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NITYA NAND DUBEY versus DY. INSPECTOR GENRAL OF POLICE & OTHERS

High Court of Judicature at Allahabad

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Nitya Nand Dubey v. Dy. Inspector Genral Of Police & Others - WRIT - A No. - 7200 of 1997 [2007] RD-AH 18088 (20 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 13.11.2007

Delivered on 20.11.2007

Civil Misc. Writ Petition No. 7200 of 1997

Nitya Nand Dubey

Versus

Deputy Inspector General of Police

Varanasi Range Varanasi & another

Counsel for the Petitioner Sri Rakesh Pandey

Counsel for the Respondents Sri Standing Counsel

Hon'ble V.K. Shukla,J.

Petitioner was posted at Police Line Varanasi. In order to attend marriage of his nephew, petitioner has proceeded on leave from 05.05.1990 for a period of thirty days and petitioner was to resume his duties on 04.06.1990. After granting of the leave petitioner went to his native village Baxar Bihar. Petitioner claims that on 03.06.1990 he fell suddenly ill on account of severe attack of sciatica pain and he was not in position to move, as such, on 03.06.1990 he got himself admitted at Police Hospital Arrah, District Bhojpur Bihar where he remained under treatment and thereafter he was discharged on 05.06.1990 with the advice of four weeks complete bed rest. Petitioner further submits that as per advice of the Doctor he was again examined at Police Hospital Arrah on 03.07.1990 wherein he was again admitted for three days and discharged on 06.07.1990 with advice of four weeks rest. Petitioner has contended that thereafter he continuously remained under said treatment upto 09.01.1991 at Police Hospital Arrah in the same manner treatment and there was no change in his situation as such petitioner has proceeded to Allahabad and on 09.02.1991 got himself medically examined by Dr. S.P. Singh, Orthopaedic Surgeon and remainder under his treatment up till 09.04.1992 and he was advised for complete bed rest. Petitioner claims that there was no change in the situation then he started getting treatment by Dr. A.K. Singh since 10.04.1992 and was under his treatment till November, 1993. Petitioner submits that during this period while he was under treatment by Dr. A.K.Singh he received show cause notice dated 12.11.1992 alongwith copy of enquiry report dated 18.10.1992 on 06.11.1993 asking the petitioner to submit his explanation as to why he may not be dismissed from service. Petitioner submits that he submitted his reply to the said show cause notice mentioning therein that on account of his long illness he could not resume his duties. Petitioner has further contended that inquiry was ex part as he has no knowledge of the same. Disciplinary Authority on 12.01.1994 passed order confirmed the proposed punishment. Of dismissal. Against the same departmental appeal had been filed and said departmental appeal also met with same fate. At this juncture present writ petition has been filed.

Counter and rejoinder affidavits inter se parties have been exchanged in the present case and thereafter present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri Rakesh Pandey, Advocate appearing for petitioner contended with vehemence that in the present case principal of natural justice has been violated with impunity as at no point of time petitioner has ever been associated with the inquiry proceedings and valid reasons were there on record on account of which leave due to the petitioner is liable to be sanctioned and even if, it is accepted that charges were got proved punishment which has been awarded is shockingly disproportionate to the charges levelled, as such writ petition in question deserves to be allowed.

Sri V.S. Shukla, Advocate, appearing on behalf of State respondents on the other hand contended that petitioner is member of uniformed service and deliberately he has absented himself on frivolous pleas which is reflected from the own documents of the petitioner and in exercise of authority of judicial review once free and fair inquiry has been done and petitioner has deliberately chosen not to appear in the said inquiry then no interference is warranted, and punishment awarded is commensurate to the charges, as such writ petition deserves to be dismissed.

After respective arguments have been advanced, first question to be adverted to is as to whether inquiry which has been held is free and fair inquiry or not.

Petitioner in order to enable himself to attend marriage of his nephew took 30 days leave on 05.05.1990 which was duly sanctioned and petitioner was obliged to resume his duties on 04.06.1990. Petitioner admittedly has not returned back to resume his duty on 04.06.1990. Petitioner claims that on 03.06.1990 he fell suddenly ill due to severe attack of Sciatica and was admitted in Police Hospital, Arrah, Bihar upto 05.06.1990 with advice of four weeks complete bed rest and was to be examined again. Petitioner further claims that on 03.07.1990 the date on which he was again admitted for three days and then discharged on 06.07.1990 with advice of four weeks rest. Petitioner has claimed that he continuously remained under said treatment up till 09.01.1991 and thereafter petitioner claims to have moved to Allahabad and got himself medically examined on 09.02.1991. As petitioner has failed to resume duty as such under the orders of Senior Superintendent of Police, Varanasi dated 07.02.1992 disciplinary proceedings were directed to be initiated and as petitioner was absenting, by way of special messenger Constable Nathuni Singh on 17.03.1992 copy of charge sheet alongwith documentary evidence have been sent at his home address. On 30.03.1992 petitioner did not appear then again by way of special messenger information was sent fixing 16.04.1992. On 16.04.1992 petitioner again did not appear, then next date fixed was 25.05.1992. On 25.05.1992 evidence of Paras Nath Singh was led and next date was fixed 03.06.1992 and on the next date Dhruv Narain Rai was examined and thereafter next date was fixed 11.06.1992 and on the next date Deputy Superintendent of Police was examined. On 25.08.1992 proceedings were closed and again message was sent through special messenger and information was again sent on 22.09.1992 and then proceedings were closed then Inquiry Officer submitted its report. Show cause notice was issued to the petitioner to which petitioner has submitted his reply. Disciplinary authority has considered the reply submitted by the petitioner and therein disciplinary authority has taken into consideration the defence which has been set up by the petitioner and disciplinary authority after taking into account over all picture has clearly mentioned that petitioner proceeded from Aarrah to Allahabad and there was nothing to prevent the petitioner to present himself at Varanasi which was en route. In pith and substance giving reference of the provision as contained under Regulation 381 and 382 of the U.P. Police Regulation plea of petitioner was not found acceptable and petitioner has not been found fit to be retained in service. Principal of natural justice cannot be said to be violated with impunity, inasmuch as full fledged opportunity has been provided for to the petitioner by giving messages through special messenger at each and every occasion and petitioner has not chosen not to appear then authority can be blamed specially when in the present case, as far as absence of the petitioner is concerned qua the same there is no dispute and only dispute is as to whether claim which has been set up by the petitioner is genuine or not or it has been set up only for the purpose of case.

From the own showing of the petitioner at Arrah he was getting treatment up to 09.01.1991 and thereafter he came to Allahabad and at Allahabad petitioner has not been admitted in any Hospital and was getting private treatment. Reasons which has been given by the Disciplinary authority for not accepting the claim of the petitioner cannot be said to be ingenuine reason as story set up after 09.02.1991 is not inspiring confidence to the authority concerned On admitted position, when claim of petitioner has been considered,and same has not found favour for cogent and convincing reasons, in exercise of authority of judicial review no interference is warranted. Principle of natural justice in the fact of present case, cannot be said not to have been complied with, as version of petitioner has been taken into account, and thereafter conscious decision has been taken in the matter.

Hon'ble Apex Court in the case of State of Rajasthan and another Vs. Mohd Ayub Naz reported in 2006 (1) SCC 589 has mentioned that absenteeism from office for a prolonged period of time without prior permission by government servants has become a principal cause of indiscipline which has greatly affected various government services.

Hon'ble Apex Court in the case of Union of India Vs Datta Liga Toshatwad reported in 2006 SCC (L&S) 1504 has taken the view members of uniformed services cannot absent themselves on frivolous pleas having regard to nature of duties enjoined upon them. In the said case Hon'ble Apex Court has taken note of the fact that one cannot ignore the large number of cases which come to this Court of members of uniformed forces remaining absent from duty without any reasonable explanation. Whenever action is taken, the usual plea taken is of having being ill or some such false pretext and even fake or false medical certificates are produced in support of such plea. In the said case for the purposes of case it was accepted that normalcy was restored on 04.04.1998 yet the respondent did not choose to report for duty. Said circumstances disclose the hollowness of the claim of the respondent regarding mental depression and imbalance which he claims to have been suffered.

Reliance has been placed by petitioner on the case of Union of India Vs. Giriraj Sharma reported in 1994 Supp (3) SCC 755 to show that punishment which has been awarded is too harsh and shockingly disproportionate.

Punishment in the present case cannot be said to be too harsh and shockingly disproportionate, inasmuch as in the present case petitioner has proceeded on leave to attend marriage of his nephew and subsequent to the same he has absented himself on the plea of his illness. Accepting this fact that he was ill and he was hospitalized till 1991 at Police Hospital, Bhojpur, thereafter petitioner claims to have moved to Allahabad and stayed there for more than a year for medical treatment. Nothing prevented the petitioner to move to Varanasi to report for duties and comply with the provision of Regulation 381 and 382 of U.P. Police Regulations.

At this juncture Regulations 381 and 382 of U.P. Police Regulation is being looked into.

"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 consequence.

382. Under-officers and constables who fall ill when on duty or who are ill when due to return of 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 subordinate they are Officers of higher rank are not compelled to apply for admission to police hospitals, but are not relieved of the responsibilities, while on leave of intimating their intention of obtaining medical certificate to the Superintendent of Police as prescribed above."

A bare perusal of the provisions quoted above would go to show that in the application of medical leave and extension of leave on medical certificates to apprise the Superintendent of Police in writing and any failure to do so may result in a decision that the medical certificate has been obtained by misrepresentation and thereafter may laid entail serious consequence. Further Constables who fall ill when on duty or who are ill when due to return of 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 subordinate they are Officers of higher rank are not compelled to apply for admission to police hospitals, but are not relieved of the responsibilities, while on leave of intimating their intention of obtaining medical certificate to the Superintendent of Police as prescribed above.

These provisions have been introduced, so that there is check on fake medical certificates. It is an an built mechanism to have an eye on the members of force. There has been complete violation of these provision, when petitioner claims to have entered the State of U.P.

Circumstances itself discloses the hollowness of the claim of the petitioner which has been set up and it appears that petitioner has a feeling that every thing can be manipulated for his advantage. Petitioner being member of disciplined force was liable to take his services seriously and not in casual manner, as has been done in present case. While exercising the authority of judicial review punishment awarded cannot be said to be shockingly disproportionate, as if such claim are entertained then it will subscribe by all means, act of an incumbent for remaining absent from duty without any reasonable cause and then set up explanation in order to make out case, and making provisions of Regulation 381 and 382 redundant and o-tiose.

Consequently, order impugned warrants no interference by this Court, as such present writ petition is dismissed .

Dt. 20.11.2007

Dhruv


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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