MADHAV PRASAD SHARMA Vs. STATE OF UP

JUDGEMENT

(1.) This writ petition has come up before this Court upon remission from the Supreme Court in terms of its judgement and order dated 10.1.2011.

(2.) Briefly stated the facts of the case are that the petitioner was appointed as Constable in the Civil Police, Aligarh on 1.2.1978. At the time of the incident which is relevant for the purposes of the case he was posted in the Police Station Sikandarpur Vaishya. On 19.10.2001 he is stated to have gone on his official duty to the office of the Circle Officer, City Office, Agra but he fell ill and instead went to his house. According to him he informed the respondents about his illness by U.P.C. dated 25.10.2001 alongwith an application requesting that medical leave be sanctioned to him. He is stated to have recovered his health and thereafter reported for joining his duties on 28.1.2002 alongwith medical certificate as well as fitness certificate and medical prescriptions and receipts of the medical stores. Treating this period from 19.10.2001 to 28.1.2002 as unauthorized absence from service, the petitioner was issued a charge sheet on 23.3.2002. He submitted his reply to the charge sheet on 2.9.2002 denying the charges. The departmental proceedings were held against the petitioner and the enquiry officer submitted his report on 9.10.2002 as the petitioner is stated to have been ill from 11.5.2002 upto 9.6.2002 and again from 11.6.2002 upto 1.8.2002. Two show cause notices were issued to the petitioner both dated 25.10.2002 one with regard to treating the period of unauthorized absence from duty as without pay and the other being a recommendation of the enquiry officer that he be dismissed from service. The petitioner submitted his reply on 16.11.2002 and thereafter two orders both dated 23.11.2002 (Annexure 13 and 14 to the writ petition) were passed; by one order, the period of unauthorized absence of 101 days from duty was treated as leave without pay and by the second order dated 23.11.2002, the punishment of dismissal from service was awarded to the petitioner. The petitioner filed a departmental appeal before the Dy. Inspector General of Police, Agra on 23.12.2002 against the order of dismissal and another appeal dated 24.12.2002 against the order for treating his period of unauthorized absence as leave without pay. The said appeals were dismissed by the appellate authority by the order dated 27.2.2003.

(3.) Earlier this writ petition had been allowed by order dated 17.9.2008 by a learned Single Judge of this Court on the ground that two punishments on one charge cannot be imposed as the petitioner's services had already been regularized by sanctioning the leave without pay and as such the order of dismissal dated 23.11.2002 cannot be sustained. Aggrieved the State of U.P. filed Special Leave Petition (C) No. 31461 of 2009 on which leave being granted and was converted to Civil Appeal No. 242 of 2011. The Supreme Court set aside the order of the learned Single Judge holding that the doctrine of double jeopardy enshrined in Article 20(2) of the Constitution of India has no application in the event of there being only one punishment awarded to the respondent under the Rules on charges being proved during the course of disciplinary enquiry. Relying on the decision of the Supreme Court Maan Singh Vs. Union of India, 2003 3 SCC 464 as well as in the case State of U.P. Vs. Hari Har Gopal and others,1969 3 SLR 274 the Supreme Court held that the conclusion of the learned Single Judge that the delinquent has suffered two punishments cannot be sustained inasmuch as in Hari Har Gopal it has been held that in the absence of regularization of unauthorized absence it may not be possible for the employer to continue with the disciplinary proceedings as there would be a break in service and thus regularization of such absence even without pay is justified in order to continue with the disciplinary proceedings. The Supreme Court thereupon remitted the matter to the High Court for fresh disposal.