Narendra Singh vs State Public Service Tribunal ...
2012 Latest Caselaw 189 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                                                                           
 
Court No. - 35
 
Case :- WRIT - A No. - 21412 of 2004
 
Petitioner :- Narendra Singh
 
Respondent :- State Public Service Tribunal Court No.9 And Others
 
Petitioner Counsel :- V.K. Singh,M.N. Singh
 
Respondent Counsel :- C.S.C.
 
Hon'ble Rakesh Tiwari,J.
 
Hon'ble Ashok Pal Singh,J.
 
                      ( By Hon'ble Rakesh Tiwari, J.)
 
	Heard learned counsel for the parties and perused the record.
 
	Brief facts of the case are that the petitioner was appointed as a constable in the Police Department in 1980. He was transferred from GRP, Allahabad to District Aligarh vide order dated 10.5.1993 passed by the U.P. Police Head Quarter, Allahabad. The Senior Superintendent of Police Railway, Allahabad relieved him on 29.9.1993 for joining at District Aligarh where he was to join his duties  by the forenoon of 7.10.1993 after availing the joining time.  It is claimed that when he was going to join his duties he became seriously ill and developed  acute pain in his chest, hence  was unable to join at Aligarh. Therefore, he went to District Hospital, Agra and was examined by the Heart Specialist/Cardiologist who advised him to take rest. During this period of rest, he also suffered  pain in his abdomen and from jaundice, hence he was admitted in district hospital,Agra on 21.10.1993 under the medical treatment of Dr. P.K. Sharma and remained admitted there till 4.11.1993. Bed rest for a period of one month as also advised to him  by the Doctor. As his health did not improve,  he was again admitted in district hospital, Agra where he remained admitted there till 9.11.1994 under the treatment of Dr. P.K. Sharma as well as Dr. Manoranjan Sharma, Cardiologist, District Hospital, Agra. On discharge from hospital, the petitioner  claims to have been further advised two months' bed rest and thereafter he consulted the Doctor who again advised him bed rest w.e.f. 9.1.1995 for 2 months and that in the circumstances, he remained in a state of continuous ill health for more than 2-1/2 years since 1993  as such was unable to join his duties. 
 
	It is averred in the writ petition that he had sent a registered letter to the SSP, Aligarh  informing him of his ailment and physical condition.  A show cause notice was issued against the petitioner on 22.10.1994 to which he sent reply. A departmental enquiry was initiated against him regarding his absence from duty by the authority which was concluded  in the absence of the petitioner by the Enquiry Officer.After perusal of the record  and the enquiry report, respondent no.2, S.S.P., Aligarh dismissed the petitioner from service vide his order dated  5.6.1995.
 
	 Aggrieved, the petitioner filed an appeal before D.I.G. Agra Range, Agra which according to him remained unactioned compelling him to filie  Claim Petition No. 1477 of 1998, Narendra Singh versus The State of U.P. and others before the State Public Services Tribunal, Lucknow ( hereinafter referred to as the ' Tribunal'), which was dismissed vide judgment and order dated 21.11.2003. Relevant extract of the order reads thus:-
 
       "   The service of the claimant is governed by the provisions  contained in Police Act, 1861 and the provisions contained in the Police Regulations framed thereunder as applicable in the State of U.P. Subordinate Police Officer's ( Punishment and Appeal) Rules, 1991. There is no denial of the facts that the delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which these findings are considered by the disciplinary authority. This is in consonance with the requirement of Article  311(2) of the Constitution as it provides that a person shall not be dismissed, removed or reduced in rank except after an enquiry  in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
 
	Coming to the case instant it is admitted on the part of the claimant that in compliance of the order of transfer dated 10.5.1993 for joining at district Aigarh prior to forenoon of 7.10.93. Claimant failed to report on duty. The ground submitted on the part of the claimant is that claimant had fallen seriously ill developing pain in chest and abdomen and was under treatment there  at district Hospital,Agra  in respect of which he has furnished photo copies of the medical certificates of the Doctors of district Hospital, Agra as well as discharge certificates. It was contended on behalf of the claimant that non-participation in the enquiry proceedings by him and non compliance of the order of transfer aforesaid on his part was due to aforesaid ailment and illness of the claimant and this aspect has not been considered in course of enquiry proceedings by the Enquiry Officer as well as by the Punishing authority while awarding punishment of dismissal. On this score learned counsel for the claimant placed reliance on the decision taken in the case of Union of India & others, appellant versus I.S. Singh, respondent, reported in 1994-Supp.(2) SCC at page-518 wherein it was held by their Lordships of the Apex Court that wherein any departmental enquiry which is conducted exparte request for adjournment on medical grounds allegedly accompanied by medical certificates while Enquiry Officer ignoring such request and proceeding exparte in such a case principle of natural justice stand violated. It was also held by thier Lordships that even in a case of explanation seeking adjournment on medical ground in departmental enquiry not accompanied by medical certificate, proper course for Enquiry Officer in such a case is to demand the medical certificates or direct the delinquent to be examined by a specificed Medical Officer but not to proceed exparte and otherwise if the Enquiry Officer proceed exparte in such a case, validity of such exparte enquiry findings and report shall remain questioned. In the contextual relevance of these submissions we come to the documents filed by the claimant himself in support of his illness and ailment. Annexure no.A-1 is the copy of the medical certificate dated 4.10.1993 advising bed rest to the claimant w.e.f. 4.10.1993. Annexure no.A-2 is the discharge certificate therefrom  district Hospital, Agra certifying claimant as admitted from 21.10.1993 and was discharged  from there on 4.11.193. Annexure no. A-3 is the discharged certificate from district Hospital, Agra certifying that claimant remained admitted in the district Hospital from 29.10.1994 and was discharged on 9.11.1994. Photo stat copies of medical certificates, Annexure-A-4 dated 9.1.1995, Annexure-A-5 dated 10.3.1995, Annexure-A-6 dated 8.6.1995 and Annexure-A-7 is the certificate of the Cardiologist district Hospital, Agra dated 16.9.1995 duly countersigned by the Chief Medical Superintendent, district Hospital, Agra. By these documents on behalf of the claimant it is made out that the claimant remained admitted in the district Hospital, Agra from 1.10.93 to 4.11.93 and 29.10.1994 to 9.11.1994 and for the rest of the period illness and ailment of the claimant is unaccounted for by medical certificate. Claimant was to resume duty in the forenoon of 7.10.1993 there at Aligarh in compliance of the order of transfer and by medical certificates dated 4.10.1992 he was advised bed rest and thereafter from 21.10.1993 to 4.11.1993 he remained admitted in the district Hospital, Agra vide Annexure-A-2 and was also advised follow-up treatment and recommendations by the attending Doctor. It suggest that from 21.11.1993 to 4.11.1993 while claimant was admitted to district Hospital Agra, during this period claimant was not in a position to resume duty  at Aligarh in compliance of the order. As is evident there from the record chargesheet was served upon the claimant in departmental proceedings on 24.7.1994 by Special Messanger vide findings and report of Enquiry Officer part of Annexure no. A-20 filed by the claimant himself and that the Punishment order in dismissal of the claimant is dated 5.6.1995.During this period of course of enquiry proceedings from 24.7.1994 till final order of dismissal on 5.6.1995 claimant has not accounted for by his preventing illness except for the period of 10 days from 29.10.94 to 9.11.94 vide Annexure no. A-3 discharge certificate  dated 9.11.1994. It is in view of this material thereon the record that we find that the claimant has not explained his failure to turn up before the Enquiry Officer and to participate in the enquiry proceeding. On an examination of the findings/report of the Enquiry Officer part of Annexure no. A-10 it is made out that at all the stages right from the service of the chargesheet in course of enquiry proceedings, claimant was kept informed of the departmental proceedings at required stages under the rules and that the Enquiry Officer examined witnesses in support of the charges levelled against the delinquent claimant. It is also made out there from the findings/report that effective and sufficient opportunity of defence was  also accorded to the claimant but the claimant appears to have avoided participation in the departmental enquiry proceedings and did not appear before the Enquiry Officer and also did not avail the opportunity of defence accorded to him by the Enquiry Officer on the false pretext of his illness. It is in view of the same, we conclude that the facts of the case instant are entirely different from the case relied by the learned counsel for the claimant and so the decision taken in the case of Union of India and others, appellants versus I.S.Singh, respondents will be of no help to the claimant.
 
	Coming to the order impugned we find that the Punishing authority had comprehensively considered the grounds raised by the delinquent claimant in his reply to the show cause notice and in agreement with the findings and conclusion arrived at by the Enquiry Officer in his report recorded the impugned order of punishment in dismissal of claimant from service and so by no stretch of construction it could be said that the reply by the claimant to the show cause notice was not considered. Punishing Authority in order impugned dated 5.6.1995, Annexure-1 to the record has recorded reasons and grounds and the same is a speaking order in categorical  terms and does not suffer from any legal and procedural infirmity.
 
	Before parting with the judgment plea of limitation raised on the part of the opposite parties vide para 1 of the CA/WS also requires consideration . Order impugned is dated 5.6.1995 and the claim petition was filed on 28.7.1998 and so it is submitted on the part of the opposite parties with the reference of claim petition is time barred. In this context it is worthwhile to mention that vide para 4(14) of the reference of claim, claimant has made averment that against the order impugned he sent an appeal to the D.I.G. Agra Range, Agra on 28.6.95, copy of memorandum of appeal thereon the record as Annexure no. A-13. On the contrary opposite parties denied the facts and submitted that the claimant did not file an appeal to the D.I.G. Agra Range, Agra on 28.6.1995. By filing rejoinder affidavit claimant has also filed photostat copy of the postal receipt to fortify his contention that he preferred an appeal by way of registered post to D.I.G. Agra Range Agra on 8.6.1995 and this contention of the claimant appears to be true in view of the material thereon the record. Thus, in these  circumstances the conclusion is inevitable that the claimant preferred an appeal against the impugned order which has not been disposed of. In this view of the matter we conclude that referenceof claim petition filed by the claimant is not time barred.
 
	In view of foregoing discussions and findings, reference of claim petition devoid of merits deserve dismissal.
 
	                               ORDER 

Reference of claim is hereby dismissed with costs easy between the parties."

Aggrieved, the petitioner has filed this writ petition for the following reliefs.

" i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 21.11.2003 passed by respondent no.1 (Annexure-10 to this writ petition) and order dated 5.5.95 (Annexure-8 to this writ petition) passed by respondent no.3;

ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to reinstate the petitioner on the post of Constable with entire backwages with full benefits treating the petitioner in continuous service;

iii) Issue any other writ, order or direction in favour of the petitioner which this Hon'ble Court may deem fit and proper in the circumstances of the case;

iv) To award the cost of the petition in favour of the petitioner."

Learned counsel for the petitioner submits that there had been no wilful and deliberate default on the part of the petitioner in not joining the duty within the stipulated period which was on account of illness and being under the treatment of the Doctors; that the enquiry was conducted behind the back of the petitioner in his absence and it is wrong to say that he absented from enquiry proceedings deliberately or without just and proper cause; that the date, time and place of holding enquiry was never communicated to him by the Enquiry Officer; that neither any preliminary enquiry was conducted in the matter nor chargesheet was served upon him at his residence as he was receiving treatment at Agra.

He also submits that preliminary enquiry report was not considered as one of the evidence in the chargesheet while preliminary enquiry report was relied on and proved during the course of enquiry which is illegal. The petitioner was thus denied reasonable opportunity of defence at every stage of the enquiry as such the impugned enquiry proceedings as well as the order of dismissal are not only violative of the provisions of Article 311 of the Constitution of India, in the teeth of the provisions of Subordinate Police Officer's Rules, 1993 but also are illegal and arbitray. It is lastly submitted that the Tribunal has not considered all these aspects of the matter in the impugned judgment , hence the same is liable to be quashed.

Per contra, learned counsel for the respondents submits that the petitioner was afforded reasonable opportunity of hearing and defence; that he submitted reply to the show cause notice by post which was received by the department on 6.3.1994 and thereafter date for enquiry was fixed of which he was informed. He was duly served with the chargesheet on 24.7.1994 by a special messanger and the copies of the documents were furnished to him. It is stated that as he did not participate in the enquiry proceedings inspite of the knowledge of time, date and place of enquiry, hence in his absence the statement of witnesses in support of the charges were recorded. Thereafter he was also informed to produce his defence. Information to this effect was sent to him vide letters dated 9.8.94 and 27.8.94 but he did not turn up after receiving the letters In the circumstances, Enquiry Officer submitted his report on 15.9.1994 holding the petitioner to be guilty of the charges. Thereupon a show cause notice to show cause as to why his service may not be terminated to which also he submitted his reply. The Disciplinary Authority considering the enquiry report and the reply of the petitioner dismissed him from service vide order dated 5.6.95.

Justifying the orders impugned it is submitted that the enquiry proceedings as well as the order of punishment are completely valid and in accordance with rules and procedure, hence they do not call for any interference from this Court in exercise of powers under Article 226 of the Constitution.

It is stated that the petitioner has not complied with the transfer order and remained absent from duty without permission, information or sanctioned leave. He did not send any information of his illness. His letters dated 26.10.1993m 23.2.1994 and 1.8.1994 were not received in the office as per office record.He was also given opportunity to produce witnesses.

It is lastly submitted by the learned counsel for the respondents that all these points raised by the petitioner had also been considered by the Tribunal in its impugned judgment and order and therefore, is no illegality or infirmity in the orders impugned is established by the petitioner.

Having considered the submissions of the learned counsel for the parties and on perusal of the record it is apparent that chargesheet was served upon the petitioner in departmental proceedings on 24.7.1994 by special messanger. During the course of enquiry proceedings till final order of dismissal on 5.6.1995 the petitioner has not been able to support his stand of having been prevented from going his place of duty on ground of illness except for the period of 10 days from 29.10.94 to 9.11.1994. The petitioner has not explained his failure to turn up before the Enquiry Officer and to participate in the enquiry proceedings. He had also replied to the chargesheet and the show cause notices, therefore, his plea that he had no knowledge of the date, time and place of enquiry proceedings does not repose confidence.

From the record it is also evident that at all stages right from the service of the chargesheet in course of enquiry proceedings the petitioner was kept informed of the departmental proceedings at required stages under the rules. Therefore, effective and sufficient opportunity of defence was afforded to him but he appears to have avoided participation in the departmental enquiry proceedings on pretext of his illness.

Section 383 of the Uttar Pradesh Police Regulations reads thus:-

" 383. Any under-officer or constable, who on discharge from a police hospital other than that of his district of posting is recommended leave by the Civil Surgeon, must return to his district of posting immediately pending orders on his leave application, unless he is excused from doing so, by the Superintendent of Police of the district in which his permission not to return should only be given in very special circumstances."

In the order dated 5.6.95 passed by the SSP, Aligarh the explanation of the petitioner has been considered that he could not report for duty as he had fallen ill during the joining period. The authority has given cogent reasons why the explanation given by the petitioner does not repose any confidence i.e. he had not informed the office that he had fallen ill, rather he went to district Hospital, Agra where he claims to have been treated. The medical prescriptions and the medical certificates submitted by the petitioner show that he was an out-door patient i.e. he was not bed-ridden or hospitalized for two and half years. Therefore, the authority has concluded that if the petitioner could go from his home town up to Agra, he could have reported to the Head office or at his place of posting also but he did not do so. Furthermore, he was directed to report from time to time but he ignored those orders on the pretext of illness in contravention of Regulation 383 of the Police Regulations aforesaid, which clearly provide that if an employee is suffering from illness and has been admitted in Hospital then on his discharge from the hospital he should report for duty at the Police Head Quarter which was also not followed by the petitioner who continued to conduct himself in a manner of unbecoming of a member of a disciplined Police force by disobeying direct order of Superior Authority. The relevant extract of the reasoning given by the S.S.P. Aligarh reads thus:-

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It appears that the Punishing Authority has comprehensively considered the grounds raised by the petitioner in his reply to the show cause notice and in agreement with the findings and conclusion arrived at by the Enquiry Officer in his report recorded the impugned order of punishment in dismissal of petitioner from service and therefore, by no stretch of imagination it could be said that the reply by the petitioner to the show cause notice was not considered. The Punishing authority in order impugned dated 5.6.1995 has recorded resaasons and grounds and the same is a speaking order in categorical terms, hence it does not suffer from any legal or procedural infirmity.

If the petitioner could submit reply to the chargesheet and the show cause notice, he could have also informed about his illness and prayer for shifting for proper treatment by the Government Doctors at his place of posting or at any referred hospital.

In the facts and circumstances of the case, we do not find any illegality or infirmity in the impugned judgment and order of the Tribunal.

For the reasons stated above, the writ petition is accordingly, dismissed. No order as to costs.

Dated 12.4.2012

CPP/-