# Satendra Kumar Sharma v. State of U. P. and others

- **Citation:** (2005) 2 ILRA 557
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-05-26
- **Case number:** Civil Misc. Writ Petition No. 9209 of 2002
- **Bench:** Vikram Nath
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satendra-kumar-sharma-v-state-of-u-p-and-others-40487
- **Pages:** 5

## Headnote

Rules (Punishment of Appeal) Rules
1991-Rule 14 (5) Appendix-I- formal
enquiry-petitioner a Police Constablesubjected to face disciplinary proceeding
for unauthorized absence from dutyNotice
to
face
the
disciplinary
proceeding-regarding personal hearing
given by providing 3 days time would be
reasonable 15 days time would be
reasonable
period-enquiry
in
contravention
of
the
Rule-vitiateddismissal order Quashed.

Held: Para 14

In the inquiry the petitioner would have
had the opportunity to establish their
correctness. Since there has been no
finding by the Inquiry Officer on the
genuineness or otherwise of the medical
certificates
their
rejection
by
the
disciplinary authority amounts to denial
of opportunity.
Case law discussed:
1998 (7) SCC-569

## Text

2 All] Smt. Shail Shukla V. State of U.P. and others

 557
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2005

BEFORE
THE HON'BLE VIKRAM NATH, J.

Civil Misc. Writ Petition No. 9209 of 2002

Satendra Kumar Sharma
...Petitioner
Versus
State of U. P. and others ...Respondents

Counsel for the Petitioner:
Sri S.K. Jaiswal

Counsel for the Respondents:
S.C.

U.P. Police officers of the Subordinate
Rules (Punishment of Appeal) Rules
1991-Rule 14 (5) Appendix-I- formal
enquiry-petitioner a Police Constablesubjected to face disciplinary proceeding
for unauthorized absence from dutyNotice
to
face
the
disciplinary
proceeding-regarding personal hearing
given by providing 3 days time would be
reasonable 15 days time would be
reasonable
period-enquiry
in
contravention
of
the
Rule-vitiateddismissal order Quashed.

Held: Para 14

In the inquiry the petitioner would have
had the opportunity to establish their
correctness. Since there has been no
finding by the Inquiry Officer on the
genuineness or otherwise of the medical
certificates
their
rejection
by
the
disciplinary authority amounts to denial
of opportunity.
Case law discussed:
1998 (7) SCC-569

(Delivered by Hon'ble Vikram Nath, J.)

1. This writ petition is directed
against the order dated 15.05.2000,
whereby the petitioner was dismissed
from service and also the order dated
10.01.2002, whereby the appeal against
the order of dismissal has also been
dismissed.

2. The petitioner, who was working
on the post of Sub Inspector, Civil Police
at the relevant time, was posted at
Mathura. By order of the DIG Kanpur
Zone, dated 29.04.1999 the petitioner was
transferred from Mathura to Etawah.
According to the petitioner, he was
relieved
on
11.05.1999,
whereas
according to the department he was
relieved on 05.05.1999. Whatever the
case may be, the petitioner was to join
within one week from the date he was
relieved. After being relieved from
Mathura the petitioner did not join at
Etawah and remained absent without any
intimation or notice to the department.
The respondents, after giving warning and
notice to the petitioner suspended him
vide order dated 23.02.2000. Thereafter,
charge sheet was issued to the petitioner
on 26.02.2000, which was sent at his
residence in district Bulandshahr, but he
was not available and, therefore, the
notice was affixed at his house in district
Bulandshahr.
Thereafter,
again
on
06.03.2000, another copy of the charge
sheet was sent at his residence in village
Nevada, Post Office Chandel, Police
Station
Kotwali
Dehat,
District
Bulandshahr. When the petitioner was not
found at his residence, again the notice
was affixed at the main entrance of the
house in presence of local witnesses. The
Enquiry Officer initiated proceedings and
fixed 22nd March 2000 for evidence for
which again intimation was sent on
16.03.2000
at
Bulandshahr
address.
Notice was again affixed at the main
entrance on 17.03.2000. The petitioner
558 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
still did not turn up. The next date fixed
for recording evidence was 28.03.2000,
for which again notice was sent first at
Bulandshahr address when his brother
Prem Dutt Sharma informed the special
messenger that the petitioner was residing
at house No. 100, Suhag Nagar, Awas
Vikas Colony, Firozabad and, therefore, it
was transmitted there. When the special
messenger reached at Firozabad address
the petitioner was not available. However,
the petitioner's daughter Km. Swati
Sharma was served with the notice on
26.03.2000. Again on 28.03.2000 the
petitioner did not appear, therefore, the
Enquiry Officer proceeded with recording
of the evidence of the prosecution
witnesses
namely,
Constable
Sushil
Kumar, ASI Ram Vishal Singh, and
Circle Officer police lines, Etawah Sri
Aditya Prakash Sharma.

3. Witness constable Sushil Kumar
stated in his statement that he had taken
notice for service and prove the service of
notice. ASI Ram Vishal Singh deposed
that the petitioner had been relieved on
05.05.1999 and also confirmed the
statement given by him in the preliminary
enquiry. Sri Aditya Prakash Sharma,
Circle Officer Etawah, deposed that after
being
relieved
on
05.05.1999,
the
petitioner could have reported latest by
13.05.1999, but he did not report at
Etawah, thereafter, he was assigned the
preliminary enquiry and he submitted his
report on 29.01.2000.

4. The Enquiry Officer despite the
evidence having concluded on 28.03.2000
again gave one more opportunity to the
petitioner by sending a notice dated
31.03.2000 calling upon him to submit
any defence, which he may propose to file
in respect of the charge sheet and enquiry
report on or before 10.04.2000. The
special messenger Narendra Singh served
this notice personally upon the petitioner
on 07.04.2000, but still the petitioner did
not turn up. Thereafter, Enquiry Officer
proceeded to submit final report dated
13.04.2000.

5. The report of the Enquiry Officer
dated 13.04.2000 was forwarded to the
petitioner along with show cause notice
dated 23.04.2000, which was served upon
the
petitioner
on
28.04.2000.
The
petitioner
submitted
reply
dated
04.05.2000 in which he only stated that
after being relieved on 11.05.1999 the
petitioner fell seriously ill and was
admitted in the Nursing Home of Dr.
Rakesh Narain Gupta in Agra and the
intimation of his illness was sent by his
wife, the entire action was taken against
him without his knowledge and notice
was sent at wrong address and he prayed
for being pardoned on account of
financial and health difficulties. The
disciplinary authority, after considering
the reply of the petitioner came to the
conclusion that despite personal service
the petitioner had not appeared, further
that he had absented without any
intimation and neither any medical
certificate nor any intimation of his illness
was submitted either to the SSP, Etawah
or Mathura. He however, recorded finding
that when the petitioner appeared before
him on 04.05.2000 he did not appear from
any angle that he was ill for such a long
time from 11.05.1999 to 13.04.2000,
rather it was apparent that he had
deliberately absented himself in violation
of the rules and accordingly dismissed the
petitioner from service vide order dated
15.05.2000. Aggrieved by the same, the
petitioner filled an appeal before the IG
2 All] Satendra Kumar Sharma V. State of U.P. and others

 559
Police, Kanpur Zone, which has also been
dismissed vide order dated 10.01.2002.

Aggrieved by the aforesaid two
orders the present writ petition has been
filed.

6. I have heard Sri S.K. Jaiswal,
learned counsel for the petitioner and the
learned
Standing
Counsel
for
the
respondents.

7. It has been alleged by learned
counsel for the petitioner that the entire
enquiry proceedings have been taken
behind back of the petitioner without
affording any opportunity and, therefore,
the
same
is
vitiated.
The
second
contention is that the petitioner was
suffering from Hepatitis and back bone
pain and he was advised rest and
treatment for 6 months from 11.05.1999
and that his wife had sent intimation also
and, therefore, the order of dismissal
passed against him was in violation of
principle of natural justice and fair play.

8. In the counter affidavit the stand
taken in the impugned order dated 15th
May 2000 has been reiterated giving
details of the various/ several efforts made
to serve the notice upon the petitioner, but
he repeatedly continue to remain absent
and,
therefore,
left
with
no
other
alternative, the enquiry proceedings were
held after his suspension and he was
found guilty of serious misconduct as
enumerated in paragraphs 381, 382 & 383
of the Police Regulations of gross
negligence and dereliction of duty and
discipline and as such has been rightly
dismissed from service.

9. The counsel for the petitioner has
contended that in the present case the
charge sheet was not served personally
upon the petitioner and further no effort
was made to send the charge sheet by
registered post or get it published in the
newspapers. The Apex Court in the case
of Union of India versus Dina Nath
Shantaram reported in 1998 (7) SCC 569
has laid down that in matter of service of
charge
sheet
the
theory
of
"communication" cannot be involved and
"actual service" must be proved. To
quote:

"Where the disciplinary proceedings
are intended to be initiated by issuing a
charge-sheet,
its
actual
service
is
essential as the person to whom the
charge-sheet is issued is required to
submit his reply and, thereafter, to
participate
in
the
disciplinary
proceedings. So also, when the showcause notice is issued, the employee is
called upon to submit his reply to the
action proposed to be taken against him.
Since in both the situations the employee
is given an opportunity to submit his
reply, the theory of "communication'
cannot be invoked and actual service'
must be proved and established."

10. It further held that charge sheet
should be served personally, and if not
served, then it should be send under
registered cover and if still not served
then it may be published in the
newspaper.

11. In the present case a perusal of
the inquiry report and also the counter
affidavit it is clear that before proceeding
with the inquiry the charge sheet was
served only through affixation. There is
no mention that it was send by registered
post or was published in the newspapers.
The inquiry would therefore stand vitiated
560 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
as charge sheet was not served personally
on the petitioner before stating the
inquiry. However, after the evidence in
the inquiry was concluded on 28.03.2000
another notice (with charge sheet) was
issued on 31.03.2000 by the Inquiry
Officer calling upon the petitioner to
answer the charge sheet and give his
reply/ evidence on or before 10.04.2000.
This
notice
was
served
upon
the
petitioner, personally on 07.04.2000. The
Inquiry
Officer
after
waiting
till
10.04.2000 when the petitioner did not
turn up proceeded to submit his report on
13.04.2000 holding the petitioner guilty
of the charge.

12. The question would be even if
the charge sheet had been personally
served upon the petitioner after close of
evidence
whether
he
was
granted
reasonable and sufficient time to defend
himself and to file reply and lead
evidence
and
cross
examine
the
prosecution witnesses. The procedure for
conducting departmental proceedings is
laid down in Rule 14 of the U.P. Police
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991 (in
short referred to as 1991 Rules. The said
rule also refers to Appendix I. The same
are quoted hereunder:-

Rule 14 (1) of the U.P.P. Officers of
the Subordinate Ranks (P. and A.) Rules
1991 quoted below:-

14.
Procedure
for
conducting
departmental proceedings.-(1) Subject to
the provisions contained in these Rules,
the departmental proceedings in the cases
referred to in sub-rule (1) of Rule 5
against the Police Officers may be
conducted
in
accordance
with
the
procedure laid down in Appendix 1.
Appendix-1
Procedure relating to the conduct of
departmental proceedings against Police
Officer.
(See Rule 14 (1)]

Upon institution of a formal enquiry
such Police Officer against whom the
inquiry has been instituted shall be
informed in writing of the grounds on
which was proposed to take action and
shall be afforded an adequate opportunity
of defending himself. The grounds on
which it is proposed to take action shall
be used in the form of a definite charge or
charges as in Form 1 appended to these
Rules which shall be communicated to the
charged Police Officer and which shall be
so clear and precise as to give sufficient
indication to the charged Police Officer of
the facts and circumstances against him.
He shall be required, within a reasonable
time, to put in, in a written statement of
his defence and to state whether he
desires to be heard in person. If he so
desires, or if the inquiry Officer so directs
an oral enquiry shall be held in respect of
such of the allegation as are not admitted.
At that enquiry such oral evidence will be
recorded, as the Inquiry Officer considers
necessary. The charged Police Officer
shall be entitled to cross-examine the
witnesses, to give evidence in person and
to have such witnesses called as he may
wish: provided that the Inquiry Officer
may, for sufficient reasons to be recorded
in writing, refuse to call a witness. The
proceedings shall contain a sufficient
record of the evidence and statement of
the finding and the ground thereof. The
Inquiry Officer may also separately from
these
proceedings
make
his
own
recommendation
regarding
the
punishment to be imposed on the charged
Police Officer.
2 All] Satendra Kumar Sharma V. State of U.P. and others

 561
13. From a perusal of the Appendix
it is clear that a reasonable time is to be
allowed to the employee to submit his
written statement and also to inform
regarding personal hearing. In my opinion
three days time cannot be said to be
reasonable time and all the more when the
petitioner was in a different district,
where the charge sheet was served on
07.04.2000 and 10.04.2000 was the date
fixed. Even the Inquiry Report was
submitted on 13.04.2000 in less than a
week from the date of service. A
reasonable time in my opinion would be
at least 15 days or two weeks time. In my
view reasonable time from the date of
service of charge sheet was not allowed to
the petitioner to submit his written
submission and to defend himself. He
could therefore not avail of the further
opportunity
of
personal
hearing,
producing witnesses and documents and
also to cross-examine the prosecution
witnesses in the inquiry. The inquiry is
therefore, vitiated in law being in
contravention of the procedure prescribed
under Rule 14 and Appendix I of the 1991
Rules.

14. The contention of the learned
Standing Counsel that petitioner did not
even furnish any proper explanation to the
show cause notice issued to him cannot be
accepted in as much as the scope of
defence in the inquiry and in the scope in
reply to show cause are quite distinct and
different. In the inquiry the petitioner
would have had the opportunity to lead
evidence, to prove his illness and also
cross-examined the prosecution witnesses
to disprove the charge levelled against
him. It would still be possible that the
Inquiry Officer may still have found the
petitioner guilty of the charge but it would
be a different satisfaction based upon
evidence of both sides. The disciplinary
authority
has
rejected
the
medical
certificates as fake without opportunity to
the petitioner to prove their correctness.
In the inquiry the petitioner would have
had the opportunity to establish their
correctness. Since there has been no
finding by the Inquiry Officer on the
genuineness or otherwise of the medical
certificates
their
rejection
by
the
disciplinary authority amounts to denial
of opportunity.

15. As a result of the inquiry being
vitiated the order of dismissal and also the
appellate order also stands vitiated and are
liable to be set aside.

16. Accordingly, the writ petition
succeeds and is allowed. The impugned
order dated 15.05.2000 and 10.01.2002
are set aside. It would however, be open
to
the
respondents
to
proceed
in
accordance with law and pass appropriate
orders afresh. There shall be no order as
to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26TH MAY, 2005

BEFORE
THE HON'BLE VIKRAM NATH, J.

Civil Misc. Writ Petition No. 473 of 2001

Shridhar Dwivedi

...Petitioner
Versus
State of U.P. and others ...Respondents
With
Civil Misc. Writ Petition No. 2740 of 2001

Dheer Singh Gihar

...Petitioner
Versus
State of U.P. and others ...Respondents