon him, especially when the punishment of Dies-non (leave without pay) had already been imposed upon him, and leaves were available on his record.
• Verma was absent from duty for a considerable period of 197 days. 
• Even if he was suffering from a disease like T.B., he could have informed the police department about his long absence due to illness. 
• He was served with the notices by the department, but he did not respond, which points out that he had admittedly committed the misconduct as found established in the departmental enquiry. 
• An employee, a police officer, must take leave or permission from the superior officer and thereafter move from working place.

‘Instructions for disciplinary authority’

• The dismissal of service can be said to be excessive punishment concerning the charge of overstaying during the leave period. 
• The matter is referred back to the disciplinary authority for imposing appropriate punishment. 
• The activities of the petitioner, his health condition, character verification and integrity during the period he was dismissed should also be taken into consideration, as it is a matter of police personnel and he is about to come back into the services after a gap of 10 years.

• If any adverse material is found against him which makes him unfit to be in the police services, then the disciplinary authority should have the discretion not to take him back into service by recording such reasons.

‘Past record used for termination’

• Appearing for the petitioner, advocate Mahendra Pateriya argued that the disciplinary authority concerned had acted with a pre-determined mind by taking into account his client’s entire past service record and old minor punishments to justify termination.
• The authorities concerned have totally disregarded the vital fact that his client had more than 410 days leave to his credit, and the same could have been adjusted from the period of his absence. 
• The termination order is contrary to the Madhya Pradesh Police Manual, which provides that the police department should be compassionate in cases of absence from duty and that termination orders should not be passed. 
• The punishment of termination from service is grossly disproportionate to the allegations against his client, and the authority concerned chose the most “harsh and unfair” penalty. 
• At best, a minor penalty could have been imposed for his absence from duty, which was duly reported to the superior of the man. 
• The absence of his client was necessitated by ill-health, for which medical certificates were later produced, and his joining was duly recorded in the relevant documents in April 2014.
• His client has brought on record additional evidence which proves his cooperation in the departmental enquiries and prior permission for movement. 
• Pateriya mentioned that the department has already treated the period of absence as “leave without pay” and had already “regularised” the absence by deducting pay. 
• In such a scenario, imposing the additional ultimate penalty of termination for the same period amounts to double jeopardy and is a manifest overreach of disciplinary power. 
• There was no “wilful” or “intentional” absence since the absence was a direct result of his physical ailment. 
• While there was a procedural lapse in not submitting written applications during the treatment, the superior officers were verbally informed. 
• A procedural delay in submitting medical certificates, which were provided upon joining, does not equate to grave misconduct.
• The punishment of termination is grossly disproportionate to the alleged misconduct of overstaying medical leave. 
• The charges do not involve moral turpitude, corruption, or serious dereliction of duty. 
• The Madhya Pradesh Police Manual points out that the extreme penalty of dismissal/termination should not ordinarily be imposed on constables/head constables for such lapses since it should be imposed as a last resort. 

‘Habitual delinquent, correct penalty’

• On the contrary, the government advocate Ritwik Parashar submitted that Verma was a habitual delinquent, and he had been visited with 30 minor and 2 major penalties.
• Out of these penalties, 14 penalties were in respect of unauthorised absence only. 
• In a short span of 16 years of service, Verma remained unauthorisedly absent for 634 days.
• He was granted various opportunities, but he had shown no improvement in his conduct. 
• Parashar pointed out that the consideration of the ailment-related medical documents of the man clearly suggests that he could have informed the authorities regarding his leave even through the post. 
• The grant of a medical certificate itself does not confer a right to avail leave upon the government servant. 
• The decision to accept the same or not is at the discretion of the competent authority, which is to be exercised after taking into consideration the totality of the facts and circumstances of any case.
• The disciplinary authority had conducted a full-fledged departmental enquiry, based on the evidence placed on record, and concluded that Verma is a habitual delinquent and is unfit to continue to provide services in a highly disciplined force like the police.
• It was also highlighted that, as all other means of his correction have failed, termination was the appropriate penalty as per the disciplinary authority. 

‘Promotion followed termination’

• Verma was appointed as a constable in 1999, and later in 2014, he was promoted to head constable. 
• In the same year, he got ill and was on leave and was absent from duty from September 23, 2014, to April 8, 2015. 
• On April 9, 2015, he submitted his joining documents along with all medical documents, which were recorded at the time of joining.
• He was again allegedly absent from December 26, 2015, and continuously remained absent from duty.
• A departmental inquiry was initiated, and by August 2016 order, Verma was punished with termination from service.
• Also, the total period of leave of 315 days was treated as ‘dies non’ under the head of “no work no pay”.