Court No. - 58
Case :- WRIT - A No. - 16983 of 2001 Petitioner :- Vidya Ram Respondent :- Deputy Inspector General Of Police Agra And Others Counsel for Petitioner :- Diwakar Rai Sharma Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
1. Petitioner is a Constable and at the time of filing of the Writ Petition, he was posted in the Local Intelligence Unit at Hathras. It appears that petitioner sought two days casual leave on 9.7.1999, which according to him, was duly sanctioned. It is alleged that while on leave, petitioner became unconscious and he was taken to a private doctor in his vicinity and was admitted in his hospital at Firozabad. It is alleged that he remained under treatment upto 10.12.1994 and during this period he could not report for duty. However, it is alleged that he kept informing the authorities that he is not well and that his leave be extended.
2. A show cause notice was issued to the petitioner after he joined, in which it is mentioned that the leave certificate issued to him is of a private doctor and that the same is not liable to be entertained in view of Clause- 382 of the U.P. Police Regulations. Petitioner, therefore, was called upon to submit his explanation as to why his leave be not sanctioned without pay and his claim for medical leave be rejected. Petitioner has submitted his reply, stating therein that he was residing at Firozabad and in a state of unconsciousness, he was admitted to a private hospital wherein he underwent medical treatment for about 97 days. All medical certificates etc. were also sent by the petitioner. The explanation of the petitioner has been rejected vide order dated 8.3.1995, holding that no material has been produced by him, which may give strength to his explanation and, therefore, 97 days leave has been treated as leave without salary. An appeal preferred by the petitioner against the order dated 8.3.2015 has also been rejected. Aggrieved by the aforesaid two orders, petitioner is before this Court.
3. A counter affidavit has been filed in which it is alleged that the medical certificate annexed by the petitioner was not reliable and that is why the authority has correctly passed the orders impugned. Para-382 of the U.P. Police Regulations has been relied upon by the respondents in their counter affidavit.
4. I have heard learned counsel for petitioner, learned Standing Counsel for the Respondents and also perused the materials brought on record.
5. Respondents essentially have relied upon Para-382 of the U.P. Police Regulations to discard petitioner's claim for grant of Medical Leave on the ground that the medical certificate issued by the District Hospital or District dispensary, alone could have been relied upon for the purposes of sanction of medical leave.
6. This Court in Yashwant Singh Vs. State of U.P. and others, 2012 (3) ADJ 108 had an occasion to deal with the provisions of Para-382 of U.P. Police Regulations. This Court, upon a plain reading of Paras 381 and 382 of the police Regulations has observed that a presumption is sought to be drawn by the respondents against the genuineness of medical certificate unless it is obtained from a District Government Hospital. Paras 16 to 19 of the judgment is apposite for the present purposes and is reproduced hereinafter:-
“16. Thus, from the findings of enquiry officer it is clear that the medical certificate submitted by the petitioner in respect of his illness during the period of his unauthorised absence from duty was neither doubted nor disputed by the enquiry officer, nevertheless inquiry officer and disciplinary authority have held the petitioner guilty of negligent in discharge of his duty merely on account of fact that while on unauthorized absence from duty he did not observe the provisions contained in para 381 and 382 of the U.P. Police Regulations, which reads as under:-
"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 decision that the medical certificate has been obtained by misrepresentation and may thereby entail serious consequences.
382. Under-officers and constables 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 subordinates they are. Officers of higher rank are not compelled to apply for admission to police hospitals, 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."
17. From a plain reading of para 381 of the U.P. Police Regulations, it is clear that any police personnel, who wants to take medical leave on medical certificate must apprise the Superintendent of Police in writing of his intention to apply for a medical certificate and any failure to do so entails serious consequence and raise presumption that the medical certificate obtained by such police personnel is based on misrepresentation and further para 382 of the said Regulations postulates that under- officers and constables who fall ill while on duty must apply for admission to the district hospital or for treatment at the nearest dispensary, if the district 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 steps to communicate the fact to the Superintendent of Police whose subordinates they are. Officers of higher rank are not compelled to apply for such admission to police hospital, but they are not relieved of the responsibility of intimating their intention of obtaining medical certificate to the Superintendent of Police as prescribed under para 381 of the Regulations. These police Regulations are administrative instructions compiled in the U.P. Police Regulations. They have no statutory force. Non- compliance/observance of aforesaid regulations by sub-ordinate police officers entails serious consequence by raising presumption of misrepresentation by them in obtaining medical certificate for grant of medical leave, such presumption appears to have been raised by deeming provisions in the Regulation 381 of Police Regulations.
18. A legal fiction is one which is not an actual reality but which the law requires the court to accept it as a reality, therefore, in case of legal fiction, the court believes something to exist which in reality does not exist. It is nothing but a presumption of the existence of a state of affairs, which in actual reality is non- existent. In this connection, it would be useful to refer statements of law contained in few passage of IV Edition of Legislation and Interpretation ( By Late Jagadish Swarup) at page 307 and 308: "A legal fiction is one which is not an actual reality but which the law requires the Court to accept it as a reality. Therefore, in case of legal fiction, the Court believes something to exist which, in reality, does not exist. In other words, it is nothing but a presumption of the existence of a state of affairs which in actual reality is non-existent. When viewed from this context there is not much difference between a legal fiction and a presumption. However, it cannot be said that legal fiction and a presumption are wholly identical in all respects. A presumption may be conclusive or it may be rebuttable. A presumption gives rise to a legal fiction. It is conclusive, if no evidence can be permitted to be led to deny it. In case of a presumption which is rebuttable, unless the contrary is established, fictitious state of affairs is presumed to exist as if it is an actual reality.
A deeming provision creates a legal fiction. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under certain circumstances.
A deeming fiction can not be introduced by construction and it is the exclusive privilege of the legislature to apply a deeming fiction in a given case."
19. Thus from the aforesaid statements of law, it is clear that such deeming provision creates legal fiction through the statute. A legal fiction through deeming provision can not be introduce by the interpretation and it is exclusive privilege of the legislature to apply a deeming fiction in a given case, therefore, such deeming provision, in my view, can not be created through administrative instructions. The aforesaid view also finds support from various decisions of Apex Court including a decision rendered in V.C., Banaras Hindu University Vs. Shree Kant, 2006 (11) S.C.C. 42:AIR 2006 S.C.2304: 2006(4) ALJ 578 wherein it has been held that no legal fiction in law can be created by an administrative order. Thus the aforesaid presumption raised by the Regulation 381 of the Police Regulation is beyond the scope of authority under law, as such can not be sustained, therefore, the aforesaid presumption raised by said regulation is liable to be ignored and a substantial compliance thereof, in my opinion, would be sufficient.
7. I am in respectful agreement with the view taken by this Court that presumption can be drawn only on the basis of a legislative provision and the authorities would not be justified in relying upon administrative circular to draw such presumption.
8. Although in the counter affidavit an attempt is made to question the correctness of petitioner's illness or medical certificate, but in the absence of any such stand having been taken in the order itself, this Court would not be inclined to examine the stand taken for the first time in the counter affidavit in view of the law laid down by the Apex Court in Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851.
9. In view of the aforesaid discussions, writ petition succeeds and is allowed. The orders impugned dated 8.3.1995 and 2.4.1996 are quashed. The respondents shall proceed to examine petitioner's claim afresh, and in case medical leave is otherwise due and available to him, the claim for grant of such leave would be considered, within a period of six weeks from the date of presentation of certified copy of this order. The genuineness of medical bills,however, would be open to examination but it would not be a private medical practitioner.
Order Date :- 30.1.2019 n.u.