2025:UHC:5603-DB HIGH COURT OF UTTARAKHAND AT NAINITAL HON’BLE JUSTICE SRI MANOJ KUMAR TIWARI AND HON’BLE JUSTICE SRI SUBHASH UPADHYAY Writ Petition (S/B) No. 269 of 2011 Surya Pal (deceased) represented by LRs --Petitioners Versus Public Services Tribunal State of Uttarakhand and others --Respondents -------------------------------------------------------------------- Advocates:- Mr. Siddharth Jain, Advocate for the petitioners. Mr. K.N. Joshi, Deputy Advocate General for the State -------------------------------------------------------------------- The Court made the following: JUDGMENT: (per Hon’ble Justice Sri Manoj Kumar Tiwari) 1. Petitioner has challenged the judgment dated 04.06.2010, rendered by Uttarakhand Public Service Tribunal in Claim Petition No 43/T/2005. He has also challenged the punishment of removal from service imposed upon him, vide order dated 17.07.1997. 2. From perusal of the record, it reveals that petitioner was appointed as Constable (Civil Police) on 18.08.1981; on 31.12.1992 while he was posted in Police Station, Narender Nagar, Tehri Garhwal, he along with other constables was sent to Police Station Tehri for law and order duty; he absented himself from duty on 12.01.1993 without seeking permission or leave and he reported back for duty after 123 days on 14.05.1993 and, he was dismissed from service vide order dated 12.08.1993, passed by Superintendent of Police, Tehri Garhwal. 3. Petitioner preferred Departmental Appeal and the Deputy Inspector General of Police, Pauri Garhwal, vide order dated 17.02.1996, set aside the dismissal order and 1 2025:UHC:5603-DB ordered that the matter be enquired afresh. 4. A charge sheet was issued on 14.05.1996 which was served on petitioner on 15.05.1996; petitioner was required to submit his reply and 07.06.1996 was fixed for recording statement of witnesses and 18.02.1997 was fixed for defence evidence, however, petitioner neither filed reply to the charge sheet nor he participated in the enquiry proceedings and notices sent to the petitioner at his residential address also, could not bear any result therefore, enquiry was conducted ex parte and based on the findings returned by enquiry officer, punishment order was passed against him. Petitioner filed Departmental Appeal which was dismissed by Deputy Inspector General of Police, vide order dated 10.09.1998. 5. Before learned Tribunal, petitioner challenged the dismissal order and the order passed by Appellate Authority on the two following grounds: (i) Petitioner was not given opportunity to defend himself during departmental enquiry. (ii) The disciplinary authority took into consideration the past conduct of the petitioner for the purposes of punishment. 6. Learned Tribunal held that petitioner himself is to be blamed for not filing reply to the charge sheet and for not participating in the disciplinary enquiry despite repeated notices. 7. Regarding second ground of challenge taken by the petitioner, learned Tribunal held that mere mentioning of past conduct of petitioner in the enquiry report will not vitiate the enquiry, by relying on the law declared by 2 2025:UHC:5603-DB Hon’ble Supreme Court in the case of Union of India and others Vs. Bishamber Das Dongra, (2010) 1 SCC (L&S) 212. Against dismissal of his claim petition by learned Tribunal, petitioner has approached this Court. 8. Learned counsel for petitioner submitted that in the facts and circumstances of the case, Rule 16 of U.P. Police Officers of the Sub ordinate Ranks (Punishment and Appeal) Rules, 1991 is attracted and before taking departmental proceedings in absentia, the concerned authority was required to record in writing that despite best efforts it was not possible to contact the petitioner. Rule 16 of the aforesaid Rule is extracted below:- “16. Proceedings in absentia – (1) Departmental proceedings against delinquent police officers may be taken in absentia by the authorities competent to take departmental proceedings if, the police officer, against whom departmental proceedings are pending or against whom it is proposed to start such proceedings or to whom it is responsible for the enquiry officer to contact, deliberately absents himself from the place of his posting or from the proceedings when in progress. (2) Before taking departmental proceedings in absentia, the concerned authority shall record in writing that in spite of all reasonable steps having been taken to contact the police officer it has not been possible to serve the charge on him and obtain his explanation or to secure his personal presence. Explanation – Where the police officer is contacted personally or the charge or the notice is sent to him by registered post at the address given by him as recorded in his character roll and at the place of his present stay, or sent to him by Special Messenger at the place of his present stay, and at the address given by him as recorded in his character roll it shall be presumed that reasonable steps have been taken to contact the police officer concerned.“ 9. The contention raised by learned counsel for petitioner cannot be accepted. Perusal of Rule 16(2) reveals that Rule 16 of said Rules would be attracted in cases where it is not 3 2025:UHC:5603-DB possible to serve the charge sheet on a police officer of subordinate rank. 10. It is not in dispute that charge sheet was duly served upon the petitioner. In fact, in para 11 of the writ petition, petitioner has made a statement that charge sheet was issued to petitioner on 14.05.1996 and petitioner submitted his reply on 28.05.1996. Thus, reliance on Rule 16 of the aforesaid rules is misplaced as petitioner did not participate in the enquiry proceedings despite service of charge sheet. Therefore, the contention that he was not given opportunity to defend himself, is not sustainable in the eyes of law. 11. Learned counsel for petitioner then submitted that in the enquiry report, there is reference to the past conduct of petitioner which was not the subject matter of enquiry, therefore, the enquiry proceedings stand vitiated due to reference of past conduct. 12. Learned counsel for petitioner submits that petitioner’s absence from duty was not willful as his wife was ailing and petitioner had to look after her. He submits that in view of law declared by Hon’ble Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India and Another, reported in (2012) 3 SCC 178, punishment of removal from service imposed upon the petitioner is liable to be set aside. 13. The judgment relied by learned counsel for the petitioner is distinguishable on facts. In that case, the concerned employee was transferred during the pendency of disciplinary enquiry. The transfer order was set aside by Central Administrative Tribunal by holding that the order of 4 2025:UHC:5603-DB transfer is vitiated due to malice in law and fact, which was affirmed by Hon’ble Gujarat High Court. In peculiar facts of that case, Hon’ble Supreme Court set aside the order of dismissal from service. The said judgment is distinguishable on facts; therefore, it does not support the case of the petitioner. 14. Hon’ble Supreme Court in the case of Government of A.P. and others Vs. Mohd. Taher Ali, reported in (2007) 8 SCC 656 has held that there can be no hard-and-fast rule that merely because the earlier misconduct has not been mentioned in the charge-sheet, it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often only to reinforce the opinion of the said authority. The police force is a disciplined force and if the respondent is a habitual absentee, then there is no reason to ignore this fact at the time of imposing penalty. Perusal of the record reveals that respondent was in the habit of remaining absent from duty without seeking permission or leave. Members of the uniformed forces cannot absent themselves on frivolous plea, having regard to the nature of duties enjoined on police force. 15. In the case of Union of India and others Vs. Datta Linga Toshatwad reported in (2005) 13 SCC 709 held as under: “8. The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16-6-1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous 5 2025:UHC:5603-DB duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged. 16. Learned Tribunal has given valid reasons for dismissing the claim petition. We concur with the reasons given by learned Tribunal. Thus, there is no scope for interference in the matter. The writ petition fails and is dismissed. No order as to costs. _______________________________ MANOJ KUMAR TIWARI, J. ____________________________ SUBHASH UPADHYAY, J. Dt: 2nd July, 2025 Mahinder 6 MAHINDER SINGH Digitally signed by MAHINDER SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=da6212e6e78d94ed3134842bc6a8d6ca168979ca7b8c2f0 31a92d1a18b08923c, postalCode=263001, st=UTTARAKHAND, serialNumber=AB77B7C5B240908B392BE84F5CDD4C2AF35DC46 26D305B1BC9EA4BABA43D2B8F, cn=MAHINDER SINGH Date: 2025.07.15 17:29:02 +05'30'