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2012 Supreme(All) 351
[2012(3) ADJ 108]
ALLAHABAD HIGH COURT
BEFORE : SABHAJEET YADAV, J.
YASHWANT SINGH ...Petitioner
Versus
STATE OF U.P. AND OTHERS ...Respondents
(Civil Misc. Writ Petition No. 43561 of 2006, decided on 3rd February, 2012)
Vishwajeet Singh and V.S. Singh for the Petitioners; C.S.C. for the Respondents.
Headnote:U.P. Police Regulations—Paras 381 and 382—Removal—Unauthorized absence from duty—Justification—Constable—Allegedly, he was unauthorisedly absent from duty for a period of 1198 days—Whether while disagreeing with the findings and recommendation of inquiry officer the disciplinary authority was required to give opportunity of hearing to the petitioner at that stage or at any rate the disciplinary authority was bound to record its reason for disagreement with the findings of Inquiry Officer?—A delinquent employee has right of hearing not only during the enquiry proceedings conducted by enquiry officer but also at the stage at which those findings are considered by disciplinary authority and such authority forms a tentative opinion that it does not agree with the findings recorded by Enquiry Officer—Although Enquiry Officer has not exonerated the petitioner from the charge levelled against him but he has recommended a lessor punishment to be awarded—However, disciplinary authority while disagreeing with the aforesaid punishment has imposed a major penalty of removal from service, even without affording any opportunity of hearing to him—Not disputed that petitioner was ill during the period he was unauthorizedly absent from duty—Medical certificates as submitted by petitioner were also not doubted—Paras 381 and 382 of Police Regulations also complied with—Impugned orders quashed—Petitioner reinstated in service—Directions issued. [Paras 14 to 26]
Key Points: - The judgment holds that a delinquent employee has a right of hearing at the stage when the disciplinary authority considers disagreeing with the Enquiry Officer’s findings, and must record reasons for disagreement (!) (!) (!) (!) . - The disciplinary authority cannot impose a major penalty without affording hearing and without providing reasons for disagreement with the inquiry findings, as per Apex Court principles cited (Yoginath Bagde; Punjab National Bank v. Kunj Behari Mishra) (!) (!) . - The case deals with illness during unauthorized absence, recognition that medical certificates were genuine, and that appropriate medical leave or leave without pay should have been considered rather than unilateral removal; pre- and post-inquiry medical considerations are discussed (!) (!) (!) . - The Court quashed the removal orders, noted non-compliance with Paras 381-382 UP Police Regulations, and ordered reinstatement with continuity and back/regularized pay/right to medical/extraordinary leave as warranted (!) (!) (!) (!) . - It emphasizes that dependents on medical absence cannot be penalized solely for absence if medical evidence supports illness and proper leave procedures were not followed (!) (!) . - The judgment discusses deeming/fictionary presumptions in administrative rules (Regulation 381) and rejects unsupported legal fiction created by administrative orders (!) (!) (!) . - The final directions include reinstatement, leave adjustments, and back wages with partial back pay as prescribed (!) (!) .
What is the right to a hearing when a disciplinary authority disagrees with the findings of the Enquiry Officer in a departmental proceeding?
What is the appropriate procedure and grounds for recording disagreement and awarding punishment when medical evidence supports illness during unauthorized absence?
What are the remedies and reinstatement/compensation rights of a delinquent employee where the disciplinary authority’s orders are quashed for non-compliance with natural justice and regulatory provisions?
Hon’ble Sabhajeet Yadav, J.—Heard learned counsel for the petitioner and learned standing counsel for respondents.
2. By this petition, the petitioner has sought relief of writ of certiorari for quashing the orders dated 28.3.2005, contained in Annexures-10 and 11 of the writ petition, passed by the respondent No. 4, orders dated 7.11.2005 and 5.11.2005, contained in Annexures-12 and 13 of the writ petition, passed by the respondent No. 3 and orders dated 27.5.2006, contained in Annexures-14 and 15 of the writ petition, passed by the respondent No. 2. And further a writ of mandamus is sought for directing the respondents to reinstate the petitioner as constable in G.R.P., Jhansi or any other place.
3. Brief facts leading to the case are that while working on the post of constable in Civil Police, Banda the petitioner was transferred to Government Railway Police, Jhansi and was relieved on 22.10.1999 from Police Line, Banda to join Government Railway Police Line, Jhansi by 29.10.1999. It is stated that during the joining period he became seriously ill and attended the doctor at District Hospital, Banda as he had no option but to receive regular treatment and could not make any application for sanction of medical leave. In this way, he was found to be unauthorisedly absent from duty. It is stated that with regard to his illness, he had regularly sent information to the Superintendent of Police, Banda and ultimately, he joined his duties on 1.2.2003 at Government Railway Police Line, Jhansi. On account of his such absence from the duty he was placed under suspension on 20.11.2002 by Superintendent of Police, G.R.P., Allahabad. Thereafter a preliminary inquiry for his absence from duty was held by Deputy Superintendent of Police, Kanpur, who had recommended for regular departmental inquiry, thereafter a charge-sheet was served upon him on 26.9.2003 in which there was only one charge regarding his unauthorised absence from duty for a period of 1198 days. A photo-stat copy of charge-sheet is on record as Annexure-2 of the writ petition.
4. It is stated that the petitioner submitted his detail reply to the charge-sheet and in support of his reply he has filed photo-stat copy of several documents including medical certificates. A photo-stat copy of reply of charge-sheet is on record as Annexure-4 of the writ petition. It is stated that the Inquiry Officer was not satisfied with the reply submitted by the petitioner and after holding inquiry, has submitted his inquiry report on 17.1.2005 holding the petitioner guilty of charge levelled against him. In the inquiry report the Deputy Superintendent of Police, G.R.P., Kanpur has also recommended that the petitioner may be reverted by placing him on minimum pay scale for a period of one year. A true copy of inquiry report submitted by the Deputy Superintendent of Police, G.R.P., Kanpur is on record as Annexure-5 of the writ petition. It is stated that while disagreeing with the findings and / or recommendation of Inquiry Officer, the Superintendent of Police, G.R.P., Allahabad directed to issue show-cause notice for removal of the petitioner from service and for order of no pay for no work during the period of his unauthorised of absence from duty, vide order dated 27.1.2005. In compliance of the said order of Superintendent of Police, G.R.P., Allahabad two show-cause notices were issued on 28.1.2005. In first show-cause notice it was mentioned that since the petitioner was found absent from duty so he is not entitled for any salary and other financial benefits for the said period. In another show-cause notice it was mentioned that the petitioner being unauthorisedly absent from duty is not capable of serving the police department and will be removed from service The copies of show-cause notices are on record as Annexures-6 and 7 of the writ petition.
5. It is stated that on receipt of aforesaid show-cause notices the petitioner submitted detail reply to both the show-cause notices
