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2007 DIGILAW 224 (PAT)

Binod Kumar Singh v. State Of Bihar

2007-02-01

S.K.KATRIAR

body2007
Judgment 1. Heard Mr. Amaresh Kumar Singh for the petitioner, and Mr. Marut Nath Roy, learned junior counsel to Standing Counsel No. XI. This writ petition relates to disciplinary proceedings. The petitioner challenges the order of dismissal, the appellate order, and the revisional order, and are as follows: (i) Food Order No. 486 of 1994, dated 22.11.1994 (Annexure-2), passed by the Superintendent of Police (Food), C.I.D., Patna, in Food Departmental Proceeding No. 2/91, whereby the petitioner has been dismissed from service for unauthorised absence; (ii) The appellate order dated 6.11.1996 (Annexure-3), passed by the Deputy Inspector General of Police (C.I.D.), Bihar, Patna, whereby the appeal was dismissed; and (iii) The revisional order dated 26.11.1998 (Annexure-4), passed by the Assistant to the Inspector General of Police (Personnel), Bihar, Patna, by the order of the Director General-cum-Inspector General of Police, whereby the revision application was dismissed. 2. The respondents have placed on record their counter affidavit and have supported the impugned action. 3. According to the writ petition, the petitioner was appointed as a Constable in the Bihar Police Force on 21.1.1981. He had granted three days leave commencing 5.11.1990, and ought to have reported on 8.11.1990. He was, therefore, served with the charge-sheet dated 31.11.1991 (Annexure-1), initiating departmental proceeding against him for continuous unauthorised absence since 8.11.1990. He neither filed his show-cause nor appeared during the course of enquiry proceeding. The enquiry officer submitted his report dated 30.12.1993 (Annexure-A to the counter affidavit), which was ex parte enquiry report, wherein he found that the petitioner was guilty of prolonged, unauthorised absence. The disciplinary authority considered the materials on record including the enquiry report and passed the impugned order of punishment dated 22.11.1994 (Annexure-2), whereby he was dismissed from service. The petitioner preferred appeal in terms of Rule 852 of the Bihar Police Manual which was rejected by the impugned order dated 6.11.1996 (Annexure-3) on the ground of inordinate delay. The petitioner preferred revision application which has been rejected on merits by the impugned order dated 26.11.1998 (Annexure-4), whereby the revision application was dismissed on merits. Hence this writ petition. 4. While assailing the validity of the impugned action, learned counsel for the petitioner submits that the charge-sheet was confined to unauthorised absence for three days, whereas the enquiry report as well as the order of the disciplinary authority cover a much longer period of absence. The charge-sheet is, therefore, vague. Hence this writ petition. 4. While assailing the validity of the impugned action, learned counsel for the petitioner submits that the charge-sheet was confined to unauthorised absence for three days, whereas the enquiry report as well as the order of the disciplinary authority cover a much longer period of absence. The charge-sheet is, therefore, vague. He relies on the judgment of the Supreme Court in the case of Sawai Singh V/s. State of Rajasthan, reported in AIR 1986 SC 995 , Paragraph-15. He further submits that he was not afforded reasonable opportunity of hearing at any stage and, therefore, the proceedings from the stage of enquiry till the revisional stage are in violation of the basic principles of natural justice. He relies on the judgment of the Supreme Court in the case of Ram Chander V/s. Union of India and Others, reported in AIR 1986 SC 1173 , paragraph-22. He next submits that notices of the enquiry proceedings were never served on him. He lastly submits that he was never paid subsistence allowance which vitiates the entire departmental proceeding. He relies on the judgment of the Supreme Court in the case of State of Maharashtra V/s. Chandrabhan, reported in AIR 1983 SC 803 , paragraph-23. He has lastly submitted that the punishment is disproportionate to the gravity of the charges proved against him. He relies on the unreported order dated 29.11.2006, passed by a learned Single Judge of this Court in C.W.J.C. No. 3879 of 2005. 5. I have perused the materials on record and considered the submissions of learned counsel for the parties. The petitioners first grievance is that the authorities intended to proceed against the petitioner for unauthorised absence for three days, namely, 5.11.1990 to 7.11.1990, whereas the enquiry report as well as the order of the disciplinary authority have found him guilty of unauthorised absence for a much longer period. The contention is stated only to be rejected. It is manifest from a plain reading of the chargesheet that the petitioner was on authorised leave from 5.11.1990 to 7.11.1990, and ought to have reported for duties on 8.11.1990. Therefore, there is no question of initiating any proceedings for absence of those three days because he was on leave with prior permission. The charge-sheet in substance states that he ought to have reported for duties on 8.11.1990, which he did not do and had reported for duties belatedly. Therefore, there is no question of initiating any proceedings for absence of those three days because he was on leave with prior permission. The charge-sheet in substance states that he ought to have reported for duties on 8.11.1990, which he did not do and had reported for duties belatedly. Therefore, the petitioners contention that the charge-sheet was confined to the three days of absence is a and mindless submission. The learned enquiry officer found that he was on unauthorised absence from 8.11.1990 to 7.3.1991, i.e. for a period of 119 days. He had reported for duties on 8.3.1991. The order of punishment noted his continuous, unauthorised absence for the said 119 days and further noted incidentally that he again absented himself unauthorisedly since 20.12.1991 for which separate departmental proceeding bearing Departmental Proceeding No. 2 of 1994 has been started against him, wherein also he has been found guilty of prolonged unauthorised absence. The learned disciplinary authority examined the ex parte materials placed before him and noted that the petitioner had failed to appear before him and equally failed to file his show-cause in spite of repeated opportunities given to him. I have, therefore, no hesitation in reaching the conclusion that the charge is not vague, nor do the enquiry officer or the disciplinary authority have travelled beyond the charges. The reliance placed by the learned counsel for the petitioner in the case of Sawai Singh (supra) is inapplicable to the facts and circumstances of the present case. The contention is rejected. 6. Learned counsel for the petitioner next submits that the respondent authorities did not afford adequate opportunity to present his case before the enquiry officer. It appears to me from a perusal of the enquiry report that a copy of the charge-sheet and notice of the departmental proceeding were despatched to the petitioner per registered post which was returned unserved. It is further relevant to state that, as noted above, that the petitioner had reported for duty on 8.3.1991 and, had worked till 19.12.1991. He was thus present in office from 8.3.1991 to 19.12.1991, during the pendency of departmental proceedings, and the enquiry report was submitted on 30.12.1993. It is further relevant to state that, as noted above, that the petitioner had reported for duty on 8.3.1991 and, had worked till 19.12.1991. He was thus present in office from 8.3.1991 to 19.12.1991, during the pendency of departmental proceedings, and the enquiry report was submitted on 30.12.1993. This is another circumstance to show that he was aware of the enquiry proceedings and notwithstanding which he did not take any step to sumbit his show-cause, nor did he appear during the course of enquiry proceeding, and instead absented himself again from 20.12.1991. It further appears from the order of the learned disciplinary authority that the second show-cause notice was sought to be served on him by letter bearing Memo No. 233, dated 11.3.1994, registered letter bearing Memo No. 385, dated 24.7.1993, whereafter it was published in a local daily "Aaj" on 29.9.1994, but did not respond till the date of the order of punishment. It thus appears to me that adequate opportunity was afforded to the petitioner to sumbit his show-cause and present his defence before the learned enquiry officer but he was determined to abstain from the proceedings. The enquiry proceedings were, therefore, not in violation of the principles of natural justice. The reliance placed by the learned counsel for the petitioner in the case of Ram Chander V/s. Union of India & Ors, (supra) is inapplicable in the facts and circumstances of the present case. The contention is rejected. 6.1) Learned counsel has also submitted that notices of the enquiry proceedings were really served in the other departmental proceeding No. 2/94, and no notice was served in the instant proceeding bearing Departmental Proceeding No. 2/91. This is the Counsels ingenuinity and wholly unsupported by the materials on record. The learned enquiry officer and the learned disciplinary authority have been mindful of this distinction. In fact, the learned disciplinary authority has clearly noted in his order the distinction between the instant Proceeding No. 2/91, and the other one bearing Departmental Proceeding No. 2/94. As discussed hereinabove, they have clearly found that notices of the departmental proceedings as well as the second show-cause notice were served on the petitioner and adequate opportunity was given to him to defend himself in the instant Departmental Proceeding No. 2/91. 7. Learned counsel has also submitted that the petitioner was not paid subsistence allowance. The contention is stated only to be rejected. 7. Learned counsel has also submitted that the petitioner was not paid subsistence allowance. The contention is stated only to be rejected. There is no material on record to suggest that the petitioner was placed under suspension in so far as Departmental Proceeding Case No. 2/91 is concerned. The reliance placed by him on the judgment of the Supreme Court in the case State of Maharashtra V/s. Chandrabhan (supra) is, therefore, inapplicable to the facts and circumstances of the case. 8. Learned counsel for the petitioner lastly submitted that the punishment is disproportionate to the gravity of the finding. Law is well settled by a long line of cases of high authority that the quantum of punishment is essentially within the domain of the disciplinary authority and the courts can interfere only if the punishment meted out to the delinquent employee is seriously disproportionate to the findings of guilt and shocks the conscience of the Court. No such case for interference has been made out by the petitioner. On the contrary, it appears to me that no other punishment was possible in the present case. First of all the petitioner belongs to Uniformed service where unauthorised absence is a very serious matter. Secondly he has been found to be on unauthorised absence continuously for a period of 119 days. Thirdly, copy of the charge-sheet and the notice of the enquiry proceedings were duly served on him, he became fully aware of the enquiry proceedings, he was on duty from 8.3.1991 to 19.12.1991, the enquiry report was submitted on 30.12.1993, and yet he chose to abstain from the departmental proceeding which accentuates the situation against the petitioner. Fourthly, the petitioner was once punished for minor penalty, and on another occasion for major penalty. Fifthly, Departmental Proceeding No. 2/94 was initiated against for prolonged, unauthorised absence for a later period. I am thus convinced that the petitioner has rendered himself wholly unfit for continuance in unformed service. The facts and circumstances of the case would adequately justify identical punishment on an employee who is not a member of the Uniformed service, let alone member of the Uniformed service. 9. There is no merit in this writ petition. It is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs.