- (1.) Heard learned counsel for the parties and perused the record. Brief facts of the case are that the petitioner was appointed as a constable in the Police Department in 1980. He was transferred from G.R.P., Allahabad to District Aligarh vide order dated 10.5.1993 passed by the U.P. Police Head Quarter, Allahabad. The Senior Superintendent of Police Railway, Allahabad relieved him on 29.9.1993 for joining at District Aligarh where he was to join his duties by the forenoon of 7.10.1993 after availing the joining time. It is claimed that when he was going to join his duties he became seriously ill and developed acute pain in his chest, hence was unable to join at Aligarh. Therefore, he went to District Hospital, Agra and was examined by the Heart Specialist/Cardiologist who advised him to take rest. During this period of rest, he also suffered pain in his abdomen and from jaundice, hence he was admitted in District Hospital, Agra on 21.10.1993 under the medical treatment of Dr. P.K. Sharma and remained admitted there till 4.11.1993. Bed rest for a period of one month was also advised to him by the Doctor. As his health-did not improve, he was again admitted in District Hospital, Agra where he remained admitted there till 9.11.1994 under the treatment of Dr. P.K. Sharma as well as Dr. Manoranjan Sharma, Cardiologist, District Hospital, Agra. On discharge from hospital, the petitioner claims to have been further advised two months bed rest and thereafter he consulted the Doctor who again advised him bed rest w.e.f. 9.1.1995 for 2 months and that in the circumstances, he remained in a state of continuous ill health for more than 2-1/2 years since 1993 as such was unable to join his duties.
(2.) It is averred in the writ petition that he had sent a registered letter to the S.S.P., Aligarh informing him of his ailment and physical condition. A show cause notice was issued against the petitioner on 22.10.1994 to which he sent reply. A departmental enquiry was initiated against him regarding his absence from duly by the authority which was concluded in the absence of the petitioner by the Enquiry Officer. After perusal of the record and the enquiry report, respondent No. 2, S.S.P., Aligarh dismissed the petitioner from service vide his order dated 5.6.1995.
(3.) Aggrieved, the petitioner filed an appeal before D.I.G. Agra Range, Agra which according to him remained unactioned compelling him to file Claim Petition No. 1477 of 1998, Narendra Singh v. State of V.P. and others, before the State Public Services Tribunal, Lucknow (hereinafter referred to as the Tribunal"), which was dismissed vide Judgment and order dated 21.11.2003. Relevant extract of the order reads thus: The service of the claimant is governed by the provisions contained in Police Act, 1861 and the provisions contained in the Police Regulations framed thereunder as applicable in the U.P. State Subordinate Police Officer's (Punishment and Appeal) Rules. 1991. There is no denial of the facts that the delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges leveled against him but also at the stage at which these findings are considered by the disciplinary authority. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Coming to the instant case it is admitted on the part of the claimant that in compliance of the order of transfer dated 10.5.1993 for Joining at district Aligarh prior to forenoon of 7.10.93. Claimant failed to report on duty. The ground submitted on the part of the claimant is that claimant had fallen seriously ill developing pain in chest and abdomen and was under treatment there at District Hospital, Agra in respect of which he has furnished photo copies of the medical certificates of the Doctors of District Hospital, Agra as well as discharge certificates. It was contended on behalf of the claimant that non-participation in the enquiry proceedings by him and non-compliance of the order of transfer aforesaid on his part was due to aforesaid ailment and illness of the claimant and this aspect has not been considered in course of enquiry proceedings by the Enquiry Officer as well as by the punishing authority while awarding punishment of dismissal. On this score learned counsel for the claimant placed reliance on the decision taken in the case of Union of India and others v. I. S. Singh, 1994 Supp2 SCC 518, wherein it was held by their Lordships of the Apex Court that wherein any departmental enquiry which is conducted ex parte request for adjournment on medical grounds allegedly accompanied by medical certificates while Enquiry Officer ignoring such request and proceeding ex parte in such a case principle of natural justice stand violated. It was also held by their Lordships that even in a case of explanation seeking adjournment on medical ground In departmental enquiry not accompanied by medical certificate, proper course for Enquiry Officer in such a case is to demand the medical certificates or direct the delinquent to be examined by a specified Medical Officer but not to proceed ex parte and otherwise if the Enquiry Officer proceed ex parte in such a case, validity of such ex parte enquiry findings and report shall remain questioned. In the contextual relevance of these submissions we come to the documents filed by the claimant himself in support of his illness and ailment, Annexure-A-1 is the copy of the medical certificate dated 4.10.1993 advising bed rest to the claimant w.e.f. 4.10.1993. Annexure-A-2 is the discharge certificate therefrom District Hospital, Agra certifying claimant as admitted from 21.10.1993 and was discharged from there on 4.11.1993. Annexure-A-3 is the discharge certificate from District Hospital, Agra certifying that claimant remained admitted in the District Hospital from 29.10.1994 and was discharged on 9.11.1994. Photostat copies of medical certificates. Annexure-A-4 dated 9.1.1995, Annexure-A-5 dated 10.3.1995, Annexure-A-6 dated 8.6.1995 and Annexure-A-7 is the certificate of the Cardiologist District Hospital, Agra dated 16.9.1995 duly countersigned by the Chief Medical Superintendent, District Hospital, Agra. By these documents on behalf of the claimant it is made out that the claimant remained admitted in the District Hospital. Agra from 1.10.1993 to 4.11.1993 and 29.10.1994 to 9.11.1994 and for the rest of the period illness and ailment of the claimant is unaccounted for by medical certificate. Claimant was to resume duty in the forenoon of 7.10.1993 there at Aligarh in compliance of the order of transfer and by medical certificates dated 4.10.1992 he was advised bed rest and thereafter from 21.10.1993 to 4.11.1993 he remained admitted in the District Hospital, Agra vide Annexure-A-2 and was also advised follow-up treatment and recommendations by the attending Doctor. It suggest that from 21.11.1993 to 4.11.1993 while claimant was admitted to District Hospital, Agra. during this period claimant was not in a position to resume duty at Aligarh in compliance of the order. As is evident therefrom the record charge-sheet was served upon the claimant in departmental proceedings on 24.7.1994 by Special Messenger vide findings and report of Enquiry Officer part of Annexure-A-20 filed by the claimant himself and that the punishment order in dismissal of the claimant is dated 5.6.1995. During this period of course of enquiry proceedings from 24.7.1994 till final order of dismissal on 5.6.1995 claimant has not accounted for by his preventing illness except for the period of 10 days from 29.10.1994 to 9.11.1994 vide Annexure-A-3 discharge certificate dated 9.11.1994. It is in view of this material thereon the record that we find that the claimant has not explained his failure to turn up before the Enquiry Officer and to participate in the enquiry proceeding. On an examination of the findings/report of the Enquiry Officer part of Annexure-A-10 it is made out that at all the stages right from the service of the charge-sheet in course of enquiry proceedings. claimant was kept informed of the departmental proceedings at required stages under the rules and that the Enquiry Officer examined witnesses in support of the charges leveled against the delinquent claimant. It is also made out there from the findings/report that effective and sufficient opportunity of defence was also accorded to the claimant but the claimant appears to have avoided participation in the departmental enquiry proceedings and did not appear before the Enquiry Officer and also did not avail the opportunity of defence accorded to him by the Enquiry Officer on the false pretext of his illness. It is in view of the same, we conclude that the facts of the instant case are entirely different from the case relied by the learned counsel for the claimant and so the decision taken in the case of Union of India and others v. I.S. Singh, will be of no help to the claimant. Coming to the order impugned we find that the punishing authority had comprehensively considered the grounds raised by the delinquent claimant in his reply to the show cause notice and in agreement with the findings and conclusion arrived at by the Enquiry Officer in his report recorded the impugned order of punishment in dismissal of claimant from service and so by no stretch of construction it could be said that the reply by the claimant to the show cause notice was not considered. Punishing Authority in order impugned dated 5.6.1995. Annexure-1 to the record has recorded reasons and grounds and the same is a speaking order in categorical terms and does not suffer from any legal and procedural infirmity. Before parting with the Judgment plea of limitation raised on the part of the opposite parties vide para 1 of the CA/WS also requires consideration. Order impugned is dated 5.6.1995 and the claim petition was filed on 28.7.1998 and so it is submitted on the part of the opposite parties with the reference of claim petition is time barred. In this context it is worthwhile to mention that vide para 4 (14) of the reference of claim, claimant has made averment that against the order impugned he sent an appeal to the D.I.G. Agra Range, Agra on 28.6.1995, copy of memorandum of appeal thereon the record as Annexure-A-13. On the contrary opposite parties denied the facts and submitted that the claimant did not file an appeal to the D.I.G. Agra Range. Agra on 28.6.1995. By filing rejoinder-affidavit claimant has also filed photostat copy of the postal receipt to fortify his contention that he preferred an appeal by way of registered post to D.I.G. Agra Range, Agra on 8.6.1995 and this contention of the claimant appears to be true in view of the material there on the record. Thus, in these circumstances the conclusion is inevitable that the claimant preferred an appeal against the impugned order which has not been disposed of. In this view of the matter we conclude that reference of claim petition filed by the claimant is not time barred. In view of foregoing discussions and findings, reference of claim petition devoid of merits deserve dismissal. ORDER Reference of claim is hereby dismissed with costs easy between the parties.;