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2006 Supreme(MP) 729
A.M. Naik, J.
Deo Sharan Singh v. State of M.P. and others
Writ Petition No. 9963 of 2003 (J); Decided on 20.5.2006.*
Mrigendra Singh and Kuldeep Singh for petitioner; Harish Agnihotri, Government Advocate for State.
Headnote:(1) Civil Servant -- unauthorised leave due to illness directed to be condoned and leave granted -- does not remain a misconduct for removal from service. [Paras 8 & 9
(2) Police Regulations (M.P.) -- Reg. 226 -- dismissal-- is the last resource -- should not ordinarily be inflicted until all other means of correction have failed. [Para 9
(3) Police Regulations (M.P.) -- Reg. 226 -- imposing punishment of dismissal -- consideration to appreciable work of the employees should also be given. [Para 9
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1. By this petition, a challenge has been made to the order of removal dated 22.4.1995 and the Appellate order dated 4.7.1995 contained in Annexure A-7 and A-8 respectively.
2. Facts relevant for the purposes of the writ petition are that the petitioner was a Constable on account of having been appointed on 6.5.1986. After completion of training, he was posted at G.R.P. Itarsi, on 20.2.1988. He met with an accident on 20.3.1994 and suffered fracture in his left leg which was reported by him to the Police Station. He proceeded on one month's medical leave. He failed to attend his duties due to ill-health and submitted medical certificates dated 19.3.1994 and 14.6.1994. Simultaneously, he was also suffering from Sciatica and Arthritis.
3. The petitioner was served with a charge sheet on ?9.1994 on the ground that he was unauthorisedly absent from duty for about 103 days (6.3.1994 to 16.6.1994) and that the petitioner is a habitual absentee in an unauthorised manner. Reply was filed by the petitioner stating about his ill-health. Necessary documents were also submitted. After the departmental enquiry, final order dated 22.4.1995 was passed by the Superintendent of Police, Bhopal, vide Annexure A-7, removing thereby the petitioner from service. Appeal preferred against the same has also been dismissed vide Annexure A-8 dated 4.7.1995. The petitioner has contended that he did not commit any misconduct and has not been a habitual absentee. Accordingly, it is submitted that the impugned orders are not sustainable in law.
4. Claim of the petitioner has been denied by the respondents No.1 and 2 vide their joint return. It is submitted in the return that the petitioner remained unauthorisedly absent for a period of 103 days (from 6.3.1994 to 16.6.1994). It has been further pleaded that the petitioner has been a habitual absentee and was so found in the departmental enquiry. Accordingly, it is stated that the impugned orders contained in Annexure A-7 and A-8 are not liable to be interfered with on account of having been passed legally.
5. Shri Mrigendra Singh, learned counsel for the petitioner, vehemently argued that the petitioner is not proved to have absented himself unauthorisedly. He urged that the petitioner was suffering from fracture and thereafter from Sciatica and Arthritis making him unable to discharge his duties. Moreover, he is not proved to be a habitual absentee. Lastly, it has been contended that the punishment of removal is too harsh and highly disproportionate.
6. Shri Harish Agnihotri, learned Government Advocate, submitted that the petitioner absented himself from the duty for 103 days without obtaining leave. His unauthorised absence was found to be proved in the departmental enquiry and he being a habitual absentee, has been rightly removed from services.
7. Considered the submissions and perused the record.
8. Both the charges are based mainly on the ground of unauthorised absentism. The petitioner took a plea that he was not well and the same was informed at the Police Station. The disciplinary authority has given a specific finding in the last paragraph of the impugned order contained in Annexure A-7 that it is found correct from the evidence of the parties that the petitioner was suffering from 3.3.1994 to 19.3.1994 from "Shunya Kal Rog" and was suffering from fracture in leg from 21.3.1994 to 15.6.1994. This entire period has been directed to be adjusted against the leave admissible to the petitioner. Punishment of removal from service has been imposed on the ground that the petitioner was unauthorisedly absent during this period and is a habitual absentee. From the findings recorded by the learned Disciplinary authority, it is amply clear that though the petitioner remained absent without obtaining leave, there was a justifiable reason for his absence. This reason has been impliedly accepted by the department by granting leave for this period subject to his entitlement vide Annexure P-7.
