- (1.) V. C. Misra, J. Heard Shri Rajesh Nath Tripathi learned Counsel for the petitioner and the learned Standing Counsel appearing on behalf of the respondents. Counter and rejoinder affidavits have been exchanged between the parties. On the joint request of learned Counsel for the parties this writ petition is disposed off at this stage in terms of the High Court Rules.
(2.) THE facts of the case in brief are that the petitioner was duly recruited on 13-10-1998 after selection in 30 Bn. , PAC, Gonda. On 10-2-2000 the petitioner applied for leave for a period of 13 days, which was sanctioned by the respondents on 16-2-2000, the petitioner was bitten by a mad dog and was placed under medical treatment. However, he joined his services on 24-2-2000 and applied for further 7 days leave for treatment which was sanctioned by the concerned authority due to reaction of the dog bite and was admitted in District Hospital, Ghazipur and was being treated there. He was issued fitness certificate on 7-11-2000. During the period of his treatment he sent informations to the respondents including the medical certificate from time to time requesting extension of his leave till date of his complete fitness, through registered post. After getting fitness certificate on 7-11-2000 the petitioner reached the Bn. and submitted his joining but the respondents refused to accept the joining of the petitioner and served him with impugned ex parte termination order dated 21-8-2000 without issuing any show cause notice or affording any opportunity of hearing to him or even without conducting any inquiry. Being aggrieved, the petitioner challenged the impugned order, being violative of Article 311 of the Constitution of India and Sections 8 and 14 of the U. P. Police Subordinate Rank (Punishment and Appeal) Rules, 1991 and filed the present writ petition seeking relief in the nature of writ of certiorari quashing the impugned termination order dated 21-8-2000 and further directing the respondents to reinstate him in service with salary and back wages. In the counter-affidavit the respondents have stated that the petitioner's services have been dispensed with under the provisions of the U. P. Temporary Government Servant (Termination of Services) Rules, 1975, being temporary in nature and did not require any further show cause notice or initiating departmental proceedings. In para-7 of the counter-affidavit it has been stated that the petitioner was suffering from dog bite and after the treatment became all right but still he did not join his duties which fact is supported from the application dated 21-6-2000 of the father of the petitioner that though he is all right but he has not joined his duty and therefore, under the said circumstances having no other option a preliminary inquiry was conducted by the respondents and he was found guilty and on the basis of merit his services were terminated on the ground of unauthorized absence. In para- 13 of the counter-affidavit it has been stated that the services of the petitioner have been terminated in the interest of the department as his such action amounted to indiscipline and which would have an adverse impact on the disciplined force. In the rejoinder affidavit the petitioner has reiterated and has stated that his services have been terminated without issuing any show cause notice, or without framing and serving any charge- sheet and without conducting any proper disciplinary inquiry after affording opportunity of hearing in accordance with law.
(3.) I find that there is no denial by the respondents in the counter-affidavit to the averments of the petitioner that no charge-sheet had been issued to the petitioner and no opportunity of hearing was afforded to him to meet the charges. The materials disclosed in the counter-affidavit also inflicts stigma on him, therefore, his services could not be dispensed with without holding disciplinary inquiry in accordance with law after affording him full opportunity of hearing. Dismissal from service on the ground of unauthorized absence admittedly on medical grounds though supported by medical certificate does not amount to grave misconduct or continued misconduct rendering the petitioner unfit for police service. Merely one incident of absence and that too because of bad health and on valid and justified grounds/reasons cannot become the basis for terminating the services of the petitioner and is liable to be set aside. It is settled law that dismissal on the ground of overstay after sanctioned leave is not an appropriate punishment being disproportionate to the said charge. Reference is carved to judgments of this Court in the cases of Abdul Bari v. State of U. P. & Ors. , 1999 (3) ESC 2282 (All); L/nk Musafir Yadav v. Commandant, 47 Bn. CRPF, Gandhi Nagar, Gujarat & Anr. , 2002 (1) LBESR 521 (All) : (2001) 3 UPLBEC 2196 and Bhagwan Lal Arya v. Commissioner of Police, Delhi & Anr. , AIR 2004 (SC) 2131.;