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2013 DIGILAW 1310 (JHR)

Jay Prakash Singh v. State of Jharkhand

2013-12-02

SHREE CHANDRASHEKHAR

body2013
Order : Challenging orders dated 11.02.2004 and 12.05.2005 the petitioner has approached this Court. 2. The petitioner was appointed in the year, 1986 on the post of constable in Bihar Military Police. He proceeded on 12 days' leave on 17.04.2002 however, he reported for duty on 18.12.2003. On 04.01.2004 he was directed to join at Balumath however, again he absconded on 07.01.2004. In the meantime, a departmental proceeding was initiated against him and the inquiry report dated 10.09.2003 was submitted. The appellate-authority passed an order of dismissal from service on 11.02.2004 and the appeal preferred by the petitioner has been dismissed on the ground of delay by order dated 12.05.2005. 3. A counter-affidavit has been filed stating as under : “9. That it is humbly stated and submitted that the respondent issued charge against the petitioner vide memo no. 513 dated 22.02.2003 and it was send to the petitioner's residence through registered post. And before charge issued the respondents sent reminder to the petitioner which is mention in charge itself explanatory one. …........................................................................ ........................................................................... 14. That it is humbly stated and submitted that the petitioner before the departmental proceeding he has overstayed 17 times in his service and he is habitual regarding absent from duty. The respondent was imposed punishment 7 times as minor punishment and 9 time major punishment earlier. 15. That it is humbly stated and submitted that the respondent revoked his suspension on the condition that he will work and will join his duty. Thereafter the respondent issued Caman Order on 04.01.2004 for Balumath P.S. In the district of Latehar, but the petitioner was abscond from duty.” 4. Heard learned counsel appearing for the parties and perused the documents on record. 5. Learned counsel appearing for the petitioner has submitted that, though the petitioner remained absent unauthorizedly from duty, such absence was due to reasons beyond his control as the petitioner was suffering from mental illness. He has further submitted that, though the respondents have taken a plea that the charge-memo was issued to the petitioner and sent through the registered post, no evidence in support of such a plea has been brought on record by the respondents and infact the proceeding against the petitioner was ex-parte proceeding. He has further submitted that, though the respondents have taken a plea that the charge-memo was issued to the petitioner and sent through the registered post, no evidence in support of such a plea has been brought on record by the respondents and infact the proceeding against the petitioner was ex-parte proceeding. He has further submitted that the petitioner has continued in service for more than 16 years and by the reason of the impugned orders he is deprived of the post retiral benefits. 6. As against the above, the learned counsel appearing for the respondents submits that since the petitioner remained absent, the proceeding was conducted in his absence. The inquiry officer directed on 25.04.2003 and 02.05.2003 for issuance of letters intimating inquiry proceeding to the petitioner however, the petitioner failed to appear and participate in the departmental proceeding and therefore, ex-parte order was passed against the petitioner. 7. On a perusal of the documents on record, I find that in the counter-affidavit though the respondents have stated that the inquiry officer directed for issuance of letters intimating inquiry proceeding on 25.04.2003 and 02.05.2003, which was sent through the registered post however, no date has been disclosed by the respondents when an intimation was given to the petitioner about the initiation of the inquiry proceeding. I find that though the inquiry officer directed the department to intimate the petitioner about the proceeding conducted on 25.04.2003 and 02.05.2003 however, it has not been disclosed by the respondents that the petitioner was intimated about the initiation of the inquiry before the inquiry officer. I find that the appellate-authority has dismissed the appeal preferred by the petitioner only on the ground of delay. I further find that the plea taken by the petitioner that he was suffering from mental illness and due to the said reason he remained absent unauthorizedly from duty, has not been considered by the departmental authority and therefore, I am of the view that the appellate order dated 12.05.2005 is liable to be interfered with and is hereby quashed. 8. The matter is remitted back to the appellate-authority for considering the matter afresh particularly, in view of the plea of mental illness raised by the learned counsel appearing for the petitioner and the fact that the petitioner has served the department for about 16 years. The writ petition is disposed of in the aforesaid terms. Petition disposed of.