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Kiran Shanker Shukla v. State Of U.P. And Others. - WRIT - A No. 11065 of 2001 [2007] RD-AH 3066 (23 February 2007)


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Kiran Shanker Shukla Vs. State of U.P. and others.


Hon'ble Ran Vajai Singh,J.

This writ petition has been filed by one Sri Kiran Shanker Shukla who happened  to be Constable  in Police Department. He was  transferred on 30.6.1997 from District Allahabad to District Gorakhpur on the basis of his own request. He was relieved from Allahabad to join his place of posting in October,1997 more specifically by 2.10.1997. However on that date he could not join his duty After reliving he has fallen ill on 4.11.1997. During this period he was hospitalized in Police Hospital Allahabad. However one week further  time was granted for joining but unfortunately he went to his home district Deoria. Thereafter he was fallen ill and was admitted in Police Hospital, Deoria. After his  discharging the   Doctor of the Hospital  has advised him for  various days for bed rest, since he is in jaundice. However, on 23.6.1998 the Medical Officer, Police  Hospital Deoria has found him fit and advised for joining duty and  thereafter petitioner has joined his duty  on 1.7.1998. After his joining, petitioner  was served two show cause notices. One was with respect to recording of an adverse entry in his service record  for being negligent  in discharging his duties  by not joining the place of posting  within time. The other show cause notice was for non joining and for absence from duty. The reply has been given by the petitioner. However, the disciplinary authority  has passed two orders on 5.11.1999. On the same day by one order   he has been awarded adverse entry and by another  order his leave was sanctioned  without pay w.e.f. 12.11.1997 to 1.7.1998. Aggrieved  from these orders the petitioner  has filed  two appeals  and those appeals  have also been dismissed on 10.7.2000. Against  these orders  he has filed revision which was also dismissed.  Aggrieved  by this order the petitioner has filed the present writ petition with the following prayers:-

'1. issue a writ, order or direction in the nature of certiorari quashing the order dated 5.11.1999 (Annexure No.14) passed by respondent No.4 whereby adverse entry was recorded as well as the orders dated 10.7.2000 (Annexure No.18) and 25.1.2001 (Annexure No.22) passed by respondent Nos. 3 and 2 respectively in appeal and revision respectively arising  out of the order dated  5.11.99 (Annexure no.14);

2. issue  a writ, order or direction in the nature  of certiorari quashing  the order  dated 5.11.99 (Annexure No.15) passed by respondent no.4 whereby leave without pay has been sanctioned  as well as the orders dated 10/11.7.2000 (Annexure No.19) and 25.1.2001 (Annexure No.23) passed  by respondent Nos. 3 and 2 respectively in appeal and revision respectively arising out of the order  dated 5.11.99 (annexure No.15);

3. issue a suitable writ, order or direction  in the nature of mandamus commanding the respondents to pay the salary  of the petitioner for the period 12.11.97 to 1.7.98 along with full emoluments and compound interest  @ 10% by treating the petitioner  as on medical leave during the said period.

4. issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

5. Award the cost to the petitioners'  

The counter affidavit has been filed by the State respondents. In which it has been stated  that the petitioner holds a discipline post and he was absent from duty without informing the competent  authority. There is nothing on record any leave application prior  to date of joining.

I have heard Sri Manoj Misra, learned counsel for the petitioner and learned standing counsel for the State respondents.

It is settled  that interference  under Article 226 of the Constitution of India can be called for if there is no finding of fact recorded vide  the orders passed by the disciplinary authority, appellate authority and revisional authority  and unless there is procedural irregularities. Nothing has been pointed out by the learned counsel of the petitioner  with regard to the procedural irregularity in the enquiry, therefore, learned counsel for the petitioner has also invited attention of the Court  that under Regulation 83 it is provided that it is the duty of the hospital to intimate  the local Superintendent of Police that he was fallen ill and admitted in the hospital. The Uttar Pradesh Regulations 382 is produced below:-

'382. Under officers  and constables  who fall ill when on duty or who are ill when due to return to 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 taken immediate steps  communicate the fact to the Superintendent  of Police whose subordinates they are. Officers of higher rank are not compelled to apply for admission to police hospitals, but are not relieved of the responsibility, when on leave, of intimating their intention of obtaining medical certificate to the Superintendent of Police  as prescribed above.'

I have carefully examined the above regulation and I find that there is no such requirement that intimation  will be given by the Doctor and hospital authorities to the local Superintendent of Police. The argument advance by the learned counsel for the petitioner  is  misconceived in as much as onces the petitioner was admitted in the hospital  and he was suffering from jaundice, it cannot be said that it was duty of the hospital authority to inform the local Superintendent of Police about the disease of the patient, but it was the duty of the petitioner to intimate the local Superintendent of Police and for that purpose he also intimate to the concerned authority of Gorakhpur where he was posted. I am of the opinion that there is no illegality in giving adverse entry to the petitioner. The prayer to that effect is rejected. However in the last, learned counsel for the petitioner has submitted that the authority  should have considered  for grant of medical leave. In view of the U.P.  fundamental Rules 81-B (2) which provides that a government servant is entitled the leave for 12 month in whole service and that aspect has not been considered by the disciplinary authority, appellate authority and   revisional authority. The relevant provisions of the Uttar Pradesh fundamental Rules 81-B (2) is quoted below:-

81-B (2) Leave on medical certificate-(i)A government servant to whom these rules apply may be granted leave on medical certificate not exceeding twelve months in all during his entire service. Such leave shall be given only on production of a certificate for such medical authority as the Governor may, by general or special order, specify in this behalf  and for a period not exceeding that recommended by such medical authority.

Provides that when the maximum period  of twelve months is exhausted, further leave on medical certificate not exceeding six months in all during entire service may be granted, in exceptional cases on the recommendations of a medical board.

Provided further that in all cases in which Government servants may have before the date of application of these rules to them availed of leave on medical certificate under Fundamental Rule 81-B and Subsidiary Rules 157 or 157-A, as  the case may be, the period of such leave availed of, under Fundamental Rule 81-B and Subsidiary Rule 157-A, as the case may be, and half the period of such leave availed  of under Subsidiary Rule 157, shall be taken into account in calculating  the leave due to them under this Rule.'

From the perusal  of the aforesaid provision, it is clear that a government servant  is entitled medical leave  on medical certificate not exceeding  twelve months in all during his entire service. Considering this provisions I feel necessary  to direct the competent authority to take appropriate decision if the petitioner  moves a fresh representation along with all details before him. If the competent authority reaches to the conclusion  that the petitioner is entitled to medial leave then he may  take liberal view to pass such order  and if chooses not grant medical leave then he will give reasoned order considering fundamental Rules 81-B(2).

With this observation, the writ petition is disposed of.




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