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2010 DIGILAW 1 (JHR)

Upendra Kumar Singh v. State of Jharkhand

2010-01-04

D.G.R.PATNAIK

body2010
Judgment By Court Heard counsel for the parties. 2. The petitioner in this writ application, has prayed for issuance of a writ of certiorari for quashing the office order dated 21.3.2003 (Annexure-11), issued under the signature of the Deputy Inspector General of Police, Koyala Range, Bokaro (Respondent No. 6) whereby the petitioner has been dismissed from service with immediate effect, with a further observation that no salary will be paid to him during the period of his absence from duty without leave / for absconding period. 3. The petitioner was holding the post of ASI of Police in the district of Dhanbad. By order of transfer dated 1.9.1997, he was required to join in the district of Darbhanga. However, the order of transfer was stayed till 30.5.1998 on the petitioner's representation. Yet, despite lapse of the period of stay, the petitioner did not proceed to join his transferred place of posting. On the other hand, he remained continuously absent from duty till 13.2.2001 on which date, he submitted his joining report at the Police Headquarters at Dhanbad along with a medical certificate suggesting that he was suffering from some serious ailment for long and was confined to bed. His joining was though accepted on 13.02.2001, but it appears from the admitted facts, the petitioner did not report for duty on and from the next daty i.e. from 14.02.2001. 4. It appears that on account of his long absence, and after having issued show-cause notice to the petitioner, by the order of his superior officer, he was put under suspension. A notice of suspension with a corresponding notice in contemplation of departmental proceeding, was issued to him, but he did not respond. However, he voluntarily appeared before the Superior Officer on 25.7.2001 and demanded service of charge sheet pertaining to the departmental proceeding. The charge sheet was duly served upon him and he prayed for time to enable him to file his explanation to the charges. It appears that despite time being granted to him, he neither filed any show-cause replies, nor bothered to appear in the departmental proceeding at all. 5. The contention of the petitioner is that he was never informed about the proposed dates for his appearance in the departmental proceeding. It appears that despite time being granted to him, he neither filed any show-cause replies, nor bothered to appear in the departmental proceeding at all. 5. The contention of the petitioner is that he was never informed about the proposed dates for his appearance in the departmental proceeding. This plea has been firmly repudiated by the respondents by a counter assertion, as appearing in their counter-affidavit, that the petitioner was specifically informed in writing as well as telephonically about the dates fixed in the departmental proceeding, but he did not bother to appear at all. It appears that the proceeding continued ex-parte and on the basis of the evidences adduced, the Inquiry Officer recorded his findings holding the charge proved against the petitioner and submitted his report to the Superintendent of Police, Dhanbad, who after going through the report, had forwarded the same to the the petitioner's Disciplinary Authority namely, the Deputy Inspector General of Police (Respondent No. 6). 6. It further appears from the admitted facts that, a second show-cause notice was issued to the petitioner along with a copy of the Inquiry Report, calling upon him to submit his explanation as to why the proposed punishment should not be imposed upon him. Yet, for reason unexplained, the petitioner did not chose to file any explanation / show-cause reply at all. Under such circumstances, and agreeing with the findings of the Inquiry Officer, the Disciplinary Authority had inflicted the punishment of dismissal upon the petitioner by the impugned order. 7. Counsel for the petitioner has assailed the impugned order of petitioner's dismissal on the following grounds: I. The petitioner was not given adequate opportunity to defend his case at the departmental proceeding. This plea of the petitioner does not appear to be correct in view of the fact that admittedly, he was served with the copy of the charge sheet, whereby he was called upon to appear at the departmental proceeding and to submit his show-cause reply, but he did not bother to participate in the same. II. The Inquiry Officer ought to have considered the medical certificate which the petitioner had produced along with his joining report. II. The Inquiry Officer ought to have considered the medical certificate which the petitioner had produced along with his joining report. This argument is misconceived and misleading in view of the fact that the purported medical certificate, if at all, was enclosed with the joining report and not to any show-cause reply which the petitioner ought to have filed in response to the charges in the departmental proceeding. III. The impugned order suffers from bias in view of the fact that the Disciplinary Authority had allowed himself to be influenced by the recommendation of the Superintendent of Police who, in fact, did not have any such authority over the petitioner to make any recommendation of the nature as made by him. This argument also does not hold water in view of the fact that the impugned order abundantly indicates that the final decision was taken on the basis of the findings recorded in the Inquiry Report and upon agreeing with the findings of the Inquiry Officer. Though the impugned order does indicate that the Inquiry Report was forwarded to the Superintendent of Police for his comments and such comments were received, but the impugned order does not indicate anywhere that the final decision was taken by the Disciplinary Authority on the basis of any comment / recommendation of the Superintendent of Police. IV. The Inquiry Officer and the Disciplinary Authority have erred in failing to consider the fact that by the Circular issued by the Police Headquarters, Bihar, Patna in the month of December, 2000 after bifurcation of the State of Bihar, by which the orders of transfer of Police Personnel which were passed prior to the date of bifurcation and such orders of transfer which were not acted upon by the Police Personnel, have been quashed. Learned counsel for the petitioner explains that the order of transfer was therefore not binding upon the petitioner and as such, merely because he did not join his transferred place of posting at Darbhanga, no adverse inference could have been drawn to suggest any act of misconduct on his part. This argument does not appeal to reason. From the facts even as admitted, the transfer order of the petitioner was passed on 1.9.1997. Though the order of transfer was stayed till 30.5.1998, but thereafter, the petitioner was expected to join his transferred post promptly. This argument does not appeal to reason. From the facts even as admitted, the transfer order of the petitioner was passed on 1.9.1997. Though the order of transfer was stayed till 30.5.1998, but thereafter, the petitioner was expected to join his transferred post promptly. On the other hand, he neither joined at Darbhanga, nor even at Dhanbad. Furthermore, considering the subsequent notification issued by the Police Headquarters pursuant to the earlier notification of cancelling the transfer orders, a decision was taken for initiating departmental proceedings against such police personnel who, in spite of being relieved from their present places of posting, did not proceed to join their transferred place of posting. The Departmental Proceeding initiated against the petitioner is in consonance with the aforesaid decision of the Police Headquarters, Jharkhand. The petitioner therefore cannot take any benefit from the Notification issued by the Police Headquarters of Bihar by which, the earlier orders of transfer of police personnel, passed prior to the date of bifurcation of the State, was quashed. V. The impugned order is otherwise bad because, on the sole ground of long absence from duty, the extreme punishment of dismissal from service was not deserving. Rather, it is disproportionate to the charges. Learned counsel for the petitioner would want to gain benefit in this context from the observations recorded by the Supreme Court in the case of State of Punjab and others vs. Mohinder Singh (2005) 12 Supreme Court Cases 182. The facts in the case of Mohinder Singh (Supra) also relate to long absence from duty for the period of 5 ½ months without sanction and without prior intimation. The Supreme Court had observed that the delinquent employee was a personnel of police force and the alleged misconduct of a member of the disciplined force is reprehensible and he cannot be retained in service. However, a concession was given to the delinquent employee by issuing a direction to the concerned authorities that if any representation for converting the order of dismissal into an order of compulsory retirement is made by the delinquent employee, the concerned authority shall be at liberty to pass an appropriate order thereon. In the instant case, the facts disclose that the petitioner had absented himself from duty from 1.6.1998 continuously and though, he had submitted his joining for one day on 13.2.2001, but thereafter, he again remained absent without leave and without prior intimation. In the instant case, the facts disclose that the petitioner had absented himself from duty from 1.6.1998 continuously and though, he had submitted his joining for one day on 13.2.2001, but thereafter, he again remained absent without leave and without prior intimation. 8. Considering the above facts, and also the fact that the petitioner is a personnel of police force, the punishment imposed upon him cannot be said to be disproportionate to the gravity of the charge. In this view of the matter, the impugned order does not suffer from any illegality or infirmity and the petitioner cannot claim any relief in the manner prayed for. However, if the petitioner files any representation before the concerned authorities for converting the order of his dismissal into an order of compulsory retirement, the concerned authorities of the respondents may, within three months from the date of receipt of such representation, take an appropriate decision on the same by passing a reasoned and speaking order and shall effectively communicate such decision to the petitioner. 9. Counsel for the petitioner submits that the petitioner has another grievance in as much as, for the entire period of suspension, which was though subsequently revoked, he was not paid any amount of subsistence allowance, though he was entitled for such payment as a matter of right. Learned counsel adds further that even in the final order passed by the Disciplinary Authority, no separate order regarding the payment of salary for the period of suspension has been passed. 10. The above grievance of the petitioner does not appear to be controverted by the respondents in their counter-affidavit. Under the circumstances, the petitioner shall be at liberty to file his representation before the concerned authorities of the respondents with his prayer for payment of subsistence allowance for the period he was put under suspension and, within two months from the date of receipt of such representation, the concerned authorities of the respondents shall consider the same and pass an appropriate order and if the petitioner is found entitled for payment of subsistence allowance, then the concerned authorities of the respondents shall ensure that the amount of subsistence allowance payable for the total period of suspension, is released and paid to the petitioner within one month from the date of decision taken on the petitioner's representation. With the above observations, this writ application is disposed of. With the above observations, this writ application is disposed of. Let a copy of this order be given to the counsel for the respondent State.