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Allahabad High Court · body

2013 DIGILAW 2360 (ALL)

LAXMAN SINGH YADAV v. STATE OF U. P.

2013-09-20

SABHAJEET YADAV

body2013
Sabhajeet Yadav, J. 1. Heard learned Counsel for the parties. By this petition, the petitioner has challenged the orders dated 5.10.2005, 28.6.2005 and 6.12.2002 passed by respondents No. 2, 3 and 4 contained in Annexures No. 1, 2 and 3 respectively to the writ petition. He has sought further relief of mandamus directing the respondents to permit the petitioner to join the post in question and pay salary and other emoluments to the petitioner as permissible under law. 2. It is stated that the petitioner was recruited as Constable in P.A.C. in the year 1987 and while posted as such in 28th Battalion P.A.C. District Etawah he was charge sheeted on 25.1.1993 on the charge of unauthorized absence from duty for a period of 42 days and few other incidental charges. After holding a disciplinary enquiry against him, he was dismissed from service on 15.9.1993. Against the order of dismissal the petitioner preferred appeal before Dy. Inspector General of Police, Kanpur Sector, P.A.C. which was dismissed on 2.4.1994. Feeling aggrieved against the aforesaid orders the petitioner filed claim petition No. 2220 of 1994 before State Public Service Tribunal, Lucknow. His claim petition was allowed by the Tribunal vide judgment and order dated 18.9.2002 and the order of dismissal of petitioner was quashed. However, the Tribunal had left open to the authorities to proceed against the petitioner in accordance with law by holding fresh disciplinary enquiry against him. 3. It is stated that in pursuance of the aforesaid order of U.P. Public Service Tribunal, the petitioner was reinstated in service vide order dated 12.10.2002 passed by respondent No. 4 and fresh disciplinary proceeding was also initiated against him by issuing a fresh charge sheet on 30.10.2002 on the same charges which were levelled in earlier disciplinary inquiry against him. By said chargesheet Enquiry Officer directed the petitioner to file his reply by 2.11.2002 i.e. within three days. The same is on record as Annexure No. 6 to the writ petition. 4. By said chargesheet Enquiry Officer directed the petitioner to file his reply by 2.11.2002 i.e. within three days. The same is on record as Annexure No. 6 to the writ petition. 4. By filing a supplementary affidavit in the writ petition the petitioner has stated that on receipt of the said charge sheet on 30.10.2002 the petitioner moved an application on 3.11.2002 before Assistant Commandant, 28th Battalion, P;A.C., Etawah i.e. before Enquiry Officer stating that alongwith the charge sheet merely copy of preliminary enquiry report had been provided but remaining evidence sought to be relied upon in support of the charges in the disciplinary enquiry had not been provided to the petitioner alongwith charge sheet and sought copy of all the papers intended to be relied on in the said enquiry and sought ten days time for filing reply of the charge sheet. Copy of aforesaid letter is on record as Annexure No. -3 of the supplementary affidavit filed by petitioner before this Court on 18.3.2013. On 5.11.2002 the petitioner had again moved an application before Enquiry Officer seeking five days time for filing of the reply of the charge sheet with consultation of his Advocate as the entire record of the petitioner was with his Advocate at Lucknow, who was conducting his case in the U.P. Public Service Tribunal, Lucknow. The copy of said application dated 5.11.2002 is on record as Annexure No. 4 to the said supplementary affidavit. On 9.11.2002 the petitioner had sent an application to the Commandant, 28th Battalion, P.A.C., Etawah stating therein that the presiding officer had refused to accept any evidence produced by the petitioner and permission for consulting the Lawyers for filing reply was not given to him and it appears that he was intending to deprive the petitioner from defending his case, as such he had no faith in Inquiry Officer. The copy of said application dated 9.11.2002 is on record as Annexure No. 5 to the said supplementary affidavit. The aforesaid letters as contained in Annexure Nos. 3, 4 and 5 of the supplementary affidavit were sent by the petitioner through registered post, acknowledgements of which are also enclosed as Annexure No. 6 to the said supplementary affidavit. On 11.11.2002 the petitioner again sent a letter to the Commandant, 28th Battalion P.A.C., Etawah stating that in the pending Disciplinary Enquiry against him, the statements of departmental witnesses were going on. On 11.11.2002 the petitioner again sent a letter to the Commandant, 28th Battalion P.A.C., Etawah stating that in the pending Disciplinary Enquiry against him, the statements of departmental witnesses were going on. The Presiding Officer, without taking any fresh statement, had recorded the statements of witnesses which were given during earlier Disciplinary Enquiry as it is and their signatures were obtained thereon and the petitioner was also compelled to sign the same, whereas the departmental witnesses should be made free to make fresh statement before the Enquiry Officer in presence of the petitioner and he should be given opportunity to cross-examine them. By said application, he had requested for appropriate action. Thereafter on 12.11.2002 the petitioner submitted his reply of the charge sheet to the enquiry officer through proper channel whereby he had refuted the charges levelled against him and prayed for his exoneration from the said charges. A copy of which is already on record as Annexure-7 of the writ petition, but the copy of said reply has also been as Annexure-7 of the supplementary affidavit. 5. In para-7 of the writ petition it is stated that only three days time was allowed to the petitioner for submitting reply to the charge sheet which was not sufficient at all. In para-8, 9, 10 and 11 of the writ petition it is stated that the enquiry proceeding was conducted by enquiry officer in hurried manner and the enquiry report was submitted on 28.11.2002. In pursuance of said enquiry report show cause notice for dismissing the petitioner from service was issued against him on same day and only five days time was allowed to the petitioner for submitting reply to the show cause notice. The petitioner was preparing reply to the show cause notice but just after 7 days from the date of issuance of show cause notice, he was dismissed from service by respondent No. 4 vide order dated 6.12.2002. A copy of which is on record as Annexure-3 to the writ petition. 6. In para 12 and 13 of the writ petition it is stated that one of the charges against the petitioner was that after 42 days overstaying on leave, when he resumed his duties then he was punished for 14 days drill on account of his aforesaid unauthorised absence from duty, but failed to undergo said punishment and disobeyed the order of superior authority. In this connection, it is stated that the petitioner never disobeyed any order of higher authorities and in fact there was no order for 14 days punishment of drill against the petitioner on record. The petitioner was summoned in orderly room and on being satisfied with the explanation of the petitioner he was permitted to proceed to Jhansi by the Commandant 28th Battalion P.A.C. Etawah on 13.11.1992 for getting his medical certificate counter-signed from the Chief Medical Officer, Jhansi. A copy of said order is on record as Annexure-10 of the writ petition. This fact had been completely ignored by the enquiry officer as well as respondent No. 4 and the petitioner was dismissed from service without any justifiable reason. In para-14 of the writ petition it is stated that the second charge levelled against the petitioner was that he had refused to accept the suspension order, which is absolutely false and baseless. Third charge against the petitioner was that he had appeared in M.A. Examination of Bundelkhand University, Jhansi without prior permission of the competent authority. In this connection, it is submitted that the petitioner had sent an application for appearing in the examination through proper channel. Thus, this charge is absolutely non-existing and baseless. In para-17 and 18 of the writ petition it is also stated that the entire disciplinary enquiry was a farce exercise and it was conducted without affording adequate opportunity of hearing to the petitioner. In para-21 of the writ petition it is also stated that the punishment of dismissal awarded against the petitioner is not commensurate to the gravity of the charges levelled against him and highly arbitrary, exorbitant and disproportionate. 7. In justification of impugned action taken against the petitioner detailed counter affidavit and supplementary counter affidavit have been filed by the respondents. The stand taken in the counter affidavit is that while working at 28th Battalion P.A.C. Etawah on 6.7.1992 the petitioner had taken three days casual leave whereafter he was to report on duty on 9.7.1992 but he did not timely return to resume his duty rather overstayed, thus unauthorisedly absented from duty w.e.f. 9.7.1992 for a period of 41 days 20 hours 30 minutes means 42 days, thereafter reported to his duty. After resuming his duty he was called in orderly room on 15.12.1992 for 14 P.D. ( minor punishment) but he had refused to observe the aforesaid punishment and had disobeyed the order of higher authorities as a result of which on 28.12.1992 he was placed under suspension. The petitioner had also refused to receive the order of suspension after reading the same, as such he had again done impertinent behavior and committed misconduct. Apart from it the petitioner has also appeared in M.A. 1st year Examination from Political Science from Bundelkhand University as a private student on 7.7.1992, 13.7.1992, 20.7.1992 and 27.7.1992 without taking any prior permission from the department, as such he was guilty of dereliction of duties and act of indiscipline. 8. In para-8 of the said counter affidavit it is stated that the petitioner was served a copy of charge sheet on 30.10.2002 which was received by him. The copies of documents demanded by him were also supplied but he did not submit reply of the charge sheet. In para-9 of the said counter affidavit it has been stated that since 30.10.2002 to 9.11.2002 the enquiry officer had tried his level best to persuade the petitioner to submit his reply but when he did not submit reply of the charge sheet, then enquiry officer proceeded with the enquiry having regard to the direction given by the Tribunal. After taking statements of departmental witnesses on 21.11.2002 by writing a letter to the petitioner a date 24.11.2002 was fixed for defence evidence. On receipt of the aforesaid letter the petitioner asked the statements of prosecution witnesses by making an application on 24.11.2002. Thereupon Presiding Officer had given point-wise opinion vide his letter dated 25.11.2002. Meanwhile an application of petitioner dated 12.11.2002 was received in the office on 20.11.2002 thereupon the Commandant, 28th Battalion P.A.C., Etawah had asked point-wise comments from the Presiding officer who in turn had given his comments. On perusal of the same the commandant, P.A.C. Battalion, Etawah vide his letter dated 23.11.2002 had informed the petitioner about the matter. Thereafter another application of petitioner dated 24.11.2002 was received in the office of enquiry officer, reply of which was given to the petitioner vide letter dated 26.11.2002 but the petitioner had refused to take the aforesaid letter, as a result of which the defence evidence was closed. 9. Thereafter another application of petitioner dated 24.11.2002 was received in the office of enquiry officer, reply of which was given to the petitioner vide letter dated 26.11.2002 but the petitioner had refused to take the aforesaid letter, as a result of which the defence evidence was closed. 9. In para-10 and 12 of the counter affidavit it has been stated that the enquiry officer had held the petitioner guilty of the charges levelled in the charge sheet vide his report dated 28.11.2002 and a show cause notice was issued to the petitioner on 28.11.2002, which was received by the petitioner on the same day and a period of 5 days time was given for submitting his reply but he did not submit his reply within time and the departmental enquiry was liable to be concluded within two months in pursuance of order of U.P. Public Service Tribunal, as a result of which the petitioner was dismissed from service on 6.12.2002. 10. In given facts and circumstances of the case, learned Counsel for the petitioner has submitted that the disciplinary enquiry held against the petitioner was in utter violation of principles of law and relevant service Rules inasmuch as held without affording reasonable and adequate opportunity of hearing to the petitioner. Secondly, the petitioner had explained his 41 days 20 hours 30 minutes absence from duty and stated that the situation was beyond his control for the reason that he was ill during the aforesaid period, as such could not attend his duties that is why on satisfying about the said explanation of the petitioner the competent authority i.e. Commandant 28th Battalion P.A.C., Etawah had passed an order on 13.11.1992 for getting his medical certificate counter-signed by Chief Medical Officer, Jhansi. It is stated that the aforesaid facts of his illness was stated by the petitioner in the reply of charge sheet dated 12.11.2002 but while submitting enquiry report the Enquiry Officer had refused to examine the same merely on account of fact that the same was received after 8.11.2002 i.e. beyond time fixed by the Inquiry Officer, whereas it was admittedly received by him before submission of the enquiry report which was submitted on 28.11.2002. It is further submitted that the genuineness of medical certificate submitted by the petitioner has neither been doubted nor disputed by the respondents in the counter affidavit and supplementary counter affidavit filed by the respondents, therefore, holding the petitioner guilty of the charge of 42 days unauthorized absence from duty and other charges levelled in the charge sheet by Enquiry Officer and Disciplinary Authority is wholly perverse and misconceived, and thirdly at any rate the punishment of dismissal of the petitioner from service is wholly arbitrary, exorbitant and disproportionate to the gravity of the charges levelled against him, as such is not sustainable in the eye of law. 11. In view of rival submissions of learned Counsel for the parties, the first question arises for consideration that as to whether the disciplinary enquiry held against the petitioner was in consonance of the principles of natural justice and fair play and relevant service Rules and/or as to whether the petitioner was given adequate opportunity of hearing during disciplinary enquiry before the impugned order of dismissal from service was passed against him? 12. In this connection, it is to be noted that in pursuance of order dated 18.9.2002 passed by U.P. Public Tribunal the petitioner was reinstated in service on 12.10.2002 and a fresh disciplinary enquiry was initiated against him by issuing a fresh charge sheet on 30.10.2002 on the same charges which were levelled in earlier disciplinary enquiry against the petitioner. By said chargesheet Enquiry Officer directed the petitioner to file his reply by 2.11.2002 i.e. within three days. The same is on record as Annexure No. 6 to the writ petition. By filing a supplementary affidavit in the writ petition the petitioner has stated that on receipt of the said charge sheet the petitioner moved an application on 3.11.2002 before Assistant Commandant, 28th Battalion, P.A.C., Etawah i.e. before Enquiry Officer stating that alongwith the charge sheet the documents sought to be relied on in support of the charges in the disciplinary enquiry had not been provided to the petitioner, therefore, the petitioner sought copy of all the papers intended to be relied on in the said enquiry and sought ten days time for filing reply of the charge sheet. Copy of aforesaid letter is on record as Annexure No. 3 of the supplementary affidavit filed by petitioner before this Court on 18.3.2013. Copy of aforesaid letter is on record as Annexure No. 3 of the supplementary affidavit filed by petitioner before this Court on 18.3.2013. On 5.11.2002 the petitioner again moved an application before Enquiry Officer seeking five days time for filing of the reply of the charge sheet with consultation of his Advocate as the entire record of the petitioner was with his Advocate at Lucknow who was earlier conducting his case before U.P. Public Service Tribunal, Lucknow. The copy of said application dated 5.11.2002 is on record as Annexure No. 4 to the said supplementary affidavit. On 9.11.2002 the petitioner sent an application to the Commandant, 28th Battalion, P.A.C., Etawah stating therein that the presiding officer had refused to accept any evidence produced by the petitioner and permission for consulting the Lawyers for filing reply was not given to him. The copy of said application dated 9.11.2002 is on record as Annexure No. 5 to the said supplementary affidavit. The aforesaid applications as contained in Annexure Nos. 3, 4 and 5 of the supplementary affidavit were sent by the petitioner through registered post, acknowledgements of which are also enclosed as Annexure No. 6 to the said supplementary affidavit. 13. On 11.11.2002 the petitioner again sent a letter to the Commandant, 28th Battalion P.A.C., Etawah stating that the statements of departmental witnesses were going on in the pending Disciplinary Enquiry against him. But the Presiding Officer, without taking any fresh statement, had recorded the statements of witnesses which were given during earlier Disciplinary Enquiry as it is and their signatures were obtained thereon and the petitioner was also compelled to sign the same, whereas the departmental witnesses should be made free to make fresh statement before the Enquiry Officer in presence of the petitioner and he should be given opportunity to cross-examine them. By said application, he has requested for appropriate action. Thereafter on 12.11.2002 the petitioner submitted his reply of the charge sheet to the enquiry officer through proper channel whereby he had refuted the charges levelled against him and prayed for his exoneration from the said charges. A copy of which is already on record as Annexure-7 of the writ petition, but the copy of said reply has also been filed as Annexure-7 of the supplementary affidavit. 14. A copy of which is already on record as Annexure-7 of the writ petition, but the copy of said reply has also been filed as Annexure-7 of the supplementary affidavit. 14. In para-8, 9, 10 and 11 of the writ petition it is stated that the enquiry proceeding was conducted by enquiry officer in hurried manner and enquiry report was submitted on 28.11.2002. In pursuance of said enquiry report show cause notice for dismissing the petitioner from service was issued on the same day i.e. on 28.11.2002 and only five days time was allowed to the petitioner for submitting reply to the show cause notice. The petitioner was preparing reply to the show cause notice but just after 7 days from the date of issuance of show cause notice, he was dismissed from service by respondent No. 4 vide order dated 6.12.2002 without affording adequate opportunity of hearing to the petitioner to defend his case in utter violation of principles of natural justice. A copy of which is on record as Annexure-3 to the writ petition. 15. The aforesaid facts stated by the petitioner on affidavit along with supporting material were neither denied nor disputed by the respondents in the counter affidavit and supplementary counter affidavits filed in the writ petition, rather allegations made in the writ petition and supplementary affidavit are tried to be justified by the respondents in the counter and supplementary counter affidavits as revealed therefrom, as such in view of the provisions of Order 8 Rule 3 and 5 of the C.P.C. the facts specifically not denied, can be assumed to be admitted by the State respondents, therefore, the Court assumes aforesaid facts stated by the petitioner as correct. 16. Thus, as revealed from record, it appears that on 30.10.2002 a charge sheet ( Annexure-6 of the writ petition) was issued to the petitioner asking his reply earlier to or by 2.11.2002 i.e. within three days. It is stated in para-11 of the reply of charge-sheet ( Annexure-7 of the writ petition) that according to circular letter of Director General of Police, U.P., Lucknow dated 7.3.2001 atleast 15 days time should be given to delinquent employee for submitting reply of charge-sheet and alongwith charge sheet the materials sought to be relied upon in support of the charges should also be supplied to the delinquent employee. From a perusal of findings of enquiry officer, contained in Annexure-8 of the writ petition, it appears that the statement of witnesses demanded by the petitioner, said to have been supplied on 7.11.2002 with a direction to the petitioner to submit his reply by 8.11.2002 i.e. within a day. Immediately thereafter on very next day i.e. 9.11.2002 the Enquiry Officer given notice to the petitioner to proceed with enquiry from 10.11.2002 and intended to record the statements of prosecution witnesses on that day. In my opinion, in wake of these facts of the case, it can not be held that the petitioner was given reasonable time to submit reply of the charge sheet for the reason that initially the enquiry officer had given only three days time to the petitioner for submitting his reply of the charge sheet and subsequently after supplying the documents demanded by the petitioner on 7.11.2002, only one day time was granted to submit reply of the charge sheet which is contrary to the circular of the police department and principles of natural justice in as much as contrary to all canons of service law jurisprudence. Therefore, there can be no scope for doubt to hold that the illegalities committed by the Enquiry Officer while holding disciplinary inquiry against the petitioner are fundamental in nature and bad in law from its inception and as such can not be held to be fair and proper. Thus, in my view, entire disciplinary inquiry held against the petitioner is bad in law and is vitiated from its very inception, consequently liable to be quashed. 17. Further, it is also to be noted that the petitioner's reply of the charge sheet dated 12.11.2002 was received in the office of enquiry officer on 20.11.2002 through letter of Commandant, 28th Battalion P.A.C., Etawah prior to the submission of inquiry report but the same has not been considered by him merely for the reason that it could not be submitted by the petitioner by 8.11.2002 as directed by the Enquiry Officer and was received after evidence of department and ultimately submitted his Enquiry Report on 28.11.2002 holding the petitioner guilty of the charges levelled in the charge sheet. In my opinion, the aforesaid approach of the inquiry officer was not correct. In my opinion, the aforesaid approach of the inquiry officer was not correct. On receipt of the said inquiry report the Disciplinary Authority without applying his mind upon the findings of Enquiry Officer has accepted the same as it stands and on the same day issued show cause notice to the petitioner directing him to submit reply of the show cause notice by 3.12.2002 just within five days of service of show cause notice. The petitioner had asked some more time to submit his reply of the show cause notice but without granting any further time to the petitioner, the impugned order of dismissal from service of the petitioner was passed on 6.12.2002 just within seven days from the date of service of show cause notice. In this view of the matter, in my view, the petitioner was not given adequate opportunity to submit his reply of show cause notice before the order of dismissal was passed. 18. From the perusal of enquiry report it also transpires that the aforesaid enquiry was conducted by the Enquiry Officer in hurried manner only for the reason that he was directed to conclude the said enquiry within time framed provided by U.P. Public Service Tribunal in its judgment and order dated 18.9.2002 rendered in Claim petition filed by the petitioner. In my opinion, the said ground for holding disciplinary inquiry in haste and hurried manner against the petitioner is not justified to deny reasonable and adequate opportunity of hearing to the petitioner. In case in given facts and circumstances of the case, it was not reasonably practicable for the inquiry officer and the Disciplinary Authority to conclude the said enquiry within time framed provided by U.P. Public Service Tribunal, the only course was open for them to seek extension of time from the U.P. Public Service Tribunal but they have not done so and arbitrarily concluded the said inquiry in haste and hurried manner, which is not justified under law. At any rate in any view of the matter, the Enquiry Officer could not deny adequate and reasonable time to the petitioner for submitting reply of the charge sheet and show cause notice. At any rate in any view of the matter, the Enquiry Officer could not deny adequate and reasonable time to the petitioner for submitting reply of the charge sheet and show cause notice. Therefore, in my opinion, holding the disciplinary enquiry against the petitioner in haste and hurried manner can not be said to be fair and proper and justified under law, accordingly for this reason also the same is not sustainable at all. 19. In view of the foregoing discussion, in my opinion, the impugned order of dismissal of the petitioner dated 6.12.2002 passed by the Disciplinary Authority can not be sustained and as such same is hereby quashed and for the same reason the order dated 28.6.2005 passed by the appellate authority in appeal preferred by the petitioner and order dated 5.10.2005 passed by the revisional authority can also not be sustained and same are hereby quashed. 20. Next question arises for consideration that after quashing the disciplinary proceeding and punishments inflicted upon the petitioner as to whether the matter should be remitted back to the Disciplinary authority to proceed again in accordance with law or this Court itself should take appropriate decision in the matter? 20. Next question arises for consideration that after quashing the disciplinary proceeding and punishments inflicted upon the petitioner as to whether the matter should be remitted back to the Disciplinary authority to proceed again in accordance with law or this Court itself should take appropriate decision in the matter? In this connection, it is to be noted that in the process of judicial review of disciplinary enquiry once the Tribunal or this Court quashed the disciplinary enquiry and punishment inflicted upon the delinquent employee on account of its being in breach of principles of natural justice and/or relevant service Rules of disciplinary enquiry, normally the matter is remitted back to the disciplinary authority to proceed with the disciplinary enquiry afresh in accordance with law from the stage from which it was found faulty but the aforesaid proposition cannot be taken in absolute term as straight jacket formula applicable in every case rather in such matter while taking appropriate decision on such issue, the Court or tribunal should take into account several relevant factors and should base its decision on such factors depending upon facts and circumstances of each case, such as where the facts of the case so warrants on account of long drawn litigation and it is found that the delinquent employee has already suffered a lot and undergone mental agony and monetary loss and direction for fresh inquiry may not serve useful purpose instead thereof may give rise cause of action to another innings of litigation and where it is feasible for the Court or tribunal to examine the matter on merit on the basis of indisputable facts and material available on record, in such circumstances, it is not necessary and appropriate to remit the matter back again to the disciplinary authority for disposing of the matter afresh. 21. In instant case, the disciplinary enquiry was initially initiated against the petitioner in respect of an incident which had taken place in the year 1992 i.e. 21 years ago and the disciplinary enquiry initially held against the petitioner was quashed by U.P. Public Service Tribunal vide its judgment and order dated 18.9.2002 in a claim petition filed by the petitioner with a direction to the Disciplinary Authority to hold a fresh enquiry. This disciplinary enquiry at second time was also held in the year 2002 about 11 years ago. This disciplinary enquiry at second time was also held in the year 2002 about 11 years ago. Since then the matter is pending before this Court and the petitioner is running pillar to post for about 21 years for redressal of his grievances. During such long drawn litigation the petitioner must have suffered monetary loss and must have undergone mental agony due to denial of rights and privilege of his post and office and must have faced financial stringency. Apart from it, on the basis of in disputed facts and materials brought on record which may be stated hereinafter, in my opinion, this case can be decided by this Court on merit, therefore, it would not be appropriate and proper to remit the matter again to the disciplinary authority for its disposal on merit afresh giving rise cause of action for third round litigation. For aforesaid reasons, I propose to examine the matter on merit without remitting back to the Disciplinary Authority again. 22. Now coming to the facts of the case, it is not disputed that while working on the post of Constable in 28th Battalion P.A.C., Etawah the petitioner went on three days casual leave on 6.7.1992 and where after he was to report on duty by 9.7.1992 but he did not timely return to resume his duty rather overstayed, thus found unauthorisedly absent from duty for a period of 42 days. Therefore, a disciplinary enquiry was initiated against him for the aforesaid charge inasmuch as two other charges incidental thereto. First charge levelled in the charge sheet was that after overstaying on leave for 42 days when he resumed his duty he was called in orderly room for 14 days drill P.T. ( minor punishment) on 15.12.1992 but he had refused to undergo the aforesaid punishment and disobeyed the order of higher authority. First charge levelled in the charge sheet was that after overstaying on leave for 42 days when he resumed his duty he was called in orderly room for 14 days drill P.T. ( minor punishment) on 15.12.1992 but he had refused to undergo the aforesaid punishment and disobeyed the order of higher authority. In this connection in para-12 and 13 of the writ petition, the petitioner has stated that he had never disobeyed any order of higher authority and in fact there was no order of punishment for 14 days drill against the petitioner on record, instead thereof on resuming his duties the petitioner was summoned in orderly room and on being satisfied with the explanation of petitioner about his absence from duty, he was permitted to proceed to Jhansi by the Commandant, 28th Battalion P.A.C., Etawah on 13.11.1992 for getting his medical certificate countersigned from Chief Medical Officer, Jhansi. A copy of the said order is on record as Annexure-10 of the writ petition. For ready reference it would be useful to extract the averments contained in para-12 and 13 of the writ petition as under: "12. That, it is submitted here that the petitioner is absolutely innocent person and he has been dismissed from service for his no fault. It is submitted here that the petitioner never disobeyed any order of the higher authorities and in fact there was no order for 14 days punishment drill against the petitioner on record. There was no question of any disobedience of the punishment order. It is submitted here that the petitioner was summoned in orderly room and on very day after being satisfied with the explanation of the petitioner he was granted permission to proceed to Jhansi from 28th Battalion P.A.C. Etawah. In this regard a true copy of Government order dated 13.11.1992 is being filed herewith and marked as Annexure No. 10 to this writ petition. 13. That, it appears that the alleged charges with the petitioner disobeying the order of punishment was levelled against the petitioner without looking into the records that there was no such punishment order against the petitioner on record and contrary to it this explanation for his absence was accepted by the concerned authorities and he was directed to proceed to Jhansi for getting his medical certificate verified/counter-signed from the Chief Medical Officer, Jhansi. This fact has been completely ignored by the enquiry officer as well as by the respondent No. 4 and the petitioner has been dismissed from the service on the absolutely baseless and non-existing charge. It appears that the respondents passed the second dismissal order against the petitioner only because the petitioner approached the competent Court against the first dismissal order. The entire disciplinary proceeding after the judgment of the Tribunal was completed against the petitioner in a hurried manner with malafide intention only to dismiss the petitioner from the services." 23. The aforesaid paragraphs of the writ petition have been replied in para-14 and 15 of the counter affidavit, which are as under: 24. Thus, from the facts stated hereinbefore in the writ petition and counter affidavit, it is clear that facts stated in para-12 and 13 of the writ petition have not been specifically denied and controverted by the respondents in para-14 and 15 of the counter affidavit while making reply of the aforesaid paragraphs of the writ petition, therefore, in view of the provisions of Order 8 Rule 3 and 5 of C.P.C. it is open for this Court to treat the facts stated in para-12 and 13 of the writ petition as admitted by the respondents and assumed to be correct. Thus, it can be assumed that there was no order of punishment for 14 days drill against the petitioner on record and aforesaid charge was framed without looking into record. Apart from it, nothing contrary has been shown by the respondents through counter and supplementary counter affidavits filed in the writ petition by placing the alleged order of punishment of 14 days drill on record. Therefore, in this view of the matter, in my opinion, the aforesaid charge was based on non-existent fact, accordingly no occasion arose for the petitioner for disobeying any such order of the higher authority. 25. In this connection, it is to be noted that vide order dated 13.11.1992 passed by Commandant, 28th Battalion P.A.C., Etawah, contained in Annexure-10 of the writ petition, the petitioner was directed to get his medical certificate counter-signed by Chief Medical Officer, Jhansi and permitted to proceed at Jhansi on the same day after 12 O' clock. 25. In this connection, it is to be noted that vide order dated 13.11.1992 passed by Commandant, 28th Battalion P.A.C., Etawah, contained in Annexure-10 of the writ petition, the petitioner was directed to get his medical certificate counter-signed by Chief Medical Officer, Jhansi and permitted to proceed at Jhansi on the same day after 12 O' clock. The aforesaid letter of Commandant, 28th Battalion P.A.C. Etawah dated 13.11.1992 has also been filed by the petitioner in the supplementary affidavit as Annexure S.A.-1 alongwith his medical certificate counter-signed by Chief Medical Superintendent, District Hospital, Jhansi dated 14.11.1992 wherein the petitioner was directed to take regular bed rest from 9.7.1992 ( wrongly mentioned as 9.2.1992) to 9.8.1992 and 18.8.92. The copy of which is collectively filed as Annexure-1 to the supplementary affidavit alongwith other certificates issued by District Hospital, Jhansi. Photostat copy of said medical certificates counter-signed by Chief Medical Superintendent has also been collectively filed as Annexure-1 to the supplementary affidavit. The genuineness of these medical certificates filed alongwith supplementary affidavit has not been disputed by the respondents in the supplementary counter affidavit filed in the writ petition. For ready reference, it would be useful to extract para-2 of the supplementary affidavit filed in the writ petition, wherein the medical certificates have been enclosed by the petitioner collectively as Annexure S.A.-1 to the supplementary affidavit, as under:- "2. That in order to bring important and necessary facts to the notice of this Hon'ble Court the deponent respectfully submits that during enquiry period the deponent submitted all necessary relevant and material documents in writing to the enquiry officer as well as the respondents No. 2, 3 and 4 and the enquiry officer in the enquiry report submitted by him as well as in the show cause notice did not mentioned the facts and contents relating to the said documents and have also not recorded reasoned and specific finding in the order of suspension and dismissal and the aforesaid facts have also not been denied in the counter affidavit filed on behalf of the respondents as such the orders passed by the respondents No. 2, 3 and 4 in exercise their powers are arbitrary discriminatory, unlawful and without jurisdiction and have been passed in violation of the provisions of Article 14of the Constitution of India and against the principle of natural justice and fair play. A true copy of movement order dated 13.11.1992 along with medical certificate dated 8.8.1992, prescription slip dated 9.07.1992, 27.7.1992, 14.8.1992 alongwith registered postal envelop is being filed herewith this supplementary affidavit and marked as Annexure No. S.A.-1. A true photo state copy of admission treatment and prescription slip along with Pathology examination report dated 29.10.2002, 28.10.1992, 28th Battalion P.A.C. Hospital Etawah and Tarun Clinic 28B, Battalion P.A.C. Etawah is being filed herewith this supplementary affidavit and marked as Annexure No. S.A. 2. A true copy of representation dated 3.11.2002 submitted by the deponent to the respondent No. 4 is being filed herewith this supplementary affidavit and marked as Annexure No. S.A.-3. A true copy of registered representation dated 8.11.2002 submitted by the deponent to the presiding officer 28th Battalion P.A.C. Etawah alongwith Postal receipt is being filed herewith this supplementary affidavit and marked as Annexure No. S.A.-4. A true copy of registered representation dated 9.11.2002 submitted by the petitioner to the respondents No. 3 and 4 alongwith postal and acknowledgement receipt is being filed herewith this supplementary affidavit and marked as Annexure No. S.A.-5. A true copy of registered representation dated 11.11.2002 submitted by the petitioner to the respondent No. 4 alongwith acknowledge receipt is being filed herewith this supplementary affidavit and marked as Annexure No. S.A.-6. A true copy of registered reply of show cause notice dated 12.11.2002 sent by the petitioner to the respondent No. 4 28th Battalion P.A.C. Etawah alongwith postal receipt dated 12.11.2002 is being filed herewith this supplementary affidavit and marked as Annexure No. S.A.-7. A true copy of order dated 19.11.2002 passed by the respondent No. 4 is being filed herewith this supplementary affidavit and marked as Annexure No. S.A.-8." 26. The contents of para-2 of the supplementary affidavit filed in the writ petition have been replied in para-7 of the supplementary counter affidavit, which is extracted as under:- "7. That in reply to the contents of paragraph No. 2 of the writ petition, it is submitted that at the time of enquiry the chargesheet has been served upon the petitioner. Photocopy of the chargesheet dated 30.10.2002 given to the petitioner, is being annexed herewith and marked as Annexure No. SCA-1 to this affidavit. That the petitioner has submitted another letter requesting therein to kindly grant seven days permission so that he may contact some legal experts in the aforesaid matter. Photocopy of the chargesheet dated 30.10.2002 given to the petitioner, is being annexed herewith and marked as Annexure No. SCA-1 to this affidavit. That the petitioner has submitted another letter requesting therein to kindly grant seven days permission so that he may contact some legal experts in the aforesaid matter. Considering the request of the petitioner, the Presiding Officer has granted three days time in this regard. Photocopy of the request letter dated 30.10.2002 submitted by the petitioner and permission granted by the Presiding Officer, is being annexed herewith and marked as Annexure No. SCA-2 to this affidavit. The petitioner further submitted a letter dated 3.11.2002 to kindly provide the other documents and statement of the witnesses. Photocopy of the letter dated 3.11.2002 submitted by the petitioner, is being annexed herewith and marked as Annexure No. SCA-3 to this affidavit. Thereafter a letter dated 21.11.2002 has been given to the petitioner stating therein to kindly produce the documents as well as written submission in support of his defence and the aforesaid letter has been served upon the petitioner on 21.11.2002. Photocopy of the letter dated 21.11.2002 given to the petitioner, is being annexed herewith and marked as Annexure SCA-4 to this affidavit. But the petitioner neither submitted any document nor any explanation in contrary he has submitted two letters on 22.11.2002. In the first letter, he has demanded statement of the witnesses and second letter seeking permission for consultancy to some legal experts. Photocopy of the letters dated 22.11.2002 submitted by the petitioner, are being annexed herewith and marked as Annexure No. SCA-5 and SCA-6 to this affidavit. On 24.11.2002 petitioner has submitted another application making allegation against the Presiding Officer and in the application the Presiding Officer has made note and submitted that the petitioner has neither submitted any document nor produce any evidence. Photocopy of the letter dated 24.11.2002 submitted by the petitioner and the Presiding Officer has made a note, is being annexed herewith and marked as Annexure No. SCA-7 to this affidavit. Another letter has been given to the petitioner on 25.11.2002 providing time to submit his explanation. Photocopy of the letter dated 25.11.2002 to the petitioner, is being annexed herewith and marked as Annexure No. SCA-8 to this affidavit. Another letter has been given to the petitioner on 25.11.2002 providing time to submit his explanation. Photocopy of the letter dated 25.11.2002 to the petitioner, is being annexed herewith and marked as Annexure No. SCA-8 to this affidavit. In the meant time the petitioner has submitted explanation dated 12.11.2002, which has been received by the Presiding Officer on 20.11.2002 but in reply of the chargesheet, petitioner does not mention any documents which are referred in the present supplementary affidavit. Photocopy of the reply submitted by the petitioner on 12.11.2002, is being annexed herewith and marked as Annexure No. SCA-9 to this affidavit. It is further submitted that the Presiding Officer has submitted a note before the Commandant securing the position that no such order has been given to the petitioner on 22.11.2002. Photocopy of the note submitted by the Presiding Officer before the Commandant on 22.11.2002, is being annexed herewith and marked as Annexure No. SCA-10 to this affidavit. Thus, it appears from the record that neither the petitioner has submitted proper explanation before the Presiding Officer nor submitted documents, which is annexed in the present supplementary affidavit. Thus, the averments made in the supplementary affidavit are false and fabricated." 27. Thus, from bare reading of para-2 of the supplementary affidavit filed in the writ petition and para-7 of the said supplementary counter affidavit whereby para-2 of the supplementary affidavit has been replied by the respondents, there is nothing to indicate that averments contained in para-2 of supplementary affidavit has been specifically denied and controverted by the respondents, as such in view of provisions of Order 8 Rule 3 and 5 the facts stated in para-2 of the supplementary affidavit are assumed to be admitted by the respondents and taken to be correct for the reason that the genuineness of the medical certificates submitted by the petitioner has not been disputed by the respondents, as such statement of fact that petitioner was ill with effect from 9.7.1992 to 18.8.1992 and was directed by the doctor to take regular bed rest w.e.f. 9.7.1992 to 18.8.92 is treated to be correct and true in the eye of law. Mere fact that during the said period of illness the petitioner has appeared in M.A. Examination, in my opinion, can not belie the fact of illness of the petitioner during the said period for the reason that some time students are appearing in the examination during the illness for betterment of their academic career even by taking the risk of their life but the same standard cannot be applied for the employee to attend and discharge his duties during the illness at the risk of his health. 28. Thus, in such facts and circumstances of the case, the next question arises for consideration that as to whether such absence of petitioner from duty should be held to be willful unauthorised absence from duty? In this connection a reference can be made to a decision of Apex Court rendered in Krushnakant B. Parmar v. Union of India and another, ( 2012) 3 SCC 178 , wherein Apex Court has held that if the absence is due to compelling circumstances like illness etc. under which it is not possible to report or perform duty, such absence cannot be held to be willful and employee cannot be held to be guilty of misconduct. 29. In B. Parmar's case ( supra) neither Inquiry Officer nor Appellate Authority found absence of appellant willful. Evidence produced by the appellant to substantiate his claim was ignored by the authorities concerned and on the basis of irrelevant fact and surmises he was held guilty. In the said case the impugned order of dismissal passed by the Disciplinary Authority affirmed by Appellate Authority, C.A.T. and High Court has been set aside considering that the appellant had suffered a lot since 1996 when the proceedings were initiated against him. Matter was not remitted to the Disciplinary Authority instead thereof the appellant was directed to be reinstated in service with 50% back wages. In para 17, 18 and 19 of the said decision the Apex Court observed as under:- "17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorised 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 behavior unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is 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 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." 30. In view of the legal position stated by the Apex Court, in my opinion, the petitioner's absence from duty w.e.f. 9.7.1992 to 18.8.1992 for a period of 41/42 days can not be held to be unauthorised and willful absence from duty for the reason that during the aforesaid period he was ill and directed by the doctor to take bed rest, thus, the situation was beyond the control of the petitioner under which he could not perform his duties during the period in which he was found absent from duty. Therefore, such absence from duty can not be held to be unauthorised and willful absence from duty constituting misconduct of the petitioner and warranting any penalty or punishment for the same. 31. So far as second charge against the petitioner that he refused to accept the suspension order is concerned, it will make no difference to the merit of the case even if the charge is taken to be correct on its face value for the reason that if the petitioner was placed under suspension it is immaterial whether he accepted the order of suspension or refused to accept the same. So far as third charge that the petitioner appeared in M.A. examination from Bundelkhand University, Jhansi without prior permission of departmental authorities is concerned, in that connection the petitioner has stated that he had sent an application for appearing in the said examination through proper channel. Thus, in my opinion, even if authorities did not inform the petitioner about the grant or refusal of permission for appearing in said examination and sitting idle and tide over the matter, in such eventuality the acts of the petitioner in appearing in said examination without prior permission of the authorities cannot be held to be serious misconduct warranting any major penalty. Thus, in my view even second and third charges levelled against petitioner may be accepted as correct on their face value, they do not warrant any major penalty, rather in given facts and circumstances of the case mere warning to the petitioner to be careful in future without casting any stigma upon future service career of the petitioner could meet the ends of justice. 32. Thus, in view of foregoing discussions and totality of the facts and circumstances of the case, in my opinion, the petitioner is entitled for reinstatement in service with continuity of service and other consequential benefits of service like seniority and regular increments etc with full backwage for other pensionary benefits but as held by Apex Court in B. Parmar's case ( supra) he will be paid only of 50% back wage from the date of order of his dismissal from service till date and thereafter he is entitled for payment of his full salary continuously till the actual order of reinstatement is passed by the respondent authorities or till he is reinstated in service. Accordingly, the respondents are directed to reinstate the petitioner in service with continuity of service and other consequential benefits of service like seniority and grant of regular increments etc. and further directed to treat the petitioner entitled for full salary from the date of his dismissal from service till date for the purpose of pensionary benefits along with regular increments but payment of arrears of salary will be made only to the extent of 50% salary from the date of his dismissal i.e. 6.12.2002 till today and further go on paying his full salary admissible to his post regularly month to month in future. The petitioner shall be reinstated within a month but the arrears of salary as back wage shall be paid to the petitioner by the concerned authorities within a period of three months from the date of production of certified copy of the order passed by this Court before competent authority. With the aforesaid observations and directions, writ petition succeeds and is allowed.