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SATENDRA KUMAR SHARMA versus STATE OF U.P. THRU' HOME SECY. & ORS.

High Court of Judicature at Allahabad

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Satendra Kumar Sharma v. State Of U.P. Thru' Home Secy. & Ors. - WRIT - A No. 9209 of 2002 [2005] RD-AH 1417 (26 May 2005)

 

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 OF ALLAHABAD

Reserved

                         W.P. No. 9209 of 2002.

Satendra Kumar Sharma                              Petitioner

                                                 Vs.

 State of U. P. & others                                 Respondents.

                       

                                                   ***************

Hon. Vikram Nath,J.

This writ petition is directed against the order dated 15.05.2000, whereby the petitioner was dismissed from service and also the order dated 10.01.2002, whereby the appeal against the order of dismissal has also been dismissed.

The petitioner, who was working on the post of Sub Inspector, Civil Police at the relevant time, was posted at Mathura. By order of the DIG Kanpur Zone, dated 29.04.1999 the petitioner was transferred from Mathura to Etawah. According to the petitioner, he was relieved on 11.05.1999, whereas according to the department he was relieved on 05.05.1999. Whatever the case may be, the petitioner was to join within one week from the date he was relieved. After being relieved from Mathura the petitioner did not join at Etawah and remained absent without any intimation or notice to the department. The respondents, after giving warning and notice to the petitioner suspended him vide order dated 23.02.2000. Thereafter, charge sheet was issued to the petitioner on 26.02.2000, which was sent at his residence in district Bulandshahr, but he was not available and, therefore, the notice was affixed at his house in district Bulandshahr. Thereafter, again on 06.03.2000, another copy of the charge sheet was sent at his residence in village Nevada, Post Office Chandel, Police Station Kotwali Dehat, District Bulandshahr. When the petitioner was not found at his residence, again the notice was affixed at the main entrance of the house in presence of local witnesses. The Enquiry Officer initiated proceedings and fixed 22nd March 2000 for evidence for which again intimation was sent on 16.03.2000 at Bulandshahr address. Notice was again affixed at the main entrance on 17.03.2000. The petitioner still did not turn up. The next date fixed for recording evidence was 28.03.2000, for which again notice was sent first at Bulandshahr address when his brother Prem Dutt Sharma informed the special messenger that the petitioner was residing at house No. 100, Suhag Nagar, Awas Vikas Colony, Firozabad and, therefore, it was transmitted there. When the special messenger reached at Firozabad address the petitioner was not available. However, the petitioner's daughter Km. Swati Sharma was served with the notice on 26.03.2000. Again on 28.03.2000 the petitioner did not appear, therefore, the Enquiry Officer proceeded with recording of the evidence of the prosecution witnesses namely, Constable Sushil Kumar, ASI Ram Vishal Singh, and Circle Officer police lines, Etawah Sri Aditya Prakash Sharma.

Witness constable Sushil Kumar stated in his statement that he had taken notice for service and prove the service of notice. ASI Ram Vishal Singh deposed that the petitioner had been relieved on 05.05.1999 and also confirmed the statement given by him in the preliminary enquiry. Sri Aditya Prakash Sharma, Circle Officer Etawah, deposed that after being relieved on 05.05.1999, the petitioner could have reported latest by 13.05.1999, but he did not report at Etawah, thereafter, he was assigned the preliminary enquiry and he submitted his report on 29.01.2000.

The Enquiry Officer despite the evidence having concluded on 28.03.2000 again gave one more opportunity to the petitioner by sending a notice dated 31.03.2000 calling upon him to submit any defence, which he may propose to file in respect of the charge sheet and enquiry report on or before 10.04.2000. The special messenger Narendra Singh served this notice personally upon the petitioner on 07.04.2000, but still the petitioner did not turn up. Thereafter, Enquiry Officer proceeded to submit final report dated 13.04.2000.

The report of the Enquiry Officer dated 13.04.2000 was forwarded to the petitioner along with show cause notice dated 23.04.2000, which was served upon the petitioner on 28.04.2000. The petitioner submitted reply dated 04.05.2000 in which he only stated that after being relieved on 11.05.1999 the petitioner fell seriously ill and was admitted in the Nursing Home of Dr. Rakesh Narain Gupta in Agra and the intimation of his illness was sent by his wife, the entire action was taken against him without his knowledge and notice was sent at wrong address and he prayed for being pardoned on account of financial and health difficulties. The disciplinary authority, after considering the reply of the petitioner came to the conclusion that despite personal service the petitioner had not appeared, further that he had absented without any intimation and neither any medical certificate nor any intimation of his illness was submitted either to the SSP, Etawah or Mathura. He however, recorded finding that when the petitioner appeared before him on 04.05.2000 he did not appear from any angle that he was ill for such a long time from 11.05.1999 to 13.04.2000, rather it was apparent that he had deliberately absented himself in violation of the rules and accordingly dismissed the petitioner from service vide order dated 15.05.2000. Aggrieved by the same, the petitioner filled an appeal before the IG Police, Kanpur Zone, which has also been dismissed vide order dated 10.01.2002.

Aggrieved by the aforesaid two orders the present writ petition has been filed.

I have heard Sri S.K. Jaiswal, learned counsel for the petitioner and the learned Standing Counsel for the respondents.

It has been alleged by learned counsel for the petitioner that the entire enquiry proceedings have been taken behind back of the petitioner without affording any opportunity and, therefore, the same is vitiated. The second contention is that the petitioner was suffering from Hepatitis and back bone pain and he was advised rest and treatment for 6 months from 11.05.1999 and that his wife had sent intimation also and, therefore, the order of dismissal passed against him was in violation of principle of natural justice and fair play.

In the counter affidavit the stand taken in the impugned order dated 15th May 2000 has been reiterated giving details of the various/ several efforts made to serve the notice upon the petitioner, but he repeatedly continue to remain absent and, therefore, left with no other alternative, the enquiry proceedings were held after his suspension and he was found guilty of serious misconduct as enumerated in paragraphs 381, 382 & 383 of the Police Regulations of gross negligence and dereliction of duty and discipline and as such has been rightly dismissed from service.

The counsel for the petitioner has contended that in the present case the charge sheet was not served personally upon the petitioner and further no effort was made to send the charge sheet by registered post or get it published in the newspapers. The Apex Court in the case of Union of India versus Dina Nath Shantaram reported in 1998 (7) SCC 569 has laid down that in matter of service of charge sheet the theory of "communication" cannot be involved and "actual service" must be proved. To quote:

" Where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show-cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations the employee is given an opportunity to submit his reply, the theory of "communication' cannot be invoked and actual service' must be proved and established."

It further held that charge sheet should be served personally, and if not served, then it should be send under registered cover and if still not served then it may be published in the newspaper.

In the present case a perusal of the inquiry report and also the counter affidavit it is clear that before proceeding with the inquiry the charge sheet was served only through affixation. There is no mention that it was send by registered post or was published in the newspapers. The inquiry would therefore stand vitiated as charge sheet was not served personally on the petitioner before stating the inquiry. However, after the evidence in the inquiry was concluded on 28.03.2000 another notice (with charge sheet) was issued on 31.03.2000 by the Inquiry Officer calling upon the petitioner to answer the charge sheet and give his reply/ evidence on or before 10.04.2000. This notice was served upon the petitioner, personally on 07.04.2000. The Inquiry Officer after waiting till 10.04.2000 when the petitioner did not turn up proceeded to submit his report on 13.04.2000 holding the petitioner guilty of the charge.

The question would be even if the charge sheet had been personally served upon the petitioner after close of evidence whether he was granted reasonable and sufficient time to defend himself and to file reply and lead evidence and cross examine the prosecution witnesses. The procedure for conducting departmental proceedings is laid down in Rule 14 of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (in short referred to as 1991 Rules. The said rule also refers to Appendix I. The same are quoted hereunder:-

Rule 14 (1) of the U.P.P. Officers of the Subordinate Ranks (P. and A.) Rules 1991 quoted below:-

14. Procedure for conducting departmental proceedings.-(1) Subject to the provisions contained in these Rules, the departmental proceedings in the cases referred to in sub-rule (1) of Rule 5 against the Police Officers may be conducted in accordance with the procedure laid down in Appendix 1.

Appendix-1

Procedure relating to the conduct of departmental proceedings against Police Officer.

(See Rule 14 (1)]

Upon institution of a formal enquiry such Police Officer against whom the inquiry has been instituted shall be informed in writing of the grounds on which was proposed to take action and shall be afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be used in the form of a definite charge or charges as in Form 1 appended to these Rules which shall be communicated to the charged Police Officer and which shall be so clear and precise as to give sufficient indication to the charged Police Officer of the facts and circumstances against him. He shall be required, within a reasonable time, to put in, in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the inquiry Officer so directs an oral enquiry shall be held in respect of such of the allegation as are not admitted. At that enquiry such oral evidence will be recorded, as the Inquiry Officer considers necessary. The charged Police Officer shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish: provided that the Inquiry Officer may, for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the finding and the ground thereof. The Inquiry Officer may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged Police Officer.

From a perusal of the Appendix it is clear that a reasonable time is to be allowed to the employee to submit his written statement and also to inform regarding personal hearing. In my opinion three days time cannot be said to be reasonable time and all the more when the petitioner was in a different district, where the charge sheet was served on 07.04.2000 and 10.04.2000 was the date fixed. Even the Inquiry Report was submitted on 13.04.2000 in less than a week from the date of service. A reasonable time in my opinion would be at least 15 days or two weeks time. In my view reasonable time from the date of service of charge sheet was not allowed to the petitioner to submit his written submission and to defend himself. He could therefore not avail of the further opportunity of personal hearing, producing witnesses and documents and also to cross-examine the prosecution witnesses in the inquiry. The inquiry is therefore, vitiated in law being in contravention of the procedure prescribed under Rule 14 and Appendix I of the 1991 Rules.

The contention of the learned Standing Counsel that petitioner did not even furnish any proper explanation to the show cause notice issued to him cannot be accepted in as much as the scope of defence in the inquiry and in the scope in reply to show cause are quite distinct and different. In the inquiry the petitioner would have had the opportunity to lead evidence, to prove his illness and also cross-examined the prosecution witnesses to disprove the charge levelled against him. It would still be possible that the Inquiry Officer may still have found the petitioner guilty of the charge but it would be a different satisfaction based upon evidence of both sides. The disciplinary authority has rejected the medical certificates as fake without opportunity to the petitioner to prove their correctness. In the inquiry the petitioner would have had the opportunity to establish their correctness. Since there has been no finding by the Inquiry Officer on the genuineness or otherwise of the medical certificates their rejection by the disciplinary authority amounts to denial of opportunity.

As a result of the inquiry being vitiated the order of dismissal and also the appellate order also stands vitiated and are liable to be set aside.

Accordingly, the writ petition succeeds and is allowed. The impugned order dated 15.05.2000 and 10.01.2002 are set aside. It would however, be open to the respondents to proceed in accordance with law and pass appropriate orders afresh. There shall be no order as to costs.

Dated: 26.05.05

v.k.updh. (v-37)


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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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