IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2)(b) Description of Case W.P. No. 121 of 2003 (S/B) Date of decision:- 10-8-2006 A.F.R. (Approved for Reporting) Not approved for reporting Initials of Judge Date:- 10-8-2006 Note:- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL. WRIT PETITION NO. 121 OF 2003 (S/B) Dharmendra Kumar son of Sri Om Prakash Singhal, R/o CT-9, Aasan Bairaj Colony, Dhalipur, District Dehradun. … Petitioner. Versus 1. State Public Service Tribunal, Uttaranchal, Dehradun. 2. State of Uttaranchal, Service through Home Secretary. 3. D.I.G. Garhwal Range, Pauri Garhwal. 4. S.P., Uttarkashi. ….. Respondents Sri Gopal Narain, learned counsel for the petitioner. Sri J.P. Joshi, learned counsel for the respondents. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J.C.S. Rawat, J. JUDGMENT Per Hon’ble J.C.S. Rawat, J. 1. By the present writ petition the petitioner has prayed for a writ of certiorari quashing the order dated 05.02.2003 passed by the State Public Service Tribunal, Dehradun and further prayed for a writ of certiorari quashing the order dated 10.02.1997 passed by the respondent No.4. 2. It is alleged that the petitioner joined the police force as a police constable on 15.01.1989. Thereafter he was posted at various places. In the month of June, 1996 the petitioner was posted at Uttarkashi and he proceeded to his home on 7 days casual leave with effect from 20.06.1996 to 27.06.1996 and he had to report the duty on 28.06.1996. The petitioner could not rejoin the duty on 28.06.1996 due to sudden illness. The petitioner dispatched to respondent the medical certificate of the government hospital, Dehradun to his senior officers of Uttarkashi. The petitioner reported his duties on 23.07.1996 alongwith the fitness certificate. Meanwhile the Inspector of the Reserved Police Force submitted a report to his senior officers alleging therein the absence of the petitioner from duty from 28.06.1996 onwards. Pursuant to the said report of the Inspector, Reserved Police Force the Superintendent of Police, Uttarkashi, respondent No. 4 entrusted the inquiry in the matter to Sri Balram Singh, the Circle Inspector and he was directed to conduct the preliminary inquiry for the alleged absence of the petitioner. The Inquiry Officer conducted the preliminary inquiry and submitted his report by which he recommended for the departmental proceedings against the petitioner. The charge sheet was served to the petitioner on 24.08.1996 and he was called upon to explain as to why he should not be proceeded departmentally. The petitioner was charged for the alleged absence from the duty from 28.06.1996 to 22.07.1996. He also remained absent from the duties for 253 days without any intimation on earlier occasions, for which he was awarded punishment several times. It was further alleged that he was involved in several criminal cases during his service. Thus, his conduct was such of unbecoming of a member of the police force. He submitted his explanation and an inquiry was conducted on both the counts. The Inquiry Officer submitted his inquiry report to the Punishing authority, respondent No.4 holding the petitioner guilty on both the counts. The Punishing authority, Superintendent of Police, Uttarkashi, respondent No.4 served upon him a show cause notice and the petitioner replied the show cause notice but the Superintendent of Police, Uttarkashi, respondent No.4 over-ruled his explanation and passed the order of dismissal on 10.02.1997. The petitioner preferred an appeal before the D.I.G., Garhwal Range which was also dismissed on 31.7.1997. Feeling aggrieved by both the orders the petitioner preferred a claim petition before the Public Services Tribunal, Dehradun which was dismissed on 05.02.2003. Feeling aggrieved by the said orders the present writ petition has been preferred by the petitioner. 3. The petition was contested by the respondents and they filed their counter affidavit. It is alleged that the petitioner was posted as a police constable in Uttarkashi in the month of June, 1996 and he was granted casual leave for seven days from 20.06.1996 to 27.06.1996 and he had to join the duties on 28.06.1996. The petitioner remained absent for 27 days without taking any leave. If the petitioner, in fact was ill, he ought to have applied for further leave. It was further alleged that the past conduct of the petitioner was unbecoming of a member of police force, he was involved in 5 criminal cases. Besides on earlier occasions also he remained absent for 253 days in total and his alleged absence was regularized by the departmental authorities by way of granting 253 days extra ordinary leave. It was also alleged that he had been awarded six entries of misconduct in his service record. Not only this he was awarded petty punishment and he was also suspended three times. The conduct of the petitioner was highly objectionable and could not be ignored because it was unbecoming of member of the police force. The petitioner was given full opportunity to defend himself before the Inquiry Officer. The Punishing Authority, after going through the entire record, dismissed him from the services. 4. We have heard learned counsel for the parties and perused the record of the case. 5. It was contended on behalf of the petitioner that he had justified his absence from duty with effect from 28.06.1996 to 22.07.1996 by submitting his explanation that he was ill and he got treatment from the civil hospital at Dehradun. The petitioner had taken treatment as an out door patient and he also obtained a medical certificate from the doctor on 28.06.1996 and 07.07.1996. The relevant medical certificates were also dispatched to his senior Officers and he reported his duty on 23.07.1996 alongwith the fitness certificate. 6. The learned counsel for the respondents refuted the contention and contended that under the Regulation 382 of U.P. Police Regulations it has been provided that the constables who fall ill when on duty or who are ill when due to return to duty, must apply for admission to the district police hospital or for treatment at the nearest dispensary. If the police hospital is out of easy reach. The fact of their admission or treatment must be reported to the local Superintendent of Police who unless they are his own subordinates will take immediate steps to communicate the fact to the Superintendent of Police whose subordinates they are. It was further contended by the learned counsel for the respondent that the petitioner had not approached to the police hospital, Dehradun for the treatment or to his nearest dispensary situated nearby Dehradun. Admittedly the petitioner had not reported to the local Superintendent of Police that he was going on treatment as provided under Regulation 382 of the Police Regulations. 7. It would not be out of context to mention here that the police force is disciplined force and every member of it requires strict observance of its disciplined rules and regulations. None can be allowed to violate the discipline of the force. Be that as it may, unauthorized absence from duty by a member of disciplined force is a serious matter and could not be lightly swept away. 8. It is admitted to the petitioner that the competent authority had not sanctioned his leave for the absence of 26 days. The petitioner pleaded, during the course of the hearing before the Tribunal, that it was for the doctors to decide whether or not to admit him in the hospital and that being a low paid constable at the base level in the police department he could not possibly exert pressure upon the doctors. The learned Tribunal was justified in rejecting his explanation submitted before the Tribunal at the time of the hearing that it was a highly belated and afterthought, sprouting from the domain retrospective wisdom. The Tribunal further observed by rejecting his explanation that had it been so the petitioner would have certainly made mention of his efforts in the pleading and in the affidavit. It was also admitted to the petitioner that he did not send any application indicating the necessity for staying at his home or he was ill at his home. The petitioner was a constable in the police force and he was governed by the Police Regulations. It was obligatory on his part to apply for the treatment at the nearest dispensary or the district police hospital and this fact of treatment must have been reported to the local Superintendent of Police. The provision of regulation 382 of Police Regulations also had not been adhered to by the petitioner. These facts lead to take an inference that the absence of the petitioner was willful and deliberate. The Punishing Authority had rightly held him guilty for the said charge. The learned Tribunal was also justified in confirming the order of the punishing Authority as well as of the Appellate Authority. 9. The learned counsel further submitted that the charge of earlier unauthorized absence was not sustainable against the petitioner in as much as the whole of that alleged absence was regularized by the departmental authorities by way of granting 253 days extra ordinary leave. It was further contended that in so far as his prosecution in five criminal cases were concerned he had been acquitted in four criminal cases, whereas in one criminal case the Investigating Officer had submitted the final report, as no case was made out against the petitioner. 10. The learned counsel for the respondents Mr. J.P. Joshi contended that the Punishing Authority never taken into account the previous history when he was found absent for 253 days for concluding his guilt or to accept the charge on the first count, i.e. from duty from 28.06.1996 to 22.07.1996. It was further contended that the previous absence was limb of the independent second charge that by his conduct of abstaining from duty without authorization he was bringing a bad name to the department. It was also contended on behalf of the respondent that it was also revealed that past conduct of the petitioner was unbecoming of a member of disciplined force also on the ground that he was involved in five criminal cases, besides on earlier occasions also he also remained absent for 253 days in total. Thus, the second charge had three limbs. The first limb of the second charge was that within a span of 7 years in service he had absented himself 253 days on different occasions and every time the department showed indulgence by regularizing the absence with the grant of extra ordinary leave. The second limb of the second charge was that he had been awarded six bad entries during his tenure. The third limb of the second charge was that five criminal prosecutions were pending against the petitioner. It is true that five cases were registered against him and in four cases the charge sheet was submitted against him and he was acquitted. Out of these four cases the petitioner did not get clean acquittal rather benefit of doubt was given to him while acquitting the petitioner. The fifth criminal case ended in the final report during the investigation. Thus, the third limb of the second charge can not be taken into consideration with regard to the pendency of the criminal cases against the petitioner. Whereas the rest of the two limbs of the charge remains available against the petitioner. It is not disputed that he had absented himself for not less than 253 days at different occasions within a span of 7 years of his service. The higher Officers of the department always regularized the absence of the petitioner by granting the extra ordinary leave. It is not disputed that he had earned six bad entries in his tenure on his service record and he was awarded four petty punishments. The petitioner was also suspended three times during this period. The details had been submitted in the counter affidavit by the respondents. As such, the conduct of the petitioner of absenting from duty without authorization he was bringing a bad name to the department. As we have noticed above that the petitioner remained unauthorizedly absent from duty more than 253 days at different occasions without any intimation to the department. The disciplinary authority held that absence of the appellant from duty was unauthorized and willful and his conduct was condoned by regularizing his absence by granting extra ordinary leave. Inspite of several punishments for lapse of absence on said occasions he did not improve himself that this indicated that he was a habitual absentee and did not take any lesson from the previous punishment awarded to him. 11. It was contended on behalf of the petitioner that the punishment awarded by the competent authority was too severe and excessive, whereas the charges were very petty and the punishment of dismissal had been awarded without any cogent reason. Thus, it could be seen that the word ‘mis- conduct’ though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It must be improper or wrong behavior, unlawful behavior, willful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty, the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the contest wherein the term occurs, regard being had to be scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order. Keeping in view of the above facts into consideration we are of the considered opinion that punishment awarded by the competent authority was not severe or excess. The learned Tribunal was justified in holding that the unauthorized absence from the duty by the petitioner was a serious matter. His past conduct of a similar nature as well as previous bad entries in his service book provided sufficient ammunition to the punishing authority to conclude that he required effective punishment of dismissal. 12. The learned counsel for the petitioner relied upon a judgment of the Apex Court reported in Bhagwan Lal Arya Vs Commissioner of Police- 2004 AIR (SCW) 2288. The appellant in this case was a constable in Delhi police, while he was undergoing the training he fell down on the parade ground on 07.10.1994. Thereupon he was sent to police dispensary. When his condition did not improve his relatives took him to home town in Gwalior where he remained in the treatment of government doctors. He sent the application for leave on the medical ground supported with medical certificates from the competent medical authorities in accordance with the leave rules. The said leave was sanctioned on 16.01.1995 without pay for a period of his illness from 07.10.1994 to 14.12.1994 because he had no other leave due in his account. Subsequently the competent authority issued a charge sheet for the unauthorized absence for the same period. After the conclusion of the inquiry he was removed from the service. The Hon’ble Apex Court, while setting aside the dismissal, held that the appellant was not a habitual absentee. Merely one instance of absence and that too because of bad health and valid and justified ground/reasons can not become basis for awarding such a punishment. The Apex Court further held that the punishment of removal from service imposed upon the appellant is highly excessive and disproportionate also, one of which was not permissible to be imposed as per the service rules. The Hon’ble Apex Court directed to reinstate the appellant subject to the condition that the period during which the appellant remained absent from duty and the period calculated upon the date on which the appellant reports back to duty pursuant to that judgment shall not be counted as a period spent on that period. This case is not applicable in the case in hand. The appellant in that case was not a habitual absentee. He fell down on the parade ground itself and he was treated at the police hospital and he could not regain his health so he was taken to his home. His leave was also granted by the authorities. Therefore, in the peculiar circumstances of the case the Hon’ble Apex Court set aside the dismissal order. In the case in hand no leave was granted to the petitioner. 13. The Hon’ble Apex Court in State of Punjab and others Vs Mohinder Singh- (2005) 12 SCC 182, the facts of that case was that the respondent was working as a constable in the police force and he was dismissed from the service after holding a departmental inquiry on the charge of remaining absent from the duty without and sanctioned leave or prior intimation. The statutory appeals were preferred by the said constable and his appeals were dismissed. Thereafter he filed a civil suit in the court of Civil Judge (J.D.) for quashing the impugned order of dismissal with the consequential reliefs. The trial court dismissed the suit and the first appellate court allowed the appeal and he was reinstated in the service. The second appeal preferred before the High Court was also dismissed. Feeling aggrieved by the said judgment and order of the High Court the State Government filed the appeal before the Hon’ble Apex Court. The Hon’ble Apex Court did not agree with the observation of the High Court and held as under: 14. “We do not agree with the High Court that a single act of remaining absent without leave would not amount to gravest act of misconduct. It was further held by the Hon’ble Apex Court that this would depend upon the fact situation of each case. In the present case we find that the respondent remained absent without leave for quite a long period. The explanation rendered by him did not find favour either with the enquiry officer or the punishing authority. The findings of facts were not disturbed in the departmental appeal/revision. This finding was also not disturbed in the suit. The only ground for setting aside the orders impugned in the suit is that a single act of remaining absent from duty without sanctioned leave did not merit an order of dismissal from service. We find from the record that the respondent had remained absent from duty without sanctioned leave on 15 different occasions. Although no major punishment was awarded to him but he was ordered to be censured once. In our view, the respondent being member of a disciplined force could not be permitted to remain absent without taking leave and that too for such a long period. He cannot be retained in service. The order impugned before us in set aside and the suit is ordered to be dismissed.” 15. The facts of this case are identical with the case in hand. In the case in hand the petitioner was a habitual absentee. He was given sufficient time to reform himself. He had earned several bad entries and he was suspended thrice. The police force is supposed to be a disciplined force. The unauthorized absence from the duty by a member of such disciplined force can not be tolerated at all. The punishment awarded in the above circumstances was not excessive. We are of the considered view that the writ petition devoids merit and is liable to be dismissed. 16. The writ petition is dismissed. No order as to costs. J.C.S. Rawat, J. Rajeev Gupta, C.J. Dated: August 10, 2006. Negi