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2020 DIGILAW 540 (ALL)

Kusum v. State of U. P.

2020-02-18

SANGEETA CHANDRA

body2020
JUDGMENT : 1. Heard the learned counsel for the parties and perused the record. 2. This petition has been filed challenging the order dated 09.12.2010 passed by the respondent no.3, the Inspector General of Police, Meerut, dismissing the petitioner's husband on grounds of unauthorized absence. 3. The petitioner who is widow of Late Ram Prasad has filed this petition alleging that her husband Late Ram Prasad was posted as Constable in Civil Police and had fallen seriously ill when he returned home from duty on 24.04.2007. A preliminary Inquiry was conducted which recommended regular disciplinary proceedings to be initiated against the petitioner on 16.04.2008. The charge framed by the respondent was that Late Ram Prasad had remained unauthorizedly absent with effect from 24.04.2007 to 15.02.2009. In the Departmental Inquiry, Ram Prasad had admitted to the fact of his absence and mere admission had been treated as admission of his guilt also regarding unauthorized absence and the order of dismissal was passed. Although the Inquiry Officer, while submitting his Inquiry Report had recommended that Ram Prasad should be warned and should be placed on minimum pay scale for three years, the petitioner's husband was dismissed by the order dated 09.12.2010 and died thereafter, on 25.12.2010 as he continued to be seriously ill. 4. It is alleged that the petitioner tried to submit an Appeal before the Appellate Authority but was orally informed that under Rule 20 of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991, only a Police Officer can file an Appeal against a punishment order and the widow of the deceased Police Officer cannot file such an Appeal. 5. Learned counsel for the State-respondents, on the basis of the dismissal order challenged in this writ petition, has pointed out the detailed consideration made by the Appointing Authority wherein it has been stated that the Delinquent employee had given his oral evidence on 11.02.2010 saying that he had remained absent. That he had received the charge-sheet on 23.06.2009 but did not wish to submit any reply to the same nor he did wish to cross-examine the prosecution witnesses nor produce any defence witnesses in his support. He had pleaded guilty to the charge of absence with effect from 24.04.2007 to 15.02.2009. 6. It has been submitted that admission is the best form of evidence in conducting any Departmental Enquiry. He had pleaded guilty to the charge of absence with effect from 24.04.2007 to 15.02.2009. 6. It has been submitted that admission is the best form of evidence in conducting any Departmental Enquiry. Any irregularity of procedure would not give any benefit to the petitioner, once there is an admission by the Delinquent employee himself of his remaining absent without leave. 7. This Court has perused the order impugned dated 09.12.2010. It mentions clearly that Late Ram Prasad was on duty at Sadar Havalat, Meerut, on 24.04.2007, when he suddenly took ill and went home. In his defence statement he has also admitted that he did not give any information regarding his illness to his Higher Officers and that he did not possess any papers regarding his illness, at the moment, as they had been lost, but he would be careful in future and inform the Authorities in case he absented himself from duty in future. 8. The dismissal order also states that since there is an admission of guilt and the failure to produce any documentary evidence regarding illness by the Delinquent employee, it appeared that the Delinquent employee was only trying to mislead the Higher Officers by feigning illness. By a separate order passed on the same day i.e. 09.12.2010, the Appointing Authority has held that Late Ram Prasad would not to be entitled to get any wages for the period he had not worked with effect from 24.04.2007 to 15.02.2009. 9. This Court finds from a perusal of the facts as mentioned in the writ petition and also a copy of the Appeal which was tried to be filed by the widow of Late Ram Prasad, that Ram Prasad was suffering from pulmonary Tuberculosis (T.B.) and he was confined to bed. Late Ram Prasad had completed 29 years of unblemished service before his unauthorized absence. In fact, Ram Prasad was so seriously ill that within months of the completion of the regular Disciplinary proceedings against him, and within a fortnight of the dismissal order dated 09.12.2010, he died on 25.10.2010. 10. The admission of guilt of Late Ram Prasad was only with regard to his absence. The reasons for such absence being illness in view of the law settled by the Hon'ble Supreme Court in the case of Krushnakant B. Parmar Vs. 10. The admission of guilt of Late Ram Prasad was only with regard to his absence. The reasons for such absence being illness in view of the law settled by the Hon'ble Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India and another, reported in 2012 (30) LCD 519 , paragraphs 16 to 20 of which are being quoted herein below:- "16. The question whether 'unauthorized absence from duty' amounts to failure of devotion to duty or behavior unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be willful. 18. Absence from duty without any application or prior permission may amount to unauthorized 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. 19. In a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct. 20. 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 the absence is willful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the Appellant guilty." It cannot be held that the delinquent employee had "wilfully" absented himself from duty leading to the charge of unauthorized absence being proved. Absence can be sufficiently explained by the employee if he suffers from serious illness. 11. Liberty should have been given to Late Ram Prasad to produce evidence of illness, at the time when the delinquent employee was alive, before submission of final Enquiry Report. 12. The order dated 09.12.2010 is set aside. The matter is remanded to the Appointing Authority to consider afresh on the basis of any documentary evidence that the petitioner wishes to produce before him, with regard to the illness of Late Ram Prasad. 12. The order dated 09.12.2010 is set aside. The matter is remanded to the Appointing Authority to consider afresh on the basis of any documentary evidence that the petitioner wishes to produce before him, with regard to the illness of Late Ram Prasad. 13. Let a representation be filed by the petitioner i.e. widow of Late Ram Prasad alongwith all documentary evidence before the Appointing Authority, the opposite party no.3-The Inspector General of Police, Meerut, who shall consider the same and pass appropriate reasoned and speaking order thereafter taking into account the judgement of Hon'ble the Supreme Court in the case of Krushnakant B. Parmar (supra). 14. Writ petition stands partly allowed to this extent.