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2019 DIGILAW 156 (UTT)

Ram Avtar Singh v. State of Uttarakhand

2019-03-05

N.S.DHANIK, RAMESH RANGANATHAN

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JUDGMENT : RAMESH RANGANATHAN, J. 1. The application, seeking condonation of delay, is not opposed by the learned counsel for the respondents and the delay is, therefore condoned. 2. This appeal is preferred against the order passed by the learned Single Judge in WPSS No. 994 of 2014 dated 07.01.2017. Facts, to the limited extent necessary, are that the petitioner was appointed as a Constable, in the erstwhile Police Armed Constabulary, in the year 1992. He was granted 12 days leave to go to his home station i.e. Kanpur Dehat. Leave was sanctioned to him on 18.07.1992 and, in terms thereof, the appellant-writ petitioner was required to report back for duty at Rudrapur in Nainital District on 31.07.1992. The appellant-writ petitioner, however, chose not to report for duty. Several notices were sent to his home address on 14.08.1992, 26.08.1992, 19.09.1992, 24.09.1992, 21.01.1993, 12.04.1993 & 17.05.1993, and most of these notices remained unserved. Thereafter special messengers were sent to inquire about the whereabouts of the petitioner. In his report, the Dal Naik Sri Raphal Singh stated that the petitioner was not in Kanpur Dehat which was his home address, and for which he had taken leave, but he was carrying on business in Haridwar at Itawa. This report of Sri Raphal Singh, and the subsequent report of Genda Lal, showed that the petitioner was carrying on private business. While the appellant-writ petitioner had contended that he was unwell, the report indicated that he appeared well from his appearance. 3. Thereafter a show cause notice was served upon the petitioner and, subsequently, a charge-sheet was issued to him on 15.07.1993. As the appellant-writ petitioner did not submit his reply to the charge memo, inquiry proceedings were held ex-parte and his services were terminated by order dated 08.09.1993. The said order of termination was subjected to challenge before the State Public Services Tribunal, and the claim petition filed by the appellant-writ petitioner was dismissed by order dated 09.05.2003. The appellant-writ petitioner questioned both the order of termination dated 08.09.1993, and the order of the Tribunal dated 09.05.2003, before the Lucknow Bench of the Allahabad High Court on the ground that the inquiry report was not furnished to him. The Division Bench allowed the writ petition, and set-aside the order of termination dated 08.09.1993 as well the order of the Tribunal dated 09.05.2003. The Division Bench allowed the writ petition, and set-aside the order of termination dated 08.09.1993 as well the order of the Tribunal dated 09.05.2003. The Division Bench further observed that reinstatement of the petitioner in service would be subject to the final order to be passed by the competent authority after considering the reply submitted by the petitioner (evidently his reply to the inquiry report). 4. In the order under appeal, the learned Single Judge observed that the petitioner was reinstated into service; thereafter a show cause notice was given to him on 11.11.2013, along with the inquiry report, to which he submitted his reply; on the ground that his reply was not convincing, the competent authority again passed an order of dismissal dated 11.12.2013; the appellant-writ petitioner had not challenged any procedural flaws in the inquiry proceedings; the petitioner had contended that he and his father were residing at Manpuri Railway Phatak Crossing in Itawa; his father was engaged in hardware business; he was not well and was suffering from Colitis; and he was being treated by Homeopathic Doctor at Aligarh. 5. The learned Single Judge, thereafter, observed that the petitioner had misled the authorities that he was going on leave to his home town in Kanpur Dehat, while he was admittedly staying in Itawa, and was carrying on a private business. After referring to Regulations 381 and 382 of the Police Regulations, the learned Single Judge held that, prior to initiation of disciplinary proceedings, and during the period he remained absent for more than one year, the petitioner did not inform the authorities that he was suffering from illness; the petitioner remained absent without leave for which he did not furnish any information to the concerned authorities; and, considering that PAC was a disciplined police force, long absence without leave by the petitioner called for the extreme punishment. Aggrieved thereby, the present appeal. 6. Aggrieved thereby, the present appeal. 6. Sri Dinesh Gahatori, learned counsel for the appellant, would place reliance on the judgment of the Supreme Court, in UCO Bank & others vs. Prabhakar Sadashiv Karvade: (2018) 4 SCC 98, to contend that, pursuant to the order of the Allahabad High Court dated 22.07.2013, the appellant-writ petitioner ought to have been reinstated into service; no order of reinstatement was issued to the petitioner; instead, a show cause notice was issued to him on 11.11.2013, to which he submitted a reply on 19.11.2013; thereafter, a fresh order of dismissal was passed on 11.12.2013; the disciplinary proceedings, being conducted against him even without his being reinstated into service, is illegal and necessitates being set-aside; no disciplinary proceedings can be held against a person who is not employed, since a master and servant relationship does not exist in such circumstances; and it is only after he is reinstated into service, can the petitioner be held to be an employee of the provincial constabulary. While this contention has not been urged either in the grounds of appeal, or in the grounds urged in the writ petition, Sri Dinesh Gahatori, learned counsel for the petitioner, would contend that it is a pure question of law which can be raised at any time, even during the course of hearing of the appeal. 7. The law declared by the Supreme Court, in UCO Bank & others vs. Prabhakar Sadashiv Karvade: (2018) 14 SCC 98 , prohibits imposition of penalty of removal or dismissal from service, on an employee who has already retired from service; and it is in that context, that the Supreme Court held that, if the person is not in employment, the question of terminating his services would not, ordinarily, arise unless there exists a specific rule in this regard. Reliance placed on the judgment in UCO Bank & others vs. Prabhakar Sadashiv Karvade: (2018) 14 SCC 98 is wholly misplaced as the petitioner did not retire from service consequent on his attaining the age of superannuation. 8. Reliance placed on the judgment in UCO Bank & others vs. Prabhakar Sadashiv Karvade: (2018) 14 SCC 98 is wholly misplaced as the petitioner did not retire from service consequent on his attaining the age of superannuation. 8. The fact, however, remains that, in terms of the judgment of the Allahabad High Court setting aside the punishment of dismissal from service on the ground that a copy of the inquiry report was not furnished to him, the appellant-writ petitioner was required, in terms of the law declared by Supreme Court in Managing Director, ECIL, Hyderabad & others vs. B. Karunakar & others: (1993) 4 SCC 727 , to be reinstated into service. As held by the Supreme Court, in Managing Director, ECIL, Hyderabad & others vs. B. Karunakar & others, consequent on the order of punishment being set-aside by the Court for not furnishing the delinquent employee a copy of the enquiry report, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority to proceed with the inquiry, if need be, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report; and the question whether an employee would be entitled to back wages and other benefits, from the date of his dismissal till the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings, and depending on the final outcome. 9. If, as is now being contended before us, the appellant-writ petitioner was not reinstated into service as per the order of the Division Bench of the Allahabad High Court dated 22.07.2013, the respondents would then be held to have acted contrary to the law declared by the Supreme Court in Managing Director, ECIL, Hyderabad & others vs. B. Karunakar & others. Even then, all that the appellant-writ petitioner would be entitled is for payment of salary during the period from when the Division Bench of the Allahabad High Court passed the order dated 22.07.2013 till a fresh order of dismissal was passed on 11.12.2013 i.e. for a period of a little more than five months. 10. Even then, all that the appellant-writ petitioner would be entitled is for payment of salary during the period from when the Division Bench of the Allahabad High Court passed the order dated 22.07.2013 till a fresh order of dismissal was passed on 11.12.2013 i.e. for a period of a little more than five months. 10. As there is no specific averment in the writ petition in this regard, and as the learned Single Judge has, in the order under appeal, held that the petitioner was reinstated into service, suffice it to permit the appellant-writ petitioner to make a representation to the authorities claiming salary for this period, i.e. from 22.07.2013 to 11.12.2013, on the ground that the authorities had failed to reinstate him into service, pursuant to the order of the Division Bench of the Allahabad High Court. If, after verification of the records, the authorities are satisfied that the petitioner was, in fact, not reinstated into service pursuant to the order of the Allahabad High Court dated 22.07.2013, the appellant-writ petitioner shall then be entitled for the benefit of salary for this period of five months from 22.07.2013 to 11.12.2013. 11. The entire exercise culminating in an order being passed, and if need be for payment of salary for the aforesaid period of five months, shall be completed within four months from the date of receipt of the petitioner’s representation in this regard. Except for this contention, no other contention has been urged against the order of the learned Single Judge. Subject to the aforesaid observations, the appeal fails and is, accordingly, dismissed. No costs.