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2002 DIGILAW 1063 (JHR)

Bhim Dubey v. State Of Bihar

2002-09-25

M.Y.EQBAL

body2002
JUDGMENT M.Y. Eqbal, J. 1. The petitioner has prayed for quashing the Memo No. 3755/86 dated 2.12.1986 by which he has been dismissed from service and also the orders dated 28.7.1987, 22.6.1989 and 30.9.1992 passed by the Inspector General of Police and Director General of Police in appeal and revision confirming the order of dismissal of the petitioner from service and rejecting his appeal and revision. 2. The petitioner was in the service of the respondent-Police Department as a Sepoy. After his appointment as such he was posted at Chaibasa. In 1986 because of his unauthorized absence from June, 1986 to November, 1986 he was charge- sheeted and on the same day i.e. on 11.11.1986, he was suspended. A copy of the memo of charge-sheet has been annexed as Annexure-2 to the writ application. When the Superintendent of Police who was the Disciplinary Authority did not receive any reply to the said charge from the petitioner, he passed the impugned order of dismissal of the petitioner from service on 2.12.1986. The petitioner preferred an appeal before the Inspector General of Police which Was rejected on 28.7.1987. The petitioner then filed another appeal before the Director General of Police which was also rejected on 22.6.1989. The petitioner then filed revision/review application before the Deputy Inspector of General which was also rejected on 30.9.1992 but with certain modification regarding the effective date of dismissal. All these orders have been challenged by the writ petitioner in this writ petition. 3. The respondents in their counter-affidavit stated that the petitioner was appointed on purely temporary basis subject to completion of his probation. From the very beginning he was found to be habitual absconder. Ultimately action under Rule 843 and 824 of the Police Manual was taken against him. It is contended that the order of discharge passed by respondent No. 5 the Superintendent of Police, Singhbhum West Chaibasa is fully justified. 4. Mrs. M.M. Pal, learned counsel for the petitioner assailed the impugned orders mainly on the ground that no departmental inquiry was initiated after the charge-sheet was sent to the petitioner. Without conducting any sort of inquiry and without giving any opportunity of hearing to the petitioner the impugned order of dismissal was passed by the Superintendent of Police just after few days. 5. Without conducting any sort of inquiry and without giving any opportunity of hearing to the petitioner the impugned order of dismissal was passed by the Superintendent of Police just after few days. 5. From perusal of Annexure-2 which is a copy of the charge- sheet it appears that the only charge against the petitioner was that he absented from duty without any leave or permission of the authority from 9.6.1986. In the charge- sheet the petitioner was called upon to submit his explanation by 30.11.1986. The said charge-sheet appears to have been issued vide Memo No. 3420 dated 13.11.1986. Curiously enough on the next date the order of dismissal was passed and that was given effect to from 25.11.1986. 6. In the counter-affidavit it has been categorically stated that the action of dismissal of the petitioner from service was taken in accordance with Rules 824 and 843 of the Police Manual. Rule 824 speaks about the nature of punishment to be imposed onthe members of the Police Department of the rank of Constables/Havildors. Rule 843 specifically lays down the procedures for imposing punishment on account of absence without leave. Rule 843 of the Police Manual reads as under. "843. Punishment for absence without leave.--Wilful overstayal of leave or absence from duty without leave shall be treated as mis-behaviour and after obtaining the explanation of the officer concerned proceedings shall invariably be drawn up and departmental punishment inflicted. If after explanation, it appears that a Police Officer had remained absent from duty due to any sufficient reason he shall be granted leave admissible to him for that period. If it is proved that he has violated the rules at his own will, he can be inflicted with any punishment as provided in Rule 824. The Police Officer who shall be absent from duty without permission shall be liable under Section 29 of the Act V of 1861, as amended by Section 9 of the Act VIII of 1985. Such action however, should be taken only in special circumstances. As a rule whenever an officer does not return in time on duty, enquiries shall be made by the Superintendent/Commandant within one week from the S.P. of his native district, and should there appear that the officer has not returned to his duties in time for good reasons he should be suspended and departmental proceeding should be undertaken as per rule." 7. From bare perusal of the aforesaid provision it is manifest that before imposing a major punishment like dismissal from service, the delinquent must be subjected to a departmental proceeding but no departmental proceeding was initiated rather, only after issuing charge-sheet order or punishment was passed. On this sole ground alone the impugned order of punishment cannot be sustained in law. Beside the aforesaid rule which is very clear that dismissal of a constable on the charges of absence without leave punishment can be inflicted only after initiation of departmental proceeding the law in this regard is also settled. Reference in this connection may be made to a decision of the Supreme Court reported in 2000 (5) SCC 65 . 8. Mrs. I. Sen Choudhary, learned State counsel raised an objection with regard to the delay in filing the writ application. According to the learned counsel when the appeal was dismissed in 1989, the petitioner without filing any revision, ought to have approached this Court within a reasonable time but the writ petition was filed after about 5-6 years, much less 3 years from the date when the revision was dismissed. From perusal of the revisional order passed by the Deputy Inspector General of Police dated 30.9.1992 it appears that he has applied his mind and after reconsidering the entire facts, modified the order of punishment by setting aside that part of the dismissal order which was given effect to from 25.11.1986. In my view the matter is, therefore, fit to be remitted back to the Disciplinary authority to proceed afresh from the stage charge-sheet served upon the petitioner. 9. For the reasons aforesaid this writ application is allowed and the impugned orders of punishment as contained in Annexures 3, 5, 6 and 7 are quashed. The matter is remitted back to the Superintendent of Police, West Singhbhum, Chaibasa to proceed afresh from the initial stage of submission of reply to the charge-sheet. The petitioner shall file his detailed reply to the charge served upon him within eight weeks from today along with a copy of this order. After receipt of the reply the Disciplinary Authority shall proceed with the departmental inquiry in accordance with the procedures provided in the Police Manual and conclude the proceeding within a period of six months from the date of submission of the reply. After receipt of the reply the Disciplinary Authority shall proceed with the departmental inquiry in accordance with the procedures provided in the Police Manual and conclude the proceeding within a period of six months from the date of submission of the reply. In the meantime, the respondents shall also consider the grievance of the petitioner with regard to payment of subsistence allowance and pass appropriate order for payment of the same.