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Jharkhand High Court · body

2008 DIGILAW 837 (JHR)

Ainul Hassan Khan v. State of Bihar

2008-07-30

AJIT KUMAR SINHA

body2008
Order Petitioner has preferred this writ petition for issuance of a writ in the nature of certiorari to quash the order, passed by the Superintendent of Police, as contained in District Order No. 44 dated 8.1.1993 vide which the services of the petitioner has been dismissed. Petitioner has also prayed for quashing the appellate order dated 21.4.1999, passed by the Deputy inspector General of Police, whereby, the appeal, preferred by the petitioner against the order dated 8.1.1993, was rejected and. has further prayed to quash the order dated 10.6.2000, passed by the Director General & Inspector General of Police, Bihar, Patna, whereby, the memorial of the petitioner has been rejected. 2. The facts, as submitted by the petitioner, are set out, in brief, as under:- The petitioner was appointed as a Constable in Bihar Police on 1.7.1972 and was promoted to the rank of Hawildar on 1 .7.1979. The petitioner was served with a change-sheet vide memo no. 1875/RO dated 10.10.1992, issued by the Superintendent of Police, Dumka. As per the memo of charges, the petitioner, who proceeded on 30 days' earned leave with effect from 30.11.1989 and was required to resume his duties on 30.12.1989 but instead he overstayed beyond the leave period, without permission till 4.11.1992. 3. According to the petitioner, he submitted medical certificates, covering the entire period of his absence to the Superintendent of Police, Dumka, through registered post. 'Finally, Departmental Proceeding No. 76 of 1992 was initiated against the petitioner on the aforesaid charges. According to the petitioner, the proceedings were conducted ex parte without giving him any reasonable opportunity to defend himself. However, on conclusion of the proceedings, the petitioner was dismissed from service with effect from 8.1.1993. The petitioner challenged the said dismissal order in a writ petition before Hon'ble High Court in C.W.J.C. No. 5580 of 1997, which was permitted to be withdrawn with the observation that if the petitioner files an appeal within one month. then the same should be disposed of by the appellate authority on its own merits. The writ petition was, accordingly, disposed of on 8.3.1999. 4. Thereafter, in compliance of the aforesaid Hon'ble High Court's order, the petitioner filed appeal on 21.3.1999 before the Deputy Inspector General of Police, Santhal Parganas, Dumka, raising several grounds. The Deputy Inspector General of Police, who was the appellate authority, rejected the appeal vide its order dated 21.4.1999. The writ petition was, accordingly, disposed of on 8.3.1999. 4. Thereafter, in compliance of the aforesaid Hon'ble High Court's order, the petitioner filed appeal on 21.3.1999 before the Deputy Inspector General of Police, Santhal Parganas, Dumka, raising several grounds. The Deputy Inspector General of Police, who was the appellate authority, rejected the appeal vide its order dated 21.4.1999. The petitioner filed a memorial against the order, passed by the Deputy Inspector General of Police, before the Director General & Inspector General of Police, who finally vide its order dated 14.10.1999, as communicated to the petitioner by the Superintendent of Police, Dumka, vide memo no. 968/C dated 10.6.2000, rejected the said memorial of the petitioner and, thereafter, the present writ petition has been preferred against the concurrent findings of three authorities. 5. The case of the respondents is that the petitioner was given as many as four wireless message and letters by the Superintendent of Police, Dumka, asking him to rejoin his duties, but he failed to do so. It has also been contended by the respondents that the first writ petition was filed after a lapse of four years i.e. in the year, 1997 whereas the order of dismissal, pursuant to the enquiry, was made on 8.1.1993. 6. The respondents submit that sufficient opportunities were given to the petitioner for filing written submission and to appear and cross-examine and to prove that the allegation and charges against him were incorrect and illegal but in spite of all such opportunities, the petitioner neither chose to appear nor filed his show cause. It has also been submitted by the respondents that between the period from 30.11.1989 to 19.10.1992 i.e. for a period of three years, the petitioner was never treated even for a single day at any Government Hospital nor he was admitted in a Government Hospital and the private medical certificates were clearly doubtful. It has also been submitted that even if the medical certificates are taken to be correct, there is no explanation for absence between 6.3.1991 to 10.10.1992. 7. I have heard the arguments at length and perused the documents. It has also been submitted that even if the medical certificates are taken to be correct, there is no explanation for absence between 6.3.1991 to 10.10.1992. 7. I have heard the arguments at length and perused the documents. The main contention raised by the petitioner in the writ petition as well as by way of written argument is that the respondents have conducted the proceedings ex parte without any evidence on record and have not followed the mandate of Rule 843 of the Jharkhand Police Manual before initiating the departmental proceedings. The petitioner has also challenged the departmental proceeding on the ground that he could not cross-examine the witnesses. According to him, as per Clause 5, 2nd paragraph of the Appendix~49 it is mandatorily required that reasonable opportunity during the enquiry 'must be given to the petitioner to defend his case and has further contended that the Deputy Inspector General of Police, who is the appellate authority, also overlooked Clause 12 of Appendix 49. In the aforesaid background, according to him, non-compliance of the statutory rule or provision renders the entire proceedings, vitiated. 8. In the instant case, the admitted facts remain that the petitioner was unauthorisedly absent for nearly three years and he did not produce any medical certificate of a Government Hospital as required and the same as per the rules applicable will amount to misbehaviour and departmental punishment can be inflicted. In any case, no explanation was given for absence between 6.3.1991 LO 10.10.1992. 9. The second contention about ex parte departmental proceeding is also unsustainable. The petitioner was given sufficient opportunities and notice to participate in the departmental proceedings but he neither appeared nor filed a show cause. 10. The fact remains that there is concurrent findings by all the three authorities upholding the dismissal. 11. As per Rule 843 of the Bihar Police Manual; willful overstay of leave or absence should be treated as misbehaviour and after obtaining the explanation of the officer concerned, proceeding shall invariably by drawn up and departmental punishment inflicted. The second part of the clause is that only in case after receiving the explanation, if it appears that sufficient reason has been assigned for overstay or absence without leave, then in such case, the delinquent can be granted leave admissible to him for the period. The second part of the clause is that only in case after receiving the explanation, if it appears that sufficient reason has been assigned for overstay or absence without leave, then in such case, the delinquent can be granted leave admissible to him for the period. The third limb of the rule is that when an officer does not return in time on duty enquiries shall be made by the Superintendent/Commandant within one week from the Superintendent of Police of the native district and if it appears that the officer has not returned to his duties in time for good reasons, he should be suspended and departmental proceeding should be undertaken. Thus, the reliance on the third limb of the Rule is totally misplaced and that is only for the purposes of enquiry before suspending the officer concerned whereas Rule 843 clearly provides that overstay of leave will constitute and will be treated as misbehaviour and departmental punishment can be inflicted. 12. The reliance to Appendix-49 and Rule 828 is also misconceived and unsustainable for the sale reason that sufficient notices and opportunities were given to the petitioner but he did not even file his show cause and. thus, he cannot take benefit of his own default. The fact remains that even the first writ petition was filed after four years. 13. In the aforesaid circumstances, this writ petition being devoid of merit is, thus, dismissed, without any order as to costs.