Allahabad High Court
Smt. Kishori Ojha W/O Late Virendra ... vs State Of U.P. Thru Prin. Secy. Home & ... on 21 February, 2019
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Court No. - 26
Case :- SERVICE SINGLE No. - 122 of 2009
Petitioner :- Smt. Kishori Ojha W/O Late Virendra Kumar Ojha & Others
Respondent :- State Of U.P. Thru Prin. Secy. Home & Others
Counsel for Petitioner :- L.K. Pathak
Counsel for Respondent :- C.S.C.
*****
Hon'ble Manish Mathur,J.
Heard Sri L.K.Pathak, learned counsel for the petitioner and the learned Standing Counsel appearing on behalf of the opposite parties.
This Writ Petition pertains to the year 2009 in which pleadings have been exchanged and, therefore, is being decided at the admission stage itself.
The present Writ Petition has been filed seeking a writ in the nature of Certiorari quashing the order dated 28.09.1995 whereby services of late husband of the petitioner have been dismissed and also the order dated 26.10.1995 whereby salary and allowances have been forfeited.
The present petition has been filed by the legal heirs and representatives of the delinquent employee - late Virendra Kumar Ojha in view of the fact that during the proceedings initiated against him, the said person passed away on 15.10.2004 and, as such, prayer has been made in the present writ petition for a direction to pay all the post-retiral benefits due to him to the petitioner along with all consequential benefits treating him to be in service up to the date of his death, i.e.15.10.2004.
The brief facts of the case are that late husband of the petitioner was, initially, appointed on the post of Constable on 15.05.1976 and, subsequently, he was transferred on 02.02.1985 from District Police to Government Railway Police where, however, he failed to join and continued on unauthorised absence. He subsequently rejoined in service on 25.11.1987 after absence of two years ten months and 23 days due to which disciplinary proceedings were initiated against late husband of the petitioner. Subsequently, late husband of the petitioner was again transferred in the year 1988 in pursuance of which also he did not join and subsequently his joining was refused. In all, late husband of the petitioner is said to have been unauthorisedly absent from duty for 952 days. In pursuance of his absence from duty, disciplinary proceedings were initiated against late husband of the petitioner culminating in order of dismissal dated 28.09.1995, which is under challenge in the present writ petition. Subsequent to the order of dismissal, by means of another order dated 26.10.1995, salary for the aforesaid period of 952 days has been withheld, which is also under challenge.
Learned counsel for the petitioner has assailed the impugned orders primarily on the ground that the enquiry proceedings against late husband of the petitioner are totally in violation of principles of natural justice inasmuch as neither any charge sheet was ever given to him nor the enquiry proceedings concluded in terms of the procedure prescribed in the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the Rules of 1991), particularly, Appendix-I to Rule 14 of the Rules of 1991. It is the further submission of learned counsel for the petitioner that no date or time was ever informed to late husband of the petitioner with regard enquiry proceedings and that no oral enquiry was ever held by the enquiry officer in view of which the entire disciplinary proceedings are vitiated. Learned counsel for the petitioner has also challenged the order of dismissal on the ground of it being disproportional to the accusations levelled against late husband of the petitioner inasmuch as absence from duty has to be held to be wilful in order to dismiss the employee on that ground. He has further submitted that the dismissal order does not indicate anywhere that the absence of late husband of the petitioner from duty was wilful and deliberate and on the contrary he has submitted that the authorities concerned were made aware of the fact that late husband of the petitioner was seriously ill and was undergoing treatment at Balrampur Hospital at Lucknow and as such it cannot be said that his absence was deliberate which would amount to passing of order of dismissal.
Learned Standing Counsel appearing on behalf of the opposite parties has submitted that late husband of the petitioner was unauthorisedly absent for a period of 952 days in all and, therefore, merited for order of dismissal on account of the fact that petitioner's late husband was a part of disciplined force and could not have been absent from duty without any sanction of such leave, as such, the charges against late husband of the petitioner are grave enough to merit the order of dismissal. He has further submitted that the enquiry was instituted against late husband of the petitioner about which notices were issued to him but on account of the fact that he was absconding from duty the said notices, ultimately, had to be pasted at his house. He has further submitted that the proceedings of enquiry was sought to be communicated to late husband of the petitioner at all times, who refused to take notice of the same and, therefore, it can be said that late husband of the petitioner deliberately avoided the enquiry proceedings and as such they were held ex-parte resulting in his dismissal.
I have considered the submissions made by learned counsel for the parties and perused the record.
The petitioner has specifically stated in paragraphs 8 to 13 of the Writ Petition that husband of the petitioner could not resume the work on account of being seriously ill and was undergoing treatment at a Government Hospital i.e. Balrampur Hospital, Lucknow. In paragraph 13 of the Writ Petition, the petitioner has specifically stated that the application dated 02.09.2003 was sent through registered post to the opposite parties annexing all the medical certificates including copies of all the applications submitted by late husband of the petitioner on different dates for extension of medical leave. It is relevant to note that the aforesaid contents of paragraph 13 of the writ petition has not been specifically denied in paragraph 14 of the counter affidavit. The said paragraph of the counter affidavit has not specifically denied the receipt of the application dated 02.09.2003. It has also not been denied that late husband of the petitioner was undergoing treatment at Balrampur Hospital, Lucknow or that the medical certificates produced by him were forged. As such, it can be safely inferred that late husband of the petitioner, being ill, was undergoing treatment at a Government hospital at Lucknow.
So far as the challenge to the enquiry proceedings is concerned it is note worthy that even after the pendency of writ petition for the past ten years, the opposite parties have not brought on record any copy of charge sheet issued to late husband of the petitioner nor even the enquiry report has been brought on record from which it can be discernible that any proper enquiry was conducted against late husband of the petitioner. Rule 14 of the aforesaid Rules of 1991 relates to procedure for conducting departmental proceedings relating to Police Officers of subordinate ranks and state that the departmental proceedings against the police officers are to be conducted in accordance with the procedure laid down in Appendix I of the Rules. The said Appendix-I of the Rules clearly states that a delinquent police officer shall be afforded an adequate opportunity of defending himself and that the grounds on which it is proposed to take action shall be used in the form of a definite charge or charges as in Form 1 appended to the Rules which shall be communicated to the charged Police officer and which shall be so clear and precise as to give sufficient indication to the charged Police Officer, of the facts and circumstances against him. The aforesaid Appendix also indicates the procedure whereunder at all times the charged Officer has to be made part of the enquiry proceedings and has to be afforded adequate defence.
A perusal of the record clearly indicates the fact that neither the charge sheet nor enquiry report has ever been brought on record by the opposite parties and, therefore, it can be said that the entire departmental proceedings against late husband of the petitioner are violative of Appendix-I in terms of Rule 14 of the Rules of 1991. Even the impugned order of dismissal does not narrate the fixing of any date or time or even the intimation to late husband of the petitioner with regard to the witnesses and evidence to be adduced against him against which he could afford his defence. From a narration of the dismissal order also, it is clearly discernible that the provisions of the aforesaid Rule 14 and Appendix-I thereof to the Rules of 1991 was not applied with in the present case, as such, the order of dismissal of late husband of the petitioner cannot be said to be valid. Further more, the opposite parties themselves by means of the order dated 20.10.1995 (Annexure-2 to the Writ Petition) have directed that the aforesaid period of absence of late husband of the petitioner i.e. 952 days are to be treated as without pay. The definite inference of the said order would be that late husband of the petitioner has been granted leave without pay for the aforesaid period of 952 days and, as such, once the period of absence of late husband of the petitioner has already been treated to be leave without pay, there is no occasion for the opposite parties to have passed the order of dismissal of late husband of the petitioner. For the aforesaid purpose, learned counsel for the petitioner has relied upon the decision of Hon'ble the Supreme Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha reported in (2010) 2 SCC 772 in which Hon'ble the Supreme Court has held as under :
"27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge."
"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."
I am of the view that the aforesaid judgment of Hon'ble the Supreme Court is squarely applicable in the present case since even in the circumstance of late husband of the petitioner not participating in the enquiry, the opposite parties have not indicated any fixing of date or time to proceed with the enquiry ex-parte. The order of dismissal also does not indicate the recording of any statement of witnesses or production of record for the purposes of determination of the absence of late husband of the petitioner. Even the enquiry report has not been brought on record by the opposite parties from which it can be seen as to whether the unrebutted evidence is sufficient enough to hold the charges proved against late husband of the petitioner.
So far as submission of learned counsel for the petitioner is concerned that the order of dismissal is not commensurate with the charge of absentism levelled against late husband of the petitioner, he has relied upon the decision of Hon'ble the Supreme Court in Krushnakant B.Parmar v. Union of India and another, reported in (2012) 3 SCC 178 whereunder Hon'ble the Supreme Court has clearly held that the charge of unauthorised absence from duty cannot be decided without deciding the question as to whether the absence is wilful or is because of compelling circumstances. It has been further held that in a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful and in the absence of any such finding, the absence will not amount to misconduct. Absence from duty without any application or prior permission may amount to unauthorised absence but it does not always be wilful and, therefore, does not amount to grave misconduct.
In the present case also, although the enquiry report is not on record but even the order of dismissal has not decided the question as to whether the absence of late husband of the petitioner from duty was wilful or because of compelling circumstances of ill-health or being admitted in the hospital. Even after husband of the petitioner produced medical certificates, the opposite parties have not held any enquiry to examine the veracity of the said documents. In absence of the said action, it can be safely assumed that the explanation submitted by late husband of the petitioner about his being seriously ill and being admitted in hospital is perfectly valid and genuine.
With regard to the submission of learned counsel for the petitioner that the punishment imposed upon late husband of the petitioner is disproportionate to the charges levelled against him, he has relied upon the decision of Hon'ble the Supreme Court in S.R. Tewari v. Union of India and another, reported in (2013) 6 SCC 602 whreunder Hon'ble the Supreme Court has held that the question of interference on the quantum of punishment has already been answered in a catena of judgments whereunder it has been held that if the punishment awarded is disproportionate to the gravity of misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution of India. It has also been held that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. The order impugned would, however, not be perverse only if there is some evidence on record which is acceptable and which can be relied upon. The aforesaid judgment is squarely applicable in the present case in view of the fact that the impugned order of dismissal does not indicate any evidence whatsoever against late husband of the petitioner which was looked into in the enquiry proceedings. Even the medical certificates and reply submitted by late husband of the petitioner have been completely ignored. Dis-proportionality of the punishment vis-a-vis the charges imputed against late husband of the petitioner can also be seen by application of the judgment of Hon'ble the Supreme Court in Krushnakant B. Parmar (supra) in which Hon'ble the Supreme Court has specifically held that the question of unauthorised absence from duty amounting to misconduct can be decided only after the decision on the question as to whether the absence is wilful or because of compelling circumstances. It has been further held that if the absence is the result of some compelling circumstances under which it was not possible to report for duty, such absence cannot be said to be wilful and, therefore, would not amount to misconduct whereunder dismissal from services would be effected.
In view of the material on record clearly establishing the fact that late husband of the petitioner was seriously ill and was undergoing treatment at a Government Hospital against which no evidence was produced in the enquiry proceedings, it can be safely assumed that late husband of the petitioner was under compelling circumstances due to which he could not report on his duty resulting in his unauthorised absence. However, on the application of the aforesaid judgment of Hon'ble the Supreme Court in Krushnakant B. Parmar (supra), it cannot be said that the unauthorised absence of late husband of the petitioner was wilful and deliberate and, therefore, it cannot be held that such unauthorised absence amounted to misconduct so grave as to dismiss him from service.
In view of the above, the impugned dismissal order dated 28.09.1995, being against the provisions of law is hereby quashed. However, the order dated 26.10.1995 whereby the period of absence from duty of late husband of the petitioner amounting to 952 days has been directed to be 'without pay' is upheld.
It has been stated that the petitioner's husband subsequently died on 15.10.2004 and, as such, no useful purpose would be served in remitting the matter to the authority concerned for holding enquiry afresh.
In the aforesaid circumstances, the writ petition is partly allowed and a writ in the nature of Mandamus is issued commanding opposite party no.4, Superintendent of Police, Government Railway Police, District Lucknow to pay the post-retiral benefits due to late husband of the petitioner after re-fixation of pay of husband of the petitioner late Virendra Kumar Ojha. However, the fixation of pay prior to 15.10.2004 shall be done only on a notional basis.
The fixation of pay and the actual payment of post-retiral benefits due to late husband of the petitioner shall be done within a period of six months from the date a copy of this order is produced.
(Manish Mathur,J.) Order Date :- 21.02.2019 kvg/-