IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 300 of 2007 (S/B) Raj Pal Singh … Petitioner Versus State of Uttarkhand & Others. … Respondents Mr. S.S. Yadav, Advocate, for the petitioner. Mr. K.P. Upadhyaya, Addl. CSC, for the State/respondents. Date of Judgment : 20.5.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Servesh Kumar Gupta, J. BARIN GHOSH, C.J. (ORAL) On 1.8.1989, petitioner was appointed as a Constable in the police department of the State of Uttar Pradesh. He was discharging duties in the territory of the State of Uttar Pradesh, which has now become part of the territory of the State of Uttarakhand. During the period 6.4.1991 to 19.4.1995, petitioner remained absent from duty without permission for 506 days. 2. In respect of one of his unauthorized absences, a disciplinary proceeding was initiated against the petitioner. That resulted in passing of an order of dismissal. On appeal, the punishment was set aside. Prior thereto, petitioner was reverted to the minimum of the scale of pay in yet another disciplinary proceeding for one of such absences. On 21.6.1995, the last disciplinary proceeding was initiated against the petitioner under the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 by issuing a chargesheet. In the chargesheet, it 2 was alleged that the petitioner was absent from duty without authority from 12.10.1994 until he returned back on 14.12.1994, namely, for 63 days, 8 hours and 30 minutes. It was stated that the said unauthorized absence was misconduct, unbecoming of a member of the police force and, accordingly, the said chargesheet is being issued. On 21.6.1995 itself, petitioner gave a reply to the chargesheet. In the reply, he stated that he remained absent for 63 days, 8 hours and 30 minutes from 12.10.1994 to 14.12.1995 without permission, but the said absence was for the purpose of attending to his ailing son. 3. On 23.6.1995, petitioner obtained three days’ casual leave and thereafter did not return. 4. In order to ascertain whether the petitioner was called upon to attend to his son’s ailment, as was the reason furnished in reply to the chargesheet to justify the unauthorized absence, an enquiry was conducted. Since the petitioner did not attend the enquiry, the same was conducted ex parte. Enquiry Officer submitted his report on 13.7.1995. In that, it was reported that for no just reason, the petitioner remained absent without permission for the period mentioned in the chargesheet. The disciplinary authority, after considering the findings of the Enquiry Officer and being satisfied that there was no just reason to differ with the views expressed therein, forwarded a copy of the enquiry report to petitioner along with a show cause notice dated 16.7.1995, which was served upon the petitioner on 24.7.1995. Petitioner did not bother to give any reply to the said show cause. In the premises, on 13.8.1995, disciplinary proceeding 3 was concluded by passing a dismissal order. Petitioner preferred an appeal against the dismissal order. After having lost in the appeal, petitioner went before the Tribunal. Before the Tribunal, petitioner, for the first time, made out a case that while leaving on 12.10.1994, petitioner left an application for five days’ causal leave and also obtained verbal assurance of grant of such leave along with verbal permission to leave station. He contended that the reason for seeking such leave was an information received by him that his son was seriously ill. He then contended that his son was treated at the Primary Health Centre and also by private doctors and, accordingly, his return was delayed. He stated that in the meantime, on 17.10.1994 and thereafter on 15.11.1994, he made requests for grant of regular leave and those requests were sent Under Certificate of Posting. 5. The Tribunal found as a fact that though the letter dated 17.10.1994 purports to annex medical certificates, but the letter dated 17.10.1994 produced before the Tribunal had no such annexure. The Tribunal also found as a fact that two letters dated 15.11.1994 and 17.10.1994 were written by the petitioner to his office, which were produced by the department before the Tribunal, but the contents of those letters were different from the contents of the letters relied by the petitioner before the Tribunal. The Tribunal was surprised why, despite getting opportunity after receipt of the enquiry report and thereafter while preferring the appeal, the petitioner thought it not necessary to bring on record his assertions pertaining to his applying for five days’ casual leave at the first instance followed by the 4 applications dated 17.10.1994 and 15.11.1994 for regular leave and at the same time, why nothing was brought on record by the petitioner as regards ailment of his son. Even before the Tribunal, nothing was brought on record by the petitioner to show that in fact during the period between 12.10.1994 to 14.12.1994, the son of petitioner was ill and the ailment of the son of petitioner was such that the same could only be treated by attendance of the petitioner. In the circumstances, the Tribunal dismissed the claim petition of the petitioner. Hence, the writ petition. 6. In the present writ petition, the one and the only contention of the petitioner is that the enquiry was conducted ex parte and, accordingly, there has been breach of procedure prescribed. A breach of procedure would not ipso facto make the conclusion invalid or illegal. In the event, it is established that the breach of procedure was such that if the same had not taken place, the conclusion arrived at on such breach could be something else, would certainly go to the root. In other words, a breach of procedure would render the decision invalid only when substantial injustice has been caused by such breach. In the instant case, even assuming that the enquiry was held without notice and, accordingly, there was a breach of procedure, but even if a notice had been given, question is, could that improve the case of the petitioner? The answer would be ‘no’. As aforesaid, despite getting the opportunity to place materials before the disciplinary authority to substantiate that the ailment of the son of petitioner was so severe that the attendance of the petitioner was required to treat such ailment, the petitioner failed to avail of the same and at the same time, the petitioner 5 failed to even make an assertion in that regard before the appellate authority while he filed that appeal. He again failed to produce any material before the Tribunal to suggest that his absence was such a requirement that otherwise his son’s ailment could not be healed. In the circumstances, the conclusion would be that the petitioner has not been able to make out any case in the writ petition and the same is liable to be and should be dismissed. 7. We would have imposed exemplary cost in the matter but have refrained ourselves from doing so on the statement by Counsel for the petitioner that at present the petitioner is a cycle-rickshaw puller in the city of Nainital. (Servesh Kumar Gupta, J.) (Barin Ghosh, C.J.) 20.5.2011 20.5.2011 Prabodh