Mohd. Kaleem S/O Irshad Hussain ... vs State Of U.P. Thru Principal ...
2014 Latest Caselaw 4357 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

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Court No. - 24
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 151 of 2010
 

 
Appellant :- Mohd. Kaleem S/O Irshad Hussain (S/S 5266/1999 )
 
Respondent :- State Of U.P. Thru Principal Secretary Home
 
Counsel for Appellant :- M.E. Khan,Anuj Garg,Ripu Daman Shahi
 
Counsel for Respondent :- C.Sc..
 

 
Hon'ble Rajiv Sharma,J.

Hon'ble Mahendra Dayal,J.

Heard learned Counsel for the parties.

The appellant has filed the instant Special Appeal assailing the judgment and order dated 28.1.2010 whereby the learned Single Judge dismissed the writ petition no. 5266 (SS) of 1999, filed by him against the order dated 15.7.1999 by which he was dismissed from the post of Assistant Sub-Inspector (Ministerial), Faizabad.

In short, the facts of the case are that the appellant was transferred from Civil Police, Faizabad to XXX Battalion PAC Gonda by order dated 12.7.1996, but the transfer order was kept in abeyance for six months by the Police Headquarters from 31.7.1997 to 31.12.1997. On 19.2.1998, the appellant was relieved by the Senior Superintendent of Police, Faizabad to join in PAC, Gonda but he remained absent without sanctioned leave. According to the appellant, on account of sudden ailment at the relevant time, he was admitted in hospital and could not join at the transferred place. Further, he submitted an application for grant of medical leave, but it was not sanctioned. In the meantime, he was placed under suspension. Later on, disciplinary proceedings were initiated against the appellant ex parte which ultimately culminated in passing of the impugned dismissal order dated 15.7.1999. The writ petition filed by the appellant was dismissed vide judgment and order dated 28.1.2010 by observing that absence of three months without sanctioned leave does not call for any leniency. It was also observed that the appellant was absent from duty for a period of three months without sanctioned leave, and as such it is not a fit case where the Court should interfere on the quantum of punishment.

Learned Counsel for the appellant has contended that the Hon'ble Single Judge has relied upon the narration of the department regarding service of notice on the appellant in respect of the departmental proceedings by affixation of notice even without examination of the process server, who allegedly affixed the notices upon the house of the appellant. Moreover, the service of summons upon the minor son of the appellant Jafar Saleem regarding the date, time and place of the departmental proceedings is no service in the eyes of law upon the appellant in view of the provisions of contained under Order V Rule 15 of the Civil Procedure Code.

Elaborating his arguments, learned Counsel for the appellant has contended that the Hon'ble Single Judge has passed the impugned judgment by dealing the ground of service of summons upon the appellant but has not dealt the other grounds taken by the appellant in the memo of the writ petition. According to the appellant, after service of the charge-sheet, he submitted reply on 27.5.1999 through registered post inter-alia stating therein that he was not in a position to proceed on transfer and that he was undergoing treatment of his prolonged illness. He also indicated that he want to cross-examine certain witnesses whose statement was sought to be relied upon in support of the charges by the opposite parties. However, the enquiry officer concluded the enquiry ex-parte without affording opportunity of cross examining the witnesses. He also added that although several findings have been recorded by the inquiry officer that the appellant was served notices and informed about the inquiry proceedings and at the same time the enquiry officer has also indicated that notice could not be served on the appellant and the proceedings were concluded ex-parte. Lastly, it has been argued that the order of dismissal is without jurisdiction as it has been passed by an authority, who was not his appointing authority at the relevant time.

On the contrary, learned Standing Counsel has submitted that the enquiry proceedings against the appellant were conducted strictly, in accordance with the due procedure, which is evident from the fact that the learned Single Judge while passing the impugned judgment has not find any defect or irregularity in the disciplinary proceedings. Therefore, the Special Appeal is liable to be dismissed.

It is well settled that the departmental enquiry means service of charge-sheet with opportunity to delinquent employee to submit a reply. Thereafter, it shall be necessary to record oral evidence to prove the allegations contained in the charge-sheet. In case the delinquent employee does not co-operate, even then it shall be incumbent upon the enquiry officer to proceed exparte and record oral evidence in support of allegations contained in the charge-sheet. Thereafter, it shall be necessary to provide the opportunity to the delinquent employee to lead evidence in defence coupled with opportunity of personal hearing. After receipt of report from enquiry officer it shall be necessary for the punishing authority to serve a show cause notice alongwith copy of enquiry report and thereafter pass appropriate order in accordance with law vide M.V.Bijlani Vs. Union of India and others (2006) 5 SCC 88, Sher Bahadur Vs. Union of India and others (2002) 7 SCC 142, B.P. Chaurasia Vs. State of U.P. and others 1983 (1) LCD 169, Onkar Singh Vs. State of U.P. and others 1984(2) LCD 396, Hardwari Lal Vs. State of U.P. and others (2001) 1 UPLBEC 331 and Radhey Kant Khare Vs. U.P. Cooperative Sugar Factories Federation Ltd. 2003 (21) LCD 610.

In the present case, no oral evidence has been recorded with opportunity to the original petitioner to cross-examine the witnesses. The law settled by the Hon'ble Supreme Court and this Court seems to have not been followed while conducting the enquiry.

It is also relevant to add that in the case of the appellant referring to unauthorized absence, the disciplinary authority alleged that he failed to maintain devotion to duty and his behavior was 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. While dealing with this question, 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 other problem; failure of transport etc., it cannot be termed as a case of deliberate or willful absence.

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. Even the Hon'ble Judge has not touched this aspect of the matter, which is very relevant and material. The factum of ailment of the appellant has not been disputed by any of the authorities. It is definite case of the appellant that he was hospitalized from 17.2.1998 to 28.2.1998 and appellant was relieved by the Senior Superintendent of Police on 26.2.1998. Thus, when the order of relieving was passed the appellant was hospitalized whereas the report of the Kamta Prasad, Orderly was not taken into consideration in which it was indicated that the relieving order could not be served upon the appellant due to his illness. It is pertinent to mentioned her that it is not the case of the authority that appellant deliberately avoided duties and on verification, the medical certificates given by the appellant was found to be fake.

Apart from above, we would like to point out one more defect in the disciplinary proceedings that the charge against the appellant that he did not join in the 38 Battalion PSC Gonda, where he was transferred from Faizabad. Therefore, it is clear that he has not become the employee of 38 Battalion PSC. If the appellant has violated any Rule or committed any indiscipline, the competent authority to initiate disciplinary proceeding against him was Senior Superintendent of Police, Faizabad under whose control he was working at the relevant time.

While filing the Special Appeal, the appellant has indicated his age as 61 years, therefore he has attained age of superannuation during pendency of writ petition and as such, no direction can be issued for his reinstatement.

In the result, the Special Appeal and the writ petition are allowed and the impugned order of dismissal passed by the disciplinary authority and affirmed by the High court by impugned judgment are set aside.

Taking into consideration the fact that the petitioner has suffered a lot since the proceeding was drawn in 1998 for absence from duty for a certain period and during the pendency of the instant writ petition, the petitioner attained the age of superannuation, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the petitioner has not worked for a long time, we direct that petitioner shall be treated as reinstated from service from the date of dismissal and pay amount of G.P.F., leave encashment, gratuity, amount of Group Insurance, if due and service benefits except back-wages and arrears of pension but opposite parties shall pay future pension w.e.f. 1.9.2014 to the petitioner.

Order Date :- 13.8.2014

Muk