A.M Ahmadi, J.:—
1. [Not reported. Only portions approved for reporting by High Court are reported.]
2. [Not reported. Only portions approved for reporting by High Court are reported.]
3. [Not reported. Only portions approved for reporting by High Court are reported.]
4. [Not reported. Only portions approved for reporting by High Court are reported.]
5. From the above facts it becomes clear that the petitioner had remained absent without leave for 150 days. Being absent without leave, is certainly a misconduct for which the petitioner can be visited with one of the penalties, including the penalty of removal or dismissal.
6. The question, however, is whether the penalty of dismissal inflicted on the petitioner is commensurate with the established guilt.
7. When an authority is conferred with the power to inflict one of the several penalties such as caution or censure, reprimand, extra drill or duty, fine, stoppage of increments, reduction in rank, removal or dismissal, it is obvious that the authority must give a serious thought to the question of choice of penalty. The choice cannot be arbitrary but must depend on the nature of misconduct established in a given case. Just as a road roller cannot be brought to crush a fly, so also the extreme penalty of dismissal cannot be inflicted for misconduct which is not equally grave. The consequences of removal or dismissal from service are severe, sometimes the entire family is ruined because another job or work may not be easy to find and, therefore, it is all the more necessary that the punishment of removal/dismissal should be invoked sparingly and in cases which can be described as gross, such as, receiving illegal gratification, misappropriation or defalcation of public funds, behaviour which is morally reprehensible, gross abuse or misuse of authority, etc. However, if a policeman remains absent without leave, it certainly has an adverse effect on a disciplined force which can be remedied by imposing a lighter penalty such as withholding of increments or the like. Even thereafter if he does not show improvement in future and commits a similar violation of the conduct rules, he can be visited with a harsher penalty and ultimately, if need be, removal from service also. It is, however, necessary that before the extreme penalty is imposed, he is given an opportunity to improve by imposing a lighter penalty which would no doubt pinch him but not ruin him. If a bread winner is deprived of a job for misconduct of remaining absent without leave, it is not only he who suffers on that account but the entire family faces economic ruination. It is, therefore, necessary that the authority which is charged with the duty to select the punishment to be imposed on a delinquent for proved misconduct must weigh all these pros and cons and after a serious application of mind decide on the punishment which can be substantiated as commensurate or proportionate to the established guilt. In R.M Parmar v. Gujarat Electricity Board, Baroda, 23 (1) GLR 352 : (1982 GLH 254) it was observed that in order not to attract the charge of arbitrariness, it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. When penalties of different categories can be imposed in respect of alleged fault, the disciplinary authority per force is required to consult himself for selecting the most appropriate penalty from out of the range of penalties available having regard to the nature, extent and gravity of the default. These observations were approved by a Division Bench in Gujarat State Road Transport Corporation, Ahmedabad v. Jamnadas Becharbhai, 23 (2) GLR 557 : (1982 GLH 1057). There can, therefore, be no doubt that the authority conferred with the power to impose penalty is charged with a delicate and difficult duty which must be discharged with due care and caution in a responsible manner. Even in a disciplined force different categories of punishments have been provided which make it clear that the extreme penalty of removal/dismissal from service can be imposed only if the misconduct is so gross that the employee cannot be tolerated in service and his presence would have a deliterious effect on his colleagues.
8. In the instant case no punishment was imposed on the petitioner for remaining absent without leave in the past. He remained absent without obtaining leave from the disciplinary authority. That means that the misconduct proved is that he remained absent without leave for 150 days. The question then is what punishment should be imposed on him for this misconduct? Is the misconduct so grave or gross that the petitioner cannot be tolerated in service? Is it such that an opportunity to improve would be a futile exercise? If the petitioner is visited with a penalty which is short of removal or dismissal from service, is there evidence to suggest that he will-not learn a lesson and improve in future? The answer is there is no such evidence. The guilt established against the petitioner can never fall in that category which would necessitate termination of service. In my opinion, the guilt would fall in the category where an opportunity to improve by visiting the petitioner with a lesser penalty would serve the ends of justice. No one says that such conduct of remaining absent without leave should be tolerated, nay, a person guilty of such conduct must suffer punishment. But it is not necessary to be so harsh as to throw him out of service. It may be realised that being a petty police constable, his absence may not be even felt as much as it would be felt if a higher level officer behaves in this fashion. In a case like this, I think the ends of justice would be met if instead of terminating the services of the petitioner by an order of dismissal, the petitioner is visited with the penalty of withholding of two increments with future effect. This economic loss for him would be a constant reminder that he should not misbehave in future as he had done in the past. But if despite this he does not show improvement and commits similar defaults, the authorities would be justified in imposing a harsher penalty in future. I am, therefore, of the opinion that it is not possible to sustain the order of dismissal passed against the petitioner because it is clearly disproportionate to the established guilt.
9. [Not reported. Only portions approved for reporting by High Court are reported.]
10. Rule made absolute.