Court No. - 58
Case :- WRIT - A No. - 12109 of 2012 Petitioner :- Constable 1755 Civil Police Satish Chandra Sharma Respondent :- State Of U.P. And Others Counsel for Petitioner :- R.K. Shukla,Ajay Kumar,M J Akhtar Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
1. Petitioner was employed as a Constable in U.P. Police and was posted at District Kanpur Nagar in the year 2007 at Police Station Kotwali. He was also the Mess In-charge. It appears that he absented himself from duty w.e.f. 4.10.2007 and reported for duty only after 248 days of absence. Disciplinary proceedings, consequently, were initiated against him under the provisions of the U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991. A chargesheet was served upon him, which contains following two charges:-
(i) That unauthorized absence of 248 days from duty on part of the petitioner was willful and amounted to an act of misconduct.
(ii) That petitioner had embezzled a sum of Rs.8,000/-, which was given to him as advance in his capacity as Mess In-charge.
2. The chargesheet was served and it appears that a belated response was submitted to it denying the charges levelled against him. In defence, it was pleaded on behalf of petitioner that absence of 248 days was not willful or deliberate, inasmuch as petitioner while on duty received information of his wife's sickness and he left after handing over a leave application with his superior. It is further stated that petitioner's wife was critically ill and the petitioner was the only member available in the family to support her, and therefore he could not report for duty. It is also stated that petitioner himself suffered from serious ailment including Intestine infection etc. and he was continuously under medical supervision of doctors concerned. However, it appears that no medical certificate etc.
of petitioner's wife was produced while submitting his reply to the chargesheet. The enquiry officer recorded statement of persons in the presence of petitioner, and thereafter found both the charges to have been proved. Part conduct of the petitioner was also examined. The enquiry officer further found that petitioner was habitually absenting himself from duty, inasmuch as on 37 previous occasions also, it was reported that petitioner had remained absent without leave. It is also recorded that petitioner had been imposed punishment in the form of 04 adverse entry, 02 penalty and minor punishment on 25 occasions.
3. Having taken note of all such facts, the enquiry officer found both the charges to be proved. The enquiry report was served upon the petitioner. Petitioner submitted his reply on 5.9.2009, in which the plea already taken before the enquiry officer was reiterated. In response to the show cause notice, the petitioner, however, has deposited a sum of Rs.8,000/-, of which charge of embezzlement was found proved against him, and therefore recovery proceedings proposed against the petitioner have been dropped. However, considering the past conduct of the petitioner and also the specific finding returned against the petitioner by the enquiry officer, the disciplinary authority proceeded to pass order of dismissal against the petitioner. The appeal filed against it has been dismissed on the ground of limitation and the revision has also been rejected. Aggrieved by these three orders, the petitioner is before this Court.
4. Learned Senior Counsel for the petitioner submits as under:-
(a) that the petitioner's absence from duty was not deliberate or intentional, and therefore, it would not amount to an act of misconduct calling for any punishment to be imposed upon the petitioner;
(b) that the aspect of past conduct was not included in the chargesheet, and therefore petitioner had no occasion to rebut such materials, and these aspects would, therefore, constitute reliance upon extraneous materials, which would vitiate the punishment itself. It is also contended that proper opportunity of hearing and defence has also been denied to petitioner;
(c) that the punishment is disproportionate to the charges proved, and that the impugned action, therefore, would be unsustainable.
5. Petition is opposed by learned Standing Counsel.
6. I have heard learned counsel for the parties and have perused the materials brought on record.
7. So far as the plea of absence for 248 days is concerned, there is no issue on that count. The only issue that requires examination is as to whether such absence was intentional or was caused by the reasons beyond the control of petitioner. Essentially, this is a factual aspect and the petitioner was required to prove the fact that absence from duty was not intentional. The enquiry officer in his report has clearly recorded that no documentary evidence relating to illness of petitioner's wife was brought before him. However, alongwith the writ petition and a supplementary affidavit filed today, certain documents have been annexed to demonstrate that petitioner and his wife both were suffering from serious ailments. Learned Senior Counsel for the petitioner has placed heavy reliance upon the documents annexed alongwith the supplementary affidavit, filed today. The first document is a certificate issued by the District Hospital, Kanpur Nagar, dated 17th July, 2007. It appears that by this document certain blood reports were called for but those reports are not on record. The next document is the prescription of a private medical consultant prescribing certain medicines. The third document bears a date of 15th July, 2009, which is much after the petitioner has joined and thus would not be of any help. The Ultrasound report which has been annexed is also of a date after the joining of petitioner. There is another certificate issued by Chief Medical Superintendent, District M.S. Hospital Aligarh, as per which petitioner was advised complete bed rest. This certificate, however, contains overwriting, inasmuch as the year 2007 is changed to 2008. This certificate is, moreover, issued in August, 2009, which is much after petitioner's joining. The certificate is otherwise not shown to have been produced either in the enquiry or before the disciplinary authority. These documents, therefore, would not constitute sufficient basis to explain the absence of petitioner from duty for 248 days. None of these documents otherwise show any illness of petitioner's wife. The finding which has been returned by the enquiry officer that no evidence regarding ailment of petitioner's wife was placed on record before him, therefore, is not found to be erroneous or perverse. Wife's alleged illness was otherwise made the basis to explain petitioner's absence from duty. Even before this Court, there is no such evidence brought on record. The petitioner was otherwise posted at Kanpur Nagar and the medical certificate is also of the same district. It is, therefore, not believable that petitioner could not appear before the authorities and explain his illness for such a long period of time. The findings returned by the enquiry officer about petitioner's absence being willful and intentional, therefore, is not shown to be perverse or erroneous, so as to warrant any interference.
8. Learned counsel for the petitioner has placed reliance upon a decision of this Court in Satish Kumar Vs. State of U.P., 2017(6) ADJ 27, in order to contend that the dismissal due to absence from duty would not be warranted. The judgment relied upon on behalf of petitioner is clearly distinguishable on facts, inasmuch as the absence from duty in that case was only of 76 days and proper opportunity was also denied to him.
9. Turning to the next aspect i.e. placing of reliance on extraneous materials to inflict punishment upon the petitioner, it would be worth noticing that the observations and the findings in the orders impugned that petitioner was punished on 37 previous occasions, is not disputed. The further facts which emerge on record are that for more than 1,000 days petitioner has not been paid salary. Such facts can always be taken note of by the disciplinary authority for the purposes of examining the gravity of misconduct on part of the employee concerned. The petitioner otherwise has filed appeal and revision, but it is not shown that findings in that regard have been specifically challenged at any stage. The recital of fact by the enquiry officer that petitioner was found unauthorizedly absent for 37 previous occasions, and that he was imposed minor punishment on 25 occasions, penalty on 02 occasions and adverse entry on 04 occasions, are also facts which are not disputed. The examining of the past conduct of an employee is otherwise a relevant consideration, which can always be gone into, for the purposes of determining as to what would be the adequate punishment to be imposed upon an employee concerned. Once the facts in that regard have not been disputed, petitioner cannot be heard in saying that these materials are extraneous materials. The argument in that regard cannot be sustained.
10. So far as the plea of punishment being disproportionate is concerned, this Court finds that the absence of 248 days is clearly proved on record. The past service record of the petitioner is also a relevant factor, wherefrom it clearly appears that petitioner is a habitual absentee. The finding in that regard by the disciplinary authority cannot be said to be incorrect or illegal. The plea of punishment being disproportionate, therefore, also cannot be accepted, in the facts and circumstances of the present case.
11. Lastly, an attempt has been made on behalf of petitioner to submit that proper opportunity has been denied to the petitioner. This plea, however, is not substantiated on facts. It appears that chargesheet was served on different occasions upon the petitioner and his reply has been taken note of. No specific illustration of denial of opportunity has been placed before the Court. The copy of the enquiry report has also been served upon the petitioner. His explanation has also been taken note of. This Court, therefore, finds that the impugned action has been taken in substantial compliance of the provisions of the Rules of 1991 as well as the principles of natural justice. In that view of the matter, this Court finds that there would be no ground for this Court to interfere with the impugned action.
12. Writ petition, accordingly, is dismissed.
Order Date :- 27.2.2019 Anil