Ram Gopal Gautam vs State Of U.P.Thru Prin.Secy.& ...
2013 Latest Caselaw 1583 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 
Case :- SERVICE SINGLE No. - 1798 of 2010
 
Petitioner :- Ram Gopal Gautam
 
Respondent :- State Of U.P.Thru Prin.Secy.& Ors.
 
Petitioner Counsel :- Ravi Singh
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Shabihul Hasnain,J.

Heard Sri Ravi Singh, learned counsel for the petitioner and learned Standing counsel for the State.

The petitioner has challenged the dismissal order dated 25.3.2009 passed by opposite party No.3 and the impugned appellate order dated 20.11.2009, as contained in annexure No.1 and 2 respectively to the writ petition.

The petitioner was originally working in the fire services in the police department. He was transferred to mobile van duty in the reserve police lines on 27.6.2006 vide annexure No.3 to the writ petition. Petitioner was performing his duty as a Driver on mobile van when he went on sanctioned leave on 16.6.2007. Petitioner reported back from his leave on 24.6.2007 and he joined the duties on 30.6.2007. He is alleged to have absconded from duty w.e.f. 3.7.2007. The case of the petitioner is that when he was on sanctioned leave, his work was handed over to another driver who was required to drive the mobile van on which the petitioner was working. When he came back he was not given the duty on the same mobile van and he kept on knocking the door of officers for duty but the same was denied.

Learned counsel for the petitioner Sri Ravi Singh has drawn the attention of this Court towards annexure No.5. This is a letter written by the petitioner to the vehicle officer, reserve police lines, Unnao. This letter dated 11th October, 2002 written by the D.I.G. directs that the officials of the fire services should not be transferred to the active police department. The petitioner made a request that he may be sent back to his original fire services department.

Sri Ravi Singh has explained that this request letter was sent due to the reason that he was not being given the charge and not allowed to drive the mobile van. Letter was sent through registered post. Proof of registry has been printed at the left hand side of annexure No.5, which shows date of 3.7.2007. Since there is no system of putting the attendance on the register it was difficult for the petitioner to prove that he was reporting for duty and was being denied the joining by the opposite parties. Petitioner's case is that he kept on reporting for duty and the opposite parties did not allow him to either join or to give him any charge. Since the salary had not been stopped and no punishment was awarded there was no cause of action on the part of the petitioner to approach this Court or any other court in this matter. Suddenly a notice-cum-letter was issued to the petitioner on 6.5.2008, which is contained in annexure No.7 to the writ petition. For the first time, the petitioner was charged that he was absconding from duty and hence he was required to show cause. Petitioner has filed reply on 15.5.2008 which is contained in annexure No.8 to the writ petition. Charge sheet was issued against the petitioner on 9th June, 2008, as contained in annexure No.9 to the writ petition. A detailed reply has been given by the petitioner on 22.6.2008 vide annexure No.10.

A counter affidavit has been filed on behalf of opposite parties. It has been contended that the petitioner remained absent continuously and this fact could not be brought to the knowledge of the fire services. When it came to the notice of the concerning authority, the petitioner was required to show cause for his absence.

The Court has gone through the charge-sheet, the reply filed by the petitioner as well as the punishment order. The sole case of the opposite parties rests on the fact that the petitioner was absconding from 3.7.2007 without any information and without there being any sanctioned leave. The opposite parties have not been able to demonstrate or prove this fact beyond reasonable doubt. There is no document available with the opposite parties which could prove that the petitioner was absconding. There is no system of attendance register which could be placed before this Court as a proof by either side. The record was summoned but it has been informed that the record has been weeded out. At this stage, in absence of any system or there being any document to prove whether the petitioner was coming and reporting for duty or not, can not be ascertained. However, this fact is on record that the petitioner has been given salary till the month of March, 2008. Secondly, no show cause notice/punishment order etc. has been issued against the petitioner by any officer either of fire services or of the reserve police lines. Presumption for reporting on duty will naturally arise in favour of the petitioner. Payment of salary is the best proof possible for any employee to shows that he has been working on these dates.

Sri Ravi Singh, counsel for the petitioner has argued that crux of the matter is that Superintendent of Police got annoyed on 3.7.2007 when the petitioner showed him the instructions of the D.I.G. that services of the petitioner could not have been transferred from fire services to the mobile van. This infuriated the officer and the incharge of the vehicles was directed not to allow any duty to the petitioner. Petitioner could only come and report his presence to the incharge of mobile vans, who was under instructions not to give any duty. Petitioner was not in a position to record his presence on any document as there was no way for him to get access to any document.

The case of the opposite parties is based only on their assertion that the petitioner was not reporting. If an official in the police department is not reporting for duty for a week or for a month then the matter would naturally be brought to the notice of the higher authorities. There is no report of the incharge of the transport department that the petitioner is not working.

Sri Ravi Singh has drawn the attention of this Court towards his reply dated 15.5.2008, as contained in annexure No.8 before issuing a charge sheet. Petitioner says that at the first instance when he was given show cause he had replied that he is willing to join the duties and he has been reporting for the same since long. This goes to show that the petitioner was trying to join duty and it was the oral direction of the Superintendent of Police not to give him any charge.

Learned counsel for the petitioner has referred to the judgment of Hon'ble Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India and another, (2012) 3 Supreme Court Cases 178. The relevant para 19 and 21 is being quoted as under:-

?19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent 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.?

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?21.In the present case, the disciplinary authority failed to prove that the absence from duty was willful, no such finding has been given by the inquiry officer or the appellate authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3.10.1995 addressed to Shri K. P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of telephone calls dated 29.9.1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty.?

The petitioner counsel in support of his submissions has further relied upon the decision of this Court in the case of Madan Chand Mauryavanshi Vs. State of U.P., 2012 (30) LCD 2311.

In such a situation, the Court feels that choice is heavily loaded in favour of the petitioner. The opposite parties have not been able to prove their case, the punishment order is based on conjectures and surmises. No document has been annexed with the inquiry report to establish that the petitioner was absconding. He has been paid salary till March, 2008. There is no reason why this Court should presume anything otherwise. Payment of salary proves that the petitioner was reporting for duty. However, he may or may not have been given a vehicle to drive but the fact of salary being paid to him proves that he was reporting for duty and this was in the knowledge of the opposite parties.

Accordingly, the impugned punishment order dated 25.3.2009 passed by opposite party No.3, is hereby set aside. The petitioner shall be reinstated in service forthwith with all consequential benefits. So far as salary is concerned for the period he has been under dismissal, it is provided that 30 per cent of the salary may be paid to him if he furnishes a certificate that he has not been gainfully employed anywhere during this period.

The petition is allowed.

Order Date :- 2.5.2013/RKM.