High Court · 2025 on 21 Mar 2025

Judgment

1. Heard Sri Siddharth Srivastava, learned counsel for the petitioner and learned State Counsel for the State-respondents.

2. This petition is directed against the order of punishment passed against the petitioner which has been affirmed by the UP Public Services Tribunal. The main prayer in the writ petition is to quash the order passed by the disciplinary authority dated 10.05.1996, as affirmed in appeal on

25.05.1996, as well as in revision on 16.08.1996. The order passed by the UP Public Service Tribunal dated 08.02.2000 is also challenged.

3. Undisputed facts as emerge on record are that the petitioner got appointed as constable in Uttar Pradesh Provincial Armed Constabulary (PAC) on 21.05.1989. On 03.09.1994, he availed of 20 days earned leave. He was to return on duty on 23.9.1994. However, the petitioner did not report for joining and instead sent a letter, according to which his sister had gone missing and he was going to Muzaffarpur to trace her. It is admitted that the petitioner did not report for joining and continued to remain absent. A charge sheet came to be issued to him on 12.09.1995, in which the main charge against him was of unauthorized absence from duty w.e.f. 03.09.1994. This charge sheet was served upon the petitioner while he was in jail on 13.09.1995. In reply to this charge sheet, brother of the petitioner sent a letter stating that the petitioner denies charges levelled against him and as soon as he comes out of jail, he would submit a detailed explanation. The petitioner also sent a letter disputing the charges levelled against him and stated that he would immediately contest the proceedings as soon as he is released from jail. The petitioner was released from jail on 09.10.1995. Notwithstanding his release from jail, the petitioner did not participate in the disciplinary inquiry and no reply etc. was submitted.

4. According to the petitioner, he continued to remain ill and for such reason, he was incapacitated from submitting a reply. Certain medical certificates were also sent in that regard. Ultimately, the petitioner offered his joining on 19.01.1996 after absence from duty of 483 days. A reply to

the charge sheet was submitted by the petitioner for the first time on

08.04.1996. The inquiry officer in the meantime had proceeded ex-parte and recorded the statement of the witnesses on 15.01.1996. The inquiry report was thereafter submitted on 17.04.1996. A show cause notice was issued to the petitioner on 24.04.1996. The petitioner submitted reply to the show cause notice on 01.05.1996. It is thereafter that the petitioner has been dismissed from service on the ground of unexplained absence of 483 days by the disciplinary authority. The appeal and revision filed against the orders have also failed. The Tribunal has also rejected the claim petition of the petitioner.

5. Learned counsel for the petitioner submits that the orders impugned are wholly perverse and erroneous for the following reasons: (i) The petitioner was denied fair opportunity to defend himself in the disciplinary inquiry inasmuch as the statement of the witnesses was recorded in his absence and he had no opportunity to cross examine them. (ii) Section 29 of the Police Act, 1861 at best enable the respondents to impose minor punishment upon the petitioner and that imposition of major punishment was uncalled for and impermissible in law. 2 of 10 (iii) The petitioner had submitted various medical certificates and in the event the respondents were not satisfied with it, they could have constituted a medical Board for its examination but it was not open for the respondents to conclude that medical certificates were not reliable. (iv) It is alleged that because of the petitioner’s illness and his incarceration in jail for almost 40 days, he could not effectively contest the charge and the disciplinary authority as well as the Tribunal has not considered the matter in correct perspective.

6. In support of his submission, learned counsel for the petitioner has placed reliance upon a judgment of Hon’ble Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India and another (2012) 3 SCC 178 wherein Hon’ble Supreme Court has observed that where allegation of unauthorized absence from duty is made, the disciplinary authority is required to hold that absence is wilful and in the absence of such finding, the absence will not amount to any misconduct. Reliance is also placed upon a decision of the learned Single Judge of this Court in the case of Dinesh Kumar Vs. State of UP and others 2016 SCC OnLine All 2933, Syed Amirul Haq Vs. State of UP and others 2015 SCC OnLine All 8399 and Ram Ujagar Yadava Vs. State of UP and others, 2006 SCC ONLine All 357 .

7. It is also aruged on behalf of the petitioner that in the facts and circumstances of the case, punishment imposed upon the petitioner is wholly disproportionate. Reliance is placed upon paragraph no.8 of the judgment in the case of Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and others (2004) 4 SCC 560 wherein absence from duty of 2 months, 7 days and 17 hours on medical ground was not found to constitute sufficient basis to impose major punishment upon the employee.

8. It is further contended on behalf of the petitioner that materials relied upon against him did not form part of the charge sheet as a result of 3 of 10 which the petitioner is prejudiced as he has not been able to submit his defence in respect of materials relied upon against the petitioner.

9. Sri D.K. Tiwari, learned Additional Chief Standing Counsel for the State argues that petitioner is a member of armed / disciplined force and his absence from duty of such long period cannot be condoned. He also submits that contradictory plea put forth by the petitioner has exposed the falsity of his defence and the concurrent findings returned against him in the disciplinary proceedings as also the Tribunal warrants no interference.

10. We have heard learned counsel for the parties and perused the materials on record.

11. It is undisputed that the petitioner had availed of 20 days earned leave on 03.09.1994 and he was supposed to return on 23.09.1994. The petitioner informed the Commandant of 37 Battalion PAC that his sister was missing since 21.09.1994 and that she is at Jamshedpur Tata and, therefore, he is going in search of his sister. In this letter, the petitioner clearly stated that his 20 days leave would expire on 24.09.1994 but considering the fact that he has to go out in search of his sister, he be granted 7 days casual leave. This letter sent by the petitioner has been brought on record by the respondents by filing a supplementary counter affidavit. The letter is referred to in paragraph no.10 of the supplementary counter affidavit. A supplementary rejoinder affidavit has been filed in which the letter annexed along with supplementary counter affidavit, is not denied. This clearly proves that after expiry of 20 days leave the petitioner failed to join for duty on the ground that he was going outstation in search of his sister, who had gone missing.

12. Along with supplementary counter affidavit, the respondents have placed on record a letter of the petitioner addressed to the Commandant, according to which he was sick and was advised medical rest till

26.02.1995. In this letter, the petitioner stated that he would return on duty on 27.02.1995. This letter is in handwriting of the petitioner himself and 4 of 10 forms part of the record of the present writ petition. Sending of both these letters are not disputed. In the same supplementary counter affidavit, the respondents have also annexed a letter dated 20.04.1995 whereby the petitioner was informed that he was required to return for duty on

24.09.1994 but he did not return. The letter of 20.04.1994 is sent by the Assistant Commandant who stated that he was holding a preliminary inquiry and the petitioner should appear so that his statement could be recorded.

13. The petitioner in his defence has primarily stated that he was under treatment of Dr. G.K. Tiwari till 21.02.1995 but he got no relief. Thereafter, the petitioner was under treatment of Dr. R.L. Mohip from

21.02.1995 to 09.05.1995. He again could get no relief. Thereafter, the petitioner again went back to Dr. G.K. Tiwari from 10.05.1995 but he got no relief and ultimately he was arrested and sent to jail for offence in Case Crime No.123 of 1995.

14. Before proceeding further, we may refer to the applicable provisions of Police Regulations contained in Paras 381 and 382 which reads as under: “381. It is incumbent on all applicants for medical leave or extension of leaves on medical certificates to apprise the Superintendent of Police in writing of their intention to apply for a medical certificate. Any failure to do so may result in a decision that the medical certificate has be obtained by misrepresentation and may thereby entail serious consequences.

382. Under - officers and constables who fall ill when on duty or who are ill when due to return to duty, must apply for admission to the district police hospital or for treatment at the nearest dispensary, if the police hospital is out of easy reach. The fact of their admission or treatment must be reported to the local Superintendent of Police who unless they are his own subordinates will take immediate steps to communicate the fact to the Superintendent of Police whose subordinates they are. Officers of higher rank are not compelled to apply for admission to police hospitals, but are not relieved of the responsibility while on leave of intimating their intention of obtaining medical certificate to the Superintendent of Police as prescribed above.” 5 of 10

15. From the defence set up by the petitioner, it is apparent that he was under medical treatment before Dr. G.K. Tiwari and Dr. R.L. Mohip at Kanpur Nagar. The petitioner’s posting was also at Kanpur Nagar. Paras 381 and 382 of the Police Regulations required a police personnel to get himself medically examined at the police hospital. It is undisputed that there existed police hospital at Kanpur Nagar and by virtue of the Regulations, he was required to have obtained treatment from such hospital. It is admitted on record that the petitioner never got himself examined at the police hospital. What exactly was the nature of sickness of the petitioner has also not been substantiated. The only material on record are certificates of the doctors. There are three medical certificates of the petitioner. First certificate dated 20.02.1995 is on record, according to which the petitioner was suffering from chronic type of hepatitis and he was advised rest w.e.f. 23.09.1994 and 20.02.1995. Second certificate of Dr. R.L. Mohip is of 09.05.1995 which records that he was under treatment for infective hepatitis w.e.f. 21.02.1995 to 09.05.1995 and was advised complete bed rest. Third medical certificate is of 21.08.1995, as per which the petitioner was under treatment of Dr. G.K. Tiwari from

10.05.1995 to 21.08.1995. The last medical certificate is again of Dr. G.K. Tiwari, dated 15.01.1996, according to which, the petitioner was under treatment from 10.10.1995 to 17.01.1996.

16. The authorities and the Tribunal have taken note of medical certificates adduced by the petitioner and observed that explanation of the petitioner with regard to his incapacity to report for duty due to illness was not credible and reliable for the simple reason that all such descriptions were from the doctors at Kanpur Nagar. There is nothing on record to indicate that the petitioner was ever hospitalized, and the treatment was as the OPD patient. The petitioner was otherwise posted at Kanpur Nagar and there was no reason as to why he could not appear before the police hospital at Kanpur Nagar so that he could be examined. The petitioner also did not inform the Commandant his illness or ever 6 of 10 appeared before him or informed him of his absence from duty. The authorities have also found that conflicting and contradictory explanations were put forth by the petitioner inasmuch as in his letter to the authorities, the petitioner had informed that he had to go out in search of his sister but in his reply to the charge sheet, the petitioner stated that his brother had gone missing which was treated to be a material contradiction in the plea of the petitioner. The fact remains that contradictory stand was taken by the petitioner for his absence, whereas in the disciplinary inquiry, he had asserted his illness, which again was not verified and no reasons were disclosed as to why the petitioner could not appear before the police hospital, as such the authorities and Tribunal have found the explanation of the petitioner not to be reliable.

17. So far as the judgment of Hon’ble Supreme Court in the case of Krushnakant B. Parmar (supra) is concerned, Hon’ble Supreme Court interfered with the decision of the employer only on the ground that no finding was returned with regard to absence being for reasons beyond the control of the employee. In this case, on facts, the authorities have found that the reasons for absence of the petitioner was not consistent and was contradictory. This is apparent in view of the fact that in his own letter, the petitioner disclosed that he is going in search of his sister whereas in the disciplinary inquiry, the petitioner pleaded that he had gone out in search of his brother. It is also admitted that petitioner was involved in a criminal case during this period and he was sent to jail for almost 40 days. So far as the medical prescriptions are concerned, it clearly shows that the petitioner was not hospitalized and was present in the same district. Absence continued for well over a year. The petitioner could neither appear before the authorities or get himself examined in the police hospital. Taking into consideration all such facts as also the fact that petitioner is otherwise a member of the disciplined force, the absence from service for 483 days has been found to be fatal. 7 of 10

18. Learned counsel for the petitioner vehemently urged that by virtue of Section 29 of the Police Act, only punishment which could be imposed upon the petitioner is penalty in the nature of minor punishment. This submission of the petitioner cannot be considered in view of the fact that provision of Section 29 of the Police Act, is not the only provision that operates in the field. The Police Act was enacted in the year 1861. Subsequently, the Governor has notified the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991, in which punishment which could be imposed upon an employee has been specified in Rule 4. These punishments include major penalties and minor penalties. The procedure for conduct of inquiry and award of minor and major punishment has also been specified. In the Rules, there is no specification that absence from duty could only be treated to be a minor misconduct. The nature of misconduct attributed to an employee would vary from case to case. It is for the employer to determine as to what is the nature of misconduct attributed to an employee and what would be the commensurate punishment in respect of such misconduct.

19. In the present case, the disciplinary proceedings have been initiated against the petitioner treating his conduct to be a major misconduct as the unauthorized absence of the petitioner was for a period of 483 days. He is otherwise employee of the disciplined force. In the facts and circumstances, we are of the view that the respondents having found such absence to constitute misconduct under the Rules once has proceeded departmentally against the petitioner and has come to the conclusion that the misconduct is such which requires imposition of major punishment, we do not find such view to be perverse and erroneous. The procedure for imposition of major punishment is otherwise followed by the respondents under the Rules of 1991.

20. So far as the petitioner's submission with regard to denial of opportunity during disciplinary inquiry is concerned, we find that on facts, charge sheet was served on the petitioner on 13.09.1995. The 8 of 10 petitioner had clearly undertaken that as soon as he is released from jail, he would participate in the disciplinary inquiry. Though the petitioner was released on bail on 09.10.1995 yet neither he submitted any reply nor participated in the inquiry. He was present in the same town for all these period. The petitioner was otherwise aware of the disciplinary inquiry initiated and pending against him. For the first time, reply to the charge- sheet has however been submitted by the petitioner on 08.04.1996. We find that the petitioner on one pretext or other merely wanted to keep the proceedings pending and there was genuinely no incapacity on his part which prevented him from contesting the disciplinary proceedings. Non admission of reply from October 1995 to April 1996 is not explained. The action of enquiry officer in proceeding ex-parte and recording of statements, ex-parte, also cannot be termed to be arbitrary as the petitioner opted not to participate in the disciplinary proceedings.

21. So far as submission of the learned counsel for the petitioner that punishment of removal from service is disproportionate, is concerned, the same cannot be sustained. On facts we find that finding of the employer about absence from duty being unexplained and unauthorized is also established on record. The petitioner has relied on the decision in the case of Shri Bhagwan Lal Arya (supra) wherein the absence from duty was merely for 2 months 17 days and 7 hours which was also explained. In this case, the facts are entirely distinct. For the reasons, as noticed above, we do not find that punishment is excessive in this case.

22. In the facts and circumstances of the case, we find that the Tribunal has examined the matter in correct perspective and the disciplinary inquiry has been conducted after due observance of the principles of natural justice. An employee who himself fails to cooperate in the inquiry and avoids the proceedings for unduly long, cannot subsequently turn around and claim denial of opportunity in conduct of such inquiry. The petitioner is himself to be blamed for the situation that he has landed. We otherwise find that the petitioner had only worked only for a few years 9 of 10 before he absented unathorizedly from duty for 483 days. In this period, he was also implicated in a criminal case. The petitioner is a member of the disciplined force, therefore, we do not find this case to be a fit case for interference in exercise of our jurisdiction under Article 226 of the Constitution of India.

23. Accordingly, the present writ petition is dismissed. Order Date :- 21.3.2025 RAKESH KUMAR GAUTAM High Court of Judicature at Allahabad 10 of 10