Ajay Kuamr vs State Of U.P. Thorugh Its Secy. ...
2019 Latest Caselaw 5484 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 06 / Reserved
 

 
Case :- SERVICE SINGLE No. - 5966 of 2003
 

 
Petitioner :- Ajay Kumar
 
Respondent :- State Of U.P. Thorugh Its Secy. Home U.P.Civil Sectt. Lko.
 
Counsel for Petitioner :- Mukund M.Asthana,Amrendra Nath Tripathi,M.M. Asthana
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajnish Kumar,J.

1. Heard, Shri Amrendra Nath Tripathi, learned counsel for the petitioner and Shri Rajiv Singh Chauhan, learned Additional Chief Standing Counsel.

2. The instant writ petition has been filed for issuing a writ of certiorari quashing the order dated 29.03.2003 and order dated 22.10.2002 by means of which the appeal of the petitioner against the punishment order has been dismissed and the petitioner has been dismissed from service respectively. The petitioner has further prayed for a writ of mandamus to reinstate him back in the service with all consequential benefits and pay the arrears of salary.

3. The brief facts of the case are that the petitioner was appointed on the post of Constable in PAC, Gonda on 24.08.1998 and after completion of his training in August, 1999 he worked as Constable in PAC, Gonda. Thereafter the petitioner was transferred time to time from one place to another and at the relevant point of time he was posted in 30th Battalion PAC, Gonda. The petitioner applied and went on five days leave on 20.11.2001 and he was to report back on 25.11.2001 on completion of leave. When the petitioner did not report back after expiry of the leave period, radiogram and registered letters had been sent to the petitioner but he did not report back therefore he was suspended by means of the order dated 18.02.2002 issued by the respondent no.3 on the ground of unauthorized absence from duty since 25.11.2001 and violating the orders and showing irresponsible attitude towards Government Service. Thereafter a charge-sheet dated 18.07.2002 was issued and sent by registered post as well as through Superintendent of Police, Kushi Nagar for service on the petitioner. Since the petitioner was not available at home the charge-sheet was pasted on the door of his house in presence of witnesses. Thereafter the enquiry was conducted and after completion of the enquiry, the enquiry report dated 30.09.2002 was submitted by the Inquiry Officer finding him guilty on the charges. In pursuance thereof a show cause notice dated 09.10.2002, annexing a copy of the enquiry report, was sent to the petitioner. Since the petitioner was not available at home the show cause notice alongwith a copy of the enquiry report was received by the mother of the petitioner on 11.10.2002. The petitioner was afforded eight days' time to submit his explanation but the petitioner had not submitted any explanation to the show cause notice therefore after passing of the said period the punishment order dated 22.10.2002 was passed by means of which the petitioner was dismissed from service by the respondent no.3. The petitioner had filed a departmental appeal to the opposite party no.2 which was considered and rejected by means of the order dated 29.03.2003. Therefore the petitioner has approached this court by means of the present writ petition.

4. Submission of learned counsel for the petitioner is that the petitioner had gone on five days leave which was duly sanctioned. Thereafter he fell ill therefore he could not join back. On the back of petitioner the enquiry was instituted and the petitioner was suspended. The charge-sheet was not served on the petitioner in accordance with the rules through registered post therefore he could not submit any reply to the charge-sheet. The petitioner was not afforded any opportunity during the enquiry. No opportunity of cross-examination was afforded to the petitioner. Since the enquiry was held on the back of the petitioner he could not participate in the disciplinary proceedings. The charges have not been proved by the respondents in the enquiry through the witnesses therefore it could not have ipso facto deemed proved against the petitioner. The show cause notice was also not served on the petitioner as per rules. The Inquiry Officer was prejudiced as on his complaint the enquiry was initiated therefore he over stepped and without following the procedure prescribed under the rules for proceeding in absence and considering the conduct of the petitioner during enquiry submitted the enquiry report and recommended for punishment of dismissal. The respondent no.3, without considering the over all facts and circumstances of the case and considering the petitioner's admission that he was ill and calling any report of the medical board, issued a show cause notice and without serving the same as per rule passed the punishment order of dismissal which is highly excessive as the petitioner could not join back duties due to illness and the absence was not deliberate.

5. The petitioner had preferred a departmental appeal which has also been dismissed without considering the grounds taken by the petitioner. Therefore the impugned orders are not tenable in the eyes of law and liable to be quashed with all consequential benefits with a direction to reinstate the petitioner.

6. Learned counsel for the petitioner has relied on judgments passed by Hon'ble Apex Court in the cases of State of U.P. and Others Vs. Saroj Kumar Sinha; (2010) 2 SCC 772, Union of India and Others Vs. Alok Kumar; (2010) 5 SCC 349 and Krushnakant B. Parmar Vs. Union of India and Another; (2012) 3 SCC 178.

7. Per contra, learned Additional Chief Standing Counsel submitted that the petitioner had gone on five days' leave on 20.11.2001 and he had to report back on 25.11.2001 on completion of his leave but he did not report back after completion of leave and even after radiogram and registered letters and remained absent unauthorizedly. Therefore, after a preliminary enquiry, the petitioner was suspended by means of the order dated 18.02.2002. The charge-sheet dated 18.07.2002 was issued alongwith a copy of the preliminary enquiry report and sent through registered post and Superintendent of Police and since the petitioner was not available at home therefore the charge-sheet alongwith preliminary enquiry report was rightly served through the fixation on the door of the petitioner in presence of two witnesses. Thereafter, after fixing date, time and place for enquiry and due intimation to the petitioner, the enquiry was conducted in which the petitioner participated and cross-examined the witness also to whom he wanted to cross-examine. Therefore the charge-sheet can not be said to have not been served on the petitioner and it would be presumed that the same was served under Section 27 of the General Causes Act. After completion of the witnesses of the department the petitioner was also afforded the opportunity of defence but despite repeated opportunities he did not submit any defence or witness therefore the Inquiry Officer after completion of the enquiry submitted enquiry report dated 30.09.2002. In pursuance thereof a show cause notice was issued and served through his mother as he was not available at home but the petitioner did not submit the reply to the show cause notice within time provided to him. Therefore the punishment order of dismissal was rightly passed against the petitioner. The appeal of the petitioner was also duly considered by the appellate authority and rejected by reasoned and speaking order. Therefore, there is no illegality or infirmity in the orders passed against the petitioner and the writ petition has been filed on misconceived and baseless grounds which is not tenable in the eyes of law and is liable to be dismissed with cost.

8. Learned counsel for the respondent has relied on judgments passed by Hon'ble Apex Court in the cases of C.C. Alavi Haji Vs. Palapetty Muhammad and Another; (2007) 6 SCC 555, Board of Directors, of Himachal Pradesh Transport corporation and Another Vs. K.C. Rahi; (2008) 11 SCC 502, Union of India and Others Vs. G. Annadurai; (2009) 13 SCC 469 and Managing Director, Ecil, Hyderabad and Others Vs. B. Karunakar and Others (1993) 4 SCC 727.

9. I have considered the submissions of learned counsel for the parties and perused the material available on record.

10. The petitioner was posted on the post of Constable in 30th Batallion PAC, Gonda at the relevant point of time. He went on leave for five days on 20.11.2001 and had to report back on 25.11.2001 on completion of his leave but he did not report back and remained unauthorizedly absent without any information. Therefore the petitioner was informed through radiogram and registered letters dated 17.01.2002, 22.01.2002 and 07.02.2001 which were received by the petitioner but he did not report back and remained unauthorizedly absent so he was suspended by means of the order dated 18.02.2002. A charge-sheet dated 18.07.2002 was issued and served on the petitioner by pasting alongwith annexures at the door of his home in presence of witnesses as he did not submit any reply. The enquiry was conducted fixing date, time and place under intimation to the petitioner. The petitioner reported back on 05.08.2002 after unauthorized absence of 254 days, 15 hours and 15 minutes. But again he absented himself and did not appear on the date fixed on 15.08.2002 when evidence of some of the witnesses was recorded. Thereafter the date was fixed on 04.09.2002 under intimation to the petitioner on which date the petitioner appeared and evidence of some of the witnesses was recorded but the petitioner cross-examined only one witness and others were not cross-examined. Further the date was fixed on 12.09.2002 for recording of the evidences of the remaining witnesses of the department including the statement of the medical officers which was recorded in presence of the petitioner but he did not cross-examined any of them.

11. In view of above, it is apparent that the petitioner had participated in the enquiry therefore the contention of the learned counsel for the petitioner that the charge-sheet was not served through registered post as per rule therefore the enquiry is vitiated is misconceived and repelled because once the petitioner had participated in the enquiry without any protest the charge-sheet is presumed to have been served on the petitioner. The petitioner has also not denied the service of charge-sheet and only submitted that it was not served through registered post as per rule. If it was not served, the petitioner could have asked for charge-sheet when he was participating in enquiry but nothing has been brought on record or submitted before the court that the petitioner had ever complained for non-serving of the charge-sheet during the enquiry.

12. Perusal of the enquiry report indicates that the enquiry was held in accordance with law after affording sufficient opportunity to the petitioner in which the petitioner had also participated. He was also afforded opportunity of cross-examination but he did not cross-examined the witnesses except one, the evidence of whom were recorded before him. He also had not made any request for cross-examination of the witnesses, the evidence of whom was recorded on the date on which he had not appeared in the enquiry despite intimation. After completion of the witnesses of the department the petitioner was also afforded opportunity of defense by means of letter dated 12.09.2002 but he did not produce the same. Therefore the contention of the learned counsel for the petitioner that the petitioner never participated in the disciplinary proceedings and he was not afforded opportunity of cross-examination is also not acceptable and repelled because nothing has been brought on record or submitted before the court to falsify the contents of the enquiry report. In pursuance of the enquiry report a show cause notice dated 09.10.2002 was issued and despite service through his mother in presence of two witnesses alongwith a copy of the enquiry report as he was not available at home, the petitioner had not submitted any reply to the show cause notice therefore the punishment order dated 22.10.2002 was passed by means of which the petitioner has been dismissed from service.

13. In view of of above, it is apparent that sufficient opportunity was afforded to the petitioner but he had not availed the same therefore it can not be considered as negation of the principles of natural justice. This view is fortified by judgment of Hon'ble Apex Court in the case of Nagar Palika, Nataur Vs. U.P. Public Services Tribunal, Lucknow and Others; (1998) 2 SCC 400 and Union of India Vs. G. Annadurai (Supra). As such, the judgment of the Hon'ble Apex Court rendered in the case of State of U.P. and Others Vs. Saroj Kumar Sinha (Supra) is of no assistance to the case of the petitioner.

14. The petitioner had preferred a departmental appeal which was duly considered and rejected by means of the order dated 29.03.2003. The perusal of the impugned orders indicates that they are well reasoned order therefore this court is of the view that the punishment order and appellate order have rightly been passed in accordance with law and there is no error in the same.

15. The Hon'ble Supreme Court in the case of Board of Directors, of Himachal Pradesh Transport corporation and Another Vs. K.C. Rahi (Supra) has held in under paragraph-7 as under:-

"7. The principle of natural justice cannot be put in a straitjacket formula. Its application depends upon the facts and circumstances of each case. To sustain a complaint of non-compliance with the principle of natural justice, one must establish that he has been prejudiced thereby for non-compliance with principle of natural justice."

16. The main argument of the learned counsel for the petitioner was that the punishment of dismissal is highly excessive as the petitioner had gone on duly sanctioned leave but on account of illness he could not join back is also misconceived and rejected because as per Dr. Anil Kumar he had treated him and advised six weeks rest from 24.11.2001 to 11.01.2002 and between this period he had not contacted him but thereafter also the petitioner had not joined. As per another Dr. B.P. Singh, a private practitioner, the petitioner had obtained medical certificate from him on 16.03.2002 and the petitioner had not contacted him prior to that date and after that date. The petitioner has not cross-examined them. Therefore it is apparent that the petitioner had deliberately and willfully absented himself unauthorizedly and it appears even got prepared a forged medical certificate which is not expected from a member of the disciplined Police Force. The punishment of dismissal has rightly been awarded to the petitioner. Therefore the petitioner is not entitled for any benefit of the judgment rendered by Hon'ble Apex Court in the case of Krushnakant B. Parmar Vs. Union of India and Another (Supra).

17. The Hon'ble Apex Court in the case of Union of India and Others Vs. Datta Linga Toshatwad; (2005) 13 SCC 709 has held that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged. The relevant paragraphs 6, 7 and 8 are reproduced as under:-

"6. One cannot ignore the large number of cases which come to this Court of members of uniformed forces remaining absent from duty without any reasonable explanation. Whenever action is taken, the usual plea taken is of having been ill or some such false pretext, and even fake or false medical certificates are produced in support of such a plea. We would not have taken a serious view of the matter had it not been a case of a constable belonging to CRPF remaining absent for an indefinite period. Even if we assume that the respondent was suffering from depression and was being treated as an outdoor patient, the medical certificates produced by him show that he was restored to normalcy on 4-4-1998 yet the respondent did not choose to report for duty. The order of dismissal was passed seven months later i.e. on 2-11-1998. This itself discloses the hollowness of the claim of the respondent regarding mental depression and imbalance which he claims to have suffered

7. Reliance was placed on a judgment of this Court in Union of India v. Giriraj Sharma [1994 Supp (3) SCC 755 : 1995 SCC (L&S) 290 : AIR 1994 SC 215] , which was also a case of a constable employed in CRPF. In that case the respondent had been punished by an order of dismissal for overstaying on leave by 12 days. The High Court took the view that for such misconduct the punishment of dismissal from service was not justified and was also harsh. This Court, while agreeing with the High Court, dismissed the appeal by holding that in the facts of the case, instead of a major penalty, a minor penalty would have been sufficient.

8. The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16-6-1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged."

18. The contention of the learned counsel for the petitioner that the preliminary enquiry was conducted by the person who had made complaint against him is also misconceived and not tenable because being head of the petitioner he had reported his absence and under the orders of the Commandant he had conducted the preliminary enquiry and submitted the preliminary enquiry report. The regular enquiry was held by the Assistant Commandant in accordance with law. The preliminary enquiry report was proved by the preliminary Inquiry Officer during the enquiry in which the statements of the mother of the petitioner and uncle of the petitioner were also recorded which were against the petitioner. Both had stated that the petitioner was wandering in village after taking liquor and not going on duty despite repeated asking and had gone somewhere 15-20 days ago. Uncle had also stated that he was ill for about 15-20 days and his treatment was done.

19. One of the arguments of learned counsel for the petitioner, relying on the judgment of the Hon'ble Apex Court in the case of Union of India and Others Vs. Alok Kumar (Supra) was that the Inquiry Officer is not entitled to suggest the punishment and in the present case the Inquiry Officer had suggested the punishment therefore the enquiry is vitiated on this ground. The enquiry against the petitioner was held under the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 and the rule provides that the Inquiry Officer may also separately from these proceedings make his own recommendations regarding the punishment to be imposed on the charged officer. The Hon'ble Apex Court, in the aforesaid case relied by the learned counsel for the petitioner, has held in paragraph 54 that an Inquiry Officer is not even entitled to suggest the punishment unless rules so requires specifically and in the concerned rule there is a provision as disclosed above therefore there is no illegality in suggesting the punishment by the Inquiry Officer. It may be only an irregularity, if it has been suggested in the enquiry report. Therefore the judgment is not of any assistance to the case of the petitioner in view of over all facts and circumstances of the case discussed here-in-above.

20. In view of above, this court is of the considered opinion that the action has rightly been taken against the petitioner in accordance with law after affording sufficient opportunity to the petitioner and there is no illegality or error in the punishment order and the appellate order passed against the petitioner. The writ petition has been filed on misconceived grounds. It is devoid of merit.

21. The writ petition is, accordingly, dismissed. No order as to costs.

.......................                          (Rajnish Kumar,J.)
 
Order Date :- 08.07.2019
 
Haseen U.