JUDGMENT V.C. Misra, J.
1. Heard Sri R.P. Srivastava, learned Counsel for the petitioner and learned standing counsel on behalf of respondents.
2. This writ petition has been filed with the prayer to issue a writ, rder or direction in the nature of certiorari quashing the impugned order dated 26.7.1996 (Annexures No. 13 to the writ petition), passed by respondents No. .3 on the ground that the petitioner was negligent and indisciplined in his duty as he failed to join his duty from 9.8.1994 after the expiry of the causal leave period till 16.2.1995 without any permission or action of leave and also quash the impugned order dated 3.9.1997 (Annexure No 15 to the writ petition) passed by respondent No. 2, dismissing the appeal preferred by the petitioner under" Rule 20 (1) a of the Uttar Pradesh Police Officers of the Sub ordinate Ranks (Punishment and Appeal) Rules 1991, against the impugned order dated 26.7.1996.
3. The case of the petitioner in brief is that he had completed more than 36 years in police service with excellent service record and was to retire in the month of January, 2003. On 28.7.1994 he was granted casual leave for 10 days and left for home at Gorakhpur. He fell ill with jaundice and remained under treatment and could not join his duty on 9.8.1994, He also informed his concerned superior authority through registered letters sent on 9.8.1994, disclosing his inability to join his duty with effect from 9.8.1994 at Allahabad followed by two more leave applications. On getting well he reported at police station Colonelganj, Allahabad to join his duty on 1.2.1995, but he was asked to submit the medical certificate in question after getting it countersigned by the Chief Medical Officer, Gorakhpur, whom he approached but could not ubtain his counter signatures as the concerned authority had not written any letter to him for necessary action. He again returned back to Allahabad and was finally allowed to join his duty on 16.2.1995.
4. The petitioner on being asked submitted his explanation for being absent from duty for six months eight days and twelve hours. The Superintendent of Police (City, Allahabad) initiated a preliminary enquiry regarding his absence from duty and vide his order dated 28.3.1995 directed one Sri Badri Prasad Singh, the Circle Oficer (City II) to submit his report alongwith his recommendation. The statement of the petitioner was taken on record on 26.5.1995. Thereafter, the enquiry officer submitted his report dated 12.7.1995 with his recommendation that leave without pay for the period 28.7.1994 to 16.2.1995 be sanctioned and in addition to it a censor entry be also made in the character roll of the petitioner for his negligence and indiscipline which was agreed to by the Superintendent of Police (City), Allahabad. Respondent No. 3, Senior Superintendent of Police did not agree with the report and the recommendation of the enquiry officer and Superintendent of Police (City) Allahabad and directed a departmental enquiry to be conducted. One Sri Ajay Narain, the Assistant Superintendent of Police, was appointed as enquiry officer. The charge sheet was served on 12.2.1996 to which a reply was also submitted on 16.3.1996, thereafter a show cause notice dated 16.7.1996 along with the conclusion arrived at by the enquiry officer dated 25.6.1996 was served on the petitioner with a direction to submit his reply vhich too was submitted. Ultimately, the Senior Superintendent of Police, Allahabad, respondent No. 3, dismissed the petitioner from service vide impugned order dated 26.7.1996 (Annexure No. 13 to the writ petition) against which the petitioner preferred an appeal before the Deputy Inspector General of Police, Allahabad Region, Allahabad, which too was dismissed vide order dated 3.9.1997 (Annexure No. 15 to the writ petition)
5. This writ petition has been filed mainly on the ground that the charges levelled against the petitioner are not sustainable in the eyes of law, being manifestly erroneous on the facts and material on record since during absence he remained under treatment of medical practitioner and had also informed his concerned superior authority through registered letters sent on 9.8.1994, disclosing his inability to join his duty with effect from 9.8.1994 at Allahabad followed by two more leave applications, and such medical certificate issued by the registered medical practitioner and submitted by him should have been accepted in absence of any proof to the contrary and in case its authenticity vas required to be verified, the respondents could have sought the opinion from the Chief Medical Officer, Gorakhpur and also could get the medical certificate countersign by him in terms of the provisions of the Rules 95 and 96 (a)) & (b) Chapter IX of the Financial Hand Book Vol. II (Part II to IV) of the Uttar Pradesh Fundamental Rules, ( Subsidiary Rules, Delegations and Forms) and due to the noncomplamce of the same the impugned order of dismissal was arbitrary, wrong and bad as also no cogent reason has been specified by respondent No. 3 while passing the impugned order dated 26.7.1996 for rejecting the preliminary enquiry report dated 12.7.1995 given by superior officers to the petitioner and more as punishment of dismissal so awarded to the petitioner does not commensurate the charges levelled against him. Learned Counsel for the petitioner has also referred to Rule 73 of Chapter X of the said Fundamental Rules and Rules 381 and 382 of Chapter XXVIII of the U.P. Police Regulations and Rule 4 and 8 of U.P. Police Officer of the Subordinate Ranks (Punishment and Appeal) Rules 1991. The aforesaid rules are quoted below:
Chapter IX- Rule 95. An application by a non-gazetted government servant in superior service for leave, or for an extension of leave, on medical certificate shall be accompanied by a medical certificate in the following form given by a registered medical practitioner or a government medical officer:
96. (a) Where the leave is for a period of one month or less and the incapacity is not due to definite injury, the authority competent to sanction leave may, at its discretion, secure a second medical opinion by requesting the civil surgeon to have the applicant physically examined. Should it decide to do so, it must arrange for the second medical examination to be made on the earliest possible date after the date on which the first medical opinion was given.
(b) In all cases of illness necessitating leave beyond one month and in all cases of definite injury, the sanctioning authority should, except in cases covered by Clause (c) of this rule, obtain a second medical opinion from the authorized medical attendant and should, for this purpose, arrange for the second medical examination to he made on the earliest possible dale after the date on which the first medical opinion was given. The sanctioning authority may relax the provisions of the rule, provided it refers each case for such relaxation to the authorized medical attendant and the latter considers it desirable that relaxation should be given either on account of distance or the nature of illness.
Chapter X-Rule 73. A Government servant who remains sent after the end of his leave is entitled to no leave-salary for the period of such absence, and that period will be debited against his leave account as though it were leave on half average pay, unless his leave is extended by the Government. Wilful absence from duty after the expiry of leave may be treated as misbehaviour for the purpose of Rule 15.
Note.- In the case of a Government servant governed by leave rules laid down in Fundamental Rules 81-B and Subsidiary Rule 157-A, who remains absent after the end of his leave, the period of such overstayal of leave should, unless the leave is extended by the competent authority, be treated as follows :
(a) If the Government servant is in superior service and holds a lien on a permanent post-
(i) as leave on private affairs to the extent such leave is due unless the overstayal is supported by a medical certificate.
(ii) as leave on medical certificate to the extent such leave is due, if the overstayal is supported by a medical certificate.
(iii) as exeraordinary leave to the extent the period of leave on private affairs and/or on medical certificate falls short of the period of overs tayal;
(b) If the Government servant is in superior service without a lien on a permanent post or in inferior service, as in (a) (ii) and (iii) above mutates mutandis.
The period of overstayal of leave will be debited as leave taken but no leave salary will be paid for such period unless it is covered by an extension of leave granted by the competent authority
6. Chapter XXVIII Rule of the U.P. Police Regulations,
381. It is incumbent on all applicants for medical leave or extension of leave on medical certificates to apprise the Superintendent of Police in writing of their intention to apply for a medical certificate. Any failure to do so may result in a decisin that the medical certificate has been obtained by misrepresentation and may thereby entail serious consequences.
382. Under-officers and constable who fall ill when on duty or who are ill when due to return to duty, must apply for admission to the district police hospital or for treatment at the nearest dispensary, if the police hospital is out of easy reach. The fact of their admission or treatment must be reported to the local Superintendent of Police who unless they are his own subordinates will take immediate steps to communicate the fact to the Superintendent of Police whose subordinate they are. Officers of higher rank are not compelled to apply for admission to police hospital, but are not relieved of the responsibility, while on leave of intimating their intention of obtaining medical certificate to the Superintendent of Police as prescribed above.
7. Uttar Pradesh Police Officers of the Sub ordinate Ranks (Punishment and Appeal) Rules 1991,
4. Punishment - (1) The following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officer, namely:-
(a) Major Penalities:-
(1) Dismissal from service.
(ii) Removal from service
(iii) Reduction in rank including reduction to a lower-scale or to a lower stage in a time scale.
8. Dismissal and removal.
(1) ...
(2) No police officer shall he dismissed, removed or reduced in rank except after proper inquiry and disciplinary proceedings as contemplated by these rules:
Provided that this rules shall not apply-
(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, a is not reasonable practicable to hold such enquiry; or
(c) Where the Government is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry.
8. Learned Counsel for the petitioner has relied upon the decisions in the case of L/NK Musafir Yadav v. Commandant 47 Bn. C.R.P.F., Gandhi Nagar (Gujarat) reported in (2001) 3 UPLBEC, page 2196 and in another decision in the case of Union of India v. Giriraj Sharma reported in AIR 1994 Supreme Court, page 215, wherein it was held that the dismissal merely on the ground of over staying leave period, the punishment was too harsh and disproportionate as there was no willful intention to flout the order, the relief of reinstatement was granted to the incumbent with all monetary and service benefit with liberty to receive minor punishment, in the case of Bhagwan Lal Arya v. Commissioner of Police, Delhi and Anr. , wherein the delinquent was dismissed under Section 147 of Delhi Police Act (34 of 1978)- and Rules 8, 10 of Delhi Police (Punishment and Appeal, Rules 1980), from service, on the ground of absence from duty being grave misconduct/complete unfitness for police service, it was held to be improper being excessive and disproportionate, as absence on medical ground supported by medical certificate does not amount to grave misconduct.
9. I have perused the record of the case and find that no counter affidavit has been filed inspite of time having been sought for by the respondents through learned standing counsel and granted on several dates by the Court. It is settled law, as laid down in , , , 1993 Supp. (4) SCC, page-46 and 1999 (82) Factory Law Report, page 709 that if no affidavit in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted as true and correct drawing the presumption in favour of the petitioner in terms of Section 114 Illustration (g) of the Evidence Act, 1872 and Order 8 Rule 5 of the Code of Civil Procedure, 1908. the absence of counter affidavit, this Court is left with no option but to accept the averments made in the petition to be correct and true.
10. I also find that the impugned dismissal order dated 26.7.1996 passed by respondent No. 3 (Annexure No. 13 to the writ petition) is too harsh and does not commensurate the charges levelled against the petitioner, more so, since no reasons have been assigned for not accepting the preliminary enquiry report dated 12.7.1995 and the recommendation made therein. The absence of the petitioner on the medical ground with an application for sanction of leave cannot be termed as grave misconduct or has held by Hon'ble Apex Court in the case of Bhagwan Lal Arya v. Commissioner of Police, Delhi and Anr. , held that continued misconduct with the punishment of dismissal/ removal from service can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police; service. Merely one incident of absence and that too because of bad health, valid and justified grounds/reasons cannot become basis for awarding such a punishment.
11. The petitioner having put in unblemished service record of 36 years was to retire from service in the month of January, 2003. The punishment of dismissal is too harsh, unreasonable and unjustified. No good and sufficient reasons have been assigned for imposing Major Penalty upon the petitioner as is required under Rule 4(1) of the Punishment and Appeal Rules 1991. The petitioner had reported to the concerned authority of the fact of his treatment in terms of Rule 381 of Police Regulations. Since the petitioner due to impugned dismissal order would be debarred from receiving any payment such as pension, gratuity, fund etc, admissible to him otherwise, as a result of which not only he but also entire family dependent on him would be forced to starve. This mitigating circumstance also warrants that the punishment by way of impugned dismissal order dated 26.7.1996 passed by respondent No. 3 and confirmed in appeal by order dated 3.9.1997 passed by respondent No. 2 (Annexures No. 13 and 15 respectively) be set aside.
12. Under the above said facts and circumstances of the case and settled law, impugned orders dated 26.7.1996 and 3.9.1997 (Annexures No. 13 and 15 to the writ petition) passed by respondents No. 3 and 2 respectively are hereby quashed. The petitioner shall be treated to be in service till the date of his superannuation. However, it is made clear that the period during which the petitioner remained absent from duty i.e. w.e.f. 9.8.1994 till 16.2.1995 shall not be counted as a period spent on duty, and shall not be entitled to any service benefit for this period. The writ petition is allowed. No order as to costs.