Shabir Ahmed vs State of Jammu and Kashmir

Janak Raj Kotwal, J.—This writ petition primarily seeks quashing of Order No. 158 of 1999 dated 28.4.1999 issued by the Sr. Superintendent

of Police, Border, Jammu herein respondent No. 5, whereby petitioner’s overstayed leave period from 28.10.1998 to 25.01.1999 has been

treated as on Earned Leave and annual increment of the petitioner has been ordered to be stopped for six months,

Heard. I have perused the record.

Background facts, briefly, arc these :

3(a) Petitioner, a constable in Jammu and Kashmir Police, who at the relevant time was posted in Border Police, District, Jammu, proceeded on

two days casual leave which was sanctioned on 28.10.1998. He was to report back to his duty on 31.10.1998. He, however, reported to duty on

25.1.1999 and, thus, overstayed the sanctioned leave by 86 days. In between petitioner had sent two telegrams seeking extension of 20 days

earned leave each, which were received in the office on 3.11.1998 and 15.12.1998. The Departmental Inquiry as envisaged under Rule 359 of the

Jammu & Kashmir Police Rules was initiated against the petitioner for his unauthorized overstay of 86 days. He was charge-sheeted and the Dy.

Superintendent of Police (SDPO), R.S. Pura was appointed as Inquiry Officer.

3(b) The inquiry report dated 17.3.1999 submitted by the Inquiry Officer would show that the stand of the petitioner in his reply to the charge-

sheet was that he had proceeded on two days casual leave to see his ailing mother. On reaching his home he found his mother in SDH, Mendher

so he remained as attendant with her during treatment period from 2.11.1998 to 6.12.1998. He stated further that during the treatment of his

mother he himself suffered from typhoid on 3.12.1998 and remained admitted under treatment up to 24.1.1999. He reported back to his duty on

25.1.1999 and in between he had sent two telegrams seeking extension of leave for 20 days each. He also produced medical certificates before

the Inquiry Officer.

3(c) 1 he Inquiry Officer submitted his report to the Superintendent of Police, herein respondent No. 5, vide his No. 740/SDR dated 17/3/1999.

Relevant portion of his report reads;

I have gone through the enquiry papers on file, as well as medical certificates/receipts of telegrams submitted by the officials. As per medical

certificate issued in favour of mother of the official she has remained under treatment w.e.f. 2-11-98 to 6-12-98 whereas the official was due to

report back on 31-10-98 i.e. 2 days prior to the advised treatment of his mother and he can easily inform the department well in time but he did

not do so and informed on 3-11-98. Moreover as per medical certificate, his mother has not shown to be admitted in any hospital during her

treatment period. Similarly, medical certificate of the official also does not indicate his admission but simply under treatment w.e.f. 3-12-98 to 24-

1-99 which is also doubtful as there has cutting in the date. The; official has produced two telegramm’s receipts which indicate 40 days leave

only whereas he has consumed 86 days. In view of these facts and circumstances the plea of official is not convincing the undersigned. It is,

therefore, recommended that annual increment of Const. Shabir Ahmed No. 2105/J may be stopped for a period of six months which falls next

due to the constable. His period of absence front leave w.e.f. 31-10-99 to 24-1-1999 i.e. 86 days may be treated on leave what so ever kind is

due to the official.

3(d) Respondent No. 5 in his capacity as the accepting authority accepted the recommendations of the Inquiry Officer and issued the impugned

order. Petitioner submitted the representation against the impugned order to Dy. Inspector General Jammu-Kathua Range who rejected the same

vide his order No. 675 of 2001 dated 18.10.2001. Review application against this order came to be rejected vide No. 248/02 dated 1.8.2002.

Petitioner claims to have preferred an appeal before the Inspector General of Police Jammu Range followed by a review application which was

rejected too. Petitioner ultimately preferred appeal against the order of Inspector General to the Director General of Police which was also

rejected vide order No. 1696 of 2004 dated 10.06.2004.

Ground on which the petitioner assails the order dated 28.04.1999 issued by respondent No. 5 and the subsequent orders passed in his

representations/review application/appeal to respondents-2 to 4 is comprised in paragraph-8 of the writ petition. It is contended that certificates

issued by the doctor were required to be considered by the respondents because similar certificates produced by similarly situated persons had

always been accorded consideration to and the petitioner is also entitled to similar treatment. It is contended also that order to the extent of

stoppage of increment is ""quite violative, discriminatory, arbitrary and illegal"" and liable to be quashed. It is contended further that leave was due to

the petitioner and period of his overstay was treated as earned leave. Petitioner has contended also that he was not a habitual absentee and wanted

to serve the department with dedication.

Mr. Sheikh Najeeb, learned counsel for the petitioner, submitted that in passing the impugned order respondent No. 5 has acted arbitrarily

inasmuch as no consideration has been accorded to the reasons which compelled the petitioner not to report back to duty immediately after two

days of sanctioned leave and even after that. He submitted also that overstay and absence of the petitioner was not intentional as he was compelled

by the circumstances not to leave his ailing mother and also because of his own ill health.

Per contra, Mr. W.S. Nargal, learned AAG. appearing for the respondents submitted that neither the finding on fact recorded by t he Inquiry

Officer has been questioned by the petitioner nor such a finding can be reopened in exercise of writ jurisdiction of this Court. In support, Mr.

Nargal referred to paragraph- 12 of the reporting of a judgment of this Court in Farooq Ahmad Matoo v. State & Ors., KLJ 2000 20 which

reads;

12 The conclusions arrived at by the Enquiry Officer and the orders passed by Competent Authority thereto, cannot be re-opened and examined

in this court as if this court is sitting in appeal against the order of the competent authority. The competent authority has ordered treatment of the

period of absence rather discharge from force as dies non on the available record and on consideration of the matter. This court is not supposed to

question the wisdom behind the impugned order do long the powers are exercise by the competent authority regarding treatment of period of

absence, as in this case, within the parameters of law and rules. Whether the petitioner was reinstated as a humanistic gesture to the son of the

police personnel who died in service or whether the petitioner was found to be unauthorisedly absent are matters to be determined m the material

and evidence on enquiry. The finding of the enquiry officer thereto cannot be questioned before the writ court, so long the finding and treatment of

the case of the competent authority is not perverse and vitiated by legal malice. Normally the finding of the fact based on material cannot be

subjected to interference in writ jurisdiction.

It is not disputed that petitioner had proceeded on two days’ casual leave which was sanctioned on 28.10.1998. He was required to report

back to duty on 31.10.1998; he joined on 25.1.1999 and, thus, overstayed without duly sanctioned leave for 86 days. It is also not disputed that

in the intervening period he had twice telegraphically sought 20 days earned leave each. These telegrams were received in office 3.11.1998 and

15.12.1998.

As per the inquiry report the stand taken by the petitioner before the Inquiry Officer was that on reaching home he had found his mother

admitted in .SDH, Mendher so he remained attending her from 02.11.1998 to 6.12.1998. It was further stated by him that he himself suffered

from typhoid on 03.12.1998 and remained admitted/under treatment up to 24.01.1999. Inquiry Officer on perusal of the medical certificates

produced before him, however, found that mother of the petitioner was not shown to the admitted in the hospital nor does the admission of the

petitioner in the hospital was indicated. He also noticed that as against 86 days overstay the petitioner had sought leave for 40 days only.

Petitioner is a member of police force and was expected to maintain high standard of discipline and show high level of sensitivity to his duty.

Petitioner left for his house falling far away in Tehsil, Mendher by availing two days casual leave only. He did not think it proper to apprise himself

as to whether the twenty days’ extension of leave sought by him twice was sanctioned or not and overstayed even beyond the said period of

forty days. Petitioner does not seem to have explained before the Inquiry' Officer nor has explained in this writ petition as to why he did not or it

was not possible for him to appraise himself about extension of leave sought by him as also why he did not feel it proper to seek extension of leave

beyond 40 days as he overstayed for 86 days.

In explaining absence without sanctioned leave mere producing a medical certificate certifying illness of the Government servant or any member

of his family will not suffice and in addition it must be shown satisfactorily that illness was such that the Government servant was incapacitated from

reporting back to/or attending his duty and at some stage even seeking of leave/extension of leave in any manner was not possible. In addition the

medical certificate when produced must inspire confidence of the Competent Authority about the reality of the illness. The Inquiry Officer in his

report has given cogent reasons for not relying upon the medical certificates produced by the petitioner and no illegality can be said to have been

committed by respondent-5 in accepting the report and passing the impugned order.

Factual aspect of the matter being indisputable, petitioner cannot succeed only by contending that the order is discriminatory or arbitrary. I,

thus, find no ground for interfering with the finding arrived at by the Inquiry Officer and the order passed by the respondent-5 similarly the question

of interfering with the orders passed in the appeal/representations does not arise.

Viewed thus, there is no merit in this writ petition and the same is, accordingly, dismissed.