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2011 (1) Supreme 334
SUPREME COURT OF INDIA
P. Sathasivam and Dr. B.S. Chauhan, JJ.
State of U.P. & Ors. — Appellant(s)
versus
Madhav Prasad Sharma — Respondent(s)
Civil Appeal No. 242 of 2011
(Arising out of S.L.P. (C) No. 31461 of 2009)
Decided on : 10-1-2011
(b) The Uttar Pradesh Subordinate Police Officers/Employees (Punishment and Appeal) Rules, 1991 – Rules 4 and 8 – Respondent sanctioned leave without pay for the period of unauthorised absence and thereafter dismissed from service – Leave without pay not a punishment in terms of rule 4 – Thus only one punishment of dismissal imposed in terms of Rule 8 – No question of double jeopardy. (Para 9)
(c) Service Law – Departmental proceeding – Unauthorised absence has to be regularized before initiating and continuing with the proceeding – Regularizing unauthorised absence even without pay is justified for continuing with the departmental proceeding. (Para 11)
Facts of the case:
1. Respondent, a police constable, remained absent for 101 days without permission.
2. He did not co-operate in the departmental enquiry.
3. At the stage of second sow cause, respondent accepting the charge of unauthorised absence but explained this account of illness.
4. High Court allowed respondent’s petition against his dismissal.
Finding of the Court:
There is no question of double jeopardy.
Result : Appeal partly allowed.
JUDGMENT
P. Sathasivam, J. —
1) Leave granted.
2) This appeal is directed against the final judgment and order dated 29.06.2009 passed by the High Court of Judicature at Allahabad in Special Appeal No. 614 of 2009 whereby the Division Bench of the High Court dismissed the special appeal preferred by the appellants herein.
3) Brief facts:
(a) The respondent was appointed as Police Constable at Police Lines, Aligarh vide order dated 01.02.1978. On 19.10.2001, the respondent had gone for some official work and left the Police Station, Sikandarpur Vaishya and thereafter came back on his duty on 28.01.2002 after 101 days. After initiation of departmental proceedings, the Disciplinary Authority issued notices to the respondent on various dates for seeking explanation for his unauthorized absence from duty. On 23.03.2002, the Deputy Superintendent of Police (in short “the DSP”) issued charge sheet against the respondent by leveling charges and directed him to submit the reply by 01.04.2002. As the respondent did not reply to the notice, the DSP issued another notice to the respondent on 04.04.2002. After giving several opportunities to the respondent, the Disciplinary Authority fixed the date as 01.07.2002 for recording of evidence but the respondent did not appear before the Presiding Officer. Finally, the respondent appeared before the Presiding Officer on 16.09.2002 and informed that he has no defence witness. After completion of the enquiry, the Presiding Officer, vide his order dated 09.10.2002, submitted his report to the Disciplinary Authority. Agreeing with the enquiry report, the Disciplinary Authority issued show cause notice dated 25.10.2002 to the respondent along with the copy of the enquiry report for his comments/reply on the findings recorded therein. On 06.11.2002, the respondent submitted his reply stating that he had accepted the findings on the charge of unauthorized absence from duty on the ground of illness.
(b) The Sr. Superintendent of Police (in short “the SSP”), Etah, vide order dated 23.11.2002, terminated the service of the respondent. Feeling aggrieved by the said order, the respondent preferred Departmental Appeal before the Deputy Inspector General of Police (in short “the DIG”), Agra Zone, Agra. Vide order dated 27.02.2003, the DIG rejected the appeal filed by the respondent herein.
(c) Aggrieved by the said order, the respondent preferred writ petition being C.M.W.P. No. 53909 of 2003 before the High Court which was allowed by the learned single Judge vide his order dated 17.09.2008. Against the said order, the appellants herein preferred special appeal being S.A. No. 614 of 2009 before the High Court. The Division Bench of the High Court, vide its order 29.06.2009, dismissed the special appeal on the ground of maintainability. Aggrieved by the said order, the appellants have preferred this appeal by way of special leave before this Court.
4) Heard Mr. Shail Kr. Dwivedi, learned Additional Advocate General for the State of U.P. and Mr. V. Shekhar, learned senior counsel for the respondent.
5) Without going into the merits of the charges leveled against the respondent, let us consider the following two questions:-
(i) Whether the Special Appeal No. 614 of 2009 preferred by the State before a Division Bench against the order of the learned single Judge allowing the writ petition filed by the petitioner therein is maintainable?
(ii) Even if we answer the first question in the negative, whether the order of the learned single Judge quashing the order of termination dated 23.11.2002 of the petitioner therein is sustainable.
6) In view of the limited issues, there is no need to traverse all the factual details. However, it is relevant to refer the charge leveled against the respondent herein which reads as under:-
“You left Police Station Sikandarpur Vaishya on 19.10.2001 for the Office of Circle Officer in connection with some departmental work and thereafter you came back on 28.01.2002 and thus remained unau
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