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2016 DIGILAW 2884 (ALL)

DINESH KUMAR v. STATE OF U. P.

2016-08-22

P.K.S.BAGHEL

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JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner was a Class-IV employee in Civil Police. He has instituted this writ proceedings for quashing of the orders dated 30th August, 2012 and 24th April, 2013 passed by the third and second respondents respectively, whereby the petitioner has been dismissed from service and his appeal against the dismissal order has been rejected respectively. 2. The essential facts are that the petitioner was initially appointed as a Follower in Civil Police on 23rd March, 1998. In the year 2011, he was subjected to disciplinary proceedings on the ground of absenteeism. A charge-sheet was served upon him on 21st October, 2011. The only charge mentioned in the charge-sheet was that without any leave he was absent from duty from 29th July, 2010 to 02nd May, 2011 i.e. for a period of more than 277 days. There was no other charge. 3. Earlier a preliminary enquiry was conducted, wherein prima facie the petitioner was found guilty. Thereupon a decision was taken to hold disciplinary proceedings against him and he was placed under suspension on 23rd April, 2011. The petitioner did not submit reply to the charge-sheet but in the enquiry he has produced one Dr. Vinay Katiyar, who had treated the petitioner during his illness. The defence of the petitioner was that due to illness he could not join earlier and when he was completely cured and fit, he offered his joining on 02nd May, 2011, he was permitted to join and allowed to work. The Enquiry Officer found that both the charges were proved and he was found to be guilty of the absenteeism. It was recorded that he was absent without applying for leave. 4. The disciplinary authority issued a show-cause notice to the petitioner. It is stated that the petitioner made an application to the authority concerned to grant him leave to go to Hardoi to give reply to the show-cause notice but he was not granted leave, therefore, the petitioner could not file reply to the notice. The disciplinary authority by the impugned order dated 30th August, 2012 has passed the order of dismissal of petitioner from service under Rule 4(1)(a) read with Rule 14(1) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (for short, the “Rules, 1991”). The disciplinary authority by the impugned order dated 30th August, 2012 has passed the order of dismissal of petitioner from service under Rule 4(1)(a) read with Rule 14(1) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (for short, the “Rules, 1991”). Aggrieved by the order of dismissal, the petitioner preferred an appeal, which also came to be dismissed on 24th April, 2013. Feeling aggrieved, the petitioner has preferred this writ petition. 5. I have heard learned counsel for the petitioner Sri Rakesh Kumar Srivastava and learned Standing Counsel. It is contended on behalf of the petitioner that the petitioner was suddenly ill and was under treatment of Dr. Vinay Katiyar. He had moved an application for sanction of leave for the period of absence. The said application was allowed vide order dated 20th July, 2012 by the third respondent, Senior Superintendent of Police, Hardoi. In the said order it is mentioned that leave for the period from 29th July, 2010 to 02nd May, 2011 has been sanctioned as leave without pay. 6. Learned counsel for the petitioner submitted that in view of the fact that the Senior Superintendent of Police, who is the appropriate authority, has sanctioned the leave from 29th July, 2010 to 02nd May, 2011 as leave without pay, there was no justification to treat the said period as his absence without any leave. The learned counsel has next submitted that in any view of the matter disproportionate punishment of dismissal from service has been awarded to the petitioner as there was no charge that the petitioner was a habitual absentee. Learned counsel for the petitioner has placed reliance on a judgment of the Supreme Court in the case of Krushnakant B. Parmar v. Union of India and another, (2012) 3 SCC 178 . 7. Learned Standing Counsel submits that the petitioner has not submitted any reply to the charge-sheet. The charges have been proved. He was given full opportunity, therefore, the dismissal order does not warrant any interference under Article 226 of the Constitution. He has placed reliance on a judgment of the Supreme Court in Om Prakash v. State of Punjab and others, (2011) 14 SCC 682 . I have considered the rival submissions of learned counsel for the parties and perused the record. 8. The petitioner was a Follower, i.e. Class-IV employee in Civil Police. He has placed reliance on a judgment of the Supreme Court in Om Prakash v. State of Punjab and others, (2011) 14 SCC 682 . I have considered the rival submissions of learned counsel for the parties and perused the record. 8. The petitioner was a Follower, i.e. Class-IV employee in Civil Police. Admittedly, he was absent from duty from 29th July, 2010 to 02nd May, 2011. The said period has already been treated as leave without pay vide order of the Senior Superintendent of Police, Hardoi dated 20th July, 2012 in terms of the provisions of Fundamental Rule 73 of the Financial Handbook, Vol. II (Parts II to IV). A copy of the order dated 20th July, 2012 is on the record as annexure-2 to the writ petition. In the said order the Senior Superintendent of Police clearly mentions that in terms of Fundamental Rule 73 of the Financial Handbook, Vol. II (Parts II to IV) the period for his absence shall be treated as on leave without pay and on the principle of no work and no pay, the petitioner shall not be paid any salary for the said period. For the sake of convenience, Fundamental Rule 73 is extracted below: “73. A Government servant who remains absent after the end of his leave is entitled to no leave-salary for the period of such absence, and that period will be debited against his leave account as though it were leave on half average pay, unless his leave is extended by the Government. Wilful absence from duty after the expiry of leave may be treated as misbehaviour for the purpose of Rule 15. NOTE.—In the case of a Government servant governed by leave rules laid down in Fundamental Rule 81-B and Subsidiary Rule 157-A, who remains absent after the end of his leave, the period of such overstayal of leave should, unless the leave is extended by the competent authority, be treated as follows: (a) If the Government servant is in superior service and holds a lien on a permanent post— (i) as leave on private affairs to the extent such leave is due unless the overstayal is supported by a medical certificate. (ii) as leave on medical certificate to the extent such leave is due, if the overstayal is supported by a medical certificate. (ii) as leave on medical certificate to the extent such leave is due, if the overstayal is supported by a medical certificate. (iii) as extraordinary leave to the extent the period of leave on private affairs and/or on medical certificate falls short of the period of overstayal; (b) If the Government servant is in superior service without a lien on a permanent post or in inferior service, as in (a) (ii) and (iii) above mutatis mutandis. The period of overstayal of leave will be debited as leave taken but no leave salary will be paid for such period unless it is covered by an extension of leave granted by the competent authority.” 9. The petitioner has averred in paragraph-21 of the writ petition about the order passed by the Senior Superintendent of Police, which is on record as annexure-2 to the writ petition. For the sake of convenience, Paragraph-21 of the writ petition is reproduced hereunder: “21. That after submission of the aforesaid inquiry report dated 14.7.2012 the opposite party No. 3 issued order dated 20.7.2012 sanctioning leave without pay for the period of absence on the basis of the principle of “no work no pay”.” Reply to the said paragraph-21 of the writ petition has been given by the State functionaries in paragraph-15 of the counter-affidavit, which reads as under: ^^15- ;g fd fjV ;kfpdk ds izLrj la[;k&20 ,oa 21 esa ftl rF; dk mYys[k fd;k x;k gS] ds lEcU/k Li"V djuk gS fd ;kph dks lquokbZ dk led volj iznku djrs gq, tkWp dh dk;Zokgh lEikfnr dh x;h vkSj mlds vk/kkj ij ihBklhu vf/kdkjh }kjk viuh tkWp vk[;k iqfyl v/kh{kd] gjnksbZ dks fnukad 14&07&2012 dks izLrqr dh x;hA 'ks"k dFku ds lEcU/k esa fdlh izdkj dh fVIi.kh dh vko';drk ugha gSA** 10. From the extracted pleading it is evident that the fact regarding sanction of leave by the appropriate authority has not been specifically denied. Rather an evasive reply has been given. In addition to the above, the impugned dismissal order as well as the appellate order do not indicate that the order dated 20th July, 2012 has been considered either in the dismissal order or in the appellate order. Thus, it is clear that the order passed by the competent authority which has a material bearing on the case, has escaped the notice of both the authorities i.e. disciplinary and appellate. Thus, it is clear that the order passed by the competent authority which has a material bearing on the case, has escaped the notice of both the authorities i.e. disciplinary and appellate. Thus, the petitioner has been dismissed from service without considering this material document, which indicates that the appropriate authority exercising his power had sanctioned the leave of the petitioner for the period when he was absent from duty as leave without pay. Hence, the submission of learned counsel for the petitioner that the leave was sanctioned by the appropriate authority is well founded. 11. The Supreme Court in the case of Krushnakant B. Parmar (supra) has considered the similar facts and charge of absenteeism. A departmental proceeding was initiated against a Security Assistant in the Intelligence Bureau. The Supreme Court has held that since the petitioner therein was not a habitual absentee, on the said charge it was not proper to dismiss him from service. The Court also found that no finding was recorded that the absenteeism of the petitioner was wilful. In the present case also, the Enquiry Officer though has recorded that earlier the petitioner was found to be absent, but no finding has been recorded that the absence in question of the petitioner was wilful. Moreover, there was no charge in the charge-sheet that the petitioner was a habitual absentee. As regards the submission of learned Standing Counsel that the Enquiry Officer has recorded the finding that on the earlier occasion also the petitioner was absent is concerned, in absence of a charge regarding habitual absenteeism the petitioner was not in a position to controvert the said allegation. Besides, there is no finding but only a passing observation. The department did not adduce any evidence in this regard. 12. The Enquiry Officer, disciplinary authority as well as the appellate authority have not considered the evidence adduced by the petitioner. The petitioner had produced Dr. Vinay Katiyar as a witness in his defence, who has clearly stated that the petitioner was under his treatment and he was suffering from depression. This material evidence has not been considered by Enquiry Officer, disciplinary authority and appellate authority. 13. The petitioner had produced Dr. Vinay Katiyar as a witness in his defence, who has clearly stated that the petitioner was under his treatment and he was suffering from depression. This material evidence has not been considered by Enquiry Officer, disciplinary authority and appellate authority. 13. It is a trite law that if it is shown that finding recorded by the Enquiry Officer is not based on the evidence adduced by the parties or a material evidence has been ignored and if such evidence were considered, no reasonable person would have reached same conclusion, such finding would be a perverse finding. The Supreme Court in the case of General Manager (P), Punjab & Sind Bank and others v. Daya Singh, (2010) 11 SCC 233 , has considered the issue when an order of the disciplinary authority can be held to be perverse. The relevant part of the judgment reads as under: “24. ... This has been held by this Court long back in Triveni Rubber & Plastics v. CCE1. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arulvelu v. State2. The decision of the High Court cannot therefore be sustained.” 14. In the case of Chairman-cum-Managing Director, Coal India Limited and another v. Mukul Kumar Choudhuri and others, (2009) 15 SCC 620 , the Supreme Court has considered the unauthorized absence from duty for six months. The Court found that the punishment of dismissal was unduly harsh. Paragraph-21 of the judgment is as follows: “21. In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company’s rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.” Applying the said principle in the case in hand also, the evidence of the Doctor has not been duly considered by the disciplinary authority or the appellate authority. In fact, a perusal of the order of the disciplinary authority would indicate that the order is cryptic and skeletal and detailed consideration has not been adverted to by the disciplinary authority. 15. As regards the judgment relied upon by the learned Standing Counsel in Om Prakash (supra) is concerned, in the said case a Head Constable of Punjab Police was absent from duty. In that case, the Head Constable (petitioner therein) had neither moved any application for sanction of leave during the period of absence nor did he intimate the reason for not coming on duty. From a perusal of the judgment, I find that the facts of the present case are completely distinguishable. In the present case the period of absence has been sanctioned by the Senior Superintendent of Police as leave without pay. Therefore, in my view, the law laid down in Om Prakash (supra) has no application in the present case. 16. After careful perusal of the records and consideration of the submissions of learned counsel for the parties, I am of the view that the impugned order of dismissal and appellate order dated 30th August, 2012 and 24th April, 2013 passed by the third and second respondents respectively stand vitiated for the reasons mentioned hreinabove and accordingly, both the orders are set aside. The matter is remitted to the disciplinary authority to take appropriate decision in accordance with law expeditiously, preferably within a period of three months from the date of communication of this order. Thus, the writ petition is allowed. No order as to costs.