Court No. - 28
Case :- WRIT - A No. - 32450 of 2007 Petitioner :- C.P.138 Constable Suresh Singh Respondent :- The State Of U.P. Thru' Its Secretary And Others Counsel for Petitioner :- Mohd. Naushad Siddiqui Counsel for Respondent :- C.S.C.
Hon'ble Ajay Bhanot,J.
1. Heard Sri Vipin Kumar, learned counsel for the petitioner and learned Standing Counsel for the State.
2. The petitioner is a Constable in the U.P. Police. He was absent from duty from 2.6.2004 to 18.10.2005. A preliminary enquiry was instituted into the fact and cause of his absence. The petitioner did not join the preliminary enquiry. The enquiry officer conducting the preliminary enquiry submitted a report confirming the fact of his absence. A show cause notice was issued to the petitioner on 3.5.2006 asking him to show cause as to why a penalty be not imposed upon him for absence from duty from 2.6.2004 to 18.10.2005. The proposed penalty was denial of wages for the period of absence of 503 days.
3. The petitioner submitted his reply to the show cause notice refuting the allegations contained there on 15.5.2006. The respondent authority upon consideration of the reply imposed the penalty of denial of wages for the period of absence from 2.6.2004 to 18.10.2005. Aggrieved by the aforesaid order the petitioner took the order in appeal before the appellate authority. The appellate authority rejected the appeal of the petitioner by order dated 31.12.2006.
4. The petitioner has assailed the order dated 24.5.2006 passed by the disciplinary authority, respondent no.3, imposing the penalty and the order dated 31.12.2006 passed by the respondent no.2, appellate authority rejecting the appeal of the petitioner.
5. Sri Vipin Kumar, learned counsel for the petitioner has submitted that the orders passed by the disciplinary authority have been made in violation of principles of natural justice. The orders are based on no evidence in the record.
6. Learned Standing Counsel Shri Vijay Kumar Singh-I submits that the petitioner is guilty of gross misconduct. Absenteeism cannot be tolerated in disciplined force like the U.P. Police. Imposition of penalty is made in order to instill discipline in the personnel of the U.P. Police. He further submits that the orders have been passed consistent with principles of natural justice. The petitioner was given an opportunity to defend his case. The authorities below have passed a reasoned and speaking order after due consideration of the reply submitted by the petitioner.
7. Heard learned counsel for the parties and perused the record.
8. The order passed by the Superintendent of Police, Chandauli, District Chandauli, disciplinary authority/respondent no.3 on 24.5.2006 records that the petitioner did not get himself admitted to a local hospital for treatment. He violated Regulations 381 and 382 of the U.P. Police Regulations. The order then records that the petitioner was residing in Ghazipur during the period of his absence and was under treatment at Ranchi.
9. Clearly the ground that the petitioner had violated Regulations 381 and 382 of the Police Regulations by not by getting himself to admitted in a police hospital was not part of the show cause notice. The petitioner was not alerted to the violation of the aforesaid provisions hence could not tender an evidence reply to the same. The respondents authorities travelled beyond the show cause notice by finding that the petitioner's conduct was in violation of Regulation 381 and 382 of the police regulation. The said finding is in breach of principles of natural justice.
10. The order dated 24.5.2006 further finds that the petitioner continued to perform the daily chores and discharged social obligations like attending marriages and receiving notices and so on. He was an out door patient and was never admitted to any hospital.
11. This finding is not borne out from the record of the writ petition. Further such finding too is in excess of the show cause notice. The show cause notice contained no mention of the above said grounds and materials, which became the basis of imposition of penalty upon the petitioner.
12. The defence of the petitioner was that he suffered from a mental illness which incapacitated him from attending to his regular duties. The claim of illness is supported by medical evidence. A person who suffers from mental illness cannot be expected to perform regular official duties and respond to official communications in the manner expected of a disciplined member of the police force. However, the reply of the petitioner was disbelieved and the penalty was imposed. The veracity of the medical reports and evidence was not considered.
13. The petitioner on his part has clearly taken the stand from the initial stage that because of the mental illness the family members had taken charge of his life and provided him with due care and support in the times of his illness. The family members had taken him to the best medical facility in their understanding and capacity. This fact has not been considered by the authorities below.
14. The aforesaid procedure adopted by the respondent no.3/disciplinary authority is in violation of principles of natural justice and not known to law.
15. The natural justice is a integral part of procedural propriety and has been firmly entrenched in our processual jurisprudence. Principles of natural justice require that charges are stated with material particulars. There is no ambiguity in the charges. The material which is adverse to the charged official and proposed to be relied upon in support of the charges should also be furnished to the delinquent official while seeking his reply. The principles of natural justice also contemplate that the reply submitted by the delinquent in his defence should be accorded due consideration. There should be independent and full application of mind to the reply of the delinquent official. The disciplinary authority should pass a reasoned and speaking order after bestowing attention to all the materials in the record, including the reply of the petitioner and return of specific findings thereon. The violation of principles of natural justice vitiates the proceedings and the order.
16. The appellate authority failed to redeem the justice meted out to the petitioner and upheld the orders passed by the disciplinary authority in a mechanical fashion by order dated 31.12.2006 and failed to redeem the procedural improprieties committed by respondent no.2.
17. The orders dated 24.5.2006 passed by the respondent no.3 and 31.12.2006 passed by the respondent no.2 are arbitrary, illegal and in violation of Article 14 of the Constitution of India. The orders dated 24.5.2006 passed by the respondent no.3 and 31.12.2006 passed by the respondent no.2 are quashed.
18. The charge of absence from duty in a disciplined force like the police cannot go unnoticed or if found correct it cannot go unpunished. Such charges have to be investigated by a regular departmental enquiry. The matter is remanded back to the respondents authorities. The mandamus is issued to the respondents to conduct complete departmental enquiry against the petitioner within a period of six months from the date of receipt of certified copy of this order. The exercise shall be done in accordance with law after due compliance of principles of natural justice and consistent with the observation made hereinabove.
19. The writ petition is allowed.
Order Date :- 30.7.2018 Pramod