Absence From Duty Not Always Misconduct: MP High Court Quashes Penalty Of Head Constable For Going On 99-Day Leave Due To Illness
The Madhya Pradesh High Court set aside punishment imposed on a head constable whose one increment was withheld indefinitely for alleged unauthorized leave for 99 days due to his own and his father's illness which it said was not considered by the authorities.
The court also reiterated that remaining absent from duty may not a misconduct in itself unless it is intentional.
Justice Ashish Shroti observed that the head constable provided certificates showing his illness and that of his father, which were not considered while passing the impugned order.
The court noted that Petitioner in his defence submitted the sickness/fitness certificates for both occasions in addition to the documents regarding illness of his father as well as his own illness. Four prosecution witnesses were examined during the course of enquiry.
Taking note of the inquiry officer's report the court said:
"A perusal of the report goes to show that after reproducing the deposition of four prosecution witnesses as well as the statement of the petitioner, the enquiry officer has narrated the defense of the petitioner and thereafter jumped to the conclusion that the petitioner remained unauthorizedly absent for 99 days, which shows his negligence and indiscipline towards service..."
The court said that a bare perusal of findings recorded by the enquiry officer reveals that the documents, including the medical certificates, submitted by the petitioner, have not been referred to in the findings recorded by the enquiry officer.
"Disciplinary authority also after referring to the proceedings of the enquiry, has referred to the petitioner's previous absence for which he was inflicted punishment of censure, directly passed the impugned order of stoppage of one increment with cumulative effect. The disciplinary authority also failed to take into account the specific defence taken by the petitioner with regard to illness of his father as also his own illness. The documents in support of his defence are also not considered by the disciplinary authority.The appellate authorities while considering the appeal as also the mercy appeal, have also not considered this important aspect of the matter."
The bench, thereafter said, "Remaining absent from duty may not in itself be a misconduct unless such absence is intentional and willful. In other words, if the delinquent furnishes sufficient explanation for his absence, same may not construe a misconduct entailing imposition of punishment."
Observing that the authorities failed to consider the petitioner's defence and imposed punishment by presuming that mere absence constituted misconduct, the bench directed;
"Consequently, orders dated 17/7/2018 (Annexure P/1), 16/1/2018 (Annexure P/2) & 31/5/2017 (Annexure P/3) are hereby set aside. The matter is remitted to respondent no.4 to reconsider the entire matter keeping in view the observations made hereinbefore and pass fresh orders in relation thereof. It is further clarified that if the fresh order is passed in favour of petitioner, the increment which was stopped pursuant to the order dated 31/5/2017 shall be restored in favour of petitioner".
The petitioner, a police head constable, challenged the order passed by the Superintendent of Police of Morena, withholding one increment as punishment for his unauthorised absence for 99 days. His appeal and mercy appeal before the Inspector General and the Director General of Police were also dismissed.
The petitioner was working as a head constable posted at the Police Station of Banmore in the District Morena. He sought leave from April 1 to April 10, 2015, but he did not return on duty and remained absent for another period of 72 days. He was again granted leave from September 23 to September 29, 2015, but he again overstayed his leave and remained absent for 27 days.
The department, therefore, conducted an enquiry into the unauthorised absence of the petitioner of 99 days. The Deputy Superintendent of Police (Traffic), Morena, was appointed as Enquiry Officer, and the Assistant Sub Inspector was appointed as Presiding Officer. The disciplinary authority, thus, issued a show-cause notice to the petitioner to explain his unauthorized leave. However, the petitioner failed to provide his explanation. Accordingly, the Superintendent of Police passed the impugned order withholding one increment with cumulative effect as punishment.
The counsel for the petitioner contended that no presiding officer was appointed. It was further contended that the enquiry officer not only examined the prosecution witnesses but also cross-examined the petitioner, thus acting as both prosecutor and a judge. The counsel for the petitioner further asserted that he was absent due to the illness of his father and himself, duly providing certificates for both occasions. It was contended that the enquiry officer failed to consider these certificates while passing the impugned order.
The counsel for the State claimed that the petitioner was a member of the disciplined force and his unauthoriszed absence amounted to gross indiscipline. The counsel further objected to the maintainability of the petition, claiming that it suffered from delay and laches, as the petitioner had filed it after a lapse of approximately 3 years.
Further, the bench held that the enquiry officer asking questions to the petitioner would not vitiate the enquiry procedure as the procedure was based on documentary evidence. Thus, the court rejected the contention of the petitioner regarding the non-appointment of the presiding officer.
Allowing the plea, the court set aside the punishment order, noting that it suffered from a 'defect of non-application of mind'.
It directed the Superintendent of Police to reconsider the entire matter, keeping in view the observations made hereinbefore, and pass fresh orders.
It further clarified that if the fresh order is passed in favour of petitioner, the increment which was stopped pursuant to the order dated 31/5/2017 shall be restored in favour of petitioner.
Case Title: Roop Singh v State of Madhya Pradesh (W.P.No. 4426/2021)
For Petitioner: Advocate Smarti Sharma
For State: Advocate Ekta Vyas