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2013 DIGILAW 1190 (JHR)

Binita Kumari v. State of Jharkhand

2013-10-30

APARESH KUMAR SINGH

body2013
Order Heard learned counsel for the parties. 2. The petitioner is aggrieved by the order dated 23.6.2011 passed by the Appellate Authority i.e. the respondent no. 3, Deputy Inspector General of Police, Jharkhand Armed Police, Ranchi and the original order dated 31.10.2009 passed by the Disciplinary Authority whereby she has been dismissed from service as a constable under the Jharkhand Armed Police-10, Ranchi. 3. The petitioner was proceeded against on a charge of having remained in unauthorized absence under charge-sheet dated 4.8.2009, Annexure-1 issued by the Commandant, JAP-10, Ranchi. The enquiry report was submitted thereafter, Annexure-4 dated 11.10.2009. The enquiry officer gave his opinion that the petitioner was under maternity leave for a period of 135 days. However, after delivery of the child, she was quite physically weak and was not in a position to join duty. In the circumstances, on humanitarian ground, it was not proper to hold that she was guilty of the alleged misconduct. The Commandant, JAP-10, however, straightway proceeded to pass an order of dismissal against the petitioner, vide impugned Memo No. 354 dated 31.10.2009. It is the categorical assertion of the petitioner that no second show cause was issued indicating the reasons for differing from the report of the enquiry officer to the petitioner before passing of such order of dismissal. In the circumstances, the petitioner was seriously prejudiced by the proposed punishment, which is sine qua non as already laid down in several judgments of the Hon'ble Supreme Court such as in Mohd. Ramzan Khan case reported in AIR 1991 SC 471 . Learned counsel for the petitioner also relies upon the rendered by this Court in the case of Indradeo Gope vs. State of Jharkhand & Ors. reported in 2013(3) JCR 461 (Jhr.) 4. In the aforesaid background, the respondent-State earlier filed counter affidavit in which, the said assertion was not categorically denied. Therefore, on the last occasion, the respondents were given one more indulgence to substantiate as to whether any second show cause differing with the enquiry report was issued before passing of the impugned order of dismissal upon the petitioner. Supplementary counter affidavit has been filed thereafter by the respondents. However, the said assertion has not been categorically denied. Therefore, on the last occasion, the respondents were given one more indulgence to substantiate as to whether any second show cause differing with the enquiry report was issued before passing of the impugned order of dismissal upon the petitioner. Supplementary counter affidavit has been filed thereafter by the respondents. However, the said assertion has not been categorically denied. Learned counsel for the State fairly submits that upon perusal of the record of the disciplinary proceeding, it does not appear that the petitioner was served with any second show cause notice or any reason for differing with the enquiry report before order of punishment was passed. Petitioner's appeal has also, however, been rejected. 5. I have heard learned counsel for the parties and have gone through the relevant materials on records including the enquiry report and the impugned orders of punishment. From the fact which are borne on record and remain undisputed. It is apparent that before passing the order of dismissal, the Disciplinary Authority has not issued any second show cause notice upon the petitioner neither given reasons for differing with the enquiry report, by which the petitioner was exonerated of the alleged charges of misconduct of unauthorized absence from duty. In such circumstances, the decision making process is vitiated in law. The requirement of second show cause notice and ground for differing with the enquiry report, which has exonerated the delinquent on humanitarian ground, is to enable the delinquent to defend herself against the proposed punishment and the reasons for differing with the enquiry report by the disciplinary authority. If such course is not adopted the delinquent like the petitioner is bound to suffer. Therefore, keeping in view the ratio laid down by the Apex Court in the case of Mohd. Ramzan Khan's case (supra) as also followed from time to time, the impugned order of punishment dated 31.10.2009 and the appellate order dated 23.6.2011 cannot be sustained in law, which are, accordingly, quashed. The matter is remanded to the disciplinary authority i.e. the Commandant, JAP-10, Ranchi to proceed from the stage of issuance of second show cause notice containing reasons for differing with the enquiry report of the enquiry officer and conclude the departmental proceeding after giving opportunity to the petitioner within a period of 12 weeks from the date of receipt of a copy of this order. 6. 6. Accordingly, this writ petition is allowed in the aforesaid terms.