Judgment:
Sunil Ambwani, J.
1. Heard Shri Ashok Khare, senior advocate assisted by Shri K.N. Rai for the petitioner. Learned standing counsel appears for the respondents.
2. By this writ petition the petitioner has prayed for setting aside the orders passed by the Senior Superintendent of Police, Ballia dated 6.3.2007 ; Deputy Inspector General of Police, Azamgarh Range, Azamgarh dated 24.8.2007 and Inspector General of Police dated 4.7.2008. The Senior Superintendent of Police, Ballia removing the petitioner from service as Constable No. 638, Civil Police and posted in the year 2004 at P. S. Sukhpura, district Ballia on the ground of his continuous absence from duties w.e.f. 30.8.2004, after following the procedure prescribed under Rule 14(1) of the U.P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 (in short Rules of 1991). The punishment of removal from service without any pay from the date of unauthorised absence was awarded under Rule 4(1) and Rule 4(1)(a)(2) of the Rules of 1991.
3. Brief facts giving rise to this writ petition are that the petitioner was detailed and dispatched for duties on 'Mahaviri Jhanda Julus', Ballia alongwith then S.H.O., Sukhpura, Shri Ajeet Kumar Singh on 29.8.2008. All other accompanying police officers returned back from duties, but the petitioner absented from 30.8.2004. A preliminary enquiry was made by the Circle Officer, Ballia in which recommendations were made to remove the petitioner from service. A charge-sheet was issued to the petitioner on 25.8.2006 in the enquiry under Rule 14(1) of the Rules of 1991 for imposing major penalty. The petitioner did not submit any reply on which a notice was given on 15.1.2007 to show cause against recommendations to remove him from service. The notice was served upon the petitioner on 16.2.2007 but that no reply was received on which it was presumed that the petitioner had nothing to say. The Senior Superintendent of Police, Ballia consequently passed an order on 6.3.2007 removing the petitioner from service without pay with effect from his absence from duties on 29.8.2004.
4. The petitioner filed an appeal before the Deputy Inspector General of Police, Azamgarh Zone in which he alleged that he was deputed for duties on 'Mahaviri Jhanda Julus', Ballia alongwith duty rifle and 20 rounds of cartridges. He was not well and was extremely week with loss of appetite. From 'Mahaviri Jhanda Julus', Ballla he came to Varanasi on 1.9.2004 and was under treatment of Dr. D. C. Gupta, Orderly Bazar, Varanasi. He was advised and took bed rest and was under treatment from 1.9.2004 to 31.1.2005. When he did not recover, he consulted doctors in District Hospital on 1.3.2005 and was advised two months' rest. He did not recover again and consulted doctors in District Hospital. Ghazipur on 1.9.2005 and was again advised rest for one month with prescription of medicines. The petitioner again consulted the doctors in District Hospital, Ghazipur on 2.1.2005 and was again advised rest. He was declared fit by the doctors on 27.7.2006 after he recovered and was prepared to join but that again he fell ill, and again consulted doctors. Finally he was declared fit by Dr. Anil Kumar Mehta on 2.3.2007. He filed medical prescriptions and certificates before the appellate authority. The petitioner stated that he reported his illness on 21.2.2007 by registered post and since he had spent a lot of money in treatment and was short of fund, he had sent the letter to the Superintendent of Police, Ballia under certificate of posting.
5. The appellate authority found from the statement of Shri Ajeet Kumar Singh, S.H.O. of the police station that the petitioner had returned back from duties and deposited the rifle and cartridges. The duty was entered on record in 'Mahaviri Jhanda Julus', 'roznamcha aam' from 29.8.2004 to 7.9.2004. He did not return back and was continuously absent from 30.8.2004 and was reported absent in 'roznamcha aam' from 7.9.2004. No steps were taken against Shri Ajeet Kumar Singh for failing to report him to be absent from duties. The appellate authority found that all other employees had returned back by 21.15 p.m. and that appellant was also reported to have returned and have deposited rifle and cartridges on 29.8.2004, but that on 30.8.2004 when the police party again left the police station to report for duties at 'Mahaviri Jhanda Julus', the appellant did not accompany them. The entries in the police station regarding his presence from 30.8.2004 to 6.9.2004 with assignment of duties in 'Mahaviri Jhanda Julus', are incorrect. The petitioner did not perform duties during this period and was not present at the police station.
6. A report of petitioner's absence was made by Shri A.H. Zaidi, the then S.O., Sukhpura on 17.7.2005 and thereafter several letters were written to the petitioner on 31.8.2006. 10.9.2006. 1.10.2006, 12.11.2006 and 7.12.2006. A special messenger was also sent on 7.10.2006 and that on 7.12.2006 the date was fixed for 16.12.2006. A copy of this letter was received by Smt. Sangeeta Rai, the wife of the petitioner. The petitioner was given several opportunities to defend himself but that he neither received the charge-sheet nor gave any reply in his defence. The department examined the witnesses and found that the petitioner was absent from duties without any request for grant of leave. His contention that he had sent a letter by registered post to the Superintendent of Police, Ballia on 21.2.2007 and had sent several U.P.C. letters was found to be incorrect as there was no evidence to prove the fact. The document with regard to treatment, receipt of the registered and U.P.C. letters were disbelieved by the appellant authority. He had not disclosed the nature of his illness and that all the prescriptions were of the treatment in the outpatient department. He did not report to the competent authority for rest or gave any information about illness violating paras 381, 382 and 383 of Police Regulations. The appeal was dismissed on 24.8.2007. During the pendency of the revision before the Inspector General of Police the petitioner filed Writ Petition No. 6383 of 2008, which was disposed of on 1.2.2008 with direction to the revisional authority to decide the revision within three months. The revision was dismissed confirming the findings on 4.7.2008 giving rise to this writ petition.
7. Shri Ashok Khare, learned Counsel for the petitioner would submit that the petitioner was ill and had sent letters under certificate of posting. His medical certificates has not been considered by the authorities and that the departmental enquiry illegally proceeded ex parte awarding extreme punishment of removal from service and forfeiture of pay from the date of his absence. Shri Ashok Khare would submit that no enquiry was held into the matter violating the Rules of 1991 providing for opportunities of hearing before the police constable is dismissed from service in terms of Article 311 of the Constitution of India. He has relied upon the judgment in Dr. Shrikant v. Prof. Y. C. Simhadri, Vice Chancellor, Banaras Hindu University, Varanasi and Ors. : 2003 (2) ESC 964 : 2003 (3) AWC 2172, in which it was held that petitioner's absence after his application was recommended and forwarded to the Registrar of University for leave could not be treated as abandonment of service. She had applied for leave for proceeding to Common Wealth Fellowship in United Kingdom and her application was communicated by the Registrar to the Vice Chancellor. She could not be deemed to have abandoned the service for awarding punishment. Shri Khare has further relied upon Smt. Ekta Pandey v. Vice Chancellor, B.H.U., Varanasi and Ors. 2004 (3) ESC 1329 (All) : 2004 (5) AWC 4689, in which a student nurse was dismissed from service for her absence from duties without holding any enquiry in terms of ordinance of Banaras Hindu University in which it was provided that if the teaching or non-teaching employee fails to return to University within 45 days of expiry of leave duly granted his services shall be deemed to have been abandoned by him. It was held that authorities have to examine the cause of her absence.
8. Shri Khare has also relied upon Madan Mohan Singh v. Nagar Palika, Bijnor and Ors. 2004 (3) ESC 1327 : 2004 (5) AWC 4555, in which this Court had found that dismissal of service in an enquiry in which no date, time or place was fixed, violated the principles of natural justice and Amirullah Khan v. State of U.P. and Ors., : 2006 (3) ESC 2021 : 2007 (1) AWC 994 (LB), in which the Court held that termination of service without holding any enquiry on the ground that the petitioner was absent for a span of five years or more in violation of Fundamental Rule 18 was not valid. The Supreme Court had interpreted the Fundamental Rule 18 in State of Assam v. Akshay Kumar AIR 1976 SC 37, and held that the cessation of service stipulated in the rule would in substance and effect stand on the same footing as his removal from service within the contemplation of Article 311(2) of the Constitution, particularly when it is against the will of the employee, who is willing to serve, or who had never lost the animus to rejoin duty on the expiry of his leave.
9. In the present case, the petitioner has been removed from service on the ground of his unauthorised absence w.e.f. 29.8.2004 reported on 17.7.2005, by the then S.H.O., Sukhpura. A preliminary enquiry was made in which it was found in the report dated 10.2.2006 that the petitioner was continuously absent from duties without any application of leave, and that thereafter the Senior Superintendent of Police decided to hold a departmental enquiry for major penalty. A charge-sheet was prepared and was sent to the petitioner. When the letters dated 31.8.2006, 10.9.2006, 1.10.2006, 12.11.2006 and 7.12.2007, were not received, a special messenger was sent. The messenger contacted Smt. Suneeta Rai, wife of the petitioner and served the letter dated 7.12.2006 of the departmental enquiry on her. He did not attend to the enquiry proceedings on which the department evidenced against him and found that he is absent without any intimation for more than two years. The charge against him for remaining absent from duties without any justification was thus proved and that Senior Superintendent of Police punished him by removing him from service on March 6, 2007. It is only thereafter that the petitioner appeared and filed the appeal in which he took the plea of illness and submitted various medical certificates and the receipt of registered post and U.P.C., which were not believed by the appellate authority. It was also found that the petitioner had not disclosed the nature of his illness.
10. The medical certificates annexed to the writ petition advising rest for months altogether have described 'hepatitis' as the ailment with which the petitioner was. suffering. The prescriptions from the Government Hospitals are the O.P.D. slips, and that the certificates dated 1.3.2005 and 30.4.2005 are by Orthopedics Surgeon in District Hospital, Ghazipur, who has certified the petitioner to be suffering from 'B.A. with rest for two months and thereafter L.B.A. with rest for two months.'
11. The petitioner has not specifically denied that his wife had received the letter in which date was fixed in the departmental enquiry on 16.12.2006. The petitioner has tried in vain to establish that he had applied for leave, but has not filed leave applications with the record to substantiate the allegations. He has not produced any document to show that he was hospitalised at any time to justify his absence of more than two years. The O.P.D. slips and medical certificates relied upon by the petitioner do not certify that the petitioner was confined to bed and was so ill that he could not even make an application for leave. The appearance of the petitioner in appeal after he was removed from service is also a circumstance, which has to be noticed to be considered the conduct of the petitioner.
12. The facts of the case law cited by the petitioner are not applicable to the present case. The continuous absence was not ipso facto considered a ground of removal from service. It was subject-matter of preliminary enquiry, after which the police department decided to initiate proceedings of major penalty. A charge-sheet was prepared and issued. The petitioner, however, was not ignorant of the proceedings as his wife had received the communication of the date fixed in the departmental enquiry.
13. The petitioner appeared without any justification of his absence for more than two years, only to file the appeal. The appellate authority has considered the explanation submitted by the petitioner and has found that his reply was not worthy of belief. The petitioner was not suffering from any such ailment, which justified his absence for more than two years. He had only produced the out patient department slips and certificates from the doctors, which had only advised him bed rest. His illness was not such, which could have kept him away from duties and did not prevent him from making proper application for leave. It was found that the petitioner had absented himself for long period of more than two years without authorisation and that his long absence from duties was sufficient to invite the punishment of removal from service.
The writ petition is dismissed.