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2013 DIGILAW 575 (JHR)

Sanjay Kumar Sharma v. State of Jharkhand

2013-05-02

APARESH KUMAR SINGH

body2013
JUDGMENT By Court:-Heard counsel for the parties. 2. The petitioner was dismissed from service by the order issued under Memo No. 1494 dated 16.5.2001 by the Commandant, JAP-4, Bokaro Steel City- Respondent no. 4 as contained in Annexure-9 for the charge of having remained absent from duty after proceeding to deliver 'daak' on 14.3.2000 till he finally submitted his joining on 31.5. 2000. The appeal preferred by the petitioner has also been rejected vide memo no. 249 dated 8.2.2003 as contained in Annexure-12. 3. As per the petitioner, he was appointed as constable in June 1997 in the Bihar Military Police Force and posted at BMP, Bokaro. He underwent mandatory training and at the relevant point of time he was deputed on duty of messenger to deliver letters- “weekly Daak” to various offices at Patna, Ranchi and Dhanbad. On 14.3.2000 a warrant was issued for delivery at certain centres at Patna, Ranchi and Dhanbad to be delivered by the petitioner. According to the petitioner, while returning after delivering of such warrant at the respective offices he fell seriously ill on 27.3.2000 and, thereafter, undertook treatment at Nawada Sadar Hospital. After undergoing treatment and recovery, he reported for his joining on 31.5.2000 at BMP, Bokaro but for his absence from his duty he was issued charge sheet vide Annexure-5 issued on 15.5.2000 with the charge that he had proceeded with official 'daak' being warrant no. 2837174 on 14.3.2000 afternoon to be delivered at Dhanbad, Patna and Ranchi, however he failed to report about the delivery of the 'daak' and has become an absconder. A letter was also issued on 25.4.2000 at his home address, but he has not reported his joining. Thereafter, an inquiry was conducted against the petitioner in which he admittedly participated and the inquiry report was submitted vide Annexure-7 by the Inquiry Officer, Inspector, JAP-4, Bokaro Steel City on 30.9.2001 i.e. after creation of the successor State of Jharkhand. The Inquiry Officer in his report held the petitioner partially guilty on humanitarian ground that he has long years of service left. The petitioner had produced the copies of the medical prescriptions in order to show that he was undergoing treatment which were also considered by the Inquiry Officer along with the show cause and the deposition of the prosecution witnesses. Petitioner was however found not to have communicated relating to his illness and absented from duty. The petitioner had produced the copies of the medical prescriptions in order to show that he was undergoing treatment which were also considered by the Inquiry Officer along with the show cause and the deposition of the prosecution witnesses. Petitioner was however found not to have communicated relating to his illness and absented from duty. The Disciplinary Authority i.e. Commandant, JAP-4, Bokaro Steel City issued second show cause notice contained at Annexure-7, thereby he disagreed with the findings of the Inquiry Officer and gave opportunity to the petitioner to respond to the proposed punishment of dismissal from service. The petitioner, thereafter, filed the second show cause once again taking the same plea of having suffered from illness during the said period and also having given communication / intimation to the office of JAP about his absence. The impugned order of punishment, thereafter, has been passed by the Commandant, JAP as contained in Annexure-9 by which the petitioner has been held guilty and imposed punishment of dismissal from service with immediate effect. The Disciplinary Authority has taken into account that the petitioner had failed to make any intimation about his absence from duty and in the command order certain over writings were found. It is the case of the petitioner that he had furnished the warrant lastly on 27.3.2000 in the office of Accountant General of Bihar and there was no over writing there in respect of which command order has itself been produced. The Disciplinary Authority has also taken into account that the petitioner had not been successful in the basic training even after having joined in July, 1997 and his plea that his family is entirely dependent upon the service of the petitioner was not found acceptable by the respondent no.4, Commandant, BMP(JAP) -4, BSL. He found that petitioner should have been more diligent in his duties since, even after having been served with second show-cause he left duty while he had been deputed for law and order duty in Giridih. In these circumstances, the respondent no. 4 considered it proper to impose the major punishment of dismissal from service. The Appellate Authority, by a cryptic order has affirmed the order passed by the Disciplinary Authority by observing that the Disciplinary Authority after taken into account the charge established against the petitioner, gave adequate opportunity to him by serving second show cause and thereafter, passed the order of punishment. The Appellate Authority, by a cryptic order has affirmed the order passed by the Disciplinary Authority by observing that the Disciplinary Authority after taken into account the charge established against the petitioner, gave adequate opportunity to him by serving second show cause and thereafter, passed the order of punishment. 4. Learned counsel for the petitioner has primarily assailed the impugned order of punishment on the ground that the order of punishment is disproportionate to the misconduct, which is said to have been established. It is submitted on his behalf that the petitioner is a young man having career ahead and the misconduct of absence from duty as alleged was not so grave so as to warrant imposition of major punishment by dismissal of service. The petitioner's absence from his duty could have been adjusted as extraordinary leave or any other minor punishment by giving opportunity to improve his conduct. Counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court rendered in the case of Shri Bhagwan Lal Arya Vrs. Commissioner of Police, Delhi & others reported in (2004) 4 SCC 560 in support of his contention. It is submitted that in the said case also dismissal of service of a constable for absence of 2 months, 7 days and 17 hours on medical ground was found to be not a grave misconduct or continued misconduct rendering him unfit for police service. 5. Learned counsel for the respondent-State, however submitted by referring to the averments made in the counter affidavit that the departmental proceeding was conducted in a proper manner for which petitioner cannot claim to be aggrieved as he was given adequate opportunity during inquiry proceeding before the Inquiry Officer and thereafter, given opportunity to reply to the second show cause as well when the Disciplinary Authority had differed with the findings of the Inquiry Officer. He has submitted that petitioner's absence was without any intimation and he had suddenly left the job without delivering the 'daak' at its respective destination and when communication was sent to home address he did not respond to it. Therefore, his conduct for remaining absent for the aforesaid period was willful and punishment imposed upon him is not at all disproportionate or shocking to the conscience of the Court. 6. I have heard counsel for the parties and gone through the relevant materials on record including the impugned orders. Therefore, his conduct for remaining absent for the aforesaid period was willful and punishment imposed upon him is not at all disproportionate or shocking to the conscience of the Court. 6. I have heard counsel for the parties and gone through the relevant materials on record including the impugned orders. The facts which are borne on record and indicated herein above admittedly show that the instant case is not one of those cases in which the petitioner was alleged to have indulged in case of insubordination or having assaulted or insulted his superior office or colleague of the force or conducted himself in improper manner in public so as to lower down the image of the police force. He has also not committed any financial irregularities causing misappropriation of money which could lead to the loss of confidence of the employer in the employee concerned. The petitioner, however had been deputed for delivery of 'daak' at the respective office at Dhanbad, Ranchi and Patna and after delivering the 'daak' lastly on 27.3.2000, he is said to have fallen ill and was undergoing treatment and in support of which he has annexed documents in the instant writ petition also vide annexure-4. The Inquiry Officer after consideration of the show cause of the petitioner, deposition of the prosecution witnesses and examination of the medical prescriptions submitted on behalf of the petitioner as also the 'daak' report, in the totality of circumstances, held him partially guilty as he also found that the petitioner had completed only few years of service and has a long career and considered his case on humanitarian ground. The Disciplinary Authority, however differed with the report of the Inquiry Officer and considered the offence of the petitioner to be of grave misconduct on being absent from duty without any permission or sufficient cause. 7. Petitioner has submitted documents to show that he was seriously ill at the relevant point of time and also sent communication, which however could not be substantiated by him in the inquiry proceeding. In any case the misconduct of the petitioner, if at all found to be established cannot be said to be such grave in nature so as to warrant imposition of major punishment of dismissal from service. In any case the misconduct of the petitioner, if at all found to be established cannot be said to be such grave in nature so as to warrant imposition of major punishment of dismissal from service. As has been observed earlier, petitioner had not been found to have indulged in case of insubordination, misappropriation of public money or indulged in the case of assaulting or insulting his superior officer or said to have lower down the image of police force by his conduct in the eye of public. 8. In such circumstances, this Court finds that the punishment imposed upon the petitioner by dismissal from service is harsh and not proportionate to the misconduct of absence from duty said to have been established. Accordingly, the impugned order, so far as the punishment of dismissal from service is concerned, requires reconsideration. In that view of the matter, the case is remanded to the Disciplinary Authority – Respondent No. 4, Commandant, JAP-4, Bokaro Steel City to once again consider the quantum of punishment which is imposed upon the petitioner given the nature of misconduct, which is found to be established against him. Let the aforesaid exercise be completed within a period of 6 weeks from the receipt of this judgment. The impugned order dated 16.5.2001 passed by the Disciplinary Authority and affirmed by the appellate authority is interfered to that extent. 9. The writ petition is partly allowed.