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2010 DIGILAW 137 (JHR)

Jai Prakash Ram v. State of Jharkhand

2010-01-28

D.G.R.PATNAIK

body2010
JUDGMENT : By Court.-Heard counsel for the parties. 2. The petitioner in this writ application, has challenged the order dated 23.4.2003 (Annexure-5) and the order dated 1.5.2003 (Annexure-6), by which the petitioner was dismissed from service. Challenge is also made to the order dated 13.1.2004 (Annexure-8) passed by the Appellate Authority whereby the appeal preferred by the petitioner against the impugned order of termination of his service, was dismissed. 3. The petitioner was posted as a constable in the district of Palamau in the State Police Service. He proceeded on leave for 10 days on 23.7.1993. But thereafter, he did not resume duty. The petitioner continued to remain absent from duty for the total period of 244 days allegedly, without prior permission and without intimation. During this period, a criminal case for the offences under Sections 302/34 IPC read with 27 of the Arms Act was registered against him and he was remanded to judicial custody and later, he was released on bail. 4. On the charge that he was remanded to judicial custody as an accused in a criminal case and also on the charge that he had remained absent from duty for 244 days without prior permission and being not satisfied with the show-cause replies filed by the petitioner, a departmental proceeding was initiated against him. He was given opportunity to defend himself in the proceeding. 5. At the conclusion of the inquiry, the Inquiry Officer recorded his findings observing that the charge against the petitioner stood proved. 6. On the basis of the findings recorded by the Inquiry Officer, the Disciplinary Authority, by his impugned order, inflicted punishment of dismissal from service. The appeal preferred against the order of the disciplinary authority was also dismissed. 7. Assailing the impugned order of dismissal, counsel for the petitioner submits that the findings of the Inquiry Officer are perverse and against the weight of evidence on record and furthermore, the specific defence of the petitioner explaining the reason of his remaining absent, has also not been considered at all by the Inquiry Officer, nor has any finding been recorded thereon. Learned counsel, by reference to the Inquiry Report (Annexure-3), submits that the petitioner had specifically stated that though, he had taken 10 days leave initially, but he could not resume his duty on account of the fact that he was suffering from severe jaundice and he was under medical treatment. Learned counsel, by reference to the Inquiry Report (Annexure-3), submits that the petitioner had specifically stated that though, he had taken 10 days leave initially, but he could not resume his duty on account of the fact that he was suffering from severe jaundice and he was under medical treatment. He had forwarded a letter to the Superintendent of Police seeking extension of his leave enclosing therewith the medical certificate. This aspect of the petitioner's defence has not been adverted to at all by the Inquiry Officer or even by the Disciplinary Authority and neither has this aspect been specifically denied in the counter affidavit of the respondents in the present writ application, though in the writ application also, the petitioner had specifically mentioned this aspect of his defence was earlier taken by him in the Departmental Proceeding. Learned counsel argues further that the criminal proceeding which was initiated against the petitioner, had ended in his acquittal and therefore, the charge relating to the criminal proceeding does not survive. As regards the charge pertaining to the alleged unauthorized absence of the petitioner, learned counsel explains that the punishment inflicted upon the petitioner is highly disproportionate to the gravity of the charge and furthermore, the obligation which was supposed to be carried out by the Superintendent of Police under the provisions of Rule 843 of the Police Manual, has not been carried out inasmuch as, no inquiry was conducted by the Superintendent of Police to find out the reason for the petitioner's absence from duty. Furthermore, no finding has been recorded either in the Inquiry Report or by the Disciplinary Authority as to whether explanation offered by the petitioner for his absence was unsatisfactory and if found unsatisfactory, the reasons for the same. 8. Counsel for the respondents, on the other hand, would argue that there is no error either in the disciplinary proceeding conducted against the petitioner or in the findings of the Inquiry Officer. In fact, the petitioner was offered adequate and reasonable opportunity of being heard and findings in respect of the charges have been recorded only thereafter. Learned counsel adds further that admittedly, the petitioner had unauthorizedly absented himself from duty for more than 244 days. Such act on the part of the petitioner amounts to misconduct for which the punishment of dismissal, as envisaged under the provisions of Rule 824 of the Police Manual, is invited. Learned counsel adds further that admittedly, the petitioner had unauthorizedly absented himself from duty for more than 244 days. Such act on the part of the petitioner amounts to misconduct for which the punishment of dismissal, as envisaged under the provisions of Rule 824 of the Police Manual, is invited. 9. Having heard learned counsel for the parties and also having gone through the documents on record, I find that admittedly, the petitioner had absented himself from duty for 244 days by overstaying the period beyond the leave granted to him. 10. From the inquiry report, it appears that the petitioner had taken a specific defence by stating that he had forwarded a letter of request for extending the period of leave on the ground that he was lying seriously ill and was undergoing medical treatment and he had also enclosed the medical certificate with the letter. Such letter, according to the petitioner, was forwarded by Registered Post. As it appears from the inquiry report, this aspect of the petitioner's defence has though been adverted to by the Inquiry Officer and has not been disputed either in course of inquiry or in the counter affidavit of the respondents, but neither the Inquiry Officer, nor the Disciplinary Authority have recorded any finding as to whether the explanation offered by the petitioner for his absence during the period prior to his remand to judicial custody in the criminal case, was found to be unsatisfactory or otherwise. 11. As rightly pointed out by the counsel for the petitioner, Rule 843 of the Police Manual lays down an obligation upon the Superior Officer to make an independent inquiry as to the reason for unauthorized absence of any police personnel. It also lays down that the explanation offered by the police personnel for his absence should be assessed and if found satisfactory, the period of absence should be adjusted against the permissible leave. Admittedly, this aspect of the petitioner's defence has not been considered at all by the Disciplinary Authority before imposing the extreme punishment. It also appears that the findings of the Inquiry Officer and the final decision of the Disciplinary Authority have been influenced more on account of the fact that the petitioner was sent to judicial custody in connection with the criminal case on the charges of. serious nature. It also appears that the findings of the Inquiry Officer and the final decision of the Disciplinary Authority have been influenced more on account of the fact that the petitioner was sent to judicial custody in connection with the criminal case on the charges of. serious nature. The fact that in the criminal proceeding the petitioner has secured his acquittal, should also have been borne in mind by the Disciplinary Authority while considering the punishment to be imposed against the petitioner. 12. In the light of the above discussions, I am satisfied that the order of punishment as imposed against the petitioner, has been passed without proper application of mind and is disproportionate to the gravity of the charges. Under the circumstances, the impugned order of dismissal is hereby set aside. The matter is remitted to the concerned authorities of the respondents to reconsider matter on the quantum of punishment, after granting the petitioner an opportunity of being heard. This exercise must be completed within a period of four months from the date of receipt/production of a copy of this order. With these observations, this writ application is disposed of.