HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No.24 Writ Petition No. 2156 (S/S) of 2009 Syed Amirul Haq .......... Petitioner Versus The State of Uttar Pradesh and others .......... Respondents **** Hon'ble Dr. Devendra Kumar Arora, J.
Heard Mr Amit Bose, learned Counsel for the petitioner and learned Standing Counsel.
Through the present writ petition under Article 226 of the Constitution of India, the petitioner has questioned the validity of the order dated 20.2.2006 [Annexure-1 to the writ petition] whereby the petitioner has been removed from service by the Superintendent of Police, Chandauli. The petitioner has also assailed the appellate order dated 16.10.2006 passed by the Deputy Inspector General of Police, Varanasi Range, Varanasi contained in Annexure No. 12 to the writ petition as also the revisional order dated 3.9.2008/20.9.2008 passed by the Inspector General of Police, Varanasi Zone, Varanasi.
Brief facts of the case, in a narrow compass, are that while working as Constable at police-out post Tara Jeevanpur, Police Station Alinagar, District Chandauli, the petitioner proceeded on three days leave on 16.12.2001 but he did not report for duties on expiry of sanctioned leave and as such, vide order dated 6.12.2003, the Superintendent of Police, Chandauli suspended the petitioner in contemplation of departmental inquiry on the ground of unauthorized absence and the Circle Officer, Chakia, Chandauli, was appointed as Preliminary Enquiry Officer. However, the said preliminary inquiry was not conducted and the file was returned by the Circle Officer.
According to the petitioner, while he was on leave, on 17.12.2001, he suffered a paralytic attack on the right side of his body as a consequence whereof he was completely bed ridden and even loss locomotion. Immediately thereafter, on 18.12.2001, he was rushed to the State Unani Hospital, Musafirkhana, District Sultanpur, where he remained under treatment upto 19.12.2001 but since there was no improvement in the condition, he was taken by the members of family to State Unani Hospital, Ghazipur, where also his condition did not improve and remained precarious. After being under treatment in different doctors, he again got himself treated at State Unani Hospital, Musafirkhana, district Sultanpur, where he remained under treatment from 7.1.2003 to 20.12.2003.
The petitioner on regaining health after a long illness and when he regain physical movement of his body, he joined his duties on 4.4.2004. Subsequently, vide order dated 9.4.2004, the Superintendent of Police directed the Circle Officer, Chandauli, District Varanasi to conduct preliminary inquiry into the charge leveled against him for his being absent from duty w.e.f. 20.12.2001 to 3.4.2004. The Preliminary Inquiry Officer, after due inquiry, submitted its report on 4.6.2004, holding the petitioner guilty of being absent from duty and recommended the punishment of fine equivalent to one month's salary be imposed on the petitioner and the period of his absence from duty be sanctioned as leave without pay. However, the said recommendation of the Preliminary Inquiry Officer was not accepted by the Senior Superintendent of Police, Varanasi and, therefore, vide order dated 10.6.2004, the Superintendent of Police instituted departmental proceedings under Section 14 (1) of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 and appointed the Circle Officer, Sakaldiha, District Varanasi, as the Inquiry Officer. It may be clarified that on 18.6.2004, the petitioner was reinstated in service without prejudice to the departmental inquiry to be conducted against him. It was provided that the orders with regard to the pay and allowances for the period he was under suspension would be passed later on.
Pursuant to the aforesaid reinstatement order, the petitioner was posted at police station Chakia, district Varanasi in the month of June, 2004. On 1.7.2004, the petitioner again suffered a second paralytic attack on the left side of his body in the Police Line, Varanasi. On 1/2.7.2004, the petitioner was relieved for joining at police station Chakia, district Varanasi in absentia. However, the petitioner could not join at police station Chakia on account of second paralytic attack. On 6.1.2005, a charge-sheet was issued against the petitioner by the Circle Officer, Sakaldiha, District Chandauli, to which the petitioner submitted his reply on 7.2.2005. The Inquiry Officer submitted his report on 9.12.2005 holding the petitioner guilty of being absent from duty from 20.12.2001 to 4.4.2004 and also on account of his absent from duty and his failure to join at police station Chakia, District Chandauli and recommended the punishment of removal from service be imposed on the petitioner. Subsequently, vide order dated 10.12.2004, the petitioner was placed under suspension on the ground of not joining at police station Chakia. On 29.12.2005, a show cause notice was issued to the petitioner, to which the petitioner submitted his reply on 13.2.2006. However, the Superintendent of Police, Chandauli, vide order dated 20.2.2006, removed the petitioner from services.
Not being satisfied with the order of removal, the petitioner preferred an appeal before the Deputy Inspector General of Police, Varanasi Range, Varanasi, which was dismissed vide order dated 16.10.2006. Being aggrieved, the petitioner filed revision, which too was dismissed vide order dated 29.9.2008.
Hence the petitioner has filed the instant writ petition assailing all the aforesaid orders.
Counsel for the petitioner has vehemently argued that the impugned order of removal has been passed without considering the reply of the petitioner and looking to the serious ailment with which petitioner was suffering at the relevant time. The Punishing Authority as well as the Inquiry Officer failed to consider the medical certificate submitted by the petitioner and disbelieved the same without any verification from the doctors. They also failed to consider the very vital fact that the petitioner's absence from duty was not deliberate or willful but it was on account of ineluctable circumstances. Moreover, while passing the order of punishment, the punishing authority on one hand has regularized the period of absence from duty of the petitioner and on the other hand for the same alleged absence, passed the impugned order of removal.
In contrast, learned Standing Counsel stated that on account of unauthorized absence from duty, the petitioner, namely, Syed Anwarul Haq was subjected to disciplinary proceedings and after due process of law, the order of removal from service was passed. It has been clarified that the inquiry against the petitioner was conducted in consonance with the principles of natural justice. The appeal and the Revision was decided with speaking order. Therefore, there is no illegality in the impugned orders and the writ petition is liable to be dismissed.
I have given my anxious consideration to the facts and circumstances of the case and have also examined the material on record including the original record produced by the Standing Counsel.
There is no dispute to the fact that after remaining absent for the period, referred to above, the petitioner was allowed to resume his duties vide order dated 18.6.2004 passed by the Senior Superintendent of Police, Varanasi without prejudice to the departmental inquiry to be conducted against him. It was also provided in the aforesaid order that necessary orders with regard to the arrears of pay and allowances would be passed later on.
In the instant case, on perusal of the averments made in the counter affidavit, it comes out that no reason has been indicated as to why the medical certificate issued by the doctor was not accepted by the authorities. There is no whisper as to how the authorities came to the conclusion that the medical certificates were fabricated one. The Inquiry Officer/Disciplinary Authority had neither summoned the doctor nor otherwise made an efforts to verify the genuineness of the medical certificate. Thus the Inquiry Officer/disciplinary authority has violated the principle of natural justice. A perusal of relevant record reveals that it is the definite stand of the petitioner before the Inquiry Officer to summon the three doctors who had treated him to prove the factum of his illness and the genuineness of the medical certificates submitted by him but the Inquiry Officer did not summon the aforesaid witnesses causing serious prejudice to the petitioner. No documents have been brought on record on the basis of which genuineness of the Medical Certificates produced by the petitioner were doubted by the Inquiry Officer and believed by other authorities. Without summoning and examining the Doctor, the conclusion of the authorities that the Medical certificates are not genuine documents, is wholly erroneous and unjustified. No finding could have been recorded by the Inquiry Officer with regard to certificates or the factum of illness of the petitioner without summoning the doctors, and denial by them with regard to illness and treatment given to the petitioner by them. As regard the finding recorded by the Inquiry Officer that the petitioner did not inform the authorities of his illness, the record which have been produced by the respondents, shows that there are various applications and medical certificates available on the record submitted by the petitioner with regard to grant of leave and extension of leave . The different doctors like, In-charge Medical Officer, State Unani Hospital, Musafirkhana,Sultanpur and Medical Officer GHMC & Hospital,Ghazipur had diagnosed the petitioner as a patient of paralysis on right side of the body. Apart from above, the petitioner had attacked the impugned orders on the ground of various defects in the disciplinary proceedings.
In a recent decision i.e. Roop Singh Negi vs. Punjab National Bank 2009(2) SCC 570, the Apex Court while narrating the duty of the inquiry officer, disciplinary authority and appellate authority, held that the material brought on record pointing out the guilt are required to be proved.
The Apex Court in the case of Ministry of Finance and another Vs. S.B.Ramesh ( 1998 SCD page 1046) and S.C. Gioratra Vs. United Commercial Bank and others ( 1995 Supp.(3) has held that if the enquiry officer did not prove the documentary evidences relied upon in the enquiry and without proving the charges levelled against the petitioner, submitted his enquiry report, it vitiates the entire proceedings due to non-observance of principle of natural justice.
Undoubtedly, the petitioner was principally charged for unauthorized absence from duty. In the case of petitioner referring to unauthorized absence, the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant.
The question whether `unauthorized absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
The question whether "Unauthorized absence from duty" amounts to failure of devotion to duty or behavior unbecoming of a government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances, have been dealt in detail by the Hon'ble Supreme Court in the case of Krushnakant B. Parmar vs. Union of India and another (2012) 3 SCC 178 observed in paragraphs 17,18 and 19 as under:-
"17. If the absence is the result of compelling circumstances under which it was not possible to report duty, such absence cannot be held to willful. Absence from duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct.
19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absence from duty but failed to hold that the absence was willful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty."
If employee is unable to attend duties for a reason like mishap; serious ailment of his or in family; law and order problem; failure of transport etc., it cannot be termed as a case of deliberate or willful absence.
At this juncture it would be relevant to point out that Paralysis of the muscles of the face, arm, and leg on one side of the body is called hemiplegia ("hemi" means "half") and usually results from damage to the opposite side of the brain. Damage to the nerves of the spinal cord affects different parts of the body, depending on the amount of damage and where it occurred. Paralysis is a serious ailment and it affects not only the locomotion of the body but it also cause loss of sense. Therefore, the disease with which petitioner was suffering, is of serious nature and his absence cannot be said to be willful.
In Shri Bhagwan Lal Arya v. commissioner of Police,Delhi (2004) 4 SCC 560, the Apex Court opined that the unauthorized absence was not a grave misconduct inasmuch as the employee had proceeded on leave under compulsion because of his grave condition of health. Be it noted, in the said, it has also been observed that no reasonable disciplinary authority would term absence on medical grounds with proper medical certificate from Government doctors as a grave misconduct.
Thus it is a settled position of law since long that in a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct.
In the present case, the Inquiry Officer on appreciation of documents though held that the petitioner was unauthorisedly absent from duty but failed to hold that the absence was willful; the disciplinary authority, appellate authority as well as Revisional Authority also failed to appreciate the same and wrongly held the petitioner guilty.
Lastly, it may be pointed that the impugned order of dismissal dated 20.2.2006 suffers from one more defect as the Superintendent of Police, Chandauli has dismissed the petitioner from the date of suspension i.e. 6.12.2003, which is wholly unjustified and per se bad in law. Further, as averred above, on 18.6.2004, the petitioner was reinstated in service without prejudice to the departmental inquiry to be conducted against him and in the said order, it was provided that the orders with regard to the pay and allowances for the period he was under suspension would be passed later on but no such order was ever passed.
In view of the aforesaid discussions, the writ petition is allowed in part. The impugned orders of removal dated 20.2.2006 passed by disciplinary authority, affirmed by the Appellate Authority and Revisional Authority cannot be sustained are hereby set aside.
Taking into consideration the fact that the petitioner has suffered a lot since the disciplinary proceeding was drawn in 2001 and in the interregnum, the petitioner attained the age of superannuation, I am not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in mind the fact that the petitioner had not worked for a long time, I direct that petitioner shall be treated as reinstated in service from the date of dismissal to the date of retirement for the purposes of payment of post retiral dues like amount of G.P.F., leave encashment, gratuity, amount of Group Insurance and pension. However, the petitioner will not be entitled for any back-wages. The exercise for payment of retiral dues and pension shall be completed within a period of four months from the date of production of certified copy of this order by the respondents/government authorities.
MH/-
Date: 16th December, 2015