High Court
Case Details
1 AFR Court No. - 42 Case :- WRIT - A No. - 18527 of 2021 Petitioner :- State Of U.P. And 2 Others Respondent :- Raj Kumar Singh, Constable No. 030520501 Counsel for Petitioner :- Jagdish Pathak Counsel for Respondent :- Ram Narain Hon'ble Suneet Kumar,J. Hon'ble Rajendra Kumar-IV,J. 1. Heard Ms. Monika Arya, learned Additional Chief Standing Counsel for the petitioners and Sri Ram Narain, learned Counsel for the respondent. 2. The respondent-petitioners by the instant writ petition are assailing the order dated 23 March, 2021, passed in Claim Petition No.707 of 2016, by the State Public Services Tribunal, Lucknow (for short, “Tribunal”), allowing the petition of the applicant-respondent setting aside the order of punishment imposed upon the applicant- respondent in disciplinary proceedings. 3. The short question that arises for consideration is, as to whether the Tribunal was competent to usurp upon itself the role of an appellate authority by setting aside the punishment order, when admittedly, the factum of the charge of overstay of leave was not denied by the employee. 4. The facts giving rise to the instant writ petition is that the respondent was working as a Constable since 2003, he was charged for unauthorized absence from duty from 10 November, 2006 to 09 August, 2007, and for the subsequent development of having been arrested, and imprisoned in case crime no.252 of 2008, under Section 2 25 Arms Act; case crime no.252 of 2008, under Sections 8/20 NDPS Act and case crime no.184 of 2008, under Section 392 & 411 IPC. In all the cases charge sheet has been submitted against the respondent. 5. Disciplinary proceedings came to be initiated under Rule 14(1) of the Uttar Pradesh Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 (for short, “Rules, 1991”), for imposition of major penalty. It appears that respondent did not participate in the inquiry, consequently, he came to be dismissed from service by order dated 09 August, 2007, purportedly passed under Rule 8 (2) of the Rules, 1991. The order, however, came to be
Legal Reasoning
quashed by this Court in Writ-A No.16992 of 2008, vide order dated 18 April, 2008. The Court, however, left it open to the authorities to conduct an inquiry against the respondent as per rules. 6. On the date of passing of the order by the Court, respondent was languishing in jail on being arrested in the aforenoted criminal cases. The respondent came to be bailed out on 16 July, 2008, but did not report for duty, nor, did he appear before the authority for reinstating him in service. In other words, respondent did not inform the authorities about his imprisonment and registration of criminal cases against him. It is only in the year 2013, he gave an application on 05 April, 2013, to the concerned authority requesting for reinstatement in service. Thereafter, respondent came to be reinstated in service and a fresh disciplinary proceedings was sought to be initiated against him in compliance of the order of the State Government dated 17 January, 2014. 7. A fact finding inquiry was setup to report with regard to his unauthorized absence and subsequent custody of the respondent in the criminal cases. The Officer submitted a preliminary inquiry 3 report on 30 June, 2014, and supplementary report on 23 September, 2014. Thereafter, respondent was issued charge sheet dated 07 October, 2014, initiating disciplinary proceedings under Section 14(1) of the Rules, 1991, on a charge of being absent unauthorizedly from 16 November, 2016, and for being arrested and imprisoned in the criminal cases lodged against the respondent. The respondent submitted his objections dated 24 October, 2014, to the charge admitting his absence, but furnished explanation for his absence. The witnesses noted in support of the charge were examined in the presence of the respondent and was allowed to cross examine the witnesses on the date and time fixed by the Inquiry Officer. Thereafter, respondent was permitted to file his defence by the Inquiry Officer vide communication dated 05 November, 2014. The respondent filed his reply / application dated 15 November, 2014, submitting that he did not desire to produce any other evidence or witness in defence and requested the Inquiry Officer to consider his explanation submitted earlier and pass appropriate orders. The statement of the respondent was also recorded on the same date i.e. 15 November, 2014. Thereafter, Inquiry Officer submitted Inquiry Report dated 07 January, 2015, wherein, the charge of unauthorized absence was proved against the respondent. 8. The charge against the respondent was that he was directed on 16 November, 2006, to proceed from Agra to the place of his destination at Lucknow University, along-with, Manik Chandra and report for duty at Lucknow, but in midway he vanished and did not join the team at the destination in Lucknow. Further, respondent had suppressed the registration of the FIR lodged against him and did not inform the authorities with regard to his arrest. Accordingly, Inquiry Officer was of the view that the conduct of the respondent falls under 4 the category of grave indiscipline and carelessness towards his duty. The Inquiry Officer taking a lenient view however recommended punishment to revert the respondent on the lowest pay scale for three years and not to pay salary and other emoluments for the period of unauthorized absence from duty i.e. 16 November, 2006 to 09 August, 2007. 9. Disciplinary Authority issued show cause notice dated 15 February, 2015, calling upon the respondent to submit his objection to the proposed punishment. The respondent filed objections to the notice on 03 March, 2015. Third petitioner – Commandant, 15th Batallion, Agra / Disciplinary Authority, vide order dated 14 May, 2015, imposed punishment of reduction to the lowest pay scale for three years for unauthorized absence from 10 November, 2006 to 09 August, 2007. 10. Aggrieved, respondent filed an appeal before the second petitioner – Deputy Inspector General of Police, PAC Agra, which came to be dismissed by a speaking order dated 26 December, 2015. The respondent instead of filing revision before next higher officer, approached the Tribunal by instituting a claim petition challenging the impugned orders of punishment. 11. The learned Tribunal allowed the claim petition returning a finding that Inquiry Officer had ignored the medical certificates submitted by the respondent which was a justified explanation for his absence. A finding was returned that the absence was not willful but due to compelling circumstances. The Tribunal was of the opinion that no inquiry was made by the Inquiry Officer with regard to the validity of the medical certificates submitted by the respondents in defence of his unauthorized absence. Further, Tribunal was of the 5 view that the Inquiry Officer committed an illegality proposing the punishment that ought to be awarded to the respondent, therefore, Disciplinary Authority without application of mind mechanically awarded the punishment proposed by the Inquiry Officer. 12. Learned Tribunal set aside the impugned punishment orders primarily on the ground that no inquiry or investigation was made by the Disciplinary Authority or Appellate Authority with regard to the validity of the medical certificates submitted by the respondent, consequently, the medical certificates could not have been disbelieved by the Inquiry Officer. 13. Learned Standing Counsel appearing for the State submits that the learned Tribunal committed an error in sitting in appeal over the findings returned by the Inquiry Officer. The Inquiry Officer did not recommend any punishment, rather, proposed the punishment that may be imposed upon the respondent. The Disciplinary Authority after show cause notice imposed the punishment by a reasoned and speaking order. It was always open to the Disciplinary Authority to have imposed a severe punishment having regard to the nature of charge against the respondent. 14. It is further submitted that the medical certificates clearly shows that the respondent was an outdoor patient for simple health issues and did not require in-house hospitalization. In the circumstances, the respondent ought to have informed the authorities about his absence and subsequent arrest. 15. It is further submitted that the Inquiry Officer had rightly not accepted the medical certificates as on the face of it, did not disclose any serious ailment which required indoor treatment or confinement 6 to bed. It is finally submitted that Tribunal committed an error usurping upon itself the role of the Disciplinary Authority in setting aside the punishment, rather, the matter should have been remitted to the Disciplinary Authority to pass a fresh order of punishment. The Tribunal could not have set aside the order of punishment without returning a finding that the disciplinary proceeding was vitiated and nonest for non compliance of the provisions of Rules, 1991, or, otherwise. 16. Learned Counsel appearing for the respondent does not dispute the facts and admits that respondent employee had participated in the disciplinary proceedings, filed his objections and cross examined the witnesses. In other words he does not dispute that the procedure contemplated under Rules, 1991, was not duly complied. 17. On specific query, he categorically submits that the factum of the charge of unauthorized absence and that the respondent was arrested in criminal cases was not disputed, but reliance was placed on the medical certificates to explain and justify the unauthorized absence. It is, therefore, submitted that the Tribunal has not committed any illegality or infirmity in setting aside the punishment order, having regard to the medical certificates. The absence from duty was not wilful and deliberate. 18. Rival submissions fall for considerations. 19. The facts inter-se parties are not disputed. 20. It is settled principle of law that the Courts / Tribunal in exercise of its power of judicial review of disciplinary proceedings cannot sit in appeal and examine the sufficiency of the evidence led in the disciplinary proceedings. The judicial review of disciplinary 7 proceedings is confined and limited to the procedure as to whether the disciplinary proceedings was conducted fairly as per the Rules and that the respondent employee was given full and fair opportunity to present his case before the Inquiry Officer. 21. The Tribunal / Court in exercise of jurisdiction of judicial review of disciplinary proceedings can interfere only when conclusions of the Inquiry Officer is perverse or based on no evidence. On appreciation of evidence, it is not open for the Tribunal / Court to substitute its own opinion based on the appreciation of material on record on the charges proved. 22. A finding of fact recorded by the Disciplinary Authority cannot be challenged on the ground that the relevant and material evidence adduced before the Disciplinary Authority is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact drawn from the said fact are within the exclusive jurisdiction of the Tribunal. [Refer: Syed Yakoob versus K.S. Radhakrishnan1; Union of India versus P. Gunasekaran2; Union of India versus Flight Cadet Ashish Rai3 and Hombe Gowda Educational Trust versus State of Karnataka4]. 23. In the admitted facts of the present case, the factum of the charge of unauthorized absence and subsequent arrest and confinment in jail is not disputed. Further, it is admitted that while on duty the respondent vanished in between and did not report at the station of duty along-with his colleague. It is admitted that the respondent did not inform the authorities that he could not report for duty due his severe illness. It is also admitted that he came to be