Allahabad High Court
State Of U.P. Through Prin. Secy. P.W.D. ... vs Diwan Shakil Khan H.C. 810580192 & ... on 22 October, 2019
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 3 Case :- SERVICE BENCH No. - 36 of 2014 Petitioner :- State Of U.P. Through Prin. Secy. P.W.D. Lko. & 2 Ors. Respondent :- Diwan Shakil Khan H.C. 810580192 & Another Counsel for Petitioner :- C.S.C. Counsel for Respondent :- C.S.C.,Dwijendra Nath Pandey Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
(As per Hon'ble Saurabh Lavania,J.) Heard learned Standing counsel for the petitioner and learned counsel for the claimant-respondent.
By means of the present writ petition the petitioners-State has challenged the judgment and order dated 22.02.2013 passed by the U.P. State Public Services Tribunal (in short "Tribunal") in claim petition no.1259 of 2011, filed by the claimant-respondent, whereby the Tribunal interfered in the order dated 02.02.2011 passed by opposite party no.3, whereby the salary of the claimant-respondent was denied/withheld by applying the principle of "No work, No pay", for the period w.e.f. 25.03.2010 to 23.07.2010, on the ground the claimant-respondent was absent from duty willingly, and the order dated 22.03.2011 passed by the appellate authority/opposite party no.2, on the appeal preferred by the claimant-respondent against the order dated 02.02.2011. By the impugned order dated 22.02.2011 the Tribunal has also directed the petitioners-State to treat 121 days absence from duty as medical leave and provide/sanction salary/allowance as per rules to the claimant-respondent.
The brief facts of case is that on 01.07.1981 the petitioner was initially inducted in service as Constable in Pradeshik Armed Constabulary (hereinafter called 'P.A.C.') in 10th Battalion District-Barabanki in the Police (Home) Department, State of U.P. He was confirmed on the said post on the basis of good and outstanding service records by the respondents.
In the years 1992-93 the claimant-respondent was promoted from the post of constable to the post of head constable on the basis of good & outstanding service records. Thereafter, he was transferred from 10th Battalion P.A.C., Barabanki to 27th Battalion P.A.C., Sitapur, immediately after his promotion.
The subject matter of the impugned orders is related to the year 2010.
When the claimant-respondent was posted as Head Constable in 27th Battalion P.A.C., Sitapur, and he proceeded on sanctioned casual leave on 21.03.2010 for three days w.e.f. 22.03.2010 to 24.03.2010 and was required to join the duty on 25.03.2010 before noon.
To resume the duty, the claimant-respondent was returning back from his parental home, and unfortunately he met with an accident in the way and was seriously injured. He was brought by unknown persons in Government Hospital, Biur, District-Qaimoor (Bhabhuwa), Bihar, from where, he was referred to District Hospital, but he tried to come back to his Battalion by train through the help of his relatives but his condition had become very critical in the way on account of injuries in accident as well as long journey of train.
When claimant-respondent reached at Lucknow, his relatives took him to Dr. Shyama Prasad Mukherji Civil Hospital, Lucknow (in short "S.P.M.H."). The claimant-respondent was under treatment at S.P.M.H. w.e.f. 26.03.2010 to 21.07.2010, as out door patient. On 21.07.2010, the claimant-respondent was declared fit to resume the duty and to the same effect the Medical Certificate dated 21.07.2010 was issued/given by concerned doctor of S.P.M.H. The claimant-respondent was allowed to join the duties on 23.07.2010. Needless to say that claimant-respondent informed about his illness to the petitioners through registered post vide letter(s) dated 26.03.2010, 23.04.2010, 27.05.2010 and 23.06.2011 etc., enclosing therewith the medical out door patient tickets and certificates issued by the Medical Officer of the above named Hospital at Lucknow.
After expiry of more than five months from the date of joining the duties by claimant-respondent, respondent no.3 issued show cause notice No. P-23/2010 dated 21.12.2010, which was received to the claimant-respondent on 24.12.2010. The show cause notice was issued under Rule 14 (2) of U.P. Subordinate Public Officers (Discipline and Appeal Rules, 1991) (in short "1991 Rules"). The show cause notice was issued with regard to imposing punishment of withholding of salary on the basis of principles of "No work, No pay". The show cause notice on reproduction reads as under:.-
Þtc vki o"kZ&2010 esa 27oha okfguh] ih,lh] lhrkiqj ds Þthß ny esa fu;qDr Fks] rc vki fnukad 21-03-2010 dks 03 fnol ds Lohd`r'kqnk vkdfLed vodk'k ij izLFkku fd;s] vkidks ckn lekIr vkdfLed vodk'k fnukad 21-03-2010 dks okil vkuk pkfg, Fkk] ijUrq vki le; ls okil u vkdj fnukad 23-07-2010 dks dqy&121 fnol foyEc ls okfguh eq[;ky; esa viuh vken djk;sA izdj.k esa izkjfEHkd tkap ds nkSjku vuqifLFkr gksus ds lEcU/k esa vkids }kjk okfguh eq[;ky; dks jftLVMZ Mkd ls Lo;a ds ,DlhMsUV gksus dh lwpuk fnukad 29-03-2010 dks izsf"kr dh x;hA vki ,DlhMsUV gksus ds i'pkr vLirky nkf[ky ugha gq, vkSj okg~; jksxh ds :i esa vius fuokl LFkku tuin dSeqj ¼HkHkqvk½] fcgkj ls ';kekizlkn eq[kthZ vLirky y[kuÅ esa vk&tkdj fujUrj byktjr~ jgs] tks vki }kjk miyC/k djk;s x;s leLr fpfdRlh; izi=ksa ds voyksdu ls izekf.kr gS] tcfd vkidk nkf;Ro Fkk fd vki fu;ekuqlkj iqfyl jsxqys'ku ds izLrj&381] 382 esa fufgr izkfo/kkukss ds vUrxZr ljdkjh vLirky esa nkf[ky gksdj viuk bykt djkrs lkFk gh bl lEcU/k esa mlh fnukad dks bldh lwpuk okfguh eq[;ky; dks nsrs] fdUrq vki }kjk ,slk ugha fd;k x;kA vkids }kjk izsf"kr fpfdRlh; izek.k&i= ls ;g Hkh Li"V gksrk gS fd vki xEHkhj :i ls chekj ugha Fks D;ksafd vki fcgkj ls mRrj izns'k ds tuin y[kuÅ ls okg~; jksxh ds :i esa MkDVj }kjk fn;s x;s jsLV ds lekfIr fnukad ds i'pkr~ vk&tkdj bykt djkrs jgs] tcfd vkidk ;g nkf;Ro Fkk fd vki iw.kZ:i ls pyus&fQjus esa tc leFkZ Fks rks vkidks iqfyl jsxqys'ku esa fufgr izkfo/kkuksa ds vUrxZr okfguh eq[;ky; esa le; ls viuh vken djkdj okfguh ds ljdkjh vLirky ds ek/;e~ ls viuk bykt djkuk pkfg, Fkk] ijUrq vki ,slk u djds fu;e fo:)@euekus vr% vki bl dkj.k crkvksa uksfVl izkfIr ds 15 fnol ds vUnj viuk fyf[kr Li"Vhdj.k izLrqr djsa fd D;ksa u vkidh mijksDr vuqifLFkr vof/k dk Þ dk;Z ugha rks osru ughaß ds uSlfxZd fl)kUr ds vk/kkj ij dksbZ osru@HkRrk u fn;k tk;sA vkidks vk'oLr fd;k tkrk gS fd vkidk fyf[kr Li"Vhdj.k ;fn fu/kkZfjr vof/k ds vUnj izkIr gks tkrk gS rks ml ij lgkuqHkwfriwoZd fopkjksijkUr gh fu.kZ; fy;k tk;sxk vkSj ;fn vkidk fyf[kr Li"Vhdj.k fu/kkZfjr vof/k ds vUnj izkIr ugha gksrk gS rks ;g le>k@fo'okl fd;k tk;sxk fd bl lEcU/k esa vkidks dqN ugha dguk gS] rRi'pkr vkids Li"Vhdj.k dh vkSj izrh{kk fd;s fcuk gh] Li"Vhdj.k ds vHkko esa ,d i{kh; vfUre vkns'k ikfjr dj fn;s tk;saxs] ftlds vki iw.kZ:is.k Lo;a mRrjnk;h gkssaxsAß The allegation in show cause notice against the claimant-respondent are to the effect that he was absent from duty willfully for 121 days and he violated the provisions of Regulation(s) 381 and 382 of Police Regulations, according to which the claimant-respondent was required to take treatment from the Police Hospital at Battalion and whereas he took treatment, as out of door patient, from S.P.M.H. which according to the State-petitioners is excessive carelessness towards duty and indiscipline. It appears from the show cause notice that an enquiry (preliminary) was conducted in the matter of claimant-respondent but the copy of same was not enclosed/given with show cause notice. Regulation(s) 381 and 382 of Police Regulations are quoted below for ready reference.
"381. It is incumbent on all applicants for medical leave or extension of leave 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 been 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 Superintend 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."
Thereafter, the claimant-respondent preferred his detailed explanation dated 05.01.2011, mentioning therein the facts related to absence from duty. The reasons of absence from duty mentioned in the reply of claimant-respondent, in brief, are to the effect that on account of treatment and advise of doctor of S.P.M.H. the duty could not be joined on time and after being declared fit he joined the duty.
Thereafter, on 02.02.2011 the disciplinary authority/opposite party no.3 passed the order of punishment, whereby awarded punishment of withholding the salary/allowance of the claimant-respondent for the period w.e.f. 25.03.2010 to 23.07.2010.
Aggrieved by the order dated 02.02.2011 the claimant-respondent filed an appeal and the same was rejected vide order dated 22.03.2011.
Needless to say that the show cause, order of punishment dated 02.02.2011 and appellate order dated 22.03.2011 are based on Regulation(s) 381 and 382 of Police Regulations and it has been specifically mentioned therein that claimant-respondent violated the provisions of Regulation(s) 381 and 382 of Police Regulations, according to which claimant-respondent or any under police officer is required to take the treatment from the Police Hospital, if it is not out of easy reach, it has also been mentioned in the referred documents that the claimant-respondent was taking the treatment as out door patient and accordingly he would have, easily, taken the treatment from the Police Hospital, which he failed to do willingly and avoiding/not taking the treatment from the Police Hospital is nothing but indiscipline.
Important part, which reflects from the above referred documents is that the facts related to sustaining injury on account of accident and taking treatment for S.P.M.H. are not in dispute and in the above referred documents it has also not been mentioned that documents related to treatment including medical certificate submitted by the claimant-respondent are fabricated and there is mischief and misrepresentation on the part of claimant-respondent.
For the purpose of adjudication of the case we would like to quote the order of punishment dated 02.02.2011, which was confirmed by the appellate authority. The order dated 02.02.2011 reads as under:-
Þeq[; vkj{kh 810580192 nhoku 'kdhy }kjk fnukad 21-03-2010 ls 03 fnol ds vkdfLed vodk'k ij izLFkku dj ckn lekIr vkdfLed vodk'k fnukad 25-03-2010 dks vius drZO;ikyu ij mifLFkr u gksdj fu;e fo:)@euekus eq[; vkj{kh 810580192 nhoku 'kdhy us mijksDr dkj.k crkvks uksfVl fnukad 24-12-2010 dks izkIr djus ds i'pkr viuk fyf[kr Li"Vhdj.k fnukafdr 05-01-2011 izLrqr fd;k x;kA eq[; vkj{kh nhoku 'kdhy izLrqr fd;s x;s Li"Vhdj.k esa vafdr rF;ksa@rdksZ dk esjs }kjk xgurk ls voyksdu@ifj'khyu fd;k x;k rks ik;k fd vkjksih eq[; vkj{kh us vius Li"Vhdj.k ds izLrj&2 esa vafdr fd;k gS fd og fnukad% 21-03-2010 dks 03 fnol Lohd`r vkdfLed vodk'k ij ,Q ny cjsyh ls jokuk gqvk FkkA bl izdkj mldh okilh fnukad 25-03-2010 dks iwokZUg esa gksuh Fkh] og fnukad 24-03-2010 dks le; ls fM~;wVh ij mifLFkr gksus ds fy, pyk Fkk] fdUrq nqHkkZX; o'k fnukad% 24-03-2010 dks gh og nq?kZVuk esa cqjh rjg ls ?kk;y gks x;kA thou j{kk ds fy, LFkkuh; fpfdRld Mk0 jktujk;u izlkn dks fn[kk;k rFkk izkjfEHkd fpfdRlk ysdj mlds ifjtuksa ds }kjk Mk0 ';kek izlkn eq[kthZ jktdh; vLirky y[kuÅ ys tk;k x;kA tgkW Mk0 ,l0ds0 ik.Ms; ds v/khuLFk mldk bykt gqvkA bldks Mk0 ,l0ds0 ik.Ms; }kjk 4 lIrkg ds csM jsLV dh lykg nh x;h] ftldh mlds }kjk fnukad% 26-03-2010 dks lwpuk iathd`r Mkd ls iszf"kr dh x;h] Lohdkj fd;s tkus ;ksX; ugha gS] D;ksafd tc ;g eq[; vkj{kh vius ?kj ¼fcgkj½ ls mRrj&izns'k ds tuin y[kuÅ dks vk&tkdj viuk bykt djk ldrk Fkk] rks fu;ekuqlkj bls okfguh eq[;ky; esa vkdj okfguh ds ljdkjh vLirky ds ek/;e~ ls iqfyl jsxzqys'ku ds iSjk&381] 382 esa fufgr izkfo/kkuksa ds vUrxZr fu;ekuqlkj viuk bykt djkuk pkfg, Fkk] fdUrq bl eq[; vkj{kh }kjk ,slk u djds euekus eq[; vkj{kh nhoku 'kdhy }kjk izLrqr fd;s x;s Li"Vhdj.k ds izLrj & 3] 4 ,oa 5 esa ;g vafdr fd;k x;k gS fd mlds }kjk dze'k% fnukad% 23-04-2010] 27-05-2010 ,oa 23-06-2010 dks iqu% fpfdRld dks fn[kk;k x;k ftuds }kjk csM jsLV dh lykg nh x;h] ftldh lwpuk mlds }kjk mlh fnu iathd`r Mkd ls izsf"kr dh x;h] Lohdkj ugha gS D;ksafd tc ;g eq[; vkj{kh fcgkj izkUr fLFkr vius ?kj ls mRrj&izns'k ds tuin y[kuÅ dks vkdj viuk bykt djk ldrk Fkk] rks fu;ekuqlkj bls okfguh eq[;ky; esa mifLFkr gksdj okfguh eq[;ky; fLFkr ljdkjh vLirky ds ek/;e~ ls fu;ekuqlkj viuk bykt djkuk pkfg, Fkk] fdUrq bl eq[; vkj{kh }kjk ,slk u djds euekus eq[; vkj{kh nhoku 'kdhy }kjk izLrqr fd;s x;s Li"Vhdj.k ds izLrj&6 esa vafdr fd;k x;k gS fd mlds }kjk fnukad% 14-07-2010 dks iqu% fpfdRld dks fn[kk;k x;k] fpfdRld us nok bykt ds ckn ,d lIrkg vkSj csM jsLV dh lykg nhA fnukad% 21-07-2010 dks mldks Mk0 }kjk LoLFk ?kksf"kr djrs gq, LokLF;rk ,oa fpfdRlh; izek.k&i= fuxZr fd;kA ftl ij okfguh esa vkdj mlds }kjk vuqefr izkIr djds fnukad% 23-07-2010 dks viuh vken djk;h x;h] Lohdkj ugha gS D;ksafd tc ;g eq[; vkj{kh vius ?kj ¼fcgkj½ ls mRrj&izns'k ds tuin y[kuÅ dks vk&tkdj viuk bykt djk ldrk Fkk] rks fuekuqlkj bls okfguh eq[;ky; esa vkdj okfguh ds ljdkjh vLirky ds ek/;e ls iqfyl jsxqys'ku ds iSjk&381] 382 esa fufgr izkfo/kkuksa ds vUrxZr fu;ekuqlkj viuk bykt djkuk pkfg, Fkk] fdUrq bl eq[; vkj{kh }kjk ,slk u djds euekus eq[; vkj{kh nhoku 'kdhy }kjk izLrqr fd;s x;s Li"Vhdj.k ds izLrj&7 esa vafdr rF; Lohdkj gS] eq[; vkj{kh fnukad% 25-03-10 ls 23-07-10 rd dqy& 121 fnol fu;efo#) rjhds ls vuqifLFkr jgk gSA eq[; vkj{kh nhoku 'kdhy }kjk izLrqr fd;s x;s Li"Vdj.k ds izLrj& 8 o 9 esa mlds }kjk tks Hkh rdZ@rF; vafdr fd;s x;s gSa og cyghu gS D;ksafd vkjksih eq[; vkj{kh }kjk iqfyl jsxqys'ku ds izLrj& 381] 382 esa fufgr izkfo/kkuksa dk ikyu u djds fu;e fo#)@euekus Aggrieved by the order dated 02.02.2011 and 23.03.2011 the claimant-respondent filed the claim petition no.1259 of 2011. The claimant-respondent challenged the orders broadly on the facts and grounds to the effect that :-
(i) he met with an accident and was seriously injured and he was under treatment at S.P.M.H., which is a Government Hospital;
(ii) the fact of treatment was duly informed to the authority;
(iii) he was declared fit by the Doctor at S.P.M.H. vide medical certificate dated 21.07.2010 and thereafter he was allowed to join the duties;
(iv) without giving the copy of preliminary enquiry report and without providing the reasonable opportunity as provided under Rule 5 read with Rule 14(2) of 1991 Rule, the punishment has been imposed;
The petitioner-State contested the claim petition by filing the detailed written statement. It appears for the written statement that the petitioners-State for the purpose of defending the punishment order and appellate order broadly relied upon the provisions of Regulation(s) 381 and 382 of Police Regulations and preliminary enquiry report dated 06.12.2010. The relevant portion of the written statement reads as under:-
";g fd ;kfpdk ds izLrj 1 ds dFku ek= bl lhek rd Lohdkj gS] fd iz'uxr ;kfpdk ds ek/;e ls ;kph us fnukad 25-03-2010 ls 23-07-2010 rd dqy 121 vukf/kd`r vuqifLFkfr fnol dk dke ugh rks nke ugh ds fl)kUrkuqlkj osru HkRrk u iznku fd;s tkus laca/kh vkns'k fnukafdr 02-02-2011 ,oa iz'uxr vkns'k ds fo#) izLrqr vihy ij ikfjr vihy fujLrhdj.k vkns'k fnukafdr 22-03-2011 dh pqukSrh fujk/kkj ,oa vk/kkj ghu rF;ksa ij nh gS] 'ks"k dFku ftl izdkj of.kZr gS] vLohdkj gSA bl laca/k esa loZizFke mYys[k fd;k tkuk lehphu gS fd ;kph us vihyh; vkns'k ds fo#) dksbZ fjohtu ;kfpdk izLrqr ugh fd;k vkSj lh/ks iz'uxr ;kfpdk ekuuh; vf/kdj.k ds le{k ;ksftr dj fn;k gSA bl izdkj ;kph }kjk lHkh foHkkxh; mipkjksa dks iw.kZ u fd;s tkus ds dkj.k iz'uxr ;kfpdk iks"kh.kh; ugh gSA fQj Hkh bl laca/k esa mYys[k fd;k tkuk lehphu gS fd ;kph tc o"kZ 2010 esa 27 oha okfguh ih,lh] lhrkiqj ds th ny esa fu;qDr Fks] rc ;kph fnukad 21-03-2010 dks 03 fnol ds Lohd`r 'kqnk vkdfLed vodk'k ij izLFkku fd;s] ;kph dks ckn lekIr vkdfLed vodk'k fnukad 25-03-2010 dk okil vkuk pkfg, Fkk ijUrq ;kph le; ls okil u vkdj fnukad 23-07-2010 dks dqy 121 fnol foyEc ls okfguh eq[;ky; esa viuh vken djk;hA izdj.k esa izkjfEHkd tkap ds nkSjku vuqifLFkr gksus ds laca/k esa ;kph ds }kjk okfguh eq[;ky; dks jftLVMZ Mkd ls Lo;a ds ,DlhMsaV gksus dh lwpuk fnukad 29-03-2010 dks izsf"kr dh x;hA ;kph ,DlhMsaV gksus ds i'pkr~ vLirky nkf[ky ugh gq, vkSj okg~; jksxh ds #i esa vius fuokl LFkku tuin&dSeqj ¼HkHkqvk½ fcgkj ls ';kek izlkn eq[kthZ y[kuÅ esa vk&tkdj fujUrj byktjr~ jgs] tks ;kph }kjk miyC/k djk;s x;s leLr fpfdRlh; izi=ksa ds voyksdj ls izekf.kr gS tcfd ;kph dk nkf;Ro Fkk fd ;kph fu;ekuqlkj iqfyl jsxqys'ku ds izLrj 381] 382 esa fufgr izkfo/kkuksa ds vUrxZr ljdkjh vLirky esa nkf[ky gksdj viuk bykt djkrs lkFk gh bl laca/k esa mlh fnukad dks bldh lwpuk okfguh eq[;ky; dks nsrs] fdUrq ;kph }kjk ,slk ugh fd;k x;kA ;kph ds }kjk izsf"kr fpfdRldh; izek.k&i= ls ;g Hkh Li"V gksrk gS fd ;kph xaHkhj #Ik ls chekj ugh Fks D;ksafd ;kph fcgkj ls m0 iz0 ds tuin y[kuÅ ds okg~; jksxh ds #i esa MkDVj }kjk fn;s x;s jsLV ds lekfIr fnukad ds i'pkr~ vk&tkdj bykt djkrs jgs] tcfd ;kph dk ;g nkf;Ro Fkk fd ;kph iw.kZ #i ls pyus&fQjus esa tc leFkZ Fks rks ;kph dks iqfyl jsxqys'ku esa fufgr izkfo/kkuksa ds vUrxZr okfguh eq[;ky; es le; ls viuh vken djkdj okfguh ds ljdkjh vLirky ds ek/;e ls viuk bykt djkuk pkfg, Fkk] ijUrq ;kph ,slk u djds fu;e fo#)@euekus The Tribunal after considering the material on record allowed the claim petition vide judgment and order dated 22.03.2013, which is under challenge in the present writ petition. The Tribunal after quashing/setting aside the order(s) dated 02.02.2011 and 22..03.2011 directed the petitioners-State to treat 121 days as medical leave and provide the salary/allowance to the claimant-respondent.
Assailing the order passed by Tribunal dated 22.02.2013. Learned State Counsel submitted that for imposing the punishment of withholding the salary for willful absence from duty for 121 days, the procedure, as prescribed under Rule 14(2) of 1991, Rules, was followed, according to which show cause notice was issued and to which claimant-respondent submitted his reply and thereafter order of punishment was passed and as such finding of the tribunal on this aspect is perverse.
Leaned counsel for the State further submitted that as per Regulation 381 and 382, the claimant-respondent was required to take treatment from police hospital, which admittedly the claimant-respondent has not followed and accordingly the interference of the Tribunal in the order of punishment is unjustified.
In rebuttal, the learned counsel for the claimant-respondent submitted that in the admitted and undisputed facts to the effect that the copy of the preliminary enquiry report was not provided to the claimant-respondent alongwith show cause notice as well as the facts to the effect that (i) the claimant-respondent met with an accident and was seriously injured and he was under treatment at S.P.M.H., which is a Government Hospital; (ii) treatment was duly informed to the authority; and (iii) claimant-respondent was declared fit by the Doctor at S.P.M.H. vide medical certificate dated 21.07.2010 and thereafter he was allowed to join the duties; the Tribunal rightly interfered in the impugned orders before it.
Further submitted that the Tribunal interfered in the order(s) dated 02.02.2011 and 23.03.2011, after considering and recording findings on the fact and issue(s) related to Regulation(s) 381 and 382 of Police Regulations and non providing the copy of preliminary enquiry report along with show cause notice.
We have heard the learned counsel for the parties and perused the record.
First, we would like to consider that whether, in the facts of the case and on the basis of pleading as well as material on record, the finding given by the Tribunal on the fact/issue related to non providing or preliminary enquiry report is perverse or not?
In regard to above, the Tribunal recorded the finding, which reads as under:
Þ;kph ds fo}ku vf/koDrk }kjk fyf[kr foospu ds izLrj&5¼,u½ esa ;g rdZ Hkh izLrqr fd;k x;k gS fd izkjfEHkd tkap vk[;k ,oa vU; vfHkys[kh; lk{;ksa dh izfr;ka ftuds vk/kkj ij n.Mkns'k ikfjr fd;k x;k gS og mls dkj.k crkvks uksfVl ds lkFk miyC/k ugha djk;h x;h gS vkSj mls cpko gsrq lEcfU/kr vfHkys[k iznku u djds dsoy i=koyh ds voyksdu djus dh vuqefr nh x;h gS tks iqfyl egkfuns'kd] bykgkckn] m0iz0 }kjk tkjh ifji= fnukad 08-03-2011 esa fn;s x;s fu;eksa dk mYya?ku gSA mDr ifji= dk fuEu va'k egRroiw.kZ gS %& ¼1½ fu;ekoyh ds fu;e 14 ¼2½ esa **;qfDr;qDr volj dk rkRi;Z vipkjh vf/kdkjh dks cpko gsrq leqfpr lkexzh miyC/k djkrs gq, i;kZIr le; miyC/k djkuk gS] vr% vipkjh vf/kdkjh dks dkj.k crkvks uksfVl ds le; tkap vk[;k dh izfr ,oa Li"Vhdj.k nsus ds fy, de ls de 15 fnu dk le; vo'; fn;k tk;sA** bl lEcU/k esa dkj.k crkvks uksfVl fnukafdr 21-12-2010 dk voyksdu djus ij ik;k x;k fd ;kph dks dkj.k crkvks uksfVl ds lkFk izkjfEHkd tkap vk[;k dh izfr iznku ugh dh x;h gS tks mijksDr fyf[kr ifji= esa fn;s fu;eksa dk mYya?ku gS vkSj mDRk ifji= dk ifjikyu u djus dk dksbZ dkj.k foi{khx.k dh vksj ls izLrqr ugh fd;k x;k gSA ;kph ds lEcU/k esa m0iz0 v/khuLFk Js.kh ds iqfyl vf/kdkfj;ksa dh n.M ,oa vihy fu;ekoyh&1991 ds fu;e 14¼2½ ds vUrxZr fu;e&4¼1½¼[k½ ds vUrxZr fuUnk dk y?kqn.M ikfjr fd;k x;k gSA mDr fu;ekoyh ds fu;e&5¼2½ ;g micfU/kr djrk gS fd tgka fu;e&4¼1½ ¼[k½¼2½ esa mfYyf[kr y?kq n.M ds iznku djus dh O;oLFkk nh xbZ gS ogka fu;ekoyh] 1991 ds fu;e 14¼2½ ds vUrxZr nh x;h izfdz;k ds vuqlkj n.M iznku fd;k tk;sxkA m0iz0 v/khuLFk Js.kh ds iqfyl vf/kdkfj;ksa dh n.M ,oa vihy fu;ekoyh&1991 ds fu;e 14¼2½ fuEu #i ls micaf/kr djrk gS%& "Notwithstanding anything contained in sub-rule(1) punishments in cases referred to in sub-rule(2) of Rule-5 may be imposed after informing the police officer in writing of the action proposed to be taken against him and of the imputations of act or omission on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal."
bl izdj.k esa foi{khx.k }kjk fyf[kr foospu ds izLrj&7 esa ek= bruk mYys[k fd;k x;k gS fd ;kph dks dkj.k crkvks uksfVl ds ek/;e ls ;kph dks foHkkxh; i=koyh voyksdu dh vuqefr iznku dh x;h FkhA ;kph ds fo}ku vf/koDrk us vius dFku ds leFkZu esa ekuuh; mPp U;k;ky; bykgkckn }kjk nh x;h fof/k O;oLFkk jke lwjr flag ,oa vU; cuke~ iqfyl egkfujh{kd] bykgkckn ifj{ks= bykgkckn ¼2005½2 ;w0ih0,y0ch0bZ0lh0 1155 izLrqr fd;k ftlesa ;g fl)kUr izfrikfnr fd;k x;k gS fd izkjfEHkd tkap dh izfr iznku u djuk izkd`frd U;k; ds fl)kUr dk mYya?ku gSA mDr fof/k O;oLFkk esa ek0 mPp U;k;ky; us fuEu fl)kUr izfrikfnr fd;k gS%& "Disciplinary Authority relied upon statements recorded in preliminary inquiry report while imposing punishment. Thus, copy of preliminary inquiry report ought to have been supplied to petitioners-Non-supply thereof, is violation of mandatory requirement of Rule14(2)-Apart from it, opportunity of hearing, also be given. That too was not given- Mere permission to inspect file- Not sufficient- Principle of natural justice also violated- Punishment has to be set aside."
mijksDr fof/k&n`"Vkarksa esa izfrikfnr fl)kar o egkfuns'kd ds ifji= fnukad 08-3-2001 esa mfYyf[kr funsZ'kksa ds ifjisz{; esa iz'uxr izdj.k esa vUrfuZfgr rF;ksa ij fopkj djus ls ;g Li"V gksrk gS fd iz'uxr izdj.k esa izkjfEHkd tkap rks djkbZ xbZ fdUrq mldh izfr ;kph dks izkIr ugha djk;h x;h] blfy, bl izdj.k esa izkd`frd U;k; ds fl)kUrksa dk Hkh mYya?ku gqvk gS vkSj bl vk/kkj ij iz'uxr n.Mkns'k vikLr gksus ;ksX; gSA i=koyh ij miyC/k vfHkys[kksa ls ;g Hkh Li"V gS fd ;kph dks fnukad 25-03-2010 ls 22-07-2010 dh vof/k dks vukf/kd`r :i ls vuqifLFkr jgus ds fy, ifjfuank fd;s tkus dk n.M Hkh fn;k x;k gS vkSj blh vuqifLFkfr vof/k ds fy, ;kph dks mDr vuqifLFkfr vof/k dk osru u fn;s tkus dk Hkh n.Mkns'k ikfjr fd;k x;k gS] ftls uSlfxZd U;k; ds fl)kUrksa ds vk/kkj ij fof/k&lEer ugha ekuk tk ldrk gS] vr% bl vk/kkj ij Hkh ;kph ds fo:) ikfjr n.Mkns'k fujLr gksus ;ksX; gSAß In regard to above finding, on consideration of material available on record particularly show cause notice dated 21.12.2010 and the contents of written statement, relevant para of which is quoted above, we find that in the matter in issue, the preliminary enquiry was conducted by the petitioners-State but the copy of the preliminary enquiry report dated 06.12.2010 was not provided to the claimant-respondent and as such we are of the view that the petitioners-state, in fact, has not followed the procedure prescribed under Rule 14(2) of 1991 Rules read with Circular dated 09.03.2011.
Accordingly we hold that the finding of the Tribunal on the issue related to non providing of copy of the preliminary enquiry is perfectly valid.
Next issue relates to violation of Regulation(s) 381 and 382 of Police Regulations, on which after giving following finding, the Tribunal interfered in the order of punishment dated 02.02.2011 and appellate order dated 22.03.2011 and issued direction regarding payment of salary/allowance to the claimant-respondent.
ÞorZeku izdj.k es ;kph }kjk viuk bykt ftyk iqfyl fpfdRlky; esa u djkdj ljdkjh vLirky Mk0 ';kek izlkn eq[kthZ flfoy vLirky] y[kuÅ] m0iz0 esa fnukad 26&3&2010 ls okg~; jksxh ds #i esa djk;k x;k gSA Mk0 ,l0ds0 ik.Ms; ds v/khuLFk mldk bykt gqvk gSA ;kph dks Mk0 ,l0ds0 ik.Ms; }kjk 4 lIrkg ds csM jsLV dh lykg nh x;h] ftldh lwpuk ;kph }kjk fnukad 26&3&2010 dks iathd`r Mkd ls foi{khx.k dks izsf"kr dh x;h FkhA ;kph }kjk dze'k% fnukad 23-04-2010] 27-05-2010 ,oa 23-06-2010 dks iqu% fpfdRld dks fn[kk;k x;k] ftuds }kjk csM jsLV dh lykg nh x;h vkSj bldh lwpuk Hkh ;kph }kjk mlh fnu iathd`r Mkd ls iszf"kr dh x;hA ;kph }kjk fnukad 14&7&2010 dks Hkh fpfdRld dks fn[kk;k x;k] fpfdRld us nok bykt ds ckn ,d lIrkg vkSj csM jsLV dh lykg nhA fnukad 21&07&2010 dks mls MkDVj }kjk LOkLFk ?kksf"kr djrs gq, LoLFkrk ,oa fpfdRlh; izek.k&i= fuxZr fd;k x;k vkSj blds ckn ;kph us 27oha okfguh ih,lh esa vkdj vuqefr izkIr djds fnukad 23&7&2010 dks viuh vken djk;h gSA ;kph }kjk izLrqr fpfdRlk izek.k&i=ksa ls ;g rF; fufoZokfnr gS fd ;kph chekj Fkk vkSj vpkud chekj gks tkus ds dkj.k mlds ifjtuksa }kjk mls Mk0 ';kek izlkn eq[kthZ] flfoy vLirky] y[kuÅ esa HkrhZ djk;k x;k tks fd ,d ljdkjh vLirky gS] vr,o flfoy vLirky] y[kuÅ }kjk fuxZr fd;s x;s fpfdRlk izek.k i=ksa dh lR;rk ij dksbZ vkifRr ugha gSA tgkW rd foi{khx.k dk ;g dFku fd ;kph dks iqfyl jsxwys'ku ds izLrj&381 ,oa 382 ds vuqlkj iqfyl vLirky esa bykt djkuk pkfg, Fkk] bl lEcU/k esa esjk ;g er gS fd iqfyl jsxqys'ku ds izLrj&382 esa ;g Hkh O;oLFkk nh x;h gS fd ;fn bykt gsrq rRdky iqfyl vLirky igqWp ls ckgj gks rks utnhdh fMLisUljh ls bykt djk;k tk ldrk gS] fdUrq n.Mkf/kdkjh }kjk fcuk fdlh leqfpr vk/kkj ds ;kph }kjk fpdRlk izek.k i=ksa dks lgh u ekurs gq, ek= bl vk/kkj ij vkns'k ikfjr fd;k gS fd iqfyl jsxqys'ku ds izLrj&381 o 382 dk vuqikyu ugha fd;k x;k gS] vr% foi{khx.k }kjk ;kph dh chekj vof/k fnukad 25-03-2010 ls 23-07-2010 dks vukf/kd`r vuqifLFkr ekurs gq, mDr vof/k dqy 121 fnol dk **dk;Z ugh rks osru ugh** ds fl)kUr ds vk/kkj ij dksbZ osru@HkRrk u fn;s tkus laca/kh ikfjr vkns'k dks fof/k&lEer ugh ekuk tk ldrk gSA blfy, n.Mkns'k fnukafdr 02&02&2011 fujLr fd;s tkus ;ksX; gSAß Before considering the validity of the finding/conclusion of the Tribunal on the issue related to Regulation(s) 381 and 382 of the Police Regulations, we feel it appropriate to say that the expression term "Right to Health" has not been mentioned in the Constitution of India as a fundamental right. However, health is one of the basic requirement of human being. Health is also a most important factor related to national development. Country/State would grow and flourish if citizens are mentally and physically fit. The people at large have right to enjoy meaningful and dignified life which depends upon good health. Thus the Right to Health is one of the basic right of human being. Right to Health is vital right without which, meaning thereby, that without being physically or/and mentally fit/healthy, no one can perform for herself/himself or/and for society or for public at large.
We would like to add some saying, which are quoted below:-
"(i) Happiness is the state of mind.
(ii) A healthy mind resides in healthy body.
(iii) Healthy people make a healthy nation. It is for the reason that the health is an essential factor in social, economic, emotional growth/development of country."
Considering the aforesaid, we are of the view that Government is under obligation to protect the health of the people because there is close nexus between health and life (quality of life) of a person and both relates to over all growth of the Country/State.
Though the term/expression "Right to Health", as right of a citizen does not find place in Constitution of India, even then the Hon'ble Apex Court after taking note of various provision of Constitution of India viz. Preamble, Fundamental Right given in part III of the Constitution of India, particularly Article 21 and Directive Principles of State, which is in part IV of the Constitution of India, through its various judgment, has held that the "Right to Health" is a part and parcel of "Right to Life", provided under Article 21, and therefore is one of the fundamental rights provided under Constitution of India.
In one of the judgment, which relates to medical reimbursement, the Hon'ble Apex Court after considering the shlokas of "Garun Puran", allowed the claim of medical treatment, though was not permissible as per policy. The observation made by the Hon'ble Apex Court in the case of Surjit Singh Vs. State of Punjab and others (1996) 2 SCC 336, reads as under:-
"8. There has been a factual dispute as to whether the appellant went to the Dudley Road Hospital, Birmingham as an emergency case and whether he was operated upon in Humana Hospital, Wellington, London in that condition. Except for the bare word of the appellant, no documentary evidence in support of such plea had been tendered by him before the High Court, or even before us, to show that his was a case of emergency requiring instant operation and treatment. The State of Punjab on the other hand has countered before the High Court, as also here, that the case of the appellant was not that of an emergency but a planned visit to England to have himself medically treated under the care of his son, without submitting himself as per policy, for examination before the Medical Board. This plea of the appellant may have been required to be examined in thorough detail had he stuck to his original claim for medical expenses incurred in England. Since he has now brought down his claim to the rates prevalent in the Escorts in place of that of AIIMS, further reference to emergency treatment etc. would not be necessary. It would hypothetically have to be assumed that the appellant was in India, had not subjected himself to Medical Board examination, and had gone on his own to the Escorts and got himself operated upon for bypass surgery. The point to be considered is whether his claim is admissible under the policy keeping in view the string of judgments of the High Court in that regard, as well as on the factum that the State has already conceded reimbursement to the appellant on hypothetical basis as if treated in AIIMS."
9. The policy, providing recognition for treatment of open heart surgery in the Escorts, specifically came to be examined by a Division Bench of the Punjab and Haryana High Court at Chandigarh titled as Sadhu R. Pall v. State of Punjab [(1994) 1 SLR 283 (P&H)] , wherein the claim of the then writ petitioner to medical reimbursement was accepted when in order to save his life he had got himself operated upon in the Escorts, and the plea of the State that he could be paid rates as prevalent in the AIIMS was rejected. Special Leave Petition No. 22024 of 1995 against the said decision was dismissed by this Court on 2-2-1994. The other judgments of the High Court following the decision in Sadhu R. Pall case [(1994) 1 SLR 283 (P&H)] are:
(1) K.L. Kohli v. State of Punjab [ CWP No. 18562 of 1992, decided on 10-5-1995 (DB)] ;
(2) Mohan Duggal v. State of Punjab [ CWP No. 260 of 1995, decided on 30-5-1995 (DB)] ;
(3) Prem Singh Gill v. State of Punjab [ CWP No. 5669 of 1994, decided on 4-9-1994] ;
(4) Tarlok Chander v. State of Punjab [(1995) 3 Punj LR 529 (SB)] and (5) Surya Pandit v. State of Punjab [(1995) 3 Punj LR 682 (SB)] .
10. All the aforementioned judgments of the High Court have a common factual basis, i.e., each recipient of the relief from the High Court had in fact been treated in the Escorts and had borne expenses. The other common factor is that the High Court believed each writ petitioner pleading emergency to go to Escorts in the given fact situation. But this factor by itself is not the core of the views of the High Court. Hypothetically, the appellant says, he too may be considered to have been treated in the Escorts, more so, when he is being treated to have been operated upon in AIIMS without actually having been so, and had a choice to go either to the AIIMS or Escorts or Christian Medical College, Ludhiana or Apollo Hospital, Madras. The appellant in these circumstances cannot be said to be far too wrong in choosing Escorts amongst the three recognised hospitals for open heart surgery available in the North, the AIIMS being governmental and the other two being private hospitals. The Division Bench in Sadhu R. Pall case [(1994) 1 SLR 283 (P&H)] observed as follows:
"The respondents appear to have patently used excusals in refusing full reimbursement, when the factum of treatment and the urgency for the same has been accepted by the respondents by reimbursing the petitioner the expenses incurred by him, which he would have incurred in the AIIMS, New Delhi. We cannot lose sight of factual situation in the AIIMS, New Delhi, i.e., with respect to the number of patients received there for heart problems. In such an urgency, one cannot sit at home and think in a cool and calm atmosphere for getting medical treatment at a particular hospital or wait for admission in some government medical institute. In such a situation, decision has to be taken forthwith by the person or his attendants if precious life has to be saved."
We share the views afore-expressed.
11. It is otherwise important to bear in mind that self-preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self-preservation has a species in the right of self-defence in criminal law. Centuries ago thinkers of this great land conceived of such right and recognised it. Attention can usefully be drawn to Verses 17, 18, 20 and 22 in Chapter 16 of the Garuda Purana (A dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine:
17 Vinaa dehena kasyaapi canpurushaartho na vidyate Tasmaaddeham dhanam rakshetpunyakarmaani saadhayet Without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit.
18 Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane yatnamaatishthejje vanbhaadraani pashyati One should protect his body which is responsible for everything. He who protects himself by all efforts, will see many auspicious occasions in life.
20 Sharirarakshanopaayaah kriyante sarvadaa budhaih Necchanti cha punastyaagamapi kushthaadiroginah The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body.
22 Aatmaiva yadi naatmaanamahitebhyo nivaarayet Konsyo hitakarastasmaadaatmaanam taarayishyati If one does not prevent what is unpleasant to himself, who else will do it? Therefore one should do what is good to himself.
12. The appellant therefore had the right to take steps in self-preservation. He did not have to stand in queue before the Medical Board, the manning and assembling of which, barefacedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternative hospital as per policy. When the State itself has brought Escorts on the recognised list, it is futile for it to contend that the appellant could in no event have gone to Escorts and his claim cannot on that basis be allowed, on suppositions. We think to the contrary. In the facts and circumstances, had the appellant remained in India, he could have gone to Escorts like many others did, to save his life. But instead he has done that in London incurring considerable expense. The doctors causing his operation there are presumed to have done so as one essential and timely. On that hypothesis, it is fair and just that the respondents pay to the appellant, the rates admissible as per Escorts. The claim of the appellant having been found valid, the question posed at the outset is answered in the affirmative. Of course the sum of Rs 40,000 already paid to the appellant would have to be adjusted in computation. Since the appellant did not have his claim dealt with in the High Court in the manner it has been projected now in this Court, we do not grant him any interest for the intervening period, even though prayed for. Let the difference be paid to the appellant within two months positively. The appeal is accordingly allowed. There need be no order as to costs."
Thus for reasons aforesaid, we are of the view that any provision which directly or indirectly relates to health of a person requires liberal interpretation and not strict one (stricto sensu). Any provision which relates to health should be read to facilitate a person and not to penalize.
In view of aforesaid, we are also of the view, that "Right to Health" includes right to take the medical aid/treatment of choice, subject to reasonable restrictions.
Now coming to Regulation(s) 381 and 382. It appears the Regulations in issue were made part of Police Regulation with a view to avoid any mischief/misinterpretation by under officers and constables of the police department on the ground of illness/medical ground. The Regulation(s) provide timely information of treatment to the concerned authority. Regulations further say for making request for medical leave or extension of leave on medical certificate. Regulations also provide liverage for treatment at the nearest dispensary, if the Police Hospital is out of easy reach.
In the instant case, as appears from the record, the facts related to treatment taken by claimant-respondent from S.M.P.H. have not been disputed. Information of treatment given by the claimant-respondent to the concerned authority is also not in dispute. It is also a fact that after declaring fit to join the duties vide medical certificate dated 21.07.2010, the claimant-respondent was permitted to join the duties. The punishment of withholding the salary was awarded only on account of failure to act strictly in accordance with the Regulation(s) 381 and 382, which in our view ought not to have been done in the facts of the case i.e. the claimant-respondent was under the treatment at S.P.M.H., from where on becoming fit to join the duties, a medical certificate was issued on 21.07.2010.
Considering the facts of the case and in absence of any adverse finding given by the punishing/appellate authority, in regard to the treatment taken by the claimant-respondent and the documents related to such treatment, we are taking pragmatic view, and accordingly we hold that finding of the Tribunal on the issue related to Regulation(s) 381 and 382 is not liable to be interfered.
For the forgoing reasons, we are of the view that the writ petition lacks merit and is liable to be dismissed.
Accordingly the writ petition is dismissed. No order as to costs.
Order Date :- 22.10.2019 Vinay/-