Allowed

Shripal Singh v. State of U.P. and 3 Others

Allahabad HC13 Oct 2020WRIA/5396/2020

Case brief

AI extract

What is this about?

This Single Judge Bench held that an order denying pay due to absence violated service rules by failing to consider the petitioner's reply. The order was set aside and remitted for a reasoned decision.

What did the court decide?

The impugned order dated 02.09.2019 is set aside. The matter is remitted to the Superintendent of Police, Shamli, to consider the reply afresh and pass a reasoned order.

Shripal Singh Vs State of U.P. and 3 Others — Pension and Retirement Benefits | Allahabad HC (2020)

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Court No. - 83

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Case :- WRIT - A No. - 5396 of 2020

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Petitioner :- Shripal Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- J.P. Singh,Ranjan Krishna Pandey Counsel for Respondent :- C.S.C.

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Hon'ble Ajay Bhanot,J.

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By the order dated 02.09.2019 passed by the respondent No.3-Superintendent of Police, Shamli assailed in this writ petition, the period of absence of the petitioner from 16.11.2018 for a period of 238 days was recorded as a period for which the petitioner would not be entitled for any pay on the footing of the principal "no work no pay".

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Assailing the impugned order dated 02.09.2019, Sri J.P. Singh, learned counsel for the petitioner contends that the petitioner had submitted a detailed reply to the competent authority explaining the reasons for absence. The petitioner was entitled to adjustment of period of absence against medical leave or extraordinary leave under Fundamental Rule 73 of the Financial Hand Book Volume-II. The impugned order dated 02.09.2019 does not consider the reply of the petitioner. The impugned order dated 02.09.2019 is vitiated because of non application of mind.

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Per contra, learned Standing Counsel for the State - respondents submits that the petitioner belongs to a disciplined force. Absence from duty without taking permission of the competent authority amounts to an

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act of indiscipline. The petitioner is not entitled to benefit from his acts of negligence. He cannot avail benefit of salary since his absence could not be justified. However, in all fairness the learned Standing Counsel could not dispute the fact from the record that the impugned order does not consider the reply of the petitioner.

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Heard Sri J.P. Singh, learned counsel for the petitioner and learned Standing Counsel for the State - respondents.

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The petitioner was absent from duty continuously for a period of 238 days with effect from 16.11.2018. Such conduct is bound to invite action from the competent authority. A show cause notice dated 28.08.2019 was issued to the petitioner to explain his absence. The petitioner tendered a reply explaining/justifying his absence from duties.

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At this stage, it is apposite to refer the Fundamental Rule 73 of Parts 2 to 4 of Financial Hand Book Volume-II, which regulates the entitlement of officers who are absent from duty and guides the action of competent authorities in such matters:

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"73. A government servant who remains absent after the end of his leave is entitled to no leave-salary for the period of such absence, and that period will be debited against his leave account as though it were leave on half average pay, unless his leave is extended by the Government. Wilful absence from duty after the expiry of leave may be treated as misbehaviour for the purpose of rule 15.

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Note - In the case of a government servant governed by leave rules laid down in Fundamental Rule 81-B and Subsidiary Rule 157-A, who remains absent after the end of his leave, the period of such overstayal of leave should, unless the leave is extended by the competent authority, be treated as follows:

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(a) If the government servant is in superior service and holds a lien on a permanent post-

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(i) as leave on private affairs to the extent such leave is due unless the overstayal is supported by a medical certificate.

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(ii) as leave on medical certificate to the extent such leave is due, if the overstayal is supported by a medical certificate,

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(iii) as extraordinary leave to the extent the period of leave on private affairs and/or on medical certificate falls short of the period of overstayal;

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(b) If the government servant is in superior service without a lien on a permanent post or in inferior service, as in (a) (ii) and (iii) above mutatis mutandis.

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The period of overstayal of leave will be debited as leave taken but no leave salary will be paid for such period unless it is covered by an extension of leave granted by the competent authority."

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The impugned order dated 02.09.2019 declines to adjust absence with leave on the footing of the principal "no work no pay". The impugned order cryptically records that the reply of the petitioner to the show cause notice was unsatisfactory. On this finding alone, the impugned order has been passed denying the possible benefits under the Fundamental Rule 72 to the petitioner.

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Absence without leave has to be accounted for by the petitioner. The police authorities cannot countenance

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the conduct of members of the force who remain wilfully absent from duty. The proceedings were rightly initiated. However, the authority erred in law by passing a non speaking order. The order completely fails to consider the reply tendered by the petitioner for grant of benefits of regularization of leave under Fundamental Rule 72. In a case of wilful absence from duty and refusal to grant the concessions under Fundamental Rule 72, it is imperative for the competent authority to adhere to the following procedure:

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I. The competent authority should issue a notice asking the concerned official to show cause for absence from duty.

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II. The competent authority should apply its mind to the reply of the concerned official and records of the case before passing any order.

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III. The competent authority has to pass a reasoned order reflecting due application of mind to the reply submitted by the petitioner and the records of the case. The observations made above are not in any manner intended to constrain the choices of the authority but only to guide its discretion.

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In light of preceding discussions, I find that the order dated 02.09.2019 is a non speaking order which visits the petitioner with penal consequences. The order dated 02.09.2019 is arbitrary and illegal.

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The impugned order dated 02.09.2019 passed by the respondent No.3-Superintendent of Police, Shamli is liable to be set aside and is set aside.

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The matter is remitted to the respondent No.3Superintendent of Police, Shamli.

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A writ in the nature of mandamus commanding the respondent No.3-Superintendent of Police, Shamli to execute the following directions:

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I. The respondent No.3-Superintendent of Police, Shamli shall consider the reply of the petitioner afresh and pass a reasoned order consistent with the observations made in this order and in accordance with law within a period of four weeks from the date of production of a computer generated copy of this order, downloaded from the official website of the High Court Allahabad along with a fresh copy of reply and supporting documents, if any. The computer generated copy of such order shall be self attested by the petitioner (party concerned) along with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. The Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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II. It is clarified that this Court has not gone into

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merits of the controversy. It is for the competent authority to decide the matter after independent application of mind in accordance with law.

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The writ petition is allowed to the extent indicated above.

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Order Date : - 13.10.2020 Ashish Tripathi

Shripal Singh v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Shripal Singh v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

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