# Syed Amirul Haq v. The State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1460
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-16
- **Case number:** W.P. No. 2156 (S/S) of 2009
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/syed-amirul-haq-v-the-state-of-u-p-ors-43347
- **Pages:** 7

## Headnote

(Punishment and Appeal) Rules-1991-Rule14(i)-disciplinary proceeding against police
constable-concluded for dismissal-without
deciding the question-whether unauthorized
absence was willful or beyond his controlpetitioner suffering from paralytic attacktreatment by different doctors in different
hospitals-can not be termed unauthorized
absence
from
duty-held-entitled
for
reinstatement as the petitioner already
retired-arrears of salary during period of
suspension to punishment not payable-but
3 All.
Syed Amirul Haq Vs. The State of U.P. & Ors.
1461
for purpose of post retiral benefits-shall be
taken into account.
Held: Para-19, 20 & 22

## Text

1460
 INDIAN LAW REPORTS ALLAHABAD SERIES
available to the interested person to be dealt
with as provided in Sections 32 and 33.
18. 1894 Act being an expropriatory
legislation has to be strictly followed. The
procedure, mode and manner for payment
of compensation are prescribed in Part V
(Sections 31-34) of the 1894 Act. The
Collector, with regard to the payment of
compensation, can only act in the manner
so provided. It is settled proposition of
law (classic statement of Lord Roche in
Nazir Ahmad[1]) that where a power is
given to do a certain thing in a certain
way, the thing must be done in that way
or
not
at
all.
Other
methods
of
performance are necessarily forbidden."
21. The same view has been
reiterated in the case of Bharat Kumar
(supra),
Bimla
Devi
(supra),
Rajiv
Chowdhrie HUF (supra) and Sita Ram
Vs. State of Haryana & Anr., (2015) 3
SCC 597.
22.
In view of the undisputed and
admitted facts of the case that award was
made on 11.01.2000 and the petitioners have
not received the compensation and since the
same was deposited with the A.D.M. (L.A.),
in view of the law laid down by the Hon'ble
Apex Court referred to above, will not
tantamount to compensation paid to the land
holders/persons interested, inasmuch as the
law stands settled that unless the deposit is
made in the court to which a reference would
lie in accordance with Section 31 of the Act,
1894 and the acquisition proceedings
initiated under the old Act cannot escape the
mischief of Section 24 (2) of Act, 2013.
23. In view of the aforesaid facts
and discussions and the reasons recorded
by us, the acquisition proceedings in
respect of the petitioners' land stands
lapsed.
24. The writ petition, accordingly,
stands
allowed.
The
impugned
notification in so far as the land of the
petitioners is concerned, the same stands
quashed.
25. We, however, leave it open to
the State Government, if it so chooses, to
initiate proceedings for acquisition of the
land in dispute afresh in accordance with
the provisions of Act, 2013.
26. However, in the facts and
circumstances, we do not make any order
as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.12.2015
BEFORE
THE HON'BLE DR. DEVENDRA KUMAR
ARORA, J.
W.P. No. 2156 (S/S) of 2009
Syed Amirul Haq
 ...Petitioner
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Amit Bose
Counsel for the Respondents:
C.S.C.
U.P. Police Officer Subordinate Ranks
(Punishment and Appeal) Rules-1991-Rule14(i)-disciplinary proceeding against police
constable-concluded for dismissal-without
deciding the question-whether unauthorized
absence was willful or beyond his controlpetitioner suffering from paralytic attacktreatment by different doctors in different
hospitals-can not be termed unauthorized
absence
from
duty-held-entitled
for
reinstatement as the petitioner already
retired-arrears of salary during period of
suspension to punishment not payable-but
3 All.
Syed Amirul Haq Vs. The State of U.P. & Ors.
1461
for purpose of post retiral benefits-shall be
taken into account.
Held: Para-19, 20 & 22
19. If employee is unable to attend
duties for a reason like mishap; serious
ailment of his or in family; law and order
problem; failure of transport etc., it
cannot be termed as a case of deliberate
or willful absence.
20. At this juncture it would be relevant
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 cannot be
said to be willful.
22. Thus it is a settled position of law
since
long
that
in
a
Departmental
proceeding, if allegation of unauthorized
absence
from
duty
is
made,
the
disciplinary authority is required to
prove that the absence is willful, in
absence of such finding, the absence will
not amount to misconduct.
Case Law discussed:
2009 (2) SCC 570; (1995 Supp. (3); (2012) 3
SCC 178; (2004) 4 SCC 560
(Delivered by Hon'ble Dr. Devendra
Kumar Arora, J.)
1. Heard Mr Amit Bose, learned
Counsel for the petitioner and learned
Standing Counsel.
2. Through the present writ petition
under Article 226 of the Constitution of
India, the petitioner has questioned the
validity of the order dated 20.2.2006
[Annexure-1 to the writ petition] whereby
the petitioner has been removed from
service by the Superintendent of Police,
Chandauli.
The
petitioner
has
also
assailed
the
appellate
order
dated
16.10.2006
passed
by
the
Deputy
Inspector General of Police, Varanasi
Range, Varanasi contained in Annexure
No. 12 to the writ petition as also the
revisional order dated 3.9.2008/20.9.2008
passed by the Inspector General of Police,
Varanasi Zone, Varanasi.
3. Brief facts of the case, in a narrow
compass, are that while working as
Constable at police-out post Tara Jeevanpur,
Police Station Alinagar, District Chandauli,
the petitioner proceeded on three days leave
on 16.12.2001 but he did not report for duties
on expiry of sanctioned leave and as such,
vide
order
dated
6.12.2003,
the
Superintendent
of
Police,
Chandauli
suspended the petitioner in contemplation of
departmental inquiry on the ground of
unauthorized absence and the Circle Officer,
Chakia, Chandauli, was appointed as
Preliminary Enquiry Officer. However, the
said preliminary inquiry was not conducted
and the file was returned by the Circle
Officer.
4.
According to the petitioner, while
he was on leave, on 17.12.2001, he suffered
a paralytic attack on the right side of his
body as a consequence whereof he was
completely bed ridden and even loss
locomotion. Immediately thereafter, on
18.12.2001, he was rushed to the State
Unani Hospital, Musafirkhana, District
Sultanpur, where he remained under
treatment upto 19.12.2001 but since there
was no improvement in the condition, he
was taken by the members of family to
State Unani Hospital, Ghazipur, where also
1462
 INDIAN LAW REPORTS ALLAHABAD SERIES
his condition did not improve and remained
precarious. After being under treatment in
different doctors, he again got himself
treated
at
State
Unani
Hospital,
Musafirkhana, district Sultanpur, where he
remained under treatment from 7.1.2003 to
20.12.2003.
5.
The petitioner on regaining health
after a long illness and when he regain
physical movement of his body, he joined his
duties on 4.4.2004. Subsequently, vide order
dated 9.4.2004, the Superintendent of Police
directed the Circle Officer, Chandauli, District
Varanasi to conduct preliminary inquiry into
the charge leveled against him for his being
absent from duty w.e.f. 20.12.2001 to
3.4.2004. The Preliminary Inquiry Officer,
after due inquiry, submitted its report on
4.6.2004, holding the petitioner guilty of being
absent from duty and recommended the
punishment of fine equivalent to one month's
salary be imposed on the petitioner and the
period of his absence from duty be sanctioned
as leave without pay. However, the said
recommendation of the Preliminary Inquiry
Officer was not accepted by the Senior
Superintendent of Police, Varanasi and,
therefore, vide order dated 10.6.2004, the
Superintendent
of
Police
instituted
departmental proceedings under Section 14
(1) of U.P. Police Officers of Subordinate
Ranks (Punishment and Appeal) Rules, 1991
and appointed the Circle Officer, Sakaldiha,
District Varanasi, as the Inquiry Officer. It
may be clarified that on 18.6.2004, the
petitioner was reinstated in service without
prejudice to the departmental inquiry to be
conducted against him. It was provided that
the orders with regard to the pay and
allowances for the period he was under
suspension would be passed later on.
6. Pursuant to the aforesaid
reinstatement order, the petitioner was
posted at police station Chakia, district
Varanasi in the month of June, 2004. On
1.7.2004, the petitioner again suffered a
second paralytic attack on the left side of his
body in the Police Line, Varanasi. On
1/2.7.2004, the petitioner was relieved for
joining at police station Chakia, district
Varanasi
in
absentia.
However,
the
petitioner could not join at police station
Chakia on account of second paralytic
attack. On 6.1.2005, a charge-sheet was
issued against the petitioner by the Circle
Officer, Sakaldiha, District Chandauli, to
which the petitioner submitted his reply on
7.2.2005. The Inquiry Officer submitted his
report on 9.12.2005 holding the petitioner
guilty of being absent from duty from
20.12.2001 to 4.4.2004 and also on account
of his absent from duty and his failure to
join at police station Chakia, District
Chandauli
and
recommended
the
punishment of removal from service be
imposed on the petitioner. Subsequently,
vide order dated 10.12.2004, the petitioner
was placed under suspension on the ground
of not joining at police station Chakia. On
29.12.2005, a show cause notice was issued
to the petitioner, to which the petitioner
submitted his reply on 13.2.2006. However,
the Superintendent of Police, Chandauli,
vide order dated 20.2.2006, removed the
petitioner from services.
7. Not being satisfied with the order
of removal, the petitioner preferred an
appeal before the Deputy Inspector
General of Police, Varanasi Range,
Varanasi, which was dismissed vide order
dated 16.10.2006. Being aggrieved, the
petitioner filed revision, which too was
dismissed vide order dated 29.9.2008.
8. Hence the petitioner has filed the
instant writ petition assailing all the
aforesaid orders.
3 All.
Syed Amirul Haq Vs. The State of U.P. & Ors.
1463
9.
Counsel for the petitioner has
vehemently argued that the impugned order
of removal has been passed without
considering the reply of the petitioner and
looking to the serious ailment with which
petitioner was suffering at the relevant time.
The Punishing Authority as well as the
Inquiry Officer failed to consider the
medical
certificate
submitted
by
the
petitioner and disbelieved the same without
any verification from the doctors. They also
failed to consider the very vital fact that the
petitioner's absence from duty was not
deliberate or willful but it was on account of
ineluctable circumstances. Moreover, while
passing the order of punishment, the
punishing authority on one hand has
regularized the period of absence from duty
of the petitioner and on the other hand for
the same alleged absence, passed the
impugned order of removal.
10. In contrast, learned Standing
Counsel stated that on account of
unauthorized absence from duty, the
petitioner, namely, Syed Anwarul Haq
was subjected to disciplinary proceedings
and after due process of law, the order of
removal from service was passed. It has
been clarified that the inquiry against the
petitioner was conducted in consonance
with the principles of natural justice. The
appeal and the Revision was decided with
speaking order. Therefore, there is no
illegality in the impugned orders and the
writ petition is liable to be dismissed.
11.
I have given my anxious
consideration to the facts and circumstances
of the case and have also examined the
material on record including the original
record produced by the Standing Counsel.
12. There is no dispute to the fact
that after remaining absent for the period,
referred to above, the petitioner was
allowed to resume his duties vide order
dated 18.6.2004 passed by the Senior
Superintendent
of
Police,
Varanasi
without prejudice to the departmental
inquiry to be conducted against him. It
was also provided in the aforesaid order
that necessary orders with regard to the
arrears of pay and allowances would be
passed later on.
13.
In the instant case, on perusal of
the averments made in the counter affidavit,
it comes out that no reason has been
indicated as to why the medical certificate
issued by the doctor was not accepted by the
authorities. There is no whisper as to how the
authorities came to the conclusion that the
medical certificates were fabricated one. The
Inquiry Officer/Disciplinary Authority had
neither summoned the doctor nor otherwise
made an efforts to verify the genuineness of
the medical certificate. Thus the Inquiry
Officer/disciplinary authority has violated the
principle of natural justice. A perusal of
relevant record reveals that it is the definite
stand of the petitioner before the Inquiry
Officer to summon the three doctors who had
treated him to prove the factum of his illness
and the genuineness of the medical
certificates submitted by him but the Inquiry
Officer did not summon the aforesaid
witnesses causing serious prejudice to the
petitioner. No documents have been brought
on record on the basis of which genuineness
of the Medical Certificates produced by the
petitioner were doubted by the Inquiry
Officer and believed by other authorities.
Without summoning and examining the
Doctor, the conclusion of the authorities that
the Medical certificates are not genuine
documents,
is
wholly
erroneous
and
unjustified. No finding could have been
recorded by the Inquiry Officer with regard
to certificates or the factum of illness of the
1464
 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner without summoning the doctors,
and denial by them with regard to illness and
treatment given to the petitioner by them. As
regard the finding recorded by the Inquiry
Officer that the petitioner did not inform the
authorities of his illness, the record which
have been produced by the respondents,
shows that there are various applications and
medical certificates available on the record
submitted by the petitioner with regard to
grant of leave and extension of leave . The
different doctors like, In-charge Medical
Officer,
State
Unani
Hospital,
Musafirkhana,Sultanpur and Medical Officer
GHMC & Hospital,Ghazipur had diagnosed
the petitioner as a patient of paralysis on right
side of the body. Apart from above, the
petitioner had attacked the impugned orders
on the ground of various defects in the
disciplinary proceedings.
14. In a recent decision i.e. Roop Singh
Negi vs. Punjab National Bank 2009(2) SCC
570, the Apex Court while narrating the duty
of the inquiry officer, disciplinary authority
and appellate authority, held that the material
brought on record pointing out the guilt are
required to be proved.
15. The Apex Court in the case of
Ministry of Finance and another Vs.
S.B.Ramesh ( 1998 SCD page 1046) and
S.C. Gioratra Vs. United Commercial
Bank and others ( 1995 Supp.(3) has held
that if the enquiry officer did not prove
the documentary evidences relied upon in
the enquiry and without proving the
charges levelled against the petitioner,
submitted his enquiry report, it vitiates the
entire proceedings due to non-observance
of principle of natural justice.
16. Undoubtedly, the petitioner was
principally charged for unauthorized
absence from duty. In the case of
petitioner
referring
to
unauthorized
absence, the disciplinary authority alleged
that he failed to maintain devotion of duty
and his behaviour was unbecoming of a
Government servant.
17.

The
question
whether
`unauthorized absence from duty' amounts to
failure of devotion to duty or behaviour
unbecoming of a Government servant cannot
be decided without deciding the question
whether absence is willful or because of
compelling circumstances. If the absence is
the result of compelling circumstances under
which it was not possible to report or
perform duty, such absence can not be held
to be willful. Absence from duty without any
application or prior permission may amount
to unauthorized absence, but it does not
always mean willful. There may be different
eventualities due to which an employee may
abstain from duty, including compelling
circumstances beyond his control like illness,
accident, hospitalization, etc., but in such
case the employee cannot be held guilty of
failure of devotion to duty or behaviour
unbecoming of a Government servant.
18.

The
question
whether
"Unauthorized absence from duty" amounts
to failure of devotion to duty or behavior
unbecoming of a government servant cannot
be decided without deciding the question
whether absence is willful or because of
compelling circumstances, have been dealt in
detail by the Hon'ble Supreme Court in the
case of Krushnakant B. Parmar vs. Union of
India and another (2012) 3 SCC 178
observed in paragraphs 17,18 and 19 as
under:-
"17. If the absence is the result of
compelling circumstances under which it
was not possible to report duty, such absence
cannot be held to willful. Absence from duty,
3 All.
Syed Amirul Haq Vs. The State of U.P. & Ors.
1465
such absence cannot be held to be willful.
Absence from duty without any application
or prior permission may amount to
unauthorized absence, but it does not always
mean willful. There may be different
eventualities due to which an employee may
abstain from duty, including compelling
circumstances beyond his control like illness,
accident, hospitalization, etc., but in such
case the employee cannot be held guilty of
failure of devotion to duty or behaviour
unbecoming of a Government servant.
18. In a departmental proceeding, if
allegation of unauthorised absence from
duty is made, the disciplinary authority
required to prove that the absence is
willful, in the absence of such finding, the
absence will not amount to misconduct.
19. In the present case the inquiry
officer on appreciation of evidence though
held that the appellant was unauthorisedly
absence from duty but failed to hold that the
absence was willful; the disciplinary
authority as also the appellate authority,
failed to appreciate the same and wrongly
held the appellant guilty."
19. If employee is unable to attend
duties for a reason like mishap; serious
ailment of his or in family; law and order
problem; failure of transport etc., it cannot
be termed as a case of deliberate or willful
absence.
20. At this juncture it would be
relevant 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 cannot be
said to be willful.
21. In Shri Bhagwan Lal Arya v.
commissioner of Police,Delhi (2004) 4
SCC 560, the Apex Court opined that the
unauthorized absence was not a grave
misconduct inasmuch as the employee
had proceeded on leave under compulsion
because of his grave condition of health.
Be it noted, in the said, it has also been
observed that no reasonable disciplinary
authority would term absence on medical
grounds with proper medical certificate
from Government doctors as a grave
misconduct.
22. Thus it is a settled position of law
since long that in a Departmental proceeding,
if allegation of unauthorized absence from
duty is made, the disciplinary authority is
required to prove that the absence is willful,
in absence of such finding, the absence will
not amount to misconduct.
23.
In the present case, the Inquiry
Officer on appreciation of documents though
held that the petitioner was unauthorisedly
absent from duty but failed to hold that the
absence
was
willful;
the
disciplinary
authority, appellate authority as well as
Revisional Authority also failed to appreciate
the same and wrongly held the petitioner
guilty.
24. Lastly, it may be pointed that the
impugned order of dismissal dated
20.2.2006 suffers from one more defect as
the Superintendent of Police, Chandauli
has dismissed the petitioner from the date
of suspension i.e. 6.12.2003, which is
wholly unjustified and per se bad in law.
1466
 INDIAN LAW REPORTS ALLAHABAD SERIES
Further, as averred above, on 18.6.2004,
the petitioner was reinstated in service
without prejudice to the departmental
inquiry to be conducted against him and
in the said order, it was provided that the
orders with regard to the pay and
allowances for the period he was under
suspension would be passed later on but
no such order was ever passed.
25.
In view of the aforesaid
discussions, the writ petition is allowed in
part. The impugned orders of removal dated
20.2.2006 passed by disciplinary authority,
affirmed by the Appellate Authority and
Revisional Authority cannot be sustained
are hereby set aside.
26. Taking into consideration the
fact that the petitioner has suffered a lot
since the disciplinary proceeding was
drawn in 2001 and in the interregnum, the
petitioner
attained
the
age
of
superannuation, I am not remitting the
proceeding to the disciplinary authority
for any further action. Further, keeping in
mind the fact that the petitioner had not
worked for a long time, I direct that
petitioner shall be treated as reinstated in
service from the date of dismissal to the
date of retirement for the purposes of
payment of post retiral dues like amount
of G.P.F., leave encashment, gratuity,
amount of Group Insurance and pension.
However, the petitioner will not be
entitled for any back-wages. The exercise
for payment of retiral dues and pension
shall be completed within a period of four
months from the date of production of
certified copy of this order by the
respondents/government authorities.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2015
BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
Criminal Appeal No. 2402 of 1981
Tej Pal Singh & Ors.
 ...Appellants
Versus
State of U.P.
...Respondent
Counsel for the Appellants:
Krishna Capoor, D.N. Wali, Dr. Arun Srivastava,
I.N. Mulla, Pramod Dwivedi, Rahul Kakran, S.N.
Mulla, Sikandar Kochar, Virendra Singh
Counsel for the Respondent:
A.G.A.. P.N. Mishra
Cr.P.C.-Section-384,
385,
386-Criminal
Appeal-disposal-when original record of Trail
Court-not traceable-nor reconstruction, nor
retrial possible-in as much as all prosecution
witness died-except to allow the appeal and
set-a-side conviction-in view of Law laid
down by Apex Court-no other option Appeal
allowed.
Held: Para-16
In
view
of
the
aforesaid
discussion,
considering the judgment of the Apex Court
and of this Court, since inspite of best efforts
neither reconstruction of record is possible
nor re-trial is possible, hence, the criminal
appeal can not be deci ded on merit in
absence of relevant prosecution papers
including the statement of witnesses and as
such there is no option but to set aside the
impugned judgment of conviction. In view of
the fact, the judgment and order of
conviction and sentence dated 16.10.1981
passed by 5th Additional District and
Sessions Judge, Bijnor in Session Trial No.
350/79, under sections 147, 148, 302/149
IPC, P.S. Chandpur, District Bijnor, is hereby
set aside.
Case Law discussed:
Crl. Appeal No. 466 of 1980; AIR 1996
Supreme Court 2439 (1); AIR 2004 SC 3235;
1981 Crl.L.J 65; 1982 (19) ACC 128; 2010 (69)
ACC
749;
[1988
JIC
355]