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2016 DIGILAW 474 (JK)

Ab. Raheem Mir v. State of J&K

2016-09-23

N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This writ petition is filed praying to quash the order dated 31.12.2001 imposing the punishment of censure and treating the period of absence from 01.01.2001 to 24.01.2001 as dies-non. The case of the petitioner is that he was appointed as Sub-Inspector in pursuance to the selection process in the year 1991 and was posted in Armed zone. During his service tenure he discharged his duties diligently and efficiently. On 3rd of January, 2001 he developed back pain and accordingly approached a doctor for taking treatment. Medical certificate was also issued by Dr. M.A. Halwai (Orthopaedics) Consultant Bone & Joint Hospital, Srinagar, dated 18.08.2001. The petitioner applied for leave because of his ailment and at the relevant point of time he was posted at IRP 6th Bn at Kupwara, which was denied because all sorts of leaves were kept in abeyance by the superior officers in view of the Panchayat Elections. As the petitioner was not in a position to move, he was forced to undergo the medical treatment and no police hospital was available at Kupwara to take treatment and he took treatment at Srinagar. During enquiry he also produced the medical certificate dated 18.08.2011. 2. The petitioner who is appearing as party in person, submits that the period of absence should have been treated as on leave and imposing penalty of censure was illegal. The appeal as well as the review filed against the impugned penalty order was rejected. The petitioner was ill and the same is proved during enquiry. 3. In such circumstances, absence of the petitioner during the said period from 07.01.2001 to 24.02.2001 cannot be said to be willful absence for which no punishment can be imposed in the light of the judgment of the Hon'ble Supreme Court reported in AIR 2015 SC 598 (Chhel Singh v. M.G.B. Gramin Bank Pali & Ors.). 4. In the above cited case, for not reporting for duty from 11.12.1989 to 24.10.1990, charge was framed and the defence of the employee was that he was seriously ill during the said period which was beyond his control and he could not report for duty. The stand of the department was that the employee on leave on health reasons should submit medical certificate while joining duty and he has submitted the same with delay. Not accepting the plea, the employee was removed from service. The stand of the department was that the employee on leave on health reasons should submit medical certificate while joining duty and he has submitted the same with delay. Not accepting the plea, the employee was removed from service. The Writ Court set aside the order of removal and directed the respondents to re-instate the employee in service with all consequential benefits. The Bank challenged the said order before the Division Bench and the appeal was allowed, against which the employee preferred civil appeal and Hon'ble the Supreme Court reversed the order of the Division Bench and upheld the order of the Writ Court. In para 15 and 16 it is held thus:- "15. ....we find that the main allegation is absence from duty from 11.12.89 to 24.10.90 (approximately 10 and 1/2 months), for which no prior permission was obtained from the competent authority. In his reply, the appellant has taken the plea that he was seriously ill between 11.12.89 and 24.10.90, which was beyond his control; he never intended to contravene any of the provisions of the service regulations. He submitted the copies of medical certificates issued by Doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days. There was no allegation that the appellant's unauthorized absence from duty was willful and deliberate. The Inquiry Officer has also not held that appellant's absence from duty was willful and deliberate. It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay. 16. In view of the observation made above, the order passed by the Division Bench of the High Court cannot be upheld. We, accordingly, set aside the impugned judgment and order dated 10th May, 2012 passed by the Division Bench of the High Court in D.B. Civil Special Appeal (Writ) No. 850 of 2009 and upheld the order passed by the learned Single Judge dated 31st March, 2009 in S.B. Civil Appeal Writ Petition No. 1702 of 1995. We, accordingly, set aside the impugned judgment and order dated 10th May, 2012 passed by the Division Bench of the High Court in D.B. Civil Special Appeal (Writ) No. 850 of 2009 and upheld the order passed by the learned Single Judge dated 31st March, 2009 in S.B. Civil Appeal Writ Petition No. 1702 of 1995. The respondents are directed to implement the direction and order dated 31st March, 2009 issued by the learned Single Judge within four weeks from the date of receipt of copy of this judgment." 5. Applying the said judgment to the facts of the present case, the punishment of censure imposed on the petitioner is set-aside. However, the punishment of treating the period of absence as dies-non is retained. Since the punishment of censure is set-aside, the claim of the petitioner seeking promotion from earlier date shall be considered by the 2nd respondent and necessary order is directed to be passed within a period of six weeks from the date of receipt of copy of this order. This writ petition is disposed of in the aforesaid directions. No costs.