Sanjay Misra - (1.) PROCEEDINGS under the U. P. Police Officers of the Subordinate Ranks Punishment and Appeal Rules, 1991 were initiated against the petitioner for being absent from his duties w.e.f. 3.1.1995 to 25.3.1995, i.e., 81 days. The petitioner was a constable posted at Police Lines, Allahabad. It is alleged by the petitioner that he was not given any opportunity of participating in the enquiry consequently the order dated 12.3.1996 of removal passed by the disciplinary authority and that the order dated 28.2.1997, passed by the appellate authority as also the order dated 25.5.2002 /10.6.2002 of the revisional authority was illegal. It is the case of the petitioner that he had completed fourteen years satisfactory service but due to illness he could not perform his duties as constable during the aforesaid period of 81 days. It has been stated by the petitioner that he was intimated about the order dated 12.3.1996, passed by the respondent No. 3. Consequently he filed an appeal dated 10.6.1996 before the respondent No. 2. He has further stated that he could not send his leave application through registered post on account of financial problem. The said appeal was rejected by the respondent No. 2 whereafter the petitioner preferred a revision before the respondent No. 1. It is stated by the petitioner that the authorities concerned had failed to appreciate that in fact no enquiry what so ever has been conducted and the entire disciplinary proceedings were virtually ex parte. It has been stated that he had given valid explanation for his absence and therefore, it was incumbent and obligatory on the part of the authorities to have objectively considered the grievance of the petitioner and the explanation submitted by him. He submits that the authorities have not considered the case of the petitioner in its right perspective and to the contrary a very narrow view has been taken which is erroneous on the face of it and is against the rule of fair play as such being violative of Articles 14 and 21 of the Constitution of India. The petitioner has further averred that statement of fact that he did not participate in the enquiry was vague and evasive and the entire proceedings were conducted without affording reasonable opportunity to the petitioner to defend himself. Further that the punishment of dismissal is too severe and is not commensurate to the charge which has been levelled against him.
(2.) COUNTER-affidavit has been filed on behalf of the respondents. It is stated in the counter-affidavit that from 3.1.1995 the petitioner absented from duty which fact was recorded in the general diary and his return on 25.3.1995 was also recorded. It is stated that proceedings under Rule 14 (1) of the Rules of 1991 were initiated against the petitioner and he was given full opportunity to participate in the enquiry. However, since the petitioner did not participate, therefore, enquiry report dated 19.2.1996 was submitted. The respondent No. 3 issued show cause notice dated 20.2.1996 to the petitioner which was sent by a special messenger and due to absence of the petitioner at his residence it was served by affixation. Thereafter no response was received from the petitioner. The respondent No. 3 passed an order dated 12.3.1996, removing him from service. The petitioner preferred an appeal and upon dismissal of his appeal, he preferred revision which was also dismissed. It is stated that the petitioner had filed Civil Misc. Writ Petition No. 7518 of 2002 and in compliance of the order of this Court the petitioner was given opportunity by the respondent No. 1. It has been stated that the petitioner has alternative remedy before the State Services Tribunal. It is the case of the respondents that the petitioner has not given any intimation with respect to his absence from duty on the ground of illness and as such he has not complied with the provisions of Regulations 381 and 382 of the U. P. Police Regulations. It is further case of the respondents that service record of the petitioner reveals that on previous occasions, the petitioner has absented himself from duty unauthorizedly and lenient view was taken but the petitioner has not improved upon his ways. In the rejoinder-affidavit the petitioner has stated that entire proceedings have been conducted without providing any opportunity of hearing and in violation of principles of natural justice therefore the petitioner cannot be relegated on the ground of alternative remedy. He has further reiterated that his absence was due to illness and in future he will try not to be absent from duty. The enquiry report has been filed as Annexure-1 to the writ petition. A perusal of which reveals following facts : (i) enquiry officer was appointed by the order dated 1.11.1995. (ii) the charge-sheet dated 4.11.1995 could not be served on the petitioner because he was absent from 11.11.1995, therefore, on 15.11.1995 the same was sent by special messenger to the petitioner's original residence at Pure Harikara Post Shakar Daha, Police Station Baghrai District Pratapgarh The said charge-sheet was served upon him in person on 1.12.1995. However, the petitioner did not appear before the enquiry officer within time. (iii) The enquiry proceedings were started on 13.12.1995 and 22.12.1995, was fixed for departmental evidence. On 13.12.1995, a notice was sent by special messenger to the permanent residence of the petitioner but the petitioner was absent from his residence and therefore, special messenger pasted the notice on the door of his residence in the presence of four witness of the village on 17.12.1995. (iv) The petitioner and departmental witnesses did not appear on 22.12.1995 therefore, departmental witnesses were asked to come on 29.12.1995. (v) On the 29.12.1995, none appeared before the enquiry officer therefore, 8.1.1996 was fixed for evidence of departmental witnesses. (vi) On 2.1.1996, notice of the said date was again sent by special messenger to the permanent residence of the petitioner which were received by the petitioner in person on 6.1.1996. (vii) On 8.1.1996, evidence of the departmental witnesses started but inspite of service the petitioner did not participate in the enquiry. (viii) The next date fixed in the enquiry was 13.1.1996 for cross-examination of the departmental witnesses and to such effect on 8.1.1996, notice was sent to the petitioner by special messenger. Since the petitioner was absent from his residence therefore, the special messenger pasted the notice on the door of his house on 9.1.1996 in the presence of three witnesses of the same village. (ix) Inspite of various efforts made by the enquiry officer the petitioner did not participate in the enquiry therefore, departmental evidence was concluded and 27.1.1996, was fixed for the defence. The notice of the said date was again sent by special messenger to the permanent residence of the petitioner but since he was absent from his residence therefore, special messenger pasted the notice on the door of his house in the presence of the witnesses. Inspite of the said service, the petitioner did not appear before the enquiry officer nor submitted any written explanation to the charges levelled against him. Consequently on the basis of evidence before the enquiry officer, he proceeded to give his enquiry report.
(3.) A copy of the impugned order of removal has been filed as Annexure-2 to the writ petition which indicates that a show cause notice dated 20.2.1996 was issued to the petitioner at his permanent residence but due to his absence the said notice was pasted on the door of his house on 2.3.1996 in the presence of witnesses. The petitioner did not reply to the show cause notice, therefore, the respondent No. 3 after considering the enquiry report proceeded to pass the order dated 12.3.1996, removing the petitioner from service. Feeling aggrieved the petitioner preferred an appeal against the said order and in the grounds of appeal he has stated that he received the order of removal on 21.3.1996. Learned counsel for the petitioner has contended that no proper enquiry was conducted by the enquiry officer and even the disciplinary authority has not given him any opportunity before passing the order of removal. He has further contended that the appellate and revisional authority have failed to consider the explanation given by the petitioner for his absence and that the punishment awarded to him is not commensurate to the charge levelled against him. In support of his submissions learned counsel has relied upon the decisions in Sahdeo Singh v. U.P.P.S.T. and others, 2001 (2) AWC 983 : (2001) 1 UPLBEC 865 ; L/NK Musafer Yadav v. Commander 47 Bn. C.R.P.F. and others, 2001 (4) AWC 2976 : (2001) 3 UPLBEC 2196 ; Sukhbir Singh v. SSP Agra and others, 2002 (1) AWC 801 : (2002) 1 UPLBEC 775 and decision of the Apex Court in Bhagwan Lal Arya v. Commissioner of Police and others, (2004) 2 UPLBEC 1294.;