Allahabad High Court
Kushalpal Singh vs State Of U.P. And 2 Ors on 21 May, 2025
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:86051-DB Court No. - 29 Case :- WRIT - A No. - 47892 of 2014 Petitioner :- Kushalpal Singh Respondent :- State Of U.P. And 2 Ors Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Praveen Kumar Giri,J.
In Ref.: Order on Delay Condonation Application Heard.
Cause shown for the delay in filing of the special appeal is to the satisfaction of the Court. The delay in filing of the special appeal is condoned.
The Delay Condonation Application is, accordingly, allowed.
In Ref: Order on Restoration Application Cause shown for non appearance of the counsel on the date fixed is to the satisfaction of the Court. Order dated 14.05.2018 therefore, is recalled.
The restoration application is allowed.
Writ petition stands restored to its original number.
In Ref.: Order on Appeal
1. This petition arises out of an order passed by the U.P. Public Services Tribunal dated 19.02.2014, whereby, the punishment imposed upon the petitioner vide order dated 17.07.2010 terminating his services from the post of Constable in U.P. Police, as confirmed in appeal and revision, is affirmed.
2. Admitted facts of the case are that the writ petitioner was appointed as Constable in U.P. Police on 01.10.1984. He had completed nearly 26 years of satisfactory service prior to the incident in question. It is the case of the petitioner that on 12.01.2019 he was suffering from diarrhea and due to dehydration and weakness he fell from the stairs and injured his leg. The petitioner, for such reasons could not appear during the daily P.T. and left the Police Lines after informing the Reserved Inspector. An application was allegedly moved for sanction of leave from 21.01.2009 to 25.05.2009 on the ground of illness. The petitioner states that he was treated at Kamla Devi Hospital under the supervision of Doctor Aditya Kumar Parashar and ultimately he could recover on 25.05.2009.
3. It is the case of the petitioner that he had sent various applications seeking extension of leave during this period. When the petitioner joined his duties on 26.05.2009, he was charge sheeted on account of 124 days' absence from duty. In the disciplinary proceedings, the petitioner contested the charges of unauthorized absence by stating that he could not attend his duties for the reasons beyond his control and the injury in his leg was duly substantiated with the help of medical certificates etc.
4. During the inquiry proceedings, the medical certificates produced by the petitioner had not been accepted only on the ground that such certificates were not countersigned by the Chief Medical Officer. It is, however, undisputed that the medical certificates relied upon by the petitioner were not got verified from the concerned doctors nor there is any material on record to show that the medical certificates produced and relied upon by the petitioner were not genuine. The plea of illness was also not seriously disputed by the Inquiry Officer. However, the inquiry officer proceeded to hold the charges of unauthorized absence of 125 days to be proved and recommended dismissal of petitioner from the duty. The disciplinary authority on the recommendation made by the Inquiry Officer made endorsement that he is satisfied with the report of the Inquiry Officer and notice for dismissal be issued against the petitioner
5. The show cause notice consequently was issued to the petitioner on 17.06.2010. The petitioner submitted a detailed reply and submitted that the Inquiry Report is absolutely perverse, inasmuch as, the statement of witnesses could not have been relied upon against him when the documents were not properly proved. The order passed by the disciplinary authority has been affirmed in appeal and revision. The Tribunal has rejected the claim petition filed by the petitioner vide order dated 19.02.2014.
6. Before the Tribunal, the petitioner has specifically stated that neither the copy of the preliminary Inquiry Report has been furnished to him although it was relied upon nor other materials were served upon him and, therefore, the inquiry itself was vitiated. The Tribunal has, however, held that the petitioner did not produce any evidence from his side and, therefore, no prejudice is caused to the petitioner.
7. So far as the petitioner's plea that there was no independent application of mind on part of the disciplinary authority with regard to the imposition of punishment, as the Inquiry Officer himself has proposed punishment, which alone was relied upon the tribunal held that the disciplinary authority had expressed his agreement with the view of the Inquiry Officer which clearly reveals that the disciplinary authority had applied his mind.
8. On the plea of the petitioner with regard to his illness forcing him not to attend to his duties, the Tribunal has held that since the petitioner had not got himself examined in the Government Hospital, as such, the medical certificates produced of the private hospital could not be relied upon to prove the factum of illness. So far as the quantum of punishment is concerned the Tribunal has observed that it has no jurisdiction to act as an appellate authority and since the punishment is otherwise not illegal, therefore, no interference is required.
9. Learned counsel for the petitioner submits that the petitioner has already worked for sufficiently long and since he had furnished material to show that on account of illness he could not attend to his duties and the absence from duty was not proved to be unauthorized, therefore, the punishment order cannot be sustained. It is also submitted that punishment imposed upon petitioner is grossly disproportionate to the nature of charge imposed upon the petitioner.
10. Learned State Counsel, Shri M.K. Pandey submits that the police force is a disciplined force and unauthorized absence from duty of a Constable for 125 days is a serious lapse for which termination would be a just punishment. It is also submitted that the inquiry has been conducted in a fair and transparent manner and no interference in the writ is called for.
11. We have heard learned counsel for the parties and carefully perused the material available on record.
12. In the facts of the case, it is undisputed that petitioner was appointed as a Constable in 1994. He had completed nearly 25 years of unblemished service and before the incident in question, there is nothing on record to show that petitioner was a habitual absentee or that any other misconduct was ever attributed to him. The petitioner has specifically stated that he was suffering from diarrhea and weakness as a result of which he fell and sustained injuries. Material has been placed on record to show that this fact was duly intimated to the officer immediately available, whereafter, the petitioner left for his village for treatment etc. The petitioner got himself medically examined and was under treatment of a private hospital. The medical certificates of the doctor have already been placed before the authorities. The only reason due to which such documents are disbelieved by the employer is that medical certificate was not obtained from a Government Hospital and that the certificates issued by the private hospital were not endorsed by the Chief Medical Officer of the district concerned.
13. The law has been settled by the Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India and another, (2012) 3 SCC 178 that in order to hold the Government Servant guilty of unauthorized absence from duty, it would have to be seen as to whether the absence was unauthorized or was for reasons beyond the control of the employee. Paras 16 to 21 of the judgment in Krushnakant B. Parmar (supra) are relevant for the present purposes and are extracted hereinafter:-
"16. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
18. 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, in absence of such finding, the absence will not amount to misconduct.
19. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.
20. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.V. Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held:
"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
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 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 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."
14. In the facts of the present case, it is apparent that petitioner had made an application informing the authorities that he had suffered injury and he is proceeding on leave for a month. The certificate of the doctor clearly stated that he was under his treatment from 21.01.2009 to 25.05.2009 and that he is declared fit from 26.05.2009. This is on record. The genuineness of the medical certificate is otherwise not disputed.
15. In the facts of the case, we are of the view that even if the petitioner had not got himself medically examined in the Government Hospital and for such reasons his medical certificate could have been doubted yet for such reason alone, the punishment upon the appellant cannot be sustained. The petitioner admittedly has worked for nearly 26 years. It is the first incident in which he was found absent for 125 days. There is nothing on record to show that leave for 125 days was otherwise not available on medical ground to the petitioner. The explanation furnished by the petitioner was also not found to be lacking credibility, therefore, in the facts and circumstances of the present case, the punishment imposed upon the petitioner is found to be harsh and disproportionate of the nature to the charge levelled upon the petitioner.
16. We also find substance in the plea taken by the petitioner that a fair disciplinary inquiry was not conducted, inasmuch as, the documents relied upon against the petitioner were also not furnished to him and the Inquiry Officer had suggested the punishment to be imposed upon the petitioner, which alone was accepted by the disciplinary authority. The plea that there was lack of conscious application of mind on part of disciplinary authority in determining the guilt of the petitioner as well as the quantum of punishment is also clearly made out.
17. In such view of the matter, the punishment imposed upon the petitioner cannot be sustained. Consequently, the order of the Tribunal as also the orders passed by the authorities are quashed. Since the petitioner has already retired from service, he would only be entitled to reinstatement alongwith continuity of service till the date of his superannuation but he would not be entitled to salary for the period of absence. As the petitioner has not worked till he attained age of superannuation, we hold him entitled to 50% back wages along with continuity of service. The petitioner would be entitled to all retiral benefits including pension etc.
18. The dues in terms of the above observations shall be calculated and paid to the petitioner within 3 months.
Order Date :- 21.5.2025 S.A.