Surya Pal deceased) represent ed by LRs - Pet it ioners v. Public Services Tribunal St at e of Ut t arakhand and ot hers

Judgment

( p e r H o n ’ b l e Ju st i ce Sr i M a n o j K u m a r Ti w a r i )

1. Pet it ioner has challenged t he j udgm ent dat ed

04.06.2010, rendered by Ut t arakhand Public Service Tribunal in Claim Pet it ion No 43/ T/ 2005. He has also

challenged t he punishm ent of rem oval from service im posed upon him , vide order dat ed 17.07.1997.

2. From perusal of t he record, it reveals t hat pet it ioner was appoint ed as Const able ( Civil Police) on 18.08.1981; on

31.12.1992 while he was post ed in Police St at ion, Narender Nagar, Tehri Garhwal, he along wit h ot her const ables was sent t o Police St at ion Tehri for law and order dut y; he absent ed him self from dut y on 12.01.1993 wit hout seeking perm ission or leave and he report ed back for dut y aft er 123 days on 14.05.1993 and, he was dism issed from service vide order dat ed 12.08.1993, passed by Superint endent of Police, Tehri Garhwal.

3. Pet it ioner preferred Depart m ent al Appeal and t he Deput y I nspect or General of Police, Pauri Garhwal, vide order dat ed 17.02.1996, set aside t he dism issal order and 1 ordered t hat t he m at t er be enquired afresh.

4. A charge sheet was issued on 14.05.1996 which was served on pet it ioner on 15.05.1996; pet it ioner was required t o subm it his reply and 07.06.1996 was fixed for recording st at em ent of wit nesses and 18.02.1997 was defence evidence, however, pet it ioner neit her filed reply t o t he charge sheet nor he part icipat ed t he enquiry proceedings and not ices sent t o t he pet it ioner at his resident ial address also, could not bear any result t herefore, enquiry was conduct ed ex part e and based on t he findings ret urned by enquiry officer, punishm ent order was passed against him . Pet it ioner filed Depart m ent al Appeal which was dism issed by Deput y I nspect or General of Police, vide order dat ed 10.09.1998.

5. Before learned Tribunal, pet it ioner challenged t he dism issal order and t he order passed by Appellat e Aut horit y on t he t wo following grounds: ( i) ( ii) Pet it ioner was not given opport unit y t o defend him self during depart m ent al enquiry. int o The considerat ion t he past conduct of t he pet it ioner for t he purposes of punishm ent . disciplinary aut horit y t ook

6. Learned Tribunal held t hat pet it ioner him self is t o be blam ed for not filing reply t o t he charge sheet and for not part icipat ing in t he disciplinary enquiry despit e repeat ed not ices.

7. Regarding second ground of challenge t aken by t he pet it ioner, learned Tribunal held t hat m ere m ent ioning of past conduct of pet it ioner in t he enquiry report will not vit iat e t he enquiry, by relying on t he law declared by 2 Hon’ble Suprem e Court in t he case of Un i o n o f I n d i a a n d o t h e r s Vs. Bi sh a m b e r D a s D o n g r a , ( 2 0 1 0 ) 1 SCC ( L& S) 2 1 2 . Against dism issal of his claim pet it ion by learned Tribunal, pet it ioner has approached t his Court .

8. Learned counsel for pet it ioner subm it t ed t hat in t he fact s and circum st ances of t he case, Rule 16 of U.P. Police Officers of t he Sub ordinat e Ranks ( Punishm ent and Appeal) Rules, 1991 is at t ract ed and before t aking depart m ent al proceedings in absent ia, t he concerned aut horit y was required t o record in writ ing t hat despit e best effort s it was not possible t o cont act t he pet it ioner. Rule 16 of t he aforesaid Rule is ext ract ed below: - “ 16. Pr o ce e d i n g s ( 1 ) Depart m ent al i n a b se n t i a – proceedings against delinquent police officer s m ay be t aken in absent ia by t he aut horit ies com pet ent t o t ake depart m ent al proceedings if, t he police officer, against whom depart m ent al proceedings are pending or against whom it is proposed t o st art such proceedings or t o whom t o cont act , deliberat ely absent s him self from t he place of his post ing or from t he proceedings w hen in progress. t he enquir y officer responsible ( 2) Befor e t aking depart m ent al pr oceedings in absent ia, t he concer ned aut horit y shall r ecor d in writ ing t hat in spit e of all reasonable st eps having been t aken t o cont act t he police officer it has not been possible t o serve t he charge on him and obt ain his ex planat ion or t o secure his per sonal presence. Explanat ion – Wher e t he police officer is cont act ed personally or t he charge or t he not ice is sent t o him by regist ered post at t he address given by him as recorded in his charact er roll and at t he place of his present st ay, or sent t o him by Special Messenger at t he place of his present st ay, and at t he address given by him as recorded in his charact er roll it shall be presum ed t hat reasonable st eps have been t aken t o cont act t he police officer concerned.“

9. The cont ent ion raised by learned counsel for pet it ioner cannot be accept ed. Perusal of Rule 16( 2) reveals t hat Rule 16 of said Rules would be at t ract ed in cases where it is not 3 possible t o serve t he charge sheet on a police officer of subordinat e rank.

10. I t is not in disput e t hat charge sheet was duly served upon t he pet it ioner. I n fact , in para 11 of t he writ pet it ion, pet it ioner has m ade a st at em ent t hat charge sheet was issued t o pet it ioner on 14.05.1996 and pet it ioner subm it t ed his reply on 28.05.1996. Thus, reliance on Rule 16 of t he aforesaid rules is m isplaced as pet it ioner did not part icipat e in t he enquiry proceedings despit e service of charge sheet . Therefore, t he cont ent ion t hat he was not given opport unit y t o defend him self, is not sust ainable in t he eyes of law.

11. Learned counsel for pet it ioner t hen subm it t ed t hat in t he enquiry report , t here is reference t o t he past conduct of pet it ioner which was not t he subj ect m at t er of enquiry, t herefore, t he enquiry proceedings st and vit iat ed due t o reference of past conduct .

12. Learned counsel for pet it ioner subm it s t hat pet it ioner ’s absence from dut y was not willful as his wife was ailing and pet it ioner had t o look aft er her. He subm it s t hat in view of law declared by Hon’ble Suprem e Court in t he case of K r u sh n a k a n t B. Pa r m a r Vs. Un i o n o f I n d i a a n d A n o t h e r , report ed in ( 2 0 1 2 ) 3 SCC 1 7 8 , punishm ent of rem oval from service im posed upon t he pet it ioner is liable t o be set aside.

13. The j udgm ent relied by learned counsel t he pet it ioner is dist inguishable on fact s. I n t hat case, t he concerned em ployee was t ransferred during t he pendency of disciplinary enquiry. The t ransfer order was set aside by Cent ral Adm inist rat ive Tribunal by holding t hat t he order of 4 t ransfer is vit iat ed due t o m alice in law and fact , which was affirm ed by Hon’ble Guj arat High Court . I n peculiar fact s of t hat case, Hon’ble Suprem e Court set aside t he order of dism issal from service. The said j udgm ent is dist inguishable on fact s; t herefore, it does not support t he case of t he pet it ioner.

14. Hon’ble Suprem e Court in t he case of Go v e r n m e n t o f A .P. a n d o t h e r s Vs. M o h d . Ta h e r A l i , report ed in ( 2 0 0 7 ) 8 SCC 6 5 6 has held t hat t here can be no hard- and- fast rule t hat m erely because t he earlier m isconduct has not been m ent ioned in t he charge- sheet , it cannot be t aken int o considerat ion by t he punishing aut horit y. Considerat ion of t he earlier m isconduct is oft en only t o reinforce t he opinion of t he said aut horit y. The police force is a disciplined force and if t he respondent is a habit ual absent ee, t hen t here is no reason t o ignore t his fact at t he t im e of im posing penalt y. Perusal of t he record reveals t hat respondent was in t he habit of rem aining absent from dut y wit hout seeking perm ission or leave. Mem bers of t he uniform ed forces cannot absent t hem selves on frivolous plea, having regard t o t he nat ure of dut ies enj oined on police force.

15. I n t he case of Un i o n o f I n d i a a n d o t h e r s Vs. D a t t a Li n g a To sh a t w a d report ed in ( 2 0 0 5 ) 1 3 SCC 7 0 9 held as under: “ 8. The present case is not a case of a const able m erely overst aying his leave by 12 days. The respondent t ook leave from 16- 6- 1997 and never report ed for dut y t hereaft er. I nst ead he filed a writ pet it ion before t he High Court in which t he im pugned order has been passed. Mem bers of t he uniform ed forces cannot absent t hem selves on frivolous pleas, having regard t o t he nat ure of t he dut ies enj oined on t hese forces. Such indiscipline, if it goes unpunished, will great ly affect t he discipline of t he forces. I n such forces desert ion is a serious m at t er. Cases of t his nat ure, in what ever m anner described, are cases of desert ion part icularly when t here is apprehension of t he m em ber of t he force being called upon t o perform onerous 5 dut ies in difficult t errains or an order of deput at ion w hich he finds inconvenient , is passed. We cannot t ake such m at t ers light ly, part icularly when it relat es t o uniform ed forces of t his count ry. A m em ber of a uniform ed force who overst ays his leave by a few days m ust be able t o give a sat isfact ory explanat ion. However, a m em ber of t he force who goes on leave and never report s for dut ies t hereaft er, cannot be said t o be one m erely overst aying his leave. He m ust be t reat ed as a desert er. He appears on t he scene for t he first t im e when he files a writ pet it ion before t he High Court , rat her t han report ing t o his Com m anding Officer. We are sat isfied t hat in cases of t his nat ure, dism issal from t he force is a j ust ified disciplinary act ion and cannot be described as disproport ionat e t o t he m isconduct alleged.

16. Learned Tribunal has given valid reasons for dism issing t he claim pet it ion. We concur wit h t he reasons given by learned Tribunal. Thus, t here is no scope for int erference in t he m at t er. The writ pet it ion fails and is dism issed. No order as t o cost s. _______________________________ M A N OJ K UM A R TI W A RI , J. ____________________________ SUBH A SH UPA D H YA Y, J. Dt : 2 nd July, 2025 Mahinder MAHINDER SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=da6212e6e78d94ed3134842bc6a8d6ca168979ca7b8c2f0 31a92d1a18b08923c, postalCode=263001, st=UTTARAKHAND, serialNumber=AB77B7C5B240908B392BE84F5CDD4C2AF35DC46 26D305B1BC9EA4BABA43D2B8F, cn=MAHINDER SINGH 6