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2020 DIGILAW 89 (UTT)

SHYAM LATA VERMA v. STATE OF UTTARAKHAND

2020-02-12

R.C.KHULBE, RAMESH RANGANATHAN

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JUDGMENT Ramesh Ranganathan, C.J. (Oral) Heard Mr. Arvind Vashisth, learned Senior Counsel, assisted by Mr. Hemant Mehra, learned Counsel for the petitioner and Mr. Vikas Pandey, learned Standing Counsel for the State/respondents, and, with their consent, this writ petition is disposed of at the admission stage. 2. The petitioner has invoked the jurisdiction of this Court questioning the order passed by the Public Services Tribunal, Uttarakhand, Dehradun; to allow the claim petition in totality; to quash and set aside the orders, impugned in the claim petition, dated 23.09.2015 and 20.07.2017; and to issue a writ of mandamus commanding and directing the respondents to reinstate the petitioner back into service with all consequential benefits. 3. Facts, to the limited extent necessary, are that the petitioner was appointed as a Constable on 01.02.1988. During the year 2013, when she was posted at Thana Kalagarh, she submitted an application seeking three days' casual leave on the ground of illness. She claims to have sent an application seeking extension of leave for 7 days, by fax, on 27.5.2013, and again by registered post on 01.06.2013. She also claims to have again applied for leave and to have made a request by a letter sent through registered post on 4/5.9.2013. This application was for grant of leave, initially for 10 days, and thereafter for 90 days. The Deputy Superintendent of Police, Kotdwar, by proceedings dated 17.9.2013, suspended the petitioner for un-authorised absence from 28.5.2013, and directed her to appear before him on 17.9.2013. She, admittedly, did not appear before the Deputy Superintendent of Police, but claims to have submitted her reply by fax on 27.9.2013. The third respondent called upon the petitioner to report for duty by proceedings dated 21.10.2013, but the petitioner did not join duty. 4. The fact that the petitioner was absent from duty for a period in excess of 2 years and 4 months, and that she was absent from duty without sanction of leave for more than two years, is admitted, across the Bar, by Sri Arvind Vashisth, learned Senior Counsel, appearing on her behalf. 5. A charge-sheet was issued to the petitioner, receipt of which is disputed by her. She contends that no such charge-sheet was served on her. A departmental enquiry was conducted ex parte, and a copy of the enquiry report was furnished to her, which she admits receipt of. 5. A charge-sheet was issued to the petitioner, receipt of which is disputed by her. She contends that no such charge-sheet was served on her. A departmental enquiry was conducted ex parte, and a copy of the enquiry report was furnished to her, which she admits receipt of. She claims to have submitted her reply to the enquiry officer's report. 6. The petitioner eventually joined duty on 18.09.2015. The disciplinary authority agreed with the findings of the enquiry officer, and imposed on the petitioner the punishment of dismissal from service. The petitioner preferred an appeal to the second respondent seeking, among others, voluntary retirement. The appeal was rejected by the second respondent by order dated 20.7.2017. Aggrieved thereby, the petitioner herein invoked the jurisdiction of the Public Services Tribunal. 7. The petitioner preferred an appeal to the second respondent seeking, among others, voluntary retirement. The appeal was rejected by the second respondent by order dated 20.7.2017. Aggrieved thereby, the petitioner herein invoked the jurisdiction of the Public Services Tribunal. 7. In the order, impugned in the writ petition, the Tribunal observed that, after proceeding on leave on 24.5.2013 for three days, the petitioner never appeared before the Department nor did she file any application seeking further leave; while the petitioner claims to have submitted an application seeking extension of 7 days' leave on account of her illness, no such illness certificate was attached with her application; thereafter, neither did the petitioner appear before the Department nor had she submitted any application with a medical certificate; she was required to submit an application for medical leave along with a proper medical certificate issued by the competent doctor, under whose supervision she was undergoing treatment; the Deputy Superintendent of Police, Kotdwar had sent several letters calling upon the petitioner to resume duty and to show cause for her absence; being a member of a disciplined police force, the petitioner ought to have been aware that she could not remain absent in such a manner; if she was unable to discharge her duties on account of illness, she was duty bound to send her request for leave along with the medical certificate; the petitioner was also duty bound to inform the Department of her change in address as also the place where she was getting treatment; there was no material on record to show that she was suffering from any serious disease; all the certificates submitted by her were not found trust-worthy by the Department; the long period of absence, in excess of 2 years and 4 months, without getting any leave as per rules, was found unjustified; the long absence of petitioner from duty, without prior sanction of leave and without intimating the Department, especially in a disciplined police force, was a serious misconduct; and, therefore, the disciplinary authority was well within his right in imposing the punishment of dismissal from service. The Tribunal further held that it could not re-appreciate the evidence and come to a different conclusion regarding proof of a particular charge; the petitioner was given every opportunity to defend herself; and the order of punishment did not necessitate any interference. 8. Mr. The Tribunal further held that it could not re-appreciate the evidence and come to a different conclusion regarding proof of a particular charge; the petitioner was given every opportunity to defend herself; and the order of punishment did not necessitate any interference. 8. Mr. Arvind Vashisth, learned Senior Counsel, initially contended that no charge-sheet was issued to the petitioner, and that the record discloses that the show-cause notice issued, seeking the petitioner's objection to the enquiry report, was treated as a charge-sheet. On the Court pointing out that the petitioner had, on her own admission, remained absent from duty without even applying for leave for a period in excess of two years, and on being asked as to how her conduct justified a lenient view being taken, more so when she belonged to a disciplined police force, learned Senior Counsel, (on instructions from the petitioner who he said is present in Court), would submit that the petitioner does not press for adjudication of any other contention, except for her claim that she should have, at least, been considered for voluntary retirement as she had put in more than 25 years of service by then. 9. The order of the appellate authority discloses that the petitioner had requested him to grant voluntary retirement. Her request was negatived on the ground that she did not appear before him. While continuing the petitioner in service, in a disciplined police force, may not be justified in view of her misconduct of having remained absent, without even applying for leave for a period in excess of 2 years, we are satisfied that the appellate authority ought to have considered the petitioner's claim for being granted voluntary retirement benefits. This aspect has not been considered by the Tribunal. 10. While we see no reason to interfere with the order of the disciplinary authority, suffice it to set aside both the orders of the Public Services Tribunal, and the Appellate Authority, to the limited extent that the petitioner's claim for grant of voluntary retirement has not been properly considered by either of them. 10. While we see no reason to interfere with the order of the disciplinary authority, suffice it to set aside both the orders of the Public Services Tribunal, and the Appellate Authority, to the limited extent that the petitioner's claim for grant of voluntary retirement has not been properly considered by either of them. The Appellate Authority shall, within three months from the date of receipt of a copy of this order, consider the petitioner's claim to the limited extent that she be extended the benefit of voluntary retirement, as she has completed more than 25 years of service before she was dismissed from service on the ground of un-authorised absence from duty. The Appellate Authority shall consider the petitioner's request for voluntary retirement strictly in accordance with the rules, and in case he is satisfied that she should be extended the benefit of voluntary retirement, to then direct payment of such benefits to her within two months thereafter. 11. We make it clear that we have not expressed any opinion on whether or not the petitioner is entitled for voluntary retirement, as these are matters for the Appellate Authority to consider in accordance with law. 12. The writ petition stands disposed of accordingly. No costs.