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Judgment
VIVEK AGARWAL, J
This writ petition has been filed by the petitioner being aggrieved by order dated 12.09.2016 passed by the Superintendent of Police, District Morena,
inflicting punishment of removal from service for unauthorized absence of the petitioner from 30.09.2015 to 07.12.2015. Thereafter, petitioner had filed
an appeal before the Deputy Inspector General of Police, Chambal Range, Morena, that too has been dismissed vide order dated
06.03.2017(Annexure P-2) and thereafter, mercy appeal, which was filed before the Director General of police too has been dismissed vide order
dated 28.07.2017 (Annexure P-3).
It is petitioner's contention that he is a youth of 27 years and his dismissal has been made on the basis of his overstay on leave or for the reason of
unauthorized leave. He submits that the enquiry was vitiated, inasmuch as Enquiry Officer had conducted entire enquiry and had cross-examined the
witnesses, therefore, acting both as an Enquiry Officer as well as the Presenting Officer, which is violative of the principles of natural justice, as is
apparent from the enquiry report itself.
Learned counsel for the petitioner has also placed reliance on the circular of Police Department dated 24.07.2017 issued by the D.G.P, in which it is
mentioned that enquiry is to be held in case of persons availing 120 days or more leave without any intimation. He submits that since petitioner's period
of absence was less than this, therefore, no any Departmental Enquiry was necessary in his case and he should not have been subjected to such harsh
punishment. In view of such facts, he has prayed for allowing the petition and quashing of the impugned orders (Annexure P-1, P-2 and P-3) with
further direction to reinstate the petitioner in service with all consequential and monitory benefits and seniority.
It is not in dispute that petitioner was initially appointed on the post of Constable on 07.05.2013. It has come in the impugned order, though not
mentioned by the petitioner, that during the service carrier petitioner was given 07 prizes and 4 minor penalties, which were all given for his
unauthorized absence. It has also come on record that earlier petitioner was visited with penalty of withholding of one increment with cumulative
effect for his unauthorized absence of 149 days. It has also come on record that petitioner voluntarily remained absent from time to time and despite
inflicting punishments on him there was no change in his attitude. It is submitted that petitioner had absented himself from 21.02.2016 to 05.05.2016 for
a period of 74 days. Enquiry in that regard is pending with the SDOP Banmore, then he was again unauthorizedly absent from 19.07.2016 to
07.08.2016. It is further mentioned in the impugned order that such unauthorized absence has an adverse impact on the discipline of the department
and therefore, punishment of removal from service has been inflicted on him.
It is submitted by the learned Govt. Advocate that the allegation on Enquiry Officer being a prosecutor and a judge, is not correct. It is submitted
that vide order dated 13.04.2016 (Annexure-R-1) enquiry report was submitted to the Superintendent of Police, Morena. In this enquiry report, it has
come on record that he was unauthorizedly absent from 30.09.2015 when he was deputed on PCR-2 and remained absent till 17.12.2015, when he
had given his joining at 19.16 hours on 17.12.2015 and had given an application that because his mother and sister had suddenly fallen ill, he had gone
back to his house, thereafter on 21.02.2016, he was not found in his Barrack and had not given any intimation, therefore, his absence was recorded in
the Roznamcha at 11.00 a.m and looking to his continuous absence, on 04.03.2016 intimation was given to the Superintendent of Police Morena about
such unauthorized absence. During the preliminary enquiry, statements were taken and it was noted that he had not joined his duties after absenting
himself with effect from 21.02.2016.
Superintendent of Police had issued charge-sheet (Annexure R-2) to which petitioner had furnished his reply on 03.06.2016 that because of illness,
he was absent and denied the charges and asked for conducting departmental enquiry as is apparent from Annexure R-3. Thereafter, statements of
the witnesses were recorded in the presence of Presenting Officer and certain questions were asked by the Enquiry Officer like; when was he
recruited in the Police Department, how many punishments/prizes have been given to him after recruitment to the Police Department, on how many
occasions he has absented after being recruited in the Police Department and whether he would like to ask any question from the witnesses. Similar is
the tone and tenure of the questions, which were put-forth to the witnesses, which are extracted as below:-
vfHk;kstu Lkk{kh dzekad- 02& iz0vk0 20 jktohjflag rksej iqfyl pkSdh fej?kku Fkkuk fneuh ftyk eqjSuk iz'u %& iqfyl ykbu eqjSuk ls vkidh M~;qVh ih-
lh-vkj-&2 ij yxkbZ xbZ Fkh rks vki bl izdkj ls D;ks xSj gkftj gq,\
mRrj %& esjs ?kj ls lwpuk feyh Fkh fd ekrkth ,oa cfgu nksuks dh rfc;r cgqr [kjkc gS bl fy, es ?kcjkgV es tYnh vius ?kj xzke ukxnk ftyk ';ksiqj pyk x;k
FkkA
iz'u %& fcuk crk;s tkus ds mijkUr vkids }kjk iqfyl ykbu eqjSuk ;k vU; fdlh ofj""B vf/kdkjh ds fy, lwpuk nh ;k ugha\
mRrj %& esjs }kjk viuh xSj&gkftjh dh dksbZ lwpuk ugh
nh xbZ Fkh D;ksa fd eq>s tkudkjh ugha Fkha
iz'u %& vkidh ekrkth ,oa cfgu chekj Fkh rks muds bykt ds izi= xSj gkftjh ls okil vkus ds ckn is'k fd;s ;k ugh \
mRrj %& iqfyl ykbu eqjSuk esa xSj gkftjh ls okilh ij eSus viuh ekrkth ,oa cfgu dh chekjh ds bykt ds ipsZ is'k fd;s FksA
iz'u %& lk{kh Øekad 2 iz0vkj0 jktohj ls vkSj dqN iwNuk pkgrs gks D;k \
mRrj %& eS nhoku th ls dqN ugh iwNuk pkgrk gwWA
vfHk;kstu lk{kh Øekad & 03 iz0vkj0 385 panuflag tknkSu iqfyl ykbu eqjSuk ftyk eqjSuk iz'u %& iz0vkj0 eksgjj 385 panuflag iqfyl ykbu eqjSuk ls vki
dqN iwNuk pkgrs gS D;k \ mRrj %& gkWA
iz'u %& vki D;k iwNuk pkgrs gS \ gka] esjh xSj gkftjh fdl vk/kkj ij ntZ dh xbZ \
mRrj %& ih-lh-vkj- 2 ds izHkkjh iz0vkj0 20 jktohj flag ds }kjk nwjHkk""k ij nh xbZ lwpuk ds vk/kkj ij esjs }kjk vkidh xSj gkftjh fjiksVZ jkstukepk esa
ntZ dh xbZA iz'u %& vkidks vkSj dqN iwNuk gS ;k ugh \ mRrj %& vc eq>s dqN ugh iwNuk gSA
vfHk;kstu lk{kh Øekad & 04 iz0vkj0 41 ujs'kflag tknkSu Fkkuk dSykjl ftyk eqjSuk ¼e0iz0½
iz'u %& iz0vkj0 eksgjj 41 ujs'kflg ls vki dqN iwNuk
pkgrs gS ;k ugh \
mRrj %& ughA
iz'u %& vipkjh ds esMhdy izek.k i= esa ys[k chekjh ds
laca/k esa vkius crkus okys MkDVj ls dksbZ iwNrkN dh Fkh \
mRrj %& ughA
vfHk;kstu lk{kh Øekad&05 mi fujh{kd ¼v½ Jh vkj0,l0 jktkSfj;k lsok iqfLrdk fyfid ftyk iqfyl dk;kZy; eqjSuk %&
iz'u%&mi fujh{kd ¼v½ vkj-,l- jktkSfj;k iqfyl v/kh{kd dk;kZy; eqjSuk ls dqN vki iwNuk pkgrs gSA ;k ugh \ mRrj %& eS dqN ugh iwNuk pkgrk
gwWA
uanfd'kksj iq= Jh txnh'k eh.kk mez 26 fuoklh xzke ukxnk rglhy o ftyk ';ksiqj gky Fkkuk
dSykjl ftyk eqjSuk eksckbZy ua0 7049115900] 8358941410
iz'u %& vki iqfyl foHkkx esa dc HkrhZ gq, Fks \
mRrj %&eS iqfyl esa fnukad 07-05-2013 dks HkrhZ gqvk FkkA
iz'u %&viuh M~;wVh ds nkSjku iqfyl ykbu eqjSuk ,oa Fkkuk dSykjl ls xSj gq, gS vkSj mldh lwpuk foHkkx dks vkids }kjk D;ks ugh nh xbZ \
mRrj %& iqfyl ykbu eqjSuk ls xSj gkftj gksus ij jf{kr fujh{kd iqfyl ykbu eqjSuk ls eka ,oa cfgu ds chekj gksus dh ctg ls NqV~Vh ysuh pkgh ijUrq
NqV~Vh ugh feyh bl dkj.k ls xSj gkftj gqvkA Fkkuk dSykjl dh rSukrh nkSjku ,DlhMsUV gksus ls bykt djkus ds dkj.k xSj gkftj gqvk Fkk] vkSj eq>s
tkudkjh Hkh ugh Fkh fd foHkkx dks lwpuk nh tkrh gSA ;gh esjk dguk gSA iz'u %& vkidks vkSj dqN iwNuk gS D;k \
mRrj %& vc eq>s dqN ugh iwNuk uk gSA
Thereafter, enquiry report (Annexure R-5) was filed and such enquiry report was forwarded to the petitioner to furnish his version of defence to such
enquiry report vide Annexure R-6. Thereafter, it has come in the impugned order that despite service of notice of the enquiry report on 27.08.2016,
petitioner had not furnished any reply to the enquiry report, which was demonstrative of the indiscipline of the petitioner. Regard to such facts,
impugned punishment has been inflicted.
It is further submitted that Appellate Authority has considered all these aspects and has also taken into consideration the fact that though appellant
had mentioned that he had gone to nurse his ailing mother and sister on 30.09.2015 but he did not produce any medical prescription or documentation
in support of such contention. Similarly, the Appellate Authority has taken into consideration the fact that the appellant had given an explanation for his
absence from 21.02.2016 that when he was going to his work place, he had met with accident and had become unconscious, therefore, he could not
report for work. He had reported for work on 05.05.2016 after lapse of 24 days.
Appellate Authority has taken into consideration the facts that no intimation was given to the Departmental Enquiry Authority about the accident
and he has admitted that he had not given any intimation about his accident because he was not having any knowledge that such intimation is to be
given to the department. Such explanation as have been furnished by the petitioner were found to be inadequate and frivolous and therefore, his appeal
was dismissed. It was observed that in a short carrier of less than 3 years starting from the year 2013 petitioner had absented himself regularly and
had earned several punishments for such habitual absentism.
Learned counsel for the petitioner has filed rejoinder to the return and has submitted that the punishment, which has been inflicted on the petitioner,
is violative of GOP dated 02.06.2012. It is submitted that in terms of the provisions contained in regulation 226 of the Police Regulation, D.G.P has
directed that even in case of serious breach of duty, stoppage of increment either without cumulative effect or with cumulative effect shall be
sufficient punishment but this directive of the DGP has not been taken into consideration. He has also filed copy of a medical certificate issued by the
Block Medical Officer, Sabalgarh, dated 21.02.2016 as Annexure P-7 followed by another certificates dated 21.03.2016, 21.04.2016, and 05.05.2016
giving a fitness to point out that he was unwell and therefore, was absent from his duties w.e.f. 21.02.2016. In view of such facts, he submits that
impugned order of punishment and rejection of appeal and mercy appeal should be set aside.
It is apparent from the statements given by the petitioner before the Enquiry Officer, as has been enclosed by the respondent alongwith their
report as Annexure R-4 (Page 27), that petitioner had given a statement before the Enquiry Officer that on 21.02.2016 he had informed the Head
Constable 41 Naresh Singh Jadon at Kailaras and had gone to Sabalgarh at about 05.00 p.m. At about 9.00 p.m. he had received a call from Kailaras
that his duty has been fixed from 24.00 hours, as a result he was coming to Kailaras from Sabalgarh on a motorcycle of his relative when he had met
with an accident and was taken to Sabalgarh hospital, from there he had gone to his home at Nagda, where he had taken further treatment. Annexure
P-7 reveals that they have been issued in regard to treatment of Hepatitis with Jaundice. There is no mention of any accident or any injury and they all
have been issued by the Block Medical Officer, CHC, Sabalgarh, whereas as per the version of the petitioner he had gone to Nagda, his home town
for taking further treatment. This exposes defence of the petitioner so also falsity of his statements. He is lying on oath as both his rejoinder and
petition are supported by his affidavit in regard to his meeting with an accident on 21.02.2016. He has, in fact mentioned in para 5.1 itself that on
21.02.2016 he had met with an accident. It is contrary to the medical certificates produced by him showing himself suffering from Hepatitis with
Jaundice.
In view of such facts, it is to be seen whether any prejudice has been caused to the petitioner if certain questions were put forth by the Enquiry
Officer to the prosecution witnesses including the petitioner. In this regard attention is invited to the law laid down by the Hon'ble Supreme court in
case of Mulchandani Electrical and Radio Industries Ltd. Vs. The Workmen as reported in AIR 1975 SC 2125, wherein it has been held that if the
Enquiry Officer puts question to witnesses, it does not lead to the conclusion that he has done something that was not fair and proper. It has been held
that Enquiry Officer in a domestic enquiry can put questions to the witnesses for clarification wherever necessary and if he allows the witnesses to be
cross-examined thereafter, the enquiry proceeding cannot be impeached as unfair. Similarly, ratio of the judgment rendered by Delhi High Court in
case of Smt. Sushma Rani Vs. The Divisional Engineer, Phones Special Services, MTNL and General Manager, MTNL MANU/DE/9159/2006 has
held that an Enquiry Officer is not barred from asking questions from the witness and if the Enquiry Officer asks questions to the witnesses, he does
not become a prosecutor. It was further held that Enquiry Officer is supposed to find out the truth of the matter and has right to ask questions to the
witnesses, if necessary and such an act of the Enquiry Officer shall not vitiate the enquiry.
In the present case a perusal of memo of appeal as was submitted by the petitioner to the Appellate Authority as is contained in Annexure P-5
reveals that even in that appeal memo he had taken a plea of his having met with an accident on 21.02.2016, as a result of which he was absent for a
period of 75 days. On the contrary, alongwith the rejoinder petitioner has filed copy of medical certificates meant for non-gazetted Government
Servant of Madhya Pradesh as Annexure P-7 showing him to be suffering from Hepatitis with Jaundice. Thus, it is apparent that petitioner has
resorted to falsehood and has neverrepresented his case in right earnest and honest manner even before the Departmental Authority. This conduct of
the petitioner giving certificates under OPD No. 16409 dated 21.02.2016 from Block Medical Officer, CHC, Sabalgarh, District Morena (M.P.)
reveals that petitioner suppressed the true facts. Petitioner has not shown any bias to have been caused to him on account of cross-examination by the
Enquiry Officer. It is not the petitioner's case that he was not permitted to cross-examine the witnesses and in absence of there being any bias caused
to the petitioner by putting such questions and it is coming on record that a person like petitioner belonging to uniform service, which requires different
parameters of discipline resorting to falsehood, it cannot be said that there is any element of disproportionality or arbitrariness in the impugned order of
removal from service calling for any interference. Thus, the petitioner has failed to prove that he is entitled to continue to be a member of a disciplined
uniform service.
In view of such facts, with a view to maintain discipline of a uniformed service, punishment inflicted on the petitioner is justified and does not call
for any interference. Thus, the petition fails and is dismissed.