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2015 DIGILAW 960 (MP)

Himmat Singh Parihar v. State of M. P.

2015-09-10

VANDANA KASREKAR

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ORDER : Vandana Kasrekar, J. With the consent of the parties, matter is heard finally at motion stage. 2. The petitioner has filed the present petition for issuance of a writ in the nature of certiorari to expunge the adverse entry from the confidential report for the period from 26/07/2012 to 13/03/2013 as well as for quashing the orders dated 29/03/2014 (Annexure P/1) and 20/05/2014 (Annexure P/2). 3. Brief facts of the case are that the petitioner was initially appointed on the post of Sub-Inspector in the police department in the year 1982. From the date of his initial appointment, he has been performing his duty with utmost sincerity, devotion and upto the satisfaction of his superior and he has not received any warning or punishment during his entire service career. The petitioner further alleges that when he was due for his promotion, he was communicated with the adverse entry in the confidential report for the period between 26/07/2012 to 13/03/2013. When the petitioner was posted in District Dindori, he was communicated with the adverse entry of confidential report and awarded very poor category and make entry as indiscipline officer and unauthorisedly absentee from the duty" for the period from 26/07/2012 to 13/03/2013. 4. Against the said adverse entry, petitioner has filed a first appeal before the authorities for expunging the adverse entry. The said first appeal was dismissed vide order dated 29/03/2014 (Annexure P/1). After rejection of the First Appeal, petitioner has submitted his second appeal before the Director General of Police (MP)/Respondent No.2. The said appeal was also rejected by the respondent mechanically without entering the facts and record of the case. The mercy appeal preferred by the petitioner was also dismissed vide order dated 14/03/2014. 5. Being aggrieved by these orders, the petitioner has filed the present writ petition. 6. The respondents have filed their return and submits that the petitioner has remained unauthorisedly absence from the duty from 26/07/2012 to 13/03/2013 and despite giving notice to the petitioner by the SP District Dindori, he remained unauthorisedly absence from the duty for 30 days and, thereafter he again remained unauthorisedly absence from duty. The petitioner being a member of disciplinary force shown his indiscipline conduct and to save himself, he took shelter to medical certificate. Under such circumstances, there was no occasion for the authorities to delete the adverse entry or to upgrade the same. 7. The petitioner being a member of disciplinary force shown his indiscipline conduct and to save himself, he took shelter to medical certificate. Under such circumstances, there was no occasion for the authorities to delete the adverse entry or to upgrade the same. 7. On the basis of the report of the SDOP, it was found that there was no medical certificate produced by the petitioner in support of his absence. Accordingly the charge for remaining unauthorisedly absence from the duty found to be proved against him. 8. The learned counsel for the petitioner argues that the orders passed by the respondents are not justified as under the Leave Rules which are applicable to the petitioner. He further argues that the order is passed under Rule 24 of the Leave Rules, under which an appropriate action could have been taken and under Rule 24 the only action could have been taken was to treat this leave whichever was available to the petitioner either half pay or other leave and in case no leave is available then it could have been treated as extra-ordinary leave and he contends that in any case the respondents should not have recorded the adverse entry in the confidential report of the petitioner regarding the unauthorisedly absence from duty. He further relied on the judgment passed by this Court in the case of Ali Hussain v. State of Madhya Pradesh, reported in 1983, MPLJ 775. 9. On the other hand, learned Panel Lawyer appears on behalf of the respondents justifies the action taken by the respondents. She argues that as the petitioner remains unauthorisedly absence from duty, the impugned adverse entry was communicated to the petitioner. She further argues that the reasons assigned by the authority after appreciating all material aspect of the matter was proper and there is no scope for any change in the same, no interference be called for because the petitioner fails to show any special circumstances under which observation made by the authority, can be said to be illegal, arbitrary and contrary to the law. She, therefore, prays for dismissal of the petition. 10. I have heard learned counsel for the parties and perused the record. 11. The Rule 24 of the Madhya Pradesh Leave Rules 1977, reads as under :- "24. She, therefore, prays for dismissal of the petition. 10. I have heard learned counsel for the parties and perused the record. 11. The Rule 24 of the Madhya Pradesh Leave Rules 1977, reads as under :- "24. Absence after expiry of leave - (1) Unless the authority competent to grant leave extends the leave, Government servant who remains absent after the end of leave is entitled to no leave salary for the period of such absence and that period shall be debited against his leave account as though it were half pay leave to the extent such leave is due, the period in excess of such leave due being treated as extra-ordinary leave." 12. From perusal of the Sub-Rule (1) of the said Rules, it is clear that :- "Sub-rule (1) provides that when a Government servant remains absent after expiry of leave he is entitled to no leave salary but it has been further provided that such period shall be debited against his leave account as though it were half pay leave to the extent such leave is due and the period in excess of such leave due being treated as extra-ordinary leave. Sub-rule (2) further provides that wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action." 13. In the present case, the respondents instead of taking any action against the petitioner as Rule 24 of the Rules, have made adverse entry in the confidential report of the petitioner that too without making any enquiry which is unwarranted. The appellate authority while rejecting the appeal of the petitioner has not taken into consideration the grounds raised by the petitioner and rejected the appeal mechanically. In the case of Ali Hussain (supra), this Court in para 6 of the judgment has held as under :- "It is, therefore, clear that on the facts as they stand that the petitioner remained absent without the leave being sanctioned to him, and the only course open to the Government was either to act under sub-rule (1) or under sub-Rule (2) of Rule 24. It could not be contended that the orders which were passed could be passed under sub-rule (1) and the learned Government Advocate could not refer to any rule which could justify an order as has been passed in this case, i.e. the order dated 21/07/1979. It could not be contended that the orders which were passed could be passed under sub-rule (1) and the learned Government Advocate could not refer to any rule which could justify an order as has been passed in this case, i.e. the order dated 21/07/1979. It is also not in dispute that if the State Government has chosen to act under sub-rule (2) of Rule 24, then it was necessary to follow the procedure of inquiry, which admittedly has not been done in this case. If it was chosen to act under sub-rule (2) then disciplinary action could only be taken after following the proper procedure. Admittedly, before passing of this order dated 21/07/1979 even a notice was not issued to the petitioner to pass such an order. It is, therefore, plain that this order which was passed by the State Government against the petitioner could not be justified under any of the rules framed under Article 309 of the Constitution of India." 14. Thus, in view of the aforesaid facts and the judgment passed by this Court, this petition deserves to be allowed. The orders passed by the respondents vide orders dated 29/03/2014 (Annexure P/1) and 20/05/2014 (Annexure P/2) are hereby quashed. Consequently, the adverse entry in the confidential report for the period from 26/07/2012 to 13/03/2013 are expunged. However, the respondents are free to take action against the petitioner as per Rule 24 of the Leave Rules. 15. In view of the aforesaid, the petition stands allowed and disposed of, with no order as to costs. 16. Certified copy as per rules.