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Ashok Kumar v. State Of U.P. & Others - WRIT - A No. 53926 of 2005 [2007] RD-AH 9490 (18 May 2007)


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Reserved on 16.04.2007

Delivered on 18.05.2007

Civil Misc. Writ Petition No. 53926 of 2005

Ashok Kumar


State of U.P. and others

Hon'ble Anjani Kumar, J.

Hon'ble Sudhir Agarwal, J.

This writ petition is directed against the order dated 7.5.2003 of U.P. State Public Service Tribunal, Lucknow dismissing Claim Petition No. 1055 of 1997 of the petitioner against his removal order dated 6.3.1995.

The facts in brief are that the petitioner was enrolled as Constable in U.P. Police Force on 9.11.1978. He was initially posted in railway police but transferred to civil police in the year 1995. He was found absent from 4.3.1991 to 23.10.1991, 14.1.1992 to 17.1.1992 and 21.1.1992 to 1.1.1993 unauthorizedly. Regarding his unauthorized absence a disciplinary inquiry was conducted. A charge sheet was issued to the petitioner on 24.1.1994. He submitted his reply dated 1.2.1994 admitting his unauthorized absence but explained that he was suffering mental illness on account whereof he was absent. After holding inquiry, the inquiry officer submitted his report dated 21.6.1994 finding the charges proved and recommending punishment of removal from service. A show cause notice dated 8.7.1994 was issued to the petitioner alongwith copy of inquiry report which was replied by him (Annexure-4 to the writ petition). The disciplinary authority passed order of removal on 6.3.1995 whereagainst the petitioner preferred an appeal before the Deputy Inspector General on 11.7.1995 and during the pendency of the appeal he filed claim petition before the Tribunal challenging the order of removal. After exchange of pleadings, the learned Tribunal has dismissed the claim petition vide order impugned in this writ petition.

The learned counsel for the petitioner contended that the authorities have proceeded on the assumption that the petitioner accepted charges against him regarding unauthorized absence though the fact is that the absence was admitted but further explained in the manner that due to unavoidable reasons i.e. sickness of his wife and daughter, serious accident of the petitioner with scooter and mental imbalances, he could not attend duty, but this explanation has not been considered by the authorities concerned and he has been held guilty of the charges. He further contended that in any case the punishment imposed upon the petitioner does not commensurate to the gravity of the charge and is highly excessive, irrational and arbitrary.

We have heard learned counsel for the parties and perused the record.

From the record it is evident that during the period the petitioner remain absent neither he sought leave from the competent authority nor submitted any application seeking appropriate leave from the competent authority. He claims to remain absent from 5.3.1991 to 18.5.1991 due to Jaundice during which period he alleged to be was under medical treatment of one Dr. Tripathi of Medical College, Kanpur. He claims that he submitted leave application on 14.3.1991 to the Superintendent of Police, Kanpur Nagar under postal certificate informing about his illness. Even if the petitioner's version is accepted that he sent leave application on 14.3.1991, it is evident that no medical certificate did accompany such application for the reason that the medical certificate which he filed before the Tribunal as Annexure-7 issued by Dr. Tripathi is dated 20.5.1991 and therefore, there is no question of appending the same alongwith the alleged leave application dated 14.3.1991. He further claim that thereafter, he became very weak and his wife also fell ill, hence he extended his leave up to 22.10.1991. There is nothing on record to show that he submitted any application for leave for the subsequent period. He submitted his joining on 23.10.1991 i.e. after more than seven and half months. Thereafter again on 13.1.1992 he proceeded for Police Station Cantt. from Police Line Kanpur at 18.45. He did not report for duty in time and appeared at Police Station Cantt. only on 14.1.1992. The In-charge Police Station directed him to bring joining report (Nakal Report) from Police Lines. He went to Police Lines on 15.1.1992 and got Nakal report on 16.1.1992. He thereafter reported back to Police Station Cantt. on 17.1.1992 but was not allowed to join. On 20.1.1992 it is alleged that he received a telegramme of illness of his daughter and after submitting a leave application with the Reserve Inspector, Police Lines, Kanpur Nagar he proceeded on leave on 20.1.1992 and remained absent till 31.12.1992. He said that during the aforesaid period when he had proceeded to attend his daughter, he met an accident by hitting with a Scooter and remained under treatment up to 28.12.1992. For the period of 20.1.1992 to 28.12.1992, he submitted a medical certificate issued by medical practitioner at Allahabad. It appears that Inquiry Officer also permitted the petitioner to produce evidence in respect to his illness but the documents produced by the petitioner after examination were found unreliable and therefore, he held the charges proved. It is not disputed by the learned counsel for the petitioner that being a police personnel, he was entitled for free medical treatment at Police Hospital but neither he received any medical treatment thereat nor his family member attended any Police Hospital, though available at Allahabad as well as at Kanpur. The explanation of the petitioner for not attending Police Hospital for treatment has not been believed by the authorities concerned. Learned counsel for the petitioner could not point out any error in decision making process or in the departmental inquiry resulting any violation of principle of natural justice or denial of adequate opportunity of defence to petitioner. Acceptance or belief of evidence is within the realm of departmental authorities who are the master of the situation. The Court do not sit in appeal unless the finding is shown to be perverse. All these aspects have already been considered and gone through by the Tribunal and we do not find any perversity or error apparent on the face of record warranting any interference. The falsity of evidence produced by the petitioner is writ large from the facts that for absence between 20.1.1992 to 28.12.1992 he submitted a medical certificate of Dr. M.P. Verma of Sapru Hospital of his own treatment though he has stated in his explanation that on 20.1.1992 he proceeded on leave on receiving information about the serious illness of his daughter. Thereafter he alleged to have met some accident in which he also fell ill. Ex-facie the petitioner could not have been under treatment of Dr. Verma on 20.1.1992 on which date he proceeded from Kanpur to Allahabad to attend his daughter. It appears that in the facts and circumstances of the case the authorities, after considering all aspects of the matter did not find his explanation regarding illness believable and in the absence of any perversity, this Court will not sit in appeal to interfere with such finding of fact.

So far as the question of quantum of punishment is concerned, the petitioner being a member of disciplined force was bound to show a well regulated and disciplined conduct. His repeated and continuous absence from duty, that too for such a long period, cannot be said to be a minor or petty lapse. Long and unauthorized absence has been held to be a serious misconduct warranting major punishment in State of Rajasthan and another Vs. Mohammad Ayub Naz, JT 2006 (1) SC 162. Even otherwise it is now well settled that the Courts in exercise of power of judicial review would not normally interfere with the quantum of punishment and shall be very slow unless it is found to be shocking to its conscience, (State of U.P. Vs. Sheo Shankar Lal Srivastava and others 2006 (3) SCC 276; Hombe Gowda Educational Trust and another Vs. State of Karnataka and others, 2006 (1) SCC 430).

In North-Eastern Karnataka RT Corporation Vs. Ashappa, 2006 (5) SCC 137 the Court observed as under:-

"Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct."

In Delhi Transport Corporation Vs. Sardar Singh, AIR 2004 SC 4161 it was observed:-

"Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly when the same is unauthorized. Burden is on employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant material."

In the case in hand the petitioner being a member of police force having shown a reckless attitude of abandoning duty time and again for long time and without producing any sufficient and reliable material to justify his absence for valid reasons is guilty of serious lapse. The authorities' satisfaction for believing the evidence being primary, they are well competent to analyze various facts and circumstances. In the instance case the authorities after analyzing various facts and circumstances have found petitioner's explanation unsatisfactory. We, therefore, do not find any reasons to interfere under Article 226 of the Constitution. The writ petition, lacks merit and is accordingly dismissed.




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