A.K. Tripathi, J.@mdashHeard learned Counsel for the parties.
2. Original Petitioner Binda Singh died during the pendency of the writ application and he has now been substituted by his wife. A direction has been sought for grant of salary for the period 7.9.1993 to 11.11.1995, the period when the Petitioner was terminated and thereafter reinstated on the order of appellate authority as well as to pay two years increments and salary which were sought to be withheld.
3. The husband of the Petitioner was a driver working in the Police Department. On the so-called allegation of disobedience i.e. refusal to go on night patrolling duty, using foul and abusive language and for disobedience of the order of his superior, a departmental proceeding was initiated and the punishment of dismissal came to be passed by the Superintendent of Police. The said order was challenged in appeal. The appellate order is Annexure-5. The appellate authority after considering the totality of the evidence and material came to a conclusion that the order of punishment was disproportionate to the charge or the indiscretion committed by the Petitioner. The order of termination of the Petitioner was modified. The appellate authority substituted the punishment by ordering withholding of two increments amounting to three black marks to be recorded in his service book. The period between the dismissal and reinstatement will be treated as a period of extraordinary leave.
4. Submission of learned Counsel for the Petitioner is that the appellate authority has taken into consideration that there was no substantial evidence with regard to the Petitioner of using abusive language and there was mitigating circumstance for the Petitioner not to go on the patrolling duty which led to initiation of a departmental proceeding. In other words the opinion of the appellate authority has been read as a finding of exoneration of the Petitioner. Even the appellate order imposing two punishments is sought to be faulted by seeking a direction upon the Respondents for grant of salary as well increments.
Learned Counsel for the Petitioner relies on a decision rendered in the case of
5. The stand of the State is that the Petitioner has not challenged the order passed by the appellate authority. The order in question was passed in the year 1995 whereas this writ was filed in the year 2005 asking for the above relief which would amount to waiver of punishment imposed upon the Petitioner. His contention is that the appellate authority has not exonerated the Petitioner from the finding of guilt but has taken a generous view under the mitigating circumstance in imposition of punishment. The dismissal order passed by the disciplinary authority was diluted. No case for interference therefore is made out with the appellate order or the relief which has been prayed for by the Petitioner.
6. The circumstances and the stand of the State seem to, be correct. The decision relied on by learned Counsel for the Petitioner does not seem to have any application to the present case because that was a case in which the delinquent was absolved of his responsibility through and through and therefore it was held that the order of termination was bad. But that was not the case so far as the present Petitioner is concerned. It was not a case of exoneration of the Petitioner from the charge. The punishment order was modified on the ground of disproportionality.
7. In that view of the matter coupled with the fact that the appellate order has not been challenged that too passed in the year 1995 no relief can be granted to the Petitioner.
8. This writ application is dismissed.
