# Nahar Singh, Constable No. 439 CP v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 550
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-04
- **Case number:** Writ-A No. 5413 of 2021
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nahar-singh-constable-no-439-cp-v-state-of-u-p-ors-49373
- **Pages:** 13

## Headnote

Civil Law - U.P. Subordinate Police Officers
(Discipline and Appeal) Rules, 1991 - Rule
4(1), 14(1) - U.P. Police Regulations -
11 All. Nahar Singh, Constable No. 439 CP Vs. State of U.P. & Ors.
551
Para 381 - Disciplinary Proceedings - Absence
from Duty - Medical Leave - Proportionality of
Punishment - Writ Jurisdiction - Article 226 -
Reversion to Minimum Pay Scale

The petitioner, a constable, challenged the
disciplinary authority's order dated 26.06.2019
reverting him to the minimum pay scale of a
constable for five years, affirmed by the
appellate authority on 04.05.2020 and the
revisional
authority
on
17.11.2020,
for
unauthorized
absence
from
duty
from
05.06.2002 to 28.05.2003. The petitioner
was issued a charge sheet for absence
without leave, and after a prior removal
order was set aside by the High Court in
Writ Petition No. 15753 of 2006 for
procedural flaws, fresh proceedings were
initiated.
The
petitioner
claimed
his
absence was due to Hepatitis B and
Jaundice,
supported
by
a
medical
certificate, and argued that his absence
should have been condoned as medical
leave. He contended the charge sheet
lacked specific charges, the inquiry was
procedurally flawed, and the punishment
was disproportionate. The respondents
argued that the petitioner's failure to
inform higher authorities about his illness,
as required by Para 381 of the U.P. Police
Regulations,
constituted
serious
misconduct, and the punishment was
proportionate given his one-year absence
without intimation while residing in the
same district. Held: (1) The writ petition
was dismissed, upholding the orders of
the disciplinary, appellate, and revisional
authorities.
(2)
The
petitioner's
unauthorized absence for nearly a year
without
informing
higher
authorities,
despite being an outpatient and residing
in Muzaffarnagar, constituted deliberate
misconduct under Para 381 of the U.P.
Police
Regulations,
which
mandates
written intimation for medical leave. (3)
The charge of absence was proved on the
preponderance
of
probabilities,
the
standard
applicable
in
disciplinary
proceedings, as per St. of Karnataka Vs
Umesh. (4) The punishment of reversion
to the minimum pay scale for five years
was not disproportionate, as it was less
severe than the earlier removal order, and
the court's supervisory jurisdiction under
Article
226
does
not
permit
reappreciation of evidence unless there is a
procedural
flaw,
violation
of
natural
justice, or perversity, as held in St. of
Andhra Pradesh Vs Chitra Venkata Rao
and U.O.I. Vs P. Gunasekaran. (5) The
charge sheet dated 28.07.2018, though
lacking
specific
imputation,
was
supplemented by the inquiry report and
show cause notice, and the petitioner's
reply was considered but found baseless.
(6) The higher authority's decision to
impose
a
higher
punishment
than
recommended
was
valid,
as
the
petitioner's
reply
was
addressed
and
found unsatisfactory. (7) In a disciplined
force like the civil police, unauthorized
absence constitutes serious misconduct,
as emphasized in U.O.I. Vs Diler Singh.
(8) No procedural flaws or violations of
natural justice were found, and the
medical
certificate
did
not
establish
hospitalization
or
inability
to
communicate, justifying the finding of
misconduct.

Case Law Cited:

## Text

_Characters 0–39,726 of 44,640. This is a partial read: ask again with offset=39726 for what follows._

550 INDIAN LAW REPORTS ALLAHABAD SERIES
appointed on the result of previous
selection.

However, in the instant case there was
only one advertisement and only one
selection was held, therefore seniority
cannot be prepared under second proviso to
Rule 5 but only under Rule 5 and its first proviso,
which collectively provides that seniority of
"persons on the result of any one selection, shall
be the same as it is shown in the merit list prepared
by the commission.

63. It has repeatedly been held that selection
process starts with the issuance of advertisement.
In the instant case there was only one
advertisement dated 16.4.1996 advertising 82
posts of Assistant Accountant, against which in all
65 appointments have been made, therefore in
absence of a second advertisement, the seniority
cannot be determined as per second proviso to
Rule 5(2) i.e. subsequent appointees placed below
the initial appointees, rather the collective merit list
of UPPSC would determine the seniority of the
selected candidates. Therefore, the challenge
made by the petitioners to the final seniority list
dated 29.12.2005 of ARO Accounts which was
not prepared in accordance with Rule-5 of the
Seniority Rules, 1991 i.e. according to the
combined merit list dated 5.6.2003 prepared by
the State Government under the permission
granted by this Court.

64. Accordingly, the Writ-A No.2986 of
2010 (Ali Safdar Anhsari and Others v. State of
U.P. Through The Principal Secy. Administration
Lko.), Writ-A No.2001249 of 2014 (Mohd.
Tanveer Haider and 3 Ors. v. State of U.P.
Through Prin. Secy. Administration Deptt. Lko.)
and Writ-A No.10278 of 2016 (Bhashkar Singh
and 6 Ors. v. State of U.P. Thru Prin. Secy.
Administration Civil Sectt. And Ors.) are
dismissed and Writ-A No.1517 of 2004 (Habib
Ahmad and 5 Ors. v. State of U.P. Through Prin.
Secy. Sectt. Administration Dept) is disposed of.

65. It is, however, made it clear that the last
and final seniority list dated 23.4.2010 of ARO
Accounts prepared by the State Government
strictly according to the Rule 5 of the U.P.
Government Seniority Rules, 1991 read with rule
20 of the Service Rules of 1993 deserves to be
upheld and is hereby upheld, so that the State
Government may prepare the fresh final seniority
list of the next higher post of Review Officer,
Accounts on the basis of the same and thereafter,
promotions on the vacant post of Section Officer,
Accounts may be made in the Secretariat
Administration Department of U.P. Civil
Secretariat.

66. It is also made it clear that while making
promotion to the next higher post, the respondents
shall take into account the long standing period of
services of parties and also take into account that
long standing seniority cannot be disturbed as per
the law laid down by this Court as well as Hon'ble
Supreme Court of India in catena of judgments.
----------
(2023) 11 ILRA 550
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 5413 of 2021

Nahar Singh, Constable No. 439 CP
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nisheeth Yadav

Counsel for the Respondents:
C.S.C.

Civil Law - U.P. Subordinate Police Officers
(Discipline and Appeal) Rules, 1991 - Rule
4(1), 14(1) - U.P. Police Regulations -
11 All. Nahar Singh, Constable No. 439 CP Vs. State of U.P. & Ors.
551
Para 381 - Disciplinary Proceedings - Absence
from Duty - Medical Leave - Proportionality of
Punishment - Writ Jurisdiction - Article 226 -
Reversion to Minimum Pay Scale

The petitioner, a constable, challenged the
disciplinary authority's order dated 26.06.2019
reverting him to the minimum pay scale of a
constable for five years, affirmed by the
appellate authority on 04.05.2020 and the
revisional
authority
on
17.11.2020,
for
unauthorized
absence
from
duty
from
05.06.2002 to 28.05.2003. The petitioner
was issued a charge sheet for absence
without leave, and after a prior removal
order was set aside by the High Court in
Writ Petition No. 15753 of 2006 for
procedural flaws, fresh proceedings were
initiated.
The
petitioner
claimed
his
absence was due to Hepatitis B and
Jaundice,
supported
by
a
medical
certificate, and argued that his absence
should have been condoned as medical
leave. He contended the charge sheet
lacked specific charges, the inquiry was
procedurally flawed, and the punishment
was disproportionate. The respondents
argued that the petitioner's failure to
inform higher authorities about his illness,
as required by Para 381 of the U.P. Police
Regulations,
constituted
serious
misconduct, and the punishment was
proportionate given his one-year absence
without intimation while residing in the
same district. Held: (1) The writ petition
was dismissed, upholding the orders of
the disciplinary, appellate, and revisional
authorities.
(2)
The
petitioner's
unauthorized absence for nearly a year
without
informing
higher
authorities,
despite being an outpatient and residing
in Muzaffarnagar, constituted deliberate
misconduct under Para 381 of the U.P.
Police
Regulations,
which
mandates
written intimation for medical leave. (3)
The charge of absence was proved on the
preponderance
of
probabilities,
the
standard
applicable
in
disciplinary
proceedings, as per St. of Karnataka Vs
Umesh. (4) The punishment of reversion
to the minimum pay scale for five years
was not disproportionate, as it was less
severe than the earlier removal order, and
the court's supervisory jurisdiction under
Article
226
does
not
permit
reappreciation of evidence unless there is a
procedural
flaw,
violation
of
natural
justice, or perversity, as held in St. of
Andhra Pradesh Vs Chitra Venkata Rao
and U.O.I. Vs P. Gunasekaran. (5) The
charge sheet dated 28.07.2018, though
lacking
specific
imputation,
was
supplemented by the inquiry report and
show cause notice, and the petitioner's
reply was considered but found baseless.
(6) The higher authority's decision to
impose
a
higher
punishment
than
recommended
was
valid,
as
the
petitioner's
reply
was
addressed
and
found unsatisfactory. (7) In a disciplined
force like the civil police, unauthorized
absence constitutes serious misconduct,
as emphasized in U.O.I. Vs Diler Singh.
(8) No procedural flaws or violations of
natural justice were found, and the
medical
certificate
did
not
establish
hospitalization
or
inability
to
communicate, justifying the finding of
misconduct.

Case Law Cited:

1. St. of Andhra Pradesh Vs Chitra
Venkata Rao, (1975) 2 SCC 557

2. St. of Andhra Pradesh Vs S. Sree Rama
Rao, AIR 1963 SC 1723

3. Syed Yakoob Vs K.S. Radhakrishnan,
[1964] 5 SCR 64

4. St. of Karnataka Vs N. Gangaraj,
(2020) 3 SCC 423

5. St. Bank of Bikaner & Jaipur Vs Nemi
Chand Nalwaya, (2011) 4 SCC 584

6. B.C. Chaturvedi Vs U.O.I., (1995) 6
SCC 749

7. U.O.I. Vs G. Gunayuthan, (1997) 7 SCC
463

8.
Bank
of
India
Vs
Degala
Suryanarayana, (1999) 5 SCC 762
552 INDIAN LAW REPORTS ALLAHABAD SERIES
9. High Court of Judicature at Bombay Vs
Shashikant S. Patil, (2000) 1 SCC 416

10. St. of Karn. Vs Umesh, (2022) 6 SCC
563

11. St. of Har. Vs Rattan Singh, (1977) 2
SCC 491

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Nisheeth Yadav,
learned counsel for the petitioner and
Sri R.S. Umrao, learned Standing Counsel.

2. Petitioner is aggrieved by the order
firstly by the disciplinary authority dated
26.06.2019, whereby, petitioner has been
reverted back by five years to the minimum
of the pay scale of a Constable, the order of
the appellate authority dated 04.05.2020
affirming the same and of the revisional
authority dated 17.11.2020 rejecting the
revision on the ground that there is no
procedural
flaw
in
the
matter
of
disciplinary proceedings.

3. The facts in a narrow compass can
be drawn like this that the petitioner was
issued with a charge sheet for remaining
absent from duty w.e.f. 05.06.2002. He was
proceeded against by holding a disciplinary
proceeding and conducting departmental
inquiry as a part thereof and since he was
found guilty of the charges, he was issued
with show cause notice on 01.04.2003
which was caused to be served upon him
through his wife Smt. Sunita Yadav on
23.04.2003, however, when no reply was
received
from
the
petitioner,
the
disciplinary authority proceeded to inflict
punishment of removal from service for
being absent w.e.f. 05.06.2000 till the date
of passing of the order and since he did not
discharge his duties from 05.06.2002 till
28.05.2003 his leave was allowed without
pay. This order came to be challenged
before this Court in Writ Petition No.
15753 of 2006 and the Court found two
directions in the punishment order to be
self contradictory and accordingly the order
dated 20.05.2003 was set aside.

4. The matter was remitted to the
stage of inquiry report with a direction to
the disciplinary authority to serve copy of
inquiry report upon the petitioner and seek
his reply and then decide the matter again.
Thus, the disciplinary authority was to
initiate the disciplinary proceedings from
the stage of submission of reply by the
petitioner to the inquiry report. The
penultimate paragraph of the order is
reproduced hereunder:

"अिः आप इस कारर् बिाओ िोनटस की प्रानप्त के 15
निवस के अन्िर अपिा निनखि स्पष्टीकरर् अिोहस्िाक्षरी के
समक्ष प्रस्िुि करे fd क्यों ि आपके द्वारा बरिी गई
िापरवाही,
अिुशासिहीििा
के
दृनष्टगि
आपको
m0प्र0अिीिस्थ श्रेर्ी के पुनिस अिीक्षक की (िण्ड एवं
अपीि) नियमाविी-1991के नियम 4(1) (क) िीघद
शानस्ियां (िीि) के अन्िगदि 05 वर्द के निए आरक्षी के
निम्ििर वेििमाि में अविि कर निया जायें l"

Accordingly, you are issued with the
show cause notice to submit your reply
within 15 days of its receipt as to why you
may not be punished by withholding three
increments permanently and reverting you
to the minimum of the pay scale admissible
to the Constables for a period of five years
under the U.P. Subordinate Police Officers
(Discipline and Appeal) Rules, 1991 for
carelessness in discharge of official duty
and indiscipline.

(English translation by Court)

5. Petitioner was reinstated in the
service with status of suspended employee,
11 All. Nahar Singh, Constable No. 439 CP Vs. State of U.P. & Ors.
553
and the direction was issued to the Senior
Superintendent of Police, Muzaffarnagar on
18.07.2018 to supply the petitioner copy of
inquiry report along with charge sheet
seeking
his
reply
within
a
month.
Thereafter, the petitioner was issued with
charge sheet dated 28.07.2018 though
without imputation of any particular
charge, asking the petitioner to submit
reply in his defence by 05.08.2018 failing
which, it would be taken that petitioner had
nothing to say and authority would
accordingly proceed to pass orders.

6. Petitioner submitted his reply to the
alleged charge sheet and took specific
ground that this de novo inquiry was totally
uncalled for under Rule 14(1) of 1991
Rules, however, still he explained away
that since he was not feeling well and had
an acute stomache while he was on duty as
Tehsil Guard, he got himself examined at
the Primary Health Centre, Meerapur,
Muzaffarnagar where he was diagnosed to
be suffering from Hepatitis B and Jaundice
and then he explained as to how he suffered
from such serious disease and could
recover only on 25.05.2003 and so he
reported for duty on 28.05.2003, at Reserve
Police Lines, Muzaffarnagar. His records
and medical certificates were not seen and
he
was
removed
from
service
on
28.05.2003. He claimed to be entitled for
medical leave or his absence could have
been condoned by adjusting the leave
already available in his account under the
relevant service rules and that he could
have been reinstated without backwages.
However, he pleaded that his absence from
05.06.2002 and 17.05.2003 deserved to be
allowed restoring him in service by giving
benefit of medical leave with pay. He had
appended the medical certificate of the
doctor
concerned
Sri
Chaitanya
Maheshwari dated 22.11.2018.

7. The authority after examining the
above
reply
of
the petitioner,
held
petitioner guilty for not informing the
higher authority about his ailment and thus,
the charge of remaining absent from duty
without leave was found to be proved as
per para 381 of Police Regulations and,
therefore, the period from 05.06.2002 to
28.05.2003 was directed to be treated as
leave without pay. Thus, the earlier order of
punishment
was
changed
into
this
punishment and was forwarded to the
higher authority for necessary approval.
The higher authority while agreed with the
proposed punishment, issued show cause
notice to the petitioner as to why he may
not be reverted to the position of minimum
of basic pay of the post in question by five
years.

8. To this show cause notice dated
08.01.2019, petitioner submitted his reply,
the same was considered by the authority
and was found to be totally baseless and
unsatisfactory and thus punishment was
awarded to the petitioner reverting him by
five years to the minimum of pay of the
post
in
question.
This
order
was
unsuccessfully challenged in appeal.

9. Learned Advocate appearing for
the petitioner has argued that in the absence
of any finding that petitioner's papers were
forged or petitioner presented manipulated
documents, the authority was not justified
in rejecting the same and holding petitioner
guilty of charge of absence from duty
without notice. It is submitted that
whenever
some
one
falls
ill,
he
immediately goes for rest as per the doctors
advise and if such a person cannot
approach the authority, he cannot be held
guilty. He submits that of course after
recovery, if the petitioner had not reported
it could have been presumed that the
554 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner absented from duty. He has
brought all those documents in support of
the pleadings raised in the writ petition in
assailing the order impugned and submits
that these documents were not at all
considered by the authority.

10. Yet another argument advanced
by learned counsel for the petitioner is that
the proposed punishment was to convert
the period of absence from duty into leave
without pay, and though higher authority
could have issued a show cause notice of
the punishment of higher degree than the
recommended one but when the authority
agreed with the recommendation made by
the competent authority, the approving
authority was not justified in issuing show
cause
notice
for
higher
degree
of
punishment, inasmuch as, the authority also
did not consider the reply of the petitioner
in correct perspective, nor did it discuss the
same while imposing the penalty under
challenge. It is also argued that in the
matter of proposed punishment of higher
degree authority has not assigned any
special reason as to why it defers from
the
recommendation
made
by
the
competent authority.

11. A further argument advanced
by learned counsel for the petitioner
that when this Court had directed to
serve a copy of the inquiry report to the
petitioner and seek his reply and then
passed order, there was no question
holding inquiry afresh by issuing a
charge sheet to the petitioner. It is also
argued that the alleged charge sheet
issued to the petitioner cannot be
termed as charge sheet within the
meaning of Rule 14(1) of 1991 Rules as
there are no charges leveled in the
alleged charge sheet dated 28.07.2018
issued to the petitioner.
12. It is submitted that the petitioner's
reply to this aspect of the matter has not
been considered at all either by the
authority competent in the matter that
proposed punishment in the nature of leave
without pay nor by the authority that issued
a show cause notice for higher punishment
and ultimately imposed that punishment of
higher degree.

13. Learned counsel for the petitioner
next submitted that both the appellate
authority as well as authority sitting in
revision
have
manifestly
erred
in
dismissing the appeal and revision. It is
submitted that it was not proper either for
higher authority that impose punishment or
appellate authority and revisional authority
to reject the reply/ appeal/ revision of the
petitioner in just one line that stand of the
petitioner was found to be baseless.

14. Sri Nisheeth Yadav, learned
counsel for the petitioner has raised the
plea that negligence in terms of absence
from duty looking to the facts and
circumstances was not such as to place it in
nature of such a serious misconduct as to
impose major penalty of reversion and the
other argument is also that punishment was
disproportionate to the charge, if taken to
be proved. He has placed reliance upon
certain authorities of the Supreme Court on
the point of back wages like Civil Appeal
No. 6188 of 2019, Jayantibhai Raojibhai
Patel v. Municipal Council, Narkhed &
Ors; and Deepali Gundu Surwase v.
Kranti Junior Adhyapak Mahavidyalaya
(D. Ed.) & Ors, (2013) 10 SCC 324 upon
the scope of interference by this Court in
the matter of disciplinary proceedings and
the departmental inquiry it has been
repeatedly held by this Court as well as by
the
Supreme
Court
while
exercising
preliminary jurisdiction under Article 226
11 All. Nahar Singh, Constable No. 439 CP Vs. State of U.P. & Ors.
555
of the Constitution the Court is not clothed
with the power of appellate authority.

15. The Court while may consider it
to be appropriate case where some
procedural
lacuna
in
holding
the
departmental
inquiry
of
disciplinary
proceedings is cited but otherwise not on
merits merely for the reason that this Court
may come to a different conclusion upon
appreciation of facts and evidence than to
what has been reached by the inquiry
officer/
inquiry
committee
and
the
disciplinary authority. In the case of State
of Andhra Pradesh & Ors v. Chitra
Venkata Rao, (1975) 2 SCC 557 Supreme
Court held that the propositions as were
laid down by the Court earlier in the case of
State of Andhra Pradesh v. S. Sree Rama
Rao, AIR 1963 SC 1723 should be a
guiding factor for scope of interference
under Article 226 of the Constitution in the
matter of departmental inquiries. The Court
observe that "there is no warrant for the
view that in considering whether a public
officer is guilty of misconduct charge
against him the rule followed in criminal
trial that an offence is not established
unless proved by the evidence beyond
reasonable doubt to the satisfaction of the
Court must be applied." If this principle is
not applied, the Court observed, the High
Court would not be competent to declare
the
order
of
authorities
holding
a
departmental inquiry to be invalid. The
second instance would be only whether
there is any violation of statutory rules
prescribing a particular mode of inquiry
which has not been adopted. Vide para 23
the Court held thus:

"23. The jurisdiction to issue a writ of
certiorari
under
Article
226
is
a
supervisory
jurisdiction.
The
Court
exercises it not as an Appellate Court. The
findings of fact reached by an inferior court
or Tribunal as a result of the. appreciation
of evidence are not reopened or questioned
in writ proceedings. An error of law which
is apparent on the face of the record can be
corrected by a writ, but not an error of
facts however grave it may appear to be. In
regard to a finding of fact recorded by a
Tribunal, a writ can be issued if it is shown
that in recording the said finding, the
Tribunal had erroneously refused to admit
admissible and material evidence, or had
erroneously admitted inadmissible evidence
which has influenced the impugned finding.
Again if a finding of fact is based on no
evidence, that would be regarded as an
error of law which can be corrected by a
writ of certiorary. A finding of fact
recorded by the Tribunal cannot be
challenged on the ground that the relevant
and material evidence adduced before the
Tribunal is insufficient or inadequate to
sustain a finding. The adequacy or
sufficiency of evidence led on a point and
the inference of fact to be drawn from the
said finding are within the exclusive
jurisdiction of the Tribunal. See Syed
Yakoob v. K.S. Radhakrishnan [1964] 5
S.C.R. 64."

16. Again in the case of State of
Karnataka & Anr v. N. Gangaraj, (2020)
3 SCC 423 the Court relied upon its earlier
judgment in the case of State Bank of
Bikaner & Jaipur v. Nemi Chand
Nalwaya, (2011) 4 SCC 584, wherein it
had observed that the High Court will not
act as an appellate court and reassess the
evidence led in domestic inquiry. The
Court cited para 7 and 10 of the said
judgment which runs as under:

"7. It is now well settled that the
courts will not act as an appellate court
and reassess the evidence led in the
556 INDIAN LAW REPORTS ALLAHABAD SERIES
domestic enquiry, nor interfere on the
ground that another view is possible on the
material on record. If the enquiry has been
fairly and properly held and the findings
are based on evidence, the question of
adequacy of the evidence or the reliable
nature of the evidence will not be grounds
for interfering with the findings in
departmental enquiries. Therefore, courts
will not interfere with findings of fact
recorded in departmental enquiries, except
where such findings are based on no
evidence or where they are clearly
perverse. The test to find out perversity is
to see whether a tribunal acting reasonably
could have arrived at such conclusion or
finding, on the material on record. Courts
will however interfere with the findings in
disciplinary matters, if principles of natural
justice or statutory regulations have been
violated or if the order is found to be
arbitrary, capricious, mala fide or based
on extraneous considerations. (vide B. C.
Chaturvedi vs. Union of India - 1995 (6)
SCC
749,
Union
of
India
vs.
G.
Gunayuthan - 1997 (7) SCC 463, and Bank
of India vs. Degala Suryanarayana - 1999
(5) SCC 762, High Court of Judicature at
Bombay vs. Shashi Kant S Patil - 2001 (1)
SCC 416.

10. The fact that the criminal court
subsequently acquitted the respondent by
giving him the benefit of doubt, will not in
any way render a completed disciplinary
proceedings invalid nor affect the validity
of the finding of guilt or consequential
punishment. The standard of proof required
in criminal proceedings being different
from the standard of proof required in
departmental enquiries, the same charges
and evidence may lead to different results
in the two proceedings, that is, finding of
guilt in departmental proceedings and an
acquittal by giving benefit of doubt in the
criminal proceedings. This is more so when
the departmental proceedings are more
proximate to the incident, in point of time,
when
compared
to
the
criminal
proceedings. The findings by the criminal
court will have no effect on previously
concluded domestic enquiry. An employee
who allows the findings in the enquiry and
the
punishment
by
the
disciplinary
authority to attain finality by nonchallenge, cannot after several years,
challenge the decision on the ground that
subsequently, the criminal court has
acquitted him."

17. Concluding the principles of law
on the point, the Court held that "once the
evidence has been accepted by the
departmental authority, in exercise of
power of judicial review, the Tribunal or
the High Court could not interfere with the
findings
of
facts
recorded
by
reappreciating evidence as if the courts are
the appellate authority."

18. This above judgment has been
further followed and reiterated by the
Supreme Court in Muzaffar Husain v.
State of Uttar Pradesh & Anr, 2022 SCC
OnLine SC 567, the Court in this case also
referred to its earlier judgment in the case
of High Court of Judicature at Bombay v.
Shashikant S. Patil, (2000) 1 SCC 416,
wherein, the Court had observed thus:

"The Division Bench of the High
Court seems to have approached the case
as though it was an appeal against the
order of the administrative/ disciplinary
authority of the High Court. Interference
with
the
decision
of
departmental
authorities
can
be
permitted,
while
exercising jurisdiction under Article 226 of
the Constitution if such authority had held
proceedings in violation of the principles of
natural justice or in violation of statutory
11 All. Nahar Singh, Constable No. 439 CP Vs. State of U.P. & Ors.
557
regulations prescribing the mode of such
inquiry or if the decision of the authority is
vitiated by considerations extraneous to the
evidence and merits of the case, or if the
conclusion made by the authority, on the
very face of it, is wholly arbitrary or
capricious that no reasonable person could
have arrived at such a conclusion, or
grounds very similar to the above. But we
cannot overlook that the departmental
authority (in this case the Disciplinary
Committee of the High Court) is the sole
judge of the facts, if the inquiry has been
properly conducted. The settled legal
position is that if there is some legal
evidence on which the findings can be
based, then adequacy or even reliability of
that evidence is not a matter for canvassing
before the High Court in a writ petition
filed under Article 226 of the Constitution."

19. On the principle of degree of
proof in matters of departmental inquiry in
a disciplinary proceeding the principles that
govern the criminal law where the burden
lay upon the prosecution to establish the
ingredients
of
offence
beyond
the
reasonable doubt, is certainly not attracted.
This aspect has been deliberated upon and
discussed with precision by the Supreme
Court in the case of State of Karnataka &
Ors v. Umesh, (2022) 6 SCC 563, the
Supreme Court vide paras 16 & 17 has held
thus:

"16. The principles which govern a
disciplinary enquiry are distinct from those
which apply to a criminal trial. In a
prosecution for an offence punishable
under the criminal law, the burden lies on
the prosecution to establish the ingredients
of the offence beyond reasonable doubt.
The accused is entitled to a presumption of
innocence. The purpose of a disciplinary
proceeding by an employer is to enquire
into an allegation of misconduct by an
employee which results in a violation of the
service rules governing the relationship of
employment. Unlike a criminal prosecution
where the charge has to be established
beyond reasonable doubt, in a disciplinary
proceeding, a charge of misconduct has to
be established on a preponderance of
probabilities. The rules of evidence which
apply to a criminal trial are distinct from
those which govern a disciplinary enquiry.
The acquittal of the accused in a criminal
case does not debar the employer from
proceeding in the exercise of disciplinary
jurisdiction.

17. In a judgment of a three-Judge
Bench of this Court in State of Haryana v.
Rattan Singh (1977) 2 SCC 491, V.R.
Krishna Iyer, J. set out the principles vide
para
4,
that
govern
disciplinary
proceedings as follows:

"4. It is well settled that in a domestic
enquiry the strict and sophisticated rules of
evidence under the Evidence Act, 1872 may
not apply. All materials which are logically
probative
for
a
prudent
mind
are
permissible. There is no allergy to hearsay
evidence provided it has reasonable nexus
and credibility. It is true that departmental
authorities and Administrative Tribunals
must be careful in evaluating such material
and should not glibly swallow what is
strictly speaking not relevant under the
Evidence Act. For this proposition it is not
necessary to cite decisions nor text books,
although we have been taken through caselaw and other authorities by counsel on
both sides. The essence of a judicial
approach is objectivity, exclusion of
extraneous materials or considerations and
observance of rules of natural justice. Of
course, fairplay is the basis and if
perversity
or
arbitrariness,
bias
or
surrender of independence of judgment
vitiate the conclusions reached, such
558 INDIAN LAW REPORTS ALLAHABAD SERIES
finding, even though of a domestic tribunal,
cannot be held good. However, the courts
below misdirected themselves, perhaps, in
insisting that passengers who had come in
and gone out should be chased and brought
before the tribunal before a valid finding
could be recorded. The "residuum" rule to
which counsel for the respondent referred,
based
upon
certain
passages
from
American Jurisprudence does not go to that
extent nor does the passage from Halsbury
insist on such rigid requirement. The
simple point is, was there some evidence or
was there no evidence not in the sense of
the technical rules governing regular court
proceedings but in a fair commonsense way
as men of understanding and worldly
wisdom will accept. Viewed in this way,
sufficiency of evidence in proof of the
finding by a domestic tribunal is beyond
scrutiny. Absence of any evidence in
support of a finding is certainly available
for the court to look into because it
amounts to an error of law apparent on the
record. We find, in this case, that the
evidence of Chamanlal, Inspector of the
Flying Squad, is some evidence which has
relevance to the charge levelled against the
respondent. Therefore, we are unable to
hold that the order is invalid on that
ground."

(emphasis in original and supplied)

20. In the matter of disciplinary
proceedings the charge of misconduct or
doubtful integrity would otherwise be
judged on the principle of preponderance of
probability as to what the reasonable man
would arrive at finally in its conclusion.
Applying this test to the fact position of the
present case, I find that in the total
circumspect of the events right from the
date petitioner absented from duty while he
was sent to a particular place and then
disappeared for about one year while
staying in the same district would lead to
conclude that petitioner was certainly
negligent and that too so deliberately to
make out a case of misconduct to transform
such
a
negligence
into
a
case
of
misconduct.
ON
the
question
of
proportionality of the punishment imposed
and whether it is commensurate to the
charge or not, in my considered view the
petitioner having failed to produce any
evidence that he was bed ridden or
hospitalized during last one year, he being
in civil police, was certainly required to
report his higher official as a disciplined
member of the force. This unauthorized
absence of the petitioner from official duty
would have led to now other conclusion but
that he was not innocently negligent so as
not to make out a case of misconduct.
Earlier order of removal has been reduced
to a punishment of lowering down the
petitioner to five years in terms of
minimum of basic pay therefore, is not hit
in any manner by the doctrine of
proportionality and it cannot be said that
the
punishment
imposed
is
not
commensurate to the charge which has
been admittedly proved. it has been
repeatedly held that the Court will certainly
be interfering with the punishment in the
event it shots to its consigns looking to the
charge established. this principle has been
discussed by the Supreme Court in the case
of Union of India & Ors v. P.
Gunasekaran (2015) 2 SCC 610 broad
principles have been laid down vide
paragraph nos. 12 & 13 of the judgment
which are reproduced hereunder:

"12. Despite the well-settled position,
it is painfully disturbing to note that the
High Court has acted as an appellate
authority in the disciplinary proceedings,
reappreciating even the evidence before the
enquiry officer. The finding on Charge I
11 All. Nahar Singh, Constable No. 439 CP Vs. State of U.P. & Ors.
559
was accepted by the disciplinary authority
and was also endorsed by the Central
Administrative Tribunal. In disciplinary
proceedings, the High Court is not and
cannot act as a second court of first appeal.
The High Court, in exercise of its powers
under Articles 226/227 of the Constitution
of
India,
shall
not
venture
into
reappreciation of the evidence. The High
Court can only see whether:

(a) the enquiry is held by a competent
authority;

(b) the enquiry is held according to the
procedure prescribed in that behalf;

(c) there is violation of the principles
of natural justice in conducting the
proceedings;

(d) the authorities have disabled
themselves from reaching a fair conclusion
by some considerations extraneous to the
evidence and merits of the case;

(e) the authorities have allowed
themselves to be influenced by irrelevant or
extraneous considerations;

(f) the conclusion, on the very face of
it, is so wholly arbitrary and capricious
that no reasonable person could ever have
arrived at such conclusion;

(g) the disciplinary authority had
erroneously failed to admit the admissible
and material evidence;

(h) the disciplinary authority had
erroneously admitted inadmissible evidence
which influenced the finding;

(i) the finding of fact is based on no
evidence.

13. Under Articles 226/227 of the
Constitution of India, the High Court shall
not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in
the enquiry, in case the same has been
conducted in accordance with law;

(iii) go into the adequacy of the
evidence;

(iv) go into the reliability of the
evidence;

(v) interfere, if there be some legal
evidence on which findings can be based.

(vi) correct the error of fact however
grave it may appear to be;

(vii) go into the proportionality of
punishment unless it shocks its conscience."

21. On the above principles, if the
petitioner's case is tested, I am of the
considered view that the petitioner's guilt of
remaining absent from duty deliberately
and willingly, has rightly been held to be
amounting to a misconduct by a member of
civil police and therefore, it cannot be said
that the punishment imposed upon the
petitioner is not commensurate to the
charge of misconduct proved.

22. The judgments that have been
cited by learned Advocate appearing for the
petitioner
relating
to
back
wages
considering the fact that charge of guilt has
been approved and the Court does not
found
the
punishment
to
be
disproportionate to the charge proved by
the inquiring authority approved by the
disciplinary authority, any issue as to
payment for the period petitioner had
absented from duty arise. The issue before
the Court is as to the correctness of the
decision taken by the disciplinary authority
which has been affirmed in appeal and
revision, no question of any back wages
arise.

23. Sri R.S. Umrao, learned Standing
Counsel for the respondents has argued that
the petitioner was never admitted in any
hospital at any point of time and therefore,
he was also there in a position to intimate
the higher authority/ competent authority
about the illness with which he suffered. In
support of his argument Sri Umrao has
560 INDIAN LAW REPORTS ALLAHABAD SERIES
drawn the attention of the Court to the
reply of the petitioner to the charge sheet
and also the medical certificate addressed
to Senior Superintendent of Police dated
22.11.2018 by Dr. Chaitanya Maheshwari,
the Medical Officer under whose treatment
petitioner was and submits that there is
nothing to demonstrate that petitioner was
at any point of time admitted to the
hospital. He submits that all that he has
shown is that petitioner as a matter of fact
was merely under treatment and in such
circumstances, if the petitioner was able to
visit the doctor for treatment, he could have
been visited to the officer concerned to
apprise him about his illness or at least he
could have sought for medical leave, during
this long period from 05.06.2002 to
25.06.2003. He submits that the absence
from duty without intimation and notice by
a person who is a member of disciplined
force, is a serious misconduct and in the
absence of any document to show that
petitioner aver attempted bonafidely to
intimate about his illness, the employer
could
not
have
taken
the
matter
sympathetically. It is argued by learned
Standing Counsel that this time petitioner
has only been awarded with lesser
punishment and therefore, this Court may
not interfere with the findings of the
inquiring
authority
including
the
disciplinary authority as to the nature of
punishment.

24. If petitioner had ever attempted to
intimate the higher authorities about his
illness while admittedly he absented from
duty for over a long one year by bringing
anything on record to demonstrate that he
was ever hospitalized, situation would have
been different.

25. If one goes through the medical
certificates, which is the only document
available with the petitioner to show that he
had been under treatment for valid reasons
as he suffered from serious disease, one
would find that doctor certified only this
much that petitioner was under his
treatment from 05.06.2002 to 25.06.2003
and
it
has
been
very
categorically
mentioned in the certificate that petitioner
was an outdoor patient. This doctor is of
Primary
Health
Centre,
Meerapur,
Muzaffarnagar. Petitioner, it appears from
the documents to have resided at Police
Lines, District Muzaffarnagar otherwise, he
was a permanent resident of Ghaziabad.

26. In these above circumstances, if
he could visit as OPD patient to the doctor,
he could have communicated to the higher
authorities in the police department also his
illness. There is nothing to demonstrate
from the entire pleadings raised in reply to
the notice dated 28.07.2018 that the
petitioner was bedridden during this period.
One stand taken is that his wife Smt. Sunita
Yadav had intimated on 07.06.2002 to
Senior Superintendent of Police but it is
very vague and evasive stand. About the
fitness claimed by the petitioner, it would
relate only to resuming his regular duty and
would certainly not absolve him from the
liability to intimate about his ailment to the
higher authorities.

27. It is true that negligence as such
would not amount to a serious misconduct
unless it is shown to be of such nature and
deliberate one that would render an act or
conduct to be unbecoming of an officer or a
member of disciplined force but the
parameters in organizations like police
force, defence and security forces are
certainly different. In Civil Police, a
Constable has a very responsible role to
play in day to day public administration
and if a Constable suddenly disappears
11 All. Nahar Singh, Constable No. 439 CP Vs. State of U.P. & Ors.
561
from the scene, while he was directed to
report at a particular place and then keeps
not informing the organization for a pretty
long one year, it would certainly amount to
such an indiscipline which may warrant a
major penalty.

28. The yardsticks to maintain
discipline in the case of disciplined force
that looks after either the defence of the
country or the one involved in civil police
for the police administration is to be strictly
applied and so the test to check indiscipline
would be stricter. Reference to its earlier
judgment of Supreme Court in the case of
Union of India v. Dwarka Prasad Tiwari
(2006) 10 SCC 388, Supreme Court in its
subsequent judgment in the case of Union
of India & Ors v. Diler Singh (2016) 3
SCC 71 has observed "when a member of
the disciplined force deviates to such an
extent from the discipline and behaves in
an
untoward
manner
which
is
not
conceived of, it is difficult to hold that the
punishment of dismissal as has been
imposed is disproportionate and shocking
to the judicial conscience."

29. In the present case, looking to the
facts and circumstances I find that
petitioner was under treatment as an
OPD
patient
and
he
stayed
at
Muzaffarnagar for one long year
and possibly in police lines, so it
was all the more his duty to have
intimated the higher officer in the
department.