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2002 DIGILAW 982 (PAT)

Balram Jha v. State Of Bihar

2002-09-10

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. Petitioner was a Sepoy in B.M.P., V and in this writ application, prayer made by him is to quash the enquiry report dated 5.7.99, the order of disciplinary authority dated 9.10.99 (Annexure-8) whereby he has been dismissed from service and the order dated 7.11.2000 passed by the Deputy Inspector General of Police i.e. the appellate authority by which the appeal preferred against the order of the disciplinary authority has been dismissed. 2. Short facts giving rise to the present application are that the petitioner was appointed as Sepoy in the Bihar Military police on 1st of August,1988 and while he was working as Sepoy, a departmental proceeding was initiated against him. Allegation against him was that on 21.8.1997 by Command Certificate No. 559/62 he was sent to join D Company, which is at a distance of 5 K.M. but the petitioner, instead of joining there, deserted the force. Petitioner, by several letters sent to his home address, was directed to be present for duty but he did not appear. Ultimately a Sub Inspector of Police was sent to his residence and he brought the petitioner for duty on 4.4.98 i.e. after absence of 226 days. It was further alleged that again without any leave of permission he deserted the camp on 16.4.98 and then presented himself after 12 days on 28.4.98. It was also found that the petitioner had deserted the force nine times earlier. Plea of the petitioner was that he was mentally sick and was under treatment of psychiatric and, therefore, did not join the duty. The Enquiry Officer considered the plea of the petitioner regarding his mental sickness but did not accept the same and submitted the report dated 5.7.99 (Annexure-1) holding the petitioner guilty of misconduct. 3. After the submission of the enquiry report, petitioner was given the second show cause notice dated 3.8.99 (Annexure-5) to show cause against the proposed punishment of dismissal. Petitioner did not file his show cause and the disciplinary authority on consideration of the report given by the Enquiry Officer agreed with his finding that the plea of mental sickness taken by the petitioner is not trustworthy and accordingly by order dated 9.10.99 (Annexure-8) passed the order of dismissal from service. Aggrieved by the same, petitioner preferred appeal and the Deputy Inspector General of Bihar Military Police i.e. the appellate authority by order dated 7.11.2000 (Annexure-7) dismissed the appeal. Aggrieved by the same, petitioner preferred appeal and the Deputy Inspector General of Bihar Military Police i.e. the appellate authority by order dated 7.11.2000 (Annexure-7) dismissed the appeal. 4. In this writ application prayer of the petitioner is to quash the enquiry report dated 5.7.99 (Annexure-1), order of the disciplinary authority dated 9.10.99 (Annexure-8) and the order of the appellate authority dated 7.11.2000 (Annexure-7). 5. Mr. Mishra appearing on behalf of the petitioner reiterates the same submission of mental sickness in this writ application also. He submits that the petitioner was mentally sick and, therefore, did not join at the place of posting and the finding recorded to the contrary by the authorities is fit to be reversed by this Court in exercise of its writ jurisdiction. It is well settled that this Court interferes with the finding of fact of subordinate authorities only when it is shown that while recording the finding irrelevant materials have been considered and relevant material ignored or the conclusion is perverse i.e. no reasonable person instructed in law would come to that finding on the basis of material in existence. Here in the present case the plea of mental sickness and the documents produced in support thereof have been considered and the enquiry officer, the disciplinary authority and the appellate authority have concurrently come to the conclusion that the plea of the petitioner of mental sickness is not fit to be accepted. The concurrent finding recorded by these authorities is on consideration of relevant material and cannot be termed to be perverse. Hence the finding recorded by the authorities does not require any interference by this Court in exercise of its writ jurisdiction. 6. In order to satisfy myself I have also examined the plea of the petitioner regarding his mental sickness. As stated earlier the charge against the petitioner is that on 21.8.97 he was asked to join D Company which is at a distance of about 5 K.M. Petitioner has produced prescriptions granted by a Neuro Psychiatrist dated 28.7.97, 7.12.97, 4.12.97, 1.4.98, 30.10.99 and 11.1.2000 to show that he was treated on those dates. The earliest prescription is dated 28.7.97 and it was on 21.8.97 he was asked to join D Company. In case the petitioner was mentally sick, he, in normal course, would have apprised the officer on duty on the same day. The earliest prescription is dated 28.7.97 and it was on 21.8.97 he was asked to join D Company. In case the petitioner was mentally sick, he, in normal course, would have apprised the officer on duty on the same day. It is not the case of the petitioner that while on way to join D Company, which, as stated earlier, is at a distance of 5 K.M., he had some attack and, therefore, did not join the place of posting. Further when the petitioner could get himself treated privately by a Neuro Psychiatrist at Ranchi i.e. about a distance of 300 K.M. as out door patient, there was no occasion for him not to join the post or apprise the authority about his illness, Matter would have been different had the petitioner admitted as an indoor patient in the mental hospital during the period of desertion. His admission to mental hospital at a later stage will not lead to the conclusion that the petitioner was mentally sick for the period of desertion and for which departmental proceeding was initiated against him. 7. No procedural flaw has been pointed out either in the conduct of enquiry by the enquiry officer or the disciplinary authority while passing the impugned order of dismissal. 8. I do not find any merit in this application and it is dismissed accordingly.