Rahmatulla vs State Of U.P. And 3 Others
2021 Latest Caselaw 1824 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 33
 

 
Case :- WRIT - A No. - 21455 of 2016
 

 
Petitioner :- Rahmatulla
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Devendra Kumar,Bipin Bihari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. This writ petition is directed against an order dated 9.4.2015 passed by Commandant, 37th Battalion, PAC Kanpur, whereby service of petitioner has been terminated on the ground of unauthorized absence. Appeal and revision filed against such order have also been dismissed vide orders dated 17.6.2015 and 21.1.2016.

2. Facts, in brief, are that petitioner initially was appointed as Cook in P.A.C. on 11.9.2008 on temporary basis and posted in 37th Battalion, P.A.C., Kanpur. He was transferred from time to time. Petitioner was removed from services on account of unauthorized absence vide order dated 6.5.2010 by the respondents invoking the provisions of U.P. Temporary Government Servants Rules, 1975. This order was challenged before this Court in writ petition, which was allowed vide judgment and order dated 5.4.2013 directing the respondents to reinstate the petitioner in service with all consequential benefits. A Special Appeal (Defective) No.12 of 2014 filed by the respondents challenging the order of learned Single Judge dated 5.4.2013, has been dismissed vide judgment and order dated 10.1.2014 and liberty was given to respondents to hold regular departmental proceedings and for that purpose it was open to the respondents to place the petitioner under suspension. It is thereafter that petitioner joined his services and he was performing his work. It is alleged that during his working he was tortured by the respondents as he was asked to transfer heavy bundles from one place to another, due to which he suffered pain in back bone. He has been advised complete bed rest, and therefore he has not been able to join his duties and information in that regard has been submitted to the department concerned. On 9.3.2015 respondent issued a show cause notice to the petitioner with the allegation that he is continuously absent from his duties since 19.1.2014. It is also alleged that before issuance of show cause notice respondents appointed an enquiry officer who submitted his report on 9.2.2015 with the observation that the petitioner has remained absent without permission/leave from 19.1.2014 till date and therefore his services are liable to be terminated. Petitioner has submitted his reply to the show cause notice on 27.3.2015 by stating that he is not in a position to attend his duties on account of ailments and materials submitted in the regard have not been considered. The respondent no.2 has passed the order impugned dated 9.4.2015 dismissing the petitioner from service. Appeal and revision filed against it have also been dismissed. Aggrieved by these orders, petitioner is before this Court.

3. Learned counsel for the petitioner submits that defence of the petitioner with regard to his ailment as being the cause for his absence has not been examined on merits. It is also submitted that respondents have issued show cause notice after conducting an exparte enquiry in which no proper opportunity has been afforded to petitioner for putting his defence and that the finding of the Enquiry Officer that petitioner's absence was willful and intentional is based purely on presumption. It is also contended that petitioner's defence regarding ailment alongwith medical certificates have not been considered by the respondents before passing the order impugned.

4. Learned counsel in support of petitioner's contention has placed reliance upon a judgment of the Apex Court in Krushnakant B. Parmar Vs. Union of India and another, (2012) 3 SCC 178. With aid of aforesaid pronouncement learned counsel has attempted to submit that before an order of removal could be passed the disciplinary authority was expected to examine petitioner's defence and upon its examination alone arrive at a satisfaction whether the absence was not willful and deliberate, which exercise has not been undertaken by the authority concerned. Reliance is also placed upon judgments in Ram Chander vs. Union of India and others being Civil Appeal No.1621 of 1986 and Union of India and others vs. Mohd. Ramzan Khan, (1991) 1 SCC 588 as well as reliance is also placed upon a judgment of this Court in Shiv Kumar Yadav Vs. State of U.P. and others, 2014 (1) ALJ 577.

5. Per contra, learned Standing Counsel submits that petitioner is a habitual absentee and had been punished twice in respect of the acts of unauthorized absence previously also. It is also stated that enquiry officer has, on the basis of materials produced before him, recorded his satisfaction that plea of illness is not substantiated nor is bona fide and is merely a pretext to explain his unauthorized absence.

6. I have heard learned counsel for the parties and have perused the materials brought on record.

7. Records reveal that petitioner's service were earlier dispensed with on 6.5.2010 by resorting to the provisions of the U.P. Temporary Government Servant (Termination of Services) Rules, 1975 on the ground of continued absence from duty. This order has been set aside by this Court in Writ Petition No.5697 of 2011. The petitioner was reinstated in service on 4.1.2014 and he has also joined in 37th Battalion, P.A.C. Petitioner was deputed to work in the Headquarter Mess on 19.1.2014 but has not reported for work. It is thereafter that notices have been issued on 29.1.2014, 14.5.2014 and 3.6.2014 but the petitioner remained absent. A fresh notice has been issued to petitioner on 27.6.2014 or else disciplinary proceedings were to be initiated against him under Rule 14(1) of the U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991. As the petitioner did not respond the Deputy Commandant was appointed as enquiry officer. A chargesheet dated 23.8.2014 was also issued to petitioner. A fresh notice was sent to the petitioner on 19.8.2014 on which he made an endorsement that a next date be fixed in the matter. The petitioner sent a registered letter on 3.9.2014 stating that he is suffering pain in his back bone and that he is getting himself treated at K.P.M. Hospital, Kanpur. A prayer was made to adjourn the disciplinary proceedings. The enquiry officer adjourned the matter by fixing time till 15.9.2014 to submit a reply. A further letter was sent by petitioner on 12.9.2014 stating that at least two months' further time is required for his treatment. The enquiry officer has recorded that medical certificates furnished by petitioner were got examined from the senior consultant Dr. K. Swaroop and Dr. Anil Kumar of the hospital concerned and the doctors orally informed that they have only advised the petitioner to sleep on hard bed and not to bend in front. They have also clarified that petitioner was not advised rest for two months, nor such facts have been mentioned in their certificates. The petitioner has again been asked to appear but he has chosen neither to file reply to the chargesheet nor has participated in the enquiry. The enquiry has proceeded exparte and the charge of unauthorized absence has been found proved. A show cause notice has been issued. Thereafter in reply to the show cause notice also the petitioner has merely stated that he is undergoing treatment and therefore he be allowed to continue in service. The disciplinary authority, in such circumstances, has passed the order of dismissal.

8. Learned counsel for the petitioner has challenged the proceedings primarily on the grounds that a fair opportunity of hearing has not been given to petitioner; medical certificates have not been examined and that the enquiry officer had no right to recommend punishment.

9. Before proceeding to examine the contention advanced, it would be worth noticing that petitioner was terminated earlier on 6.5.2010 on the charge of unauthorized absence. This Court noticed that during his service tenure of 1 year and 4 months he absented for 345 days. The order of termination, however, was set aside on the ground that provisions of the U.P. Temporary Government Servants Rules, 1975 were not attracted, once the petitioner was being terminated on a charge of misconduct. It was found that no enquiry was conducted in the manner required. An opportunity, however, was given to the respondents to conduct a fresh enquiry. The order of learned Single Judge has been affirmed with dismissal of special appeal by the State on 10.1.2014. It is thereafter that petitioner was reinstated and he was deputed to work in the Headquarter Canteen of 37th Battalion, P.A.C. The petitioner has, however, again absconded from duty. His continuous absence, therefore, is clearly substantiated on record.

10. So far as the plea of denial of fair opportunity in enquiry is concerned, it is apparent that disciplinary proceedings were initiated and a chargesheet was served upon petitioner. It is admitted that no reply has been given to the chargesheet. There is no plausible reason for non-submission of reply to the chargesheet despite repeated opportunities given to petitioner. Petitioner admittedly was in Kanpur and his place of posting was also at Kanpur. The enquiry was also held at Kanpur. This Court is at a loss to understand as to why petitioner could not submit a reply to the chargesheet despite repeated opportunity granted to him in that regard. The respondents have followed a fair procedure and the enquiry has been conducted ex-parte in which statement of various persons have been recorded. A show cause notice has also been given. This Court, therefore, finds that the enquiry conducted against the petitioner is a fair enquiry and the challenge laid to it lacks any substance.

11. The enquiry officer during the course of enquiry has also ascertained the views of doctors, who were alleged treating the petitioner, as per which the petitioner was not suffering from any serious ailment. It is not the petitioner's case that he could not move even or remained hospitalized. A period of more than a year intervened between the initiation of disciplinary enquiry and its conclusion. Merely because petitioner had pain in his back would not justify such long absence from duty. Considering the fact that petitioner has had a relatively short service tenure the plea taken in the enquiry that petitioner is a habitual absentee is substantiated on record. The petitioner's absence from duty is not explained and would thus qualify to be termed as unauthorized absence from duty.

12. Although learned counsel for the petitioner is correct that enquiry officer ought not to have recommended punishment to be imposed upon the petitioner but that in itself would not render the order impugned bad in law in the facts of the present case. The order passed by the disciplinary authority has been examined and it is apparent that relevant facts have been taken note of by him and he has independently arrived at the conclusion for passing the order of dismissal. The conclusion drawn by the disciplinary authority, as affirmed in appeal and revision is as per law and has been passed after following a fair procedure and by taking note of all relevant facts and circumstances.

13. Writ petition, therefore, lacks merits and is accordingly dismissed. No order is passed as to costs.

Order Date :- 2.2.2021

Anil