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Prolonged Illness Not : Sets Aside Termination of Constable
The has quashed the termination of a police constable who remained absent from duty due to prolonged illness, holding that absence caused by like tuberculosis does not amount to . A division bench comprising Chief Justice Sanjay K. Agrawal and Justice Vinit Kumar Mathur also set aside the earlier dismissal of the widow’s writ petition by a Single Judge and directed the state to release all within 45 days.
A Constable’s Battle with Tuberculosis
Kailash Chandra Sharma was appointed as a constable in the in 1979. Soon after, he contracted tuberculosis, which progressively worsened, making it impossible for him to report for duty regularly. Between July and October 1994, he remained absent on six occasions, totaling 57 days. The department initiated under the , levelling six charges of .
During the departmental inquiry, Sharma nominated a representative and produced two defence witnesses — Constables Naval Singh and Udai Raj — who testified that he was suffering from tuberculosis and could not attend duty. Despite this evidence, the inquiry officer held him guilty, and the disciplinary authority terminated his services on . Sharma passed away before he could challenge the order, and his widow, Heera Mani, filed a writ petition in 2001. The learned Single Judge dismissed it on grounds of delay and availability of alternative remedy, prompting the present appeal.
Arguments: Illness vs. Wilful Absence
Appearing for Heera Mani, senior counsel argued that the absence was not willful but a direct result of Sharma’s debilitating illness. He placed reliance on the ’s decision in , which holds that for to constitute misconduct, the department must prove it was willful and deliberate. He further contended that the inquiry report was never served on the deceased constable, violating and the principle of affirmed in .
The state, represented by , countered that Sharma had failed to produce medical certificates despite being asked to do so, and that his absence was therefore unjustified.
The Court’s Reasoning: No Established
The High Court closely examined the concept of “ ” as interpreted by the . Quoting Krushnakant B. Parmar , the bench noted:
“If the absence is the result of under which it was not possible to report or perform duty, such absence cannot be held to be willful.”
The court found that the department had not discharged its burden of proving willfulness. On the contrary, the unchallenged testimony of two fellow constables established that Sharma was gravely ill. The judgment further observed:
“Absence from duty without any application or prior permission may amount to , but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including beyond his control like illness, accident, hospitalization, etc.”
Additionally, the court held that the non-supply of the inquiry report before the disciplinary authority took its final decision was a clear violation of , relying on Mohd. Ramzan Khan . As the had stated, “non-furnishing of the report would amount to violation of rules of and make the final order liable to challenge.”
Quashing Termination and Granting Benefits
Allowing the appeal, the division bench quashed both the termination order of and the Single Judge’s order of . Since the deceased constable had already passed away, the court directed that his widow, Heera Mani, be entitled to all , payable within 45 days of receiving the certified copy of the judgment.
The ruling reinforces the principle that a government servant’s absence due to genuine illness cannot be mechanically treated as misconduct, and that procedural fairness in disciplinary inquiries is non-negotiable.
