Court No. - 13
Case :- WRIT - A No. - 15713 of 2006 Petitioner :- Nahar Singh Respondent :- State Of U.P. And Others Counsel for Petitioner :- A.K. Tripathi,Manoj Tripathi,Namit Srivastava,Nisheeth Yadav Counsel for Respondent :- C.S.C.
Hon'ble Ajit Kumar,J.
Heard learned counsel for the parties and perused the record.
This writ petition under Article 226 of the Constitution of India is directed against the disciplinary proceedings, the order of the disciplinary authority confirmed in appeal and revision.
The charge against the petitioner is that he absented from duty without any prior notice to the department and then remained absent for a considerable period of time without any application being forwarded to that effect. He was issued a charge memo to which he did not submit any reply and ultimately inquiry was got conducted against him ex-parte. He was issued with a show cause notice which according to the learned Standing Counsel was got duly served upon him through his wife on 23.04.2003, and yet, in spite of service being effected, he did not submit any reply to the show cause notice and resultantly disciplinary authority proceeded to pass an order dismissing him from service but at the same time disciplinary authority condoned his absence from duty and adjusted the period of leave in his service record.
The appeal against the said order was dismissed recording concurrence with the findings returned by the disciplinary authority. However, the authority sitting in revision dismissed the revision on the ground that it was time barred by six months and seven days.
The ground for challenge to the impugned proceedings and order by the petitioner is that he was not afforded proper opportunity of hearing and that the entire enquiry was concluded in an ex-parte manner. He further assails that the alleged charge memo is not as per the procedure and format as prescribed in the Police Manual and therefore, it cannot be deemed to be a proper charge sheet within the meaning of charge sheet under the Rules. He further contends that he was under treatment at Primary Health Centre at the relevant point of time when the show cause notice was alleged to have been served upon his wife and that is why he could not furnish the reply. However, after recovery when he approached the authority to furnish the reply to the show cause notice, he received the order of dismissal from service. He further contends that the order of dismissal from service is itself contradictory in the sense that once the disciplinary authority had arrived to conclude that the petitioner's absence from duty was liable to be condoned as leave without pay, meaning thereby, he was to continue in service, there was no occasion for the disciplinary authority to dismiss him from service. The appellate authority has also not discussed this aspect of the matter in its order while recording its concurrence with the findings returned by the disciplinary authority, so also authority hearing revision instead of deciding the case on merits of chose to dismiss the revision on the ground of technicality of delay. The contention of learned counsel for the petitioner, therefore, is that the order of disciplinary authority was not sustainable for the reasons that it was self contradictory order, inasmuch as, once the period of absence from leave was condoned as leave without pay, there was no occasion for the disciplinary authority to dismiss him from service. According to him the very charge vanishes once the period of absence is treated as leave without pay.
Learned Standing Counsel however, could not dispute this aspect of the matter that once the disciplinary authority was condoning the absence from duty then why at the same time it proceeded to dismiss him from service.
The argument advanced by learned counsel for the petitioner carries substance and unfortunate part of the case is that this aspect of the matter has not been considered either by appellate authority or the authority sitting in revision. The order passed by the disciplinary authority also does not assign any reason as to under which circumstances and as to on which basis of logic applied to facts and circumstances of the case, it came to conclude that the absence of leave has to be condoned but at the same time the petitioner is to inflicted with major penalty of dismissal from service.
Therefore, in the opinion of the Court, the order dated 20.05.2003 passed by the disciplinary authority confirmed by the appellate authority and authority deciding revision are clearly not sustainable in the eyes of law and is accordingly hereby quashed. The orders passed by appellate authority dated 26.07.2004 and 15.10.2005 passed in revision are also quashed.
The matter is remitted to the disciplinary authority to reconsider afresh after furnishing the copy of the inquiry report to the petitioner and seeking his reply to the same and considering the same and also after affording reasonable opportunity of hearing to the petitioner to defend his case. In case if in the opinion of the disciplinary authority. The disciplinary proceedings shall restart from this stage and petitioner shall be under suspension during the pendency of disciplinary proceedings and the same shall abide by the ultimate order to be passed by Disciplinary Authority. The entire exercise shall be concluded positively within a period of three months from the date of production of a certified copy of this order.
Writ petition is allowed with aforesaid observations and directions.
Order Date :- 28.5.2018 IrfanUddin