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Jharkhand High Court · body

2011 DIGILAW 614 (JHR)

Md. Eqbal Khan v. State of Bihar

2011-07-07

N.N.TIWARI

body2011
JUDGMENT N.N. Tiwari, J. 1. The petitioner has prayed for quashing the order of punishment (Annexure-2). whereby he has been dismissed from service; as also the order of the Appellate Authority (Annexure-3), whereby the petitioner's appeal has been dismissed. 2. The petitioner was appointed as Constable on 8th April, 1981 in Bihar Military Police. According to the petitioner, he had excellent service to his credit. He was awarded more than hundred rewards. He was never given any punishment He was a good sportsman and good football player. According to him. in course of some game, the petitioner sustained injury which also caused bleeding through urinary tract. The petitioner had to undergo long treatment for the said injury. He had taken four days' casual leave during the period of bleeding. Subsequently, he suffered from jaundice. He could recover after about 85 days. 3. After his recovery, the petitioner reported for duty with medical certificates. His joining was accepted. 4. Subsequently, a departmental proceeding was initiated against the petitioner for overstaying leave for 85 days. 5. The Assistant Sub Inspector of Police was deputed for preliminary enquiry. In course of enquiry, he went to verify the certificates from the concerned doctors. They had supported the certificates of treatment issued by them. There was no contrary material on record. 6. However, the enquiry was conducted ex parte. No opportunity was given to the petitioner for producing his evidence. 7. The Enquiry Officer submitted his report, but the copy of his report was also not served upon the petitioner. 8. On the basis of the said ex parte enquiry report, the Disciplinary Authority found the petitioner guilty of overstaying of his leave for 85 days and awarded punishment of dismissal by order contained in Annexure-2. 9. Against the said order, the petitioner preferred appeal before the Deputy Inspector General of Police. The said Appellate Authority also did not hear the petitioner and disposed of the appeal by a cryptic order, holding that the charges against the petitioner have been proved. He observed that the ground taken by the petitioner that he was ill could not be established and that he is habitual defaulter and had overstayed leave for nine times earlier. 10. He observed that the ground taken by the petitioner that he was ill could not be established and that he is habitual defaulter and had overstayed leave for nine times earlier. 10. In his appeal, the petitioner had challenged the said impugned order on the ground, inter alia, that he was not given sufficient opportunity to defend himself and there was no sufficient material on record to substantiate the charge against him. The Appellate Authority without considering the said grounds and the facts and materials on record, passed the impugned cryptic order. 11. Mr. Delip Jerath, learned counsel, appearing on behalf of the petitioner, submitted that there is no sufficient evidence on record to support the charges against the petitioner. The petitioner due to his illness had taken casual leave for four days and due to persistence of his illness he was not able to move and report to his duty. He had undergone treatment under the doctors. The doctors had issued certificates of the petitioner's treatment under them. The Enquiry Officer himself had gone to verify the genuineness of the certificates. The doctors testified that the certificates were granted by them and the same were genuine certificates. There was no contrary material on record to prove the charges. Learned counsel submitted that even if there was some overstayal of leave, punishment of dismissal is highly disproportionate. The respondents have arbitrarily taken into consideration of his past record of overstayal for which leave was already sanctioned by the competent authority. No proceeding was initiated for any such alleged overstay. The Disciplinary Authority as well as the Appellate Authority have ignored his past record of more than 100 awards, given to the petitioner for his excellent service. Learned counsel further submitted that the Appellate Authority has arbitrarily disposed of the appeal in almost two sentences. He has not discussed the facts, evidences and material on record. He has also not given reasons for upholding the finding of the Disciplinary Authority. He further submitted that the petitioner was not given opportunity to adduce any evidence, was denied opportunity to defend his case. Even the enquiry report was not served on him. The petitioner was also denied the opportunity of submitting his final reply. There was flagrant violation of the principles of natural justice. At any rate the punishment of dismissal is harsh and disproportionate and not sustainable in law. 12. Even the enquiry report was not served on him. The petitioner was also denied the opportunity of submitting his final reply. There was flagrant violation of the principles of natural justice. At any rate the punishment of dismissal is harsh and disproportionate and not sustainable in law. 12. Learned counsel referred to and relied upon the decision of the Apex Court in Shri Bhagwan Lai Arya v. Commissioner of Police, Delhi & Ors., reported in 2004 (4) JCR 107 (SC) : (2004) 4 SCC 560 and submitted that Hon?ble Court in similar circumstances had quashed the order of removal from service, awarded on the charge of absence of two months on medical ground and that this case is fully covered by the said decision. 13. Learned J.C. to G.A., appearing on behalf of the respondents, opposed the writ petition and submitted that the impugned order of punishment has been awarded after due consideration of the gravity of charge and the evidence on record. The petitioner had taken four days' casual leave Including one day's permission leave on 14th August, 1986. After availing leave and the following Sunday, he had to join his duty on 20th August, 1986, but he did not report to his duty, He overstayed leave for 85 days and reported his duty on 13th November, 1986. In the meanwhile, the petitioner was given letters and reminders for joining the duty, but he did not respond to the said letters and reminders, which amounts misconduct according to the provisions of Rule 802 of Police Manual. The petitioner overstayed leave without taking permission and without giving any information to the concerned authority. The departmental enquiry was initiated on the charge of unauthorized overstaying. The Assistant Sub Inspector of Police was deputed for enquiry. He was directed to visit the petitioner's village and to verify the genuineness of medical certificates issued by the doctors. The said officer visited the village and enquired about the genuineness of the claim of the petitioner. Though the doctors accepted that the certificates were granted by them, there was no supporting document such as medical prescriptions etc. There were discrepancies in the dates in the certificates and as such the certificates were not held to be reliable. The copy of the enquiry report was served on the petitioner along with other documents. The petitioner had submitted his written explanation. There were discrepancies in the dates in the certificates and as such the certificates were not held to be reliable. The copy of the enquiry report was served on the petitioner along with other documents. The petitioner had submitted his written explanation. After considering the defence as well as the evidences and materials on record, the Disciplinary Authority awarded the said punishment. He submitted that this was not the first time fault of overstayal on the part of the petitioner. He had earlier overstayed leave as many as nine: times. The petitioner's allegation of denial of opportunity of defending himself is wholly baseless. The petitioner had filed an application before the Conducting Officer, stating, therein that he does not want to produce any defence witness. The petitioner was given opportunity to cross-examine the witnesses, but he refused to do so. The petitioner was given ample opportunity of defence, but he failed to bring on record any evidence in rebuttal. Thus, considering the gravity of charge and the past record, the punishment of dismissal is proper and well proportionate. There is no illegality or arbitrariness in the impugned order. The Appellate Authority considered the facts and evidences on record and since he agreed with the finding of the Disciplinary Authority, he did not go in detail in his order. The order of the Appellate Authority though short, it is not violative of law or natural justice. 14. I have heard learned counsel for the parties and considered the facts and materials on record. In view of the rival contentions and submissions made by the parties, regarding the allegation of not giving sufficient opportunity to the petitioner and the denial of the same by the respondents, it is not possible for this Court to decide the factual aspect in exercise of writ jurisdiction. 15. However, on perusal of the order of the Appellate Authority, contained in Annexure-3, I find that the same is short, laconic and non-speaking. There is absolutely no discussion of the facts, material and evidence on record. The Appellate Authority has only said that there is a charge of overstayal of 85 days against the petitioner and the same has been proved in the departmental enquiry and that the petitioner's claim of illness has not been proved. There is absolutely no discussion of the facts, material and evidence on record. The Appellate Authority has only said that there is a charge of overstayal of 85 days against the petitioner and the same has been proved in the departmental enquiry and that the petitioner's claim of illness has not been proved. The Appellate Authority has emphasised on the past overstayal of leave for several times for which there was no proceeding in past and the leave were granted. The main grounds of the petitioner's appeal were that there was no sufficient evidence to prove the charges, that the petitioner was not given sufficient opportunity to defend himself and that the punishment awarded is disproportionately severe. But the Appellate Authority has not discussed the same and has not recorded any reasoned finding. He has not discussed the evidence on the basis of which the charges have been said to be proved in the departmental enquiry. He has not discussed as to what are evidences and material on record to show and satisfy the requirement of principle of natural justice. 16. In view of the above, I find that the order of the Appellate Authority is cryptic and non-speaking and does not conform to the legal norms and principles of natural justice. The appellate order, contained in Annexure-3, is, thus, unsustainable and is hereby quashed. The matter is remitted to the Appellate Authority for proper consideration and disposal of the petitioner's appeal afresh, in accordance with law. Since the matter is old one, the Appellate Authority shall dispose of the appeal within three months from the date of receipt/ production of a copy of this order.