Allahabad High Court
Chandra Pal Singh vs State Public Service Tribunal Indira ... on 6 April, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 3 A.F.R. Case :- SERVICE BENCH No. - 1345 of 2002 Petitioner :- Chandra Pal Singh Respondent :- State Public Service Tribunal Indira Bhawan And 3 Ors. Counsel for Petitioner :- D.N.Pandey Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar-II,J.
1. Heard Mr. H.S. Jain, learned counsel for petitioner and learned Chief Standing Counsel for State.
2. This writ petition under Article 226 of Constitution of India has come up assailing judgment and order dated 31.5.2002 passed by State Public Services Tribunal (hereinafter referred to as 'Tribunal') dismissing petitioner's Claim Petition No. 915 of 1995.
3. The petitioner, was appointed in U.P. Police Force as Constable on 13.8.1980, and after completion of training, was posted in district Kanpur. He was thereafter transferred to district Fatehpur in 1983 and then to district Pratapgarh in 1991. He proceeded on sanctioned casual leave from 6.6.1993 to 12.6.1993 and recorded his departure in general diary on 5.6.1993. After expiry of sanctioned leave, petitioner did not resume duty. It is claimed that he fell ill in the night of 11/12.6.1993 and taken for treatment to Government Hospital, Community Health Centre, Bidhuni, Kanpur. He sent an application dated 15.6.1997 along with medical certificate seeking further leave on the ground of illness. Similar applications were sent on 15.7.1993 and 17.8.1993. After recovering from illness, he obtained a fitness certificate on 21.9.1993 and submitted joining on 22/24.9.1993.
A charge sheet dated 10.11.1993 alleging unauthorized absence for 104 days i.e. from 13.6.1993 to 23.9.1993, was issued. Petitioner submitted reply dated 26.11.1993 admitting his absence but stated that he was ill and under treatment from 12.6.1993 to 23.9.1993. Reply submitted by petitioner reads as under:-
fo"k;%& vkjksi dk tckc izLrjokj la0 & iks@,Q&25@93 fnukafdr 10&11&93 ds lEcU/k esa fuEu gS%& egksn;] 1- bl izLrj ds vkjksi ds lEcU/k esa eq>s dqN ugha dguk 2- bl izLrj ds vkjksi ds lEcU/k esa Hkh dqN ugha dguk gSA 3- bl izLrj ds vkjksi ds lEcU/k eas eq>s ;g dguk gS fd tc dka0 jke flag esjs ?kj ij x;k Fkk rks ml le; esjh rfc;r Bhd ugha Fkh MkDVj dk bykt py jgk FkkA bl dkj.k ls eSa viuh vken 5 fnu ds vUnj iqfyl ykbu esa ugha djk ldkA esjk bykt dkuiqj esa MkDVj ds ;gka fnukad 12&6&93 ls fnukad 23&9&93 rd pyk FkkA esjs QsQMs esa ikuh vk x;k Fkk ftl dkj.k ls eS fM;wVh ij ugha vk ldkA 4- bl izLrj ds vkjksi ds lEcU/k esa eq>s dqN ugha dguk gSA 5- bl izLrj ds vkjksi ds lEcU/k esa ;g dguk gS fd mi iqfyl v/kh{kd }kjk tks tkap dh x;h gS og vius vki esa iwjh ugha gSA rFkk ekuoh; vk/kkj dks /;ku u nsdj tkap dh dk;Zokgh djrs gq, n.M dh iqf"V dh x;h gSA fcuk fdlh i;kZIr ,oa mfpr vk/kkj ds bl izdkj ds n.M dks iqf"V dk fd;k tkuk u u;h n.M fu;ekoyh dh /kkjk 4 ds izkfo/kku ds fcYdqy gh foijhr gSA eSa nSoh vkink vk tkus ds dkj.k gh xSj gkftj gqvk Fkk ftldk LIk"V izek.k esfMdy lVhZfQdsV gSA izkFkhZ dka0 pUnz iky flag iqfyl ykbu izrkix rk0 ,,ˆ-ff-‹...
(emphasis added) "Subject :- The parawise reply regarding charges bearing No. Po./F-25/93, Dated 10.11.93, is as under :-
Sir,
1. I do not wish to submit anything regarding the charge contained in this para.
2. I do not wish to submit anything regarding the charge contained in this para too.
3. Regarding the charge contained in this para, I want to submit that when Co. Ram Singh had gone to my home at that time I was ill, my treatment was going on by the doctor. Due to this reason I could not enter my arrival (Aamad) at Police Line within 05 days. I was under treatment at Kanpur from 12.06.93 to 23.09.93 by the doctor. Water had reached in my lungs therefore I could not come on duty.
4. I do not wish to submit anything regarding the charge contained in this para.
5. Regarding the charge contained in this para, I want to submit that the inquiry conducted by Deputy Superintendent of Police is not complete in itself. The inquiry has been proceeded ignoring the humanitarian ground and the punishment has been affirmed. Affirming such punishment without any sufficient and proper ground is totally against the provisions of Section 4 of the New Punishment Rules. I was absent due to natural calamity, the medical certificate is the clear evidence whereof.
Applicant, Co. Chandra Pal Singh Police Line, Pratapgarh.
Date : 26.11.93"
(Translation by Court)
4. Oral inquiry was conducted by Deputy Superintendent of Police, Kunda, district Pratapgarh. He examined witnesses mentioned in the charge sheet but despite communication, petitioner did not face inquiry. On 29.7.1994 when witnesses were examined by inquiry officer, petitioner was absent. Inquiry officer submitted report holding charge proved and recommended punishment of 'Removal'.
Ultimately, petitioner was imposed punishment of dismissal vide order dated 21.10.1994, which was challenged before Tribunal in Claim Petition No. 915 of 1995 but Tribunal has dismissed the same. Tribunal has found that absence for the period mentioned in charge sheet was admitted by petitioner but he sought to explain the said absence that it was not deliberate or without any valid reason. He claimed that absence was on account of illness. But to prove aforesaid fact, petitioner did not adduce any evidence before inquiry officer at all. Once charge of unauthorized absence is admitted and delinquent employee seeks to explain that absence was not deliberate or willful but for valid reason, onus lay upon employee to prove his defence which petitioner failed by adducing any evidence whatsoever.
5. Learned counsel for petitioner has placed reliance on Supreme Court judgment in Krushnakant B. Parmer Vs. Union of India and another, (2012) 3 SCC 178 but that is a case where Court found that employee concerned brought 11 defence evidence in support of his defence but same were ignored by inquiry officer. The observations made in paragraph-21 of judgment are reproduced as under:-
"21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the inquiry officer or the appellate authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3-10-1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of telephone calls dated 29-9-1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty."
(Emphasis added)
6. That is not the case in hand. Petitioner did not adduce any evidence whatsoever to prove his explanation that absence was not willful. It cannot be doubted that in departmental proceeding, if allegation of unauthorized absence from duty is made, disciplinary authority is required to prove that absence is willful. In absence of such finding, were factum of absence will not amount to 'misconduct'. This is what has been held in paragraph-18 of Krushnakant B. Parmer (supra).
7. We have no dispute with legal proposition but then it does not apply in the case in hand for the reason that here absence without permission was admitted by petitioner but he sought to explain on the ground of illness. In support thereof, petitioner adduced no evidence whatsoever. Therefore, aforesaid judgment of Krushnakant B. Parmer (supra) does not help petitioner at all.
8. It is thus contended that inquiry officer has also considered some earlier unauthorized absence on the part of petitioner, which was illegal and for this purpose, reliance is placed on Mohd. Yunus Khan Vs. State of Uttar Pradesh and others, (2010) 10 SCC 539. We find that in paragraph-34 of said judgment, Court has observed as under:-
"34. The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show-cause notice, before imposing the punishment."
(Emphasis added)
9. If disciplinary authority intend to look into past conduct, which should be informed to delinquent employee atleast before imposing punishment. Relying on earlier authorities, in paragraph-35 of judgment in Mohd. Yunus Khan (supra), Court has held as under:-
"35. This Court in Union of India v. Bishamber Das Dogra [(2009) 13 SCC 102 : (2010) 1 SCC (L&S) 212] considered the earlier judgments of this Court in State of Assam v. Bimal Kumar Pandit [AIR 1963 SC 1612] , India Marine Service (P) Ltd. v. Workmen [AIR 1963 SC 528] , State of Mysore v. K. Manche Gowda [AIR 1964 SC 506] , Colour-Chem Ltd. v. A.L. Alaspurkar [(1998) 3 SCC 192 : 1998 SCC (L&S) 771 : AIR 1998 SC 948] , DG, RPF v. Sai Babu [(2003) 4 SCC 331 : 2003 SCC (L&S) 464] , Bharat Forge Co. Ltd. v. Uttam Manohar Nakate [(2005) 2 SCC 489 : 2005 SCC (L&S) 298] and Govt. of A.P. v. Mohd. Taher Ali [(2007) 8 SCC 656 : (2007) 2 SCC (L&S) 990] and came to the conclusion that it is desirable that the delinquent employee be informed by the disciplinary authority that his past conduct could be taken into consideration while imposing the punishment. However, in case of misconduct of a grave nature, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the delinquent for "adding the weight to the decision of imposing the punishment if the fact of the case so required"."
10. In the present case, Annual Confidential Report and other service record was examined by Inquiry Officer and it has been noticed in inquiry report. Copy of inquiry report was supplied to petitioner along with show cause notice dated 27.9.1994. Therefore, before imposing punishment, petitioner was communicated the facum of consideration of his past conduct before imposing punishment. Despite service of show cause notice, petitioner did not submit any reply whatsoever and thereafter punishment order was passed on 21.10.1994. Therefore, in the present case, it cannot be said that past conduct has been considered by disciplinary authority without communicating or informing to petitioner before imposing punishment.
11. No other point has been argued.
12. We do not find any manifest error in the impugned judgment.
13. Dismissed accordingly.
Order Date :- 6.4.2017 Virendra