# Bhanu Pratap Singh v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 716
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-11
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhanu-pratap-singh-v-state-of-u-p-ors-43916
- **Pages:** 4

## Headnote

Standing Counsel
5 All. Bhanu Pratap Singh Vs State Of U.P. & Ors.

717

.................................
Punishment for Absence from Parade Quashed - Police Personnel Medically Exempted from
Parade Not Required to Be Present on Parade Ground - Exemption Order Subsisting and Not
Withdrawn - Absence Not Wilful - Impugned Order a Colourable Exercise of Power - Petitioner,
posted as Head Constable in office of Senior Prosecuting Officer, Barabanki, was declared medically unfit for
heavy duty and exempted from parade vide order dated 3.8.2010 by Superintendent of Police, Barabanki on
the basis of Medical Certificate of Chief Medical Officer; Government Order No. 141/Camp-T/14.4.1972,
Circular of Police Headquarters No. 14/F dated 10.4.1992 and Order of Inspector General of Police No. 130
dated 7.2.1973 unambiguously provide that police personnel completing 26 years of service or 45 years of
age be given light duty and exempted from parade; show-cause notice issued on 25.2.2014 for absence from
parade on 21.02.2014; no material in counter affidavit that exemption order dated 3.8.2010 was withdrawn or
cancelled; respondents' contention that exemption from parade does not mean exemption from presence on
Parade Ground held wholly misconceived; petitioner discharged official duties in office of Senior Prosecuting
Officer on the date in question - not rebutted by respondents; Held, when a police personnel exempted from
parade is not required to be present on Parade Ground but is not exempted from discharging other
governmental work assigned to him; requiring his presence on Parade Ground would be like that of a
spectator and would only satisfy the ego of the Superintendent of Police - an authority is under an obligation
to act fairly and not on whims; impugned order of punishment (leave without pay for one day) dated
26.4.2014 held to be colourable exercise of powers, quashed. (Paras 1-5)

Unauthorized Absence Must Be Proved Wilful to Constitute Misconduct - Paralysis a Serious
Ailment - Absence of Medically Incapacitated Police Personnel from Parade Ground Cannot Be
Characterized as Indiscipline - Petitioner also suffered paralytic attack as established by Medical
Certificate dated 10.7.2013 from Neurology Clinic, not denied by respondents as forged or fabricated;
hemiplegia (paralysis of muscles of face, arm and leg on one side of body, usually resulting from damage to
the opposite side of the brain) is a serious ailment affecting both locomotion and sense perception; Held,
settled position of law is that if allegation of unauthorized absence from duty is made, disciplinary authority is
required to prove that absence was wilful - in absence of such finding, absence will not amount to
misconduct or insubordination; absence of the medically incapacitated petitioner from the Parade Ground
cannot be said to be wilful or fall in the category of indiscipline. (Paras 5-7)

Writ Petition Allowed

## Text

716 INDIAN LAW REPORTS ALLAHABAD SERIES
the prosecution has not been able to prove its case against the appellants beyond shadow of reasonable
doubt and the trial court based its finding of conviction mostly and primarily on assumptions, conjectures
and surmises rather than on the evidence and circumstances of the case.

40. In our considered opinion, the arguments urged on behalf of the appellants by their counsel,
do carry force and we are in agreement with the same and hold that the charge framed under Sections
302/34 IPC against the appellants, have not been found proved beyond reasonable doubt, as such, the
appellants are held not guilty for the aforesaid charge in case crime no.29 of 2000, P.S. Bhopa, District
Muzaffarnagar.

41. Consequently, the judgment and order dated 28.09.2007 passed by Special/ Additional
Sessions Judge, Muzaffarnagar in Sessions Trial No.556 of 2000 arising out of Case Crime No. 29 of 2000
under Section 302 IPC, Police Station Bhopa, District Muzaffarnagar is not sustainable in the eye of law
and the same is hereby set aside and the appellants are found not guilty under aforesaid charge and they are
acquitted of the same.

42. In this case appellant Ejaz Haider is on bail. He need not surrender before the court concerned.
His sureties and personal bonds are discharged. The appellant Haseen Haider is in jail. He shall be set at
liberty forthwith, if he is not wanted in connection with any other case after compliance of the provision of
Section 437A Cr.P.C.

43. Accordingly, both the appeals are allowed.

44. Let a copy of this order be certified to the court concerned for intimation and necessary follow
up action.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.05.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.

Writ Petition/ Service Single No.- 7428 Of 2014

Bhanu Pratap Singh ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Girdhari Lal Yadav

Counsel for the Respondents:
Standing Counsel
5 All. Bhanu Pratap Singh Vs State Of U.P. & Ors.

717

.................................
Punishment for Absence from Parade Quashed - Police Personnel Medically Exempted from
Parade Not Required to Be Present on Parade Ground - Exemption Order Subsisting and Not
Withdrawn - Absence Not Wilful - Impugned Order a Colourable Exercise of Power - Petitioner,
posted as Head Constable in office of Senior Prosecuting Officer, Barabanki, was declared medically unfit for
heavy duty and exempted from parade vide order dated 3.8.2010 by Superintendent of Police, Barabanki on
the basis of Medical Certificate of Chief Medical Officer; Government Order No. 141/Camp-T/14.4.1972,
Circular of Police Headquarters No. 14/F dated 10.4.1992 and Order of Inspector General of Police No. 130
dated 7.2.1973 unambiguously provide that police personnel completing 26 years of service or 45 years of
age be given light duty and exempted from parade; show-cause notice issued on 25.2.2014 for absence from
parade on 21.02.2014; no material in counter affidavit that exemption order dated 3.8.2010 was withdrawn or
cancelled; respondents' contention that exemption from parade does not mean exemption from presence on
Parade Ground held wholly misconceived; petitioner discharged official duties in office of Senior Prosecuting
Officer on the date in question - not rebutted by respondents; Held, when a police personnel exempted from
parade is not required to be present on Parade Ground but is not exempted from discharging other
governmental work assigned to him; requiring his presence on Parade Ground would be like that of a
spectator and would only satisfy the ego of the Superintendent of Police - an authority is under an obligation
to act fairly and not on whims; impugned order of punishment (leave without pay for one day) dated
26.4.2014 held to be colourable exercise of powers, quashed. (Paras 1-5)

Unauthorized Absence Must Be Proved Wilful to Constitute Misconduct - Paralysis a Serious
Ailment - Absence of Medically Incapacitated Police Personnel from Parade Ground Cannot Be
Characterized as Indiscipline - Petitioner also suffered paralytic attack as established by Medical
Certificate dated 10.7.2013 from Neurology Clinic, not denied by respondents as forged or fabricated;
hemiplegia (paralysis of muscles of face, arm and leg on one side of body, usually resulting from damage to
the opposite side of the brain) is a serious ailment affecting both locomotion and sense perception; Held,
settled position of law is that if allegation of unauthorized absence from duty is made, disciplinary authority is
required to prove that absence was wilful - in absence of such finding, absence will not amount to
misconduct or insubordination; absence of the medically incapacitated petitioner from the Parade Ground
cannot be said to be wilful or fall in the category of indiscipline. (Paras 5-7)

Writ Petition Allowed

(Delivered by Hon'ble Dr. Devendra Kumar Arora, J.)

1. Heard Shri Girdhari Lal Yadav learned Counsel for the petitioner and the learned
Standing Counsel for opposite parties.

2. The present writ petition has been filed by the petitioner for quashing the order dated
26.04.2014 (Order No. A-48/2014) passed by the Superintendent Of Police,Barabanki whereby the
petitioner has been awarded punishment for leave without pay for one day and has also sought for a
direction to exempt the petitioner from parade or any duty of hard nature.
3. In short, brief facts which gave rise to the present dispute are that at the relevant time, the
petitioner was posted as Head Constable in the office of Senior Prosecuting Officer, Barabanki. On account
of attaining 45 years of age and having being declared medically unfit to heavy duty like lifting heavy
weight, hard work like Parade PT or using arms etcetra by the Chief Medical Officer, Barabanki, the
718 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner was exempted from parade vide order dated 3.8.2010. While the aforesaid exemption order was in
operation, the petitioner was issued a show-cause-notice on 25.2.2014 for being absent from parade held on
21.02.2014 to which petitioner tendered his reply stating therein that on account of fracture in his hand, he
had been exempted from parade and heavy duty and also referred the Government Order no. 141/CampT/`14.4.1972, which exempts a Police Officer from parade, who is of 45 year age or have completed 26 years
of service.

4. It appears that not being satisfied with the reply of the petitioner, Superintendent of Police passed
the impugned order dated 26.4.2014 punishing the petitioner with leave without pay for one day. Aggrieved
by the said order dated 26.4.2014, petitioner preferred an Appeal before Deputy Inspector General of Police,
Faizabad Range, Faizabad, who rejected the same vide order dated 31.10.2014.

5. Learned Counsel for the petitioner has contended that the petitioner had not only suffered
dislocation of bone/fractured in his hand/fractured but also suffered paralytic attack and has also furnished the
Medical Certificate issued by the Chief Medical Officer even then he has been punished for being absent
from parade, which is not only unreasonable and inhumane act but shows the colourable exercise of powers.
Lastly, it has been urged that any order for attending parade or doing heavy duty, would adversely affect his
health and may aggravate his ailment.

6. Refuting the allegations of the petitioner, learned Standing Counsel has submitted that the
petitioner was absent from Parade Ground on 21.02.2014 and 14.03.2014. As regard to the Government
Order regarding exemption of a police officer from parade, it has been submitted that the said government
order does not say that exemption from the parade would mean that he would not be present on the parade
ground. In paragraph 6 of the counter affidavit, it has been averred that as the petitioner was absent from the
Parade Ground on 21.2.2014, therefore, the impugned order has been passed, which cannot be said to be
unwarranted or illegal.

7. Having considered the submissions advanced by the parties and material on record, there is no
dispute to the fact Government Order No. 1417/Camp-T/14.04.1972, Circular of the Police Head quarter no.
14/F dated 10.4.1992 and Order of Inspector General of Police No. 130 dated 7.2.1973 provides, in
unambiguous words, that when a police personnel completes 26 years of service or 45 years of age, such a
police personnel be given light duty and be exempted from parade.

8. It is not disputed by the respondents that earlier in the year 3.8.2010, the Superintendent of Police,
Barabanki considering the Medical Certificate has exempted the petitioner from parade. There is no whisper
in the Counter Affidavit that the said order, contained in Annexure No.2 to the writ petition has been
withdrawn or cancelled. The petitioner has been awarded punishment merely because he was not present in
Parade despite notice which amounts to carelessness and indiscipline. The said assertion of the respondents
that exemption does not mean that a person is exempted from being present on the Parade Ground, is wholly
misconceived. As a matter of fact when a police personnel, who is exempted from parade, is not required to
be present on Parade Ground but is not exempted from discharging other governmental work as assigned to
him. There is no rebuttal to the assertion of the petitioner that on 21.2.2014, he discharged his official duties
in the office of Senior Prosecuting Officer, where he was posted at the relevant time. In my opinion, mere
5 All. Nagendra Kumar Bajpai Vs State Of U.P. & Ors.

719
 presence on the Parade Ground for whole day would result in hindrance of government work as his
presence, as suggested by the respondents, would be like a spectator on the Parade Ground or would only
satisfy the ego of the Superintendent of Police. An authority is under an obligation to act fairly and not on
whims. Here, from the records, it emanates that the impugned order of punishment is a colourable exercise of
powers vested in the authority, which cannot be sustained.

9. At this juncture it would be relevant to point out that apart from the certificate of Chief Medical
Officer, the petitioner has also stated that he had suffered paralytic attack for which he was treated at
Neurology Clinic. To substantiate this fact, he has enclosed the original Medical Certificate dated 10.7.2013.
It is not the case of the respondents that the aforesaid certificates are forged and fictitious documents.

10. It would be significant to point out that Paralysis of the muscles of the face, arm, and leg on one
side of the body is called hemiplegia ("hemi" means "half") and usually results from damage to the opposite
side of the brain. Damage to the nerves of the spinal cord affects different parts of the body, depending on the
amount of damage and where it occurred. Paralysis is a serious ailment and it affects not only the locomotion
of the body but it also cause loss of sense. Therefore, the disease with which petitioner was suffering, is of
serious nature and his absence from the Parade Ground cannot be said to be wilful or fall in the category of
indiscipline. Moreover, it is a settled position of law since long that if an allegation of unauthorized absence
from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such
finding, the absence will not amount to misconduct or insubordination, as alleged by the respondents.

11. For the reasons aforesaid order no. A-48/2014 dated 26.4.2014 passed by the Superintendent of
Police, Barabanki, is hereby quashed. Consequences to follow.

12. Writ Petition stands allowed in above terms. Costs easy.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.05.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No.- 10194 Of 2016

Nagendra Kumar Bajpai ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ramesh Singh

Counsel for the Respondents: