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2012 DIGILAW 323 (PAT)

Sarswati Devi v. State of Bihar

2012-02-24

SHIVAJI PANDEY

body2012
Judgment Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner has challenged the order passed by the Deputy Inspector General of Police (Rail), Bihar, Patna in Departmental Proceeding No. 48 of 1986 communicated vide D.O. No. 1236 of 1987 (Annexure-3) whereby the petitioner has been dismissed from service as also the appellate order passed by the Inspector General of Police (Rail), Bihar, Patna vide Memo No. 4426 dated 28.12.1989 (Annexure-7), whereby the appeal preferred by the petitioner against the order of dismissal has been rejected and the order of dismissal has been upheld, as also the order passed by the Director General and Inspector General of Police communicated vide Memo No. 4972 dated 9.7.1992 issued under the signature of the Assistant Inspector General of Police (Personnel) (Annexure-8) whereby the revision preferred by the petitioner has also been rejected as also the order issued under the signature of the Deputy Secretary to the Government, Department of Home (Police) vide letter No. 4055 dated 16.1.1996 (Annexure-10), whereby the memorial preferred by the petitioner has also been rejected and the same has been communicated from the office of the Director General and Inspector General of Police vide Memo No. 3363 dated 15.7.1998 to the Superintendent of Police (Rail), Muzaffarpur which has been communicated by the Superintendent of Police (Rail), Muzaffarpur to the petitioner vide Memo No. 1109 dated 21.7.1998. 3. Brief statement of facts are, at the relevant point of time the petitioner was posted as Assistant Sub-Inspector of Police (Rail), Muzaffarpur. On 3.5.1986 he took leave for 12 days for the purpose of marriage of his daughter. The marriage could not be solemnized on 10.5.1986 and he was required to join the duty on 16.5.1986 but he did not join the duty and absented himself on the ground that he had fallen serious ill on 13.5.1986 and for his treatment he was brought to Government Hospital under the treatment of Dr. Vijay Kumar, Assistant Civil Surgeon, specialist in heart and abdomen disease where it was transpired that the petitioner was suffering from Jaundice. As the petitioner was ill and hospitalized he filed an application on 15.5.1986 (Annexure-1) to the Superintendent of Police (Rail), Muzaffarpur stating the fact that he was ill and as such he was not in a position to join the duty. As the petitioner was ill and hospitalized he filed an application on 15.5.1986 (Annexure-1) to the Superintendent of Police (Rail), Muzaffarpur stating the fact that he was ill and as such he was not in a position to join the duty. In the application a prayer was made to extend the period of leave for four months. As the petitioner did not join the duty, a departmental proceeding was initiated vide Departmental Proceeding No. 48 of 1986 and one Suresh Prasad Sinha, Deputy Superintendent of Police (Rail), Samastipur was appointed as Conducting Officer. The petitioner was asked to furnish his show-cause and if the petitioner failed to file show-cause it would be presumed that he had nothing to say on the merit of the allegation. It is stated that on receipt of the same, the petitioner has sent an application dated 21.7.1986 (Annexure-2) stating therein that he was suffering from Jaundice and he was under the treatment of Dr. Vijay Kumar. He was again admitted in hospital for treatment of Kalazar and Tuberculosis. No sooner he would be cured he instantly joined the duty but the proceeding was not stopped and continued in absence of the petitioner and ultimately the charges were found to be proved. In pursuance thereof no second show-cause was issued to the petitioner and ultimately he was dismissed from service vide order passed by Deputy Inspector General of Police (Rail), Bihar, Patna (Annexure-3). 4. Learned counsel for the petitioner submits that the petitioner was not only suffering from Jaundice but he has developed another ailment and remained confined to bed and thereafter his wife had also fallen ill. When the petitioner recovered he went to join the duty but he was informed about his dismissal from service. He has further submitted that the petitioner filed an appeal, revision and memorial and that too were dismissed. He further submits that it was the mandate of the law that after the enquiry he was required to be served enquiry report and disciplinary authority ought to have issued the second show-cause. In support of his submission he has relied on the provisions of Rules 826, 828 and 843 of the Bihar Police Manual. He further submits that as the petitioner was physically ill it was not possible for him to join the duty. The disciplinary authority ought to have stayed the proceeding till the petitioner was under the treatment. In support of his submission he has relied on the provisions of Rules 826, 828 and 843 of the Bihar Police Manual. He further submits that as the petitioner was physically ill it was not possible for him to join the duty. The disciplinary authority ought to have stayed the proceeding till the petitioner was under the treatment. He has also submitted that it is not in dispute that the authorities were not knowing the fact that he was going under treatment. He has further submitted that the order of punishment vitiates on the ground that neither the enquiry report was given to the petitioner nor second show-cause was asked to him and as such the whole subsequent order suffers from illegality. He further submits that it is the disciplinary authority passed the order on the basis of the report of Superintendent of Police, Muzaffarpur as he has recommended for his dismissal. The disciplinary authority ought to have applied his mind independently instead of basing his decision on the recommendation of the Superintendent of Police. It has been averred that respondents orders passed in appeal, revision and memorial will also vitiate. 5. Learned counsel for the State has challenged the submissions of learned counsel for the petitioner. It has been submitted that the petitioner was given only 12 days leave and after lapse of leave he ought to have joined the duty. He further submits that medical certificate submitted by the petitioner does not inspire any confidence as these documents were manufactured. Counsel for the State has submitted that if the petitioner was ill, he was required to attend nearest Government Hospital and in support of his submission he relied on Rule 783(d) of the Bihar Police Manual. He has further submitted that this writ petition suffers from delay and laches as he was not required to file any memorial before the Deputy Secretary of Police and if he has chosen a wrong forum, the time consumed thereto should not be taken into consideration for the purpose of condoning the delay and laches. Counsel for the State has further submitted that it is undisputed fact that he remained absent for a very long period and that too without any information and as such the writ petition deserves to be dismissed. 6. Counsel for the State has further submitted that it is undisputed fact that he remained absent for a very long period and that too without any information and as such the writ petition deserves to be dismissed. 6. Counsel for the State in support of his submission relied on the statements made in paragraph 9 of the counter affidavit as he was asked to appear before the Civil Surgeon for his medical check up but he did not appear to the Civil Surgeon. He has further submitted that he has relied on paragraph 31 of the counter affidavit that one A.S.I., Bhola Rai, was sent to the house of the petitioner on 8.6.1986 to serve the notice but he returned on 10.6.1986 and reported that the petitioner received the notice and noted arrival and departure on his command certificate and he has informed that the petitioner would not join the duty as there was marriage at his home on that date Bhola Rai further confirmed the fact that the petitioner was not in hospital or nursing home as claimed by him. 7. Learned counsel for the State has further relied on paragraph 21 of the counter affidavit in order to 'show that the petitioner was asked vide Office Memo No. 2511/RO dated 16.10.1986 through registered cover about his appearance before the Civil Surgeon and to report to duty but no such letter has been annexed to the counter affidavit. 8. In course of argument the State Counsel was directed vide order dated 1.2.2012 to produce the entire record of departmental proceeding including enquiry report as well as the second show-cause, if any, sent to the petitioner. But counsel for the State has informed at the Bar that departmental proceeding file is not available and as such he is unable to produce any document relating to departmental proceeding. 9. In this case the original petitioner has already died and in his place his wife has been substituted. It is not in dispute that the petitioner was required to join the duty after treatment but he did not join. 9. In this case the original petitioner has already died and in his place his wife has been substituted. It is not in dispute that the petitioner was required to join the duty after treatment but he did not join. A departmental proceeding was initiated where he could not participate on the ground that he was ill during that period but it is an admitted fact that the petitioner remained absent for two and half years but another fact is that as the petitioner was claiming that he was ill and due to that reason he could not join duty but at the same time the State is denying the fact of his illness rather the State has taken a plea that it was after thought though he was in the house for the purpose of marriage which was confirmed by the messenger and completely ignoring the direction of the authority concerned, he did not join the duty. 10. This Court would have decided the case on the merit itself, had there been a record of departmental proceeding or the enquiry report before this Court in order to examine the findings recorded by the Enquiry Officer, service of enquiry report and to second show-cause was given to the petitioner and report submitted by the messenger. This Court feels handicap in absence of records of departmental proceeding has not been brought before this Court as the same is not available. There is admittedly violation of natural justice as neither enquiry report has served nor second show-cause had been served nor the enquiry report has been brought on record for the perusal of this Court. 11. In support of his contention learned counsel for the State has relied on the judgment in the case of Dhirendra Kumar Mishra vs. The Union of India & Ors., reported in 2010(4) PLJR 534 . Counsel for the State submits that the fact of this case is very nearer to the present case as the petitioner of that case was absent from duty but fled away from the duty and remained absent for 45 days. The Court has refused to grant any benefit to the petitioner of that case and held that unauthorized absence from duty in all services would not have the same ramification of misconduct. The Court has refused to grant any benefit to the petitioner of that case and held that unauthorized absence from duty in all services would not have the same ramification of misconduct. A clerk being unauthorized absent from duty cannot be equated to unauthorized absence of a member of force in view of not only service conditions but also varying requirements and standard of discipline to be enforced in different services And has relied on the judgment of State of Madhya Pradesh & Ors. vs. Sanjay Kumar Sharma, reported in (2005)11 SCC 513 . This Court has also refused to interfere with an order of punishment on the question of quantum of punishment relying on the judgment in the case of B.C. Chaturvedi vs. The Union of India & Ors., reported in (1995)6 SCC 749 . 12. But here is the different situation as the petitioner was granted leave but thereafter did not join the duty on the ground of illness at the same time enquiry report is not before this Court nor records of the departmental proceeding has been brought before this Court. It would have been better to remand back the matter for fresh consideration as per the principles of judicial review in case of any error in the departmental proceeding. Original petitioner had died, departmental file is not available nor enquiry report is available with the Government. In a given circumstance, though this Court is of the view that this Court should not tempt to substitute its finding so recorded in enquiry proceeding and punishment awarded to the petitioner by the disciplinary authority but looking to the facts and unexceptional circumstances of this case due to death of original petitioner and on the strength of the' judgment of the Hon'ble Supreme Court in the case of B.C. Chaturvedi (supra) para 18 and Punjab National Bank and Others vs. Kunj Behari Misra, reported in (1998)7 SCC 84 para-21 instead of remanding back the matter to the disciplinary authority again, the order of punishment is modified to the extent that in place of order of dismissal, it will be treated an order of compulsory retirement and the petitioner will not be entitled for the salary for the period of his absence till the death. However, the widow of the petitioner will be entitled to the retiral benefits. The period of absence till death will be treated in service notionally. However, the widow of the petitioner will be entitled to the retiral benefits. The period of absence till death will be treated in service notionally. With the aforesaid observation and direction this writ petition is disposed of.