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2013 DIGILAW 864 (JHR)

Vijay Kumar v. State of Jharkhand

2013-07-18

SHREE CHANDRASHEKHAR

body2013
JUDGMENT By Court: The petitioner has approached this Court seeking the following reliefs: (i) “To quash/set aside the order dated 29.12.2010 contained in Memo No.1648 passed by the Respondent No.04 (Deputy Inspector General of Police, Koyla Range, Bokaro) whereby and whereunder the petitioner was dismissed from service with immediate effect. (ii) To quash/ set aside the appellate order contained in Memo No.660 dated 08.10.2011, passed by the Respondent No.03 (Inspector General of Police, North Chhotanagpur Range, Bokaro) whereby and whereunder the appeal preferred by the petitioner against his order of dismissal was rejected. (iii) To also quash/ set aside the order passed by the Respondent No.02 (The Director General of Police, Jharkhand) contained in Memo No.313 dated 17.11.2012, whereby and whereunder instead of setting aside the order of dismissal, he has converted the order of dismissal into an order of removal from service. (iv) To quash/set aside the entire departmental proceeding including the enquiry report dated 22.10.2010 submitted by the Enquiry Officer-cum-Deputy Superintendent of Police, Sindri, in which inter alia he found the petitioner guilty. (v) For direction commanding upon the concerned respondents to reinstate the petitioner in service with full back wages and all consequential benefits. (vi) Any other appropriate relief(s), to which the petitioner is found entitled in the facts and circumstances of the case.” 2. The brief facts of the case are that, the petitioner was appointed as a clerk on 16.11.1988 in the office of the Superintendent of Police, Dhanbad. The petitioner was granted leave for five days on 01.12.2008 however, due to illness he could not report for duty and he sent an application dated 08.12.2008 to the Superintendent of Police, Dhanbad which was received in the office of Superintendent of Police on 11.12.2008. The petitioner was put under suspension on 23.03.2010 and charge was framed against the petitioner on 07.04.2010 on the allegation that he remained absent for 472 days unauthorisedly. The petitioner submitted his reply on 15.07.2010 stating that due to prolonged illness, he could not join duty and only after the doctor declared him fit, he could join his duty on 17.06.2010. After the notice dated 25.04.2010, even though the petitioner was not well, he appeared before the Superintendent of Police and gave his explanation. The petitioner submitted his reply on 15.07.2010 stating that due to prolonged illness, he could not join duty and only after the doctor declared him fit, he could join his duty on 17.06.2010. After the notice dated 25.04.2010, even though the petitioner was not well, he appeared before the Superintendent of Police and gave his explanation. An enquiry report was submitted on 22.10.2010 and by letter dated 04.11.2010, the disciplinary authority recommended the dismissal of the petitioner from service and on 23.11.2010, a copy of the enquiry report along with the second show-cause notice was issued to the petitioner. The petitioner submitted his reply on 21.12.2010 reiterating the stand taken by him. The disciplinary authority passed the order of dismissal from service on 29.12.2010 and the appeal preferred by the petitioner was also dismissed on 08.10.2011. The petitioner preferred a Memorial on 11.01.2012 however, it was also dismissed on 17.11.2012. 3. A counter-affidavit has been filed on behalf of respondent nos.2 to 6 stating, 6. “That with regard to the statement made by the petitioner in paragraph 1, in the instant writ petition under reply, it is humbly stated and submitted that the same is prayer of the petitioner. Has no merit and as such is liable to be dismissed. It is stated and submitted that a departmental proceeding being Dhanbad District Departmental proceeding no.87/10 was initiated against the petitioner for his act of indulging in undisciplined conduct, for being doubtful character etc. and a charge vide memo no.2270 dated 07.04.2010 was issued against him whereby and whereunder the charge against the petitioner was that at the time of deputation, the petitioner went on compensatory leave for 5 days on 01.12.2008 and the petitioner was required to return to his duty on 05.12.2008. But, the petitioner remained absent without information or permission till 22.03.2010, for about 472 days and as a result his pay was held over vide D.O. No.1010/09. 7. That it is humbly stated and submitted that the petitioner absconded till the date of issuance of charge and as such he was suspended. It is stated and submitted that the departmental proceeding was conducted by the Sub Divisional Police Officer, Sindri who after having conducted the departmental proceeding and also after hearing the petitioner, who filed his explanation during departmental proceeding, found the petitioner guilty of charges vide memo no.2291 dated 22.10.2010. 8. It is stated and submitted that the departmental proceeding was conducted by the Sub Divisional Police Officer, Sindri who after having conducted the departmental proceeding and also after hearing the petitioner, who filed his explanation during departmental proceeding, found the petitioner guilty of charges vide memo no.2291 dated 22.10.2010. 8. That it is humbly stated and submitted that the conducting officer considered the explanation submitted by the petitioner and same was not found to be satisfactory. It is further stated and submitted that then Superintendent of Police, Dhanbad vide memo no.8117 dated 04.11.2010 agreeing with the finding of the Conducting Officer recommended to Deputy Inspector General of Police Range, Bokaro for dismissal of petitioner from service. 9. That it is humbly stated and submitted that the then Superintendent of Police, Dhanbad has made recommendation based on reasons and thereafter Deputy Inspector General of Police, Bokaro, after considering the entire materials available on record including the explanations in defence given by the petitioner passed an order vide memo no.1648 dated 25.12.2010 dismissing the petitioner from the service. It is stated and submitted that the order passed by Coal Range Deputy Inspector General of Police is legal, correct and proper. 10. That it is humbly stated and submitted that the petitioner preferred an appeal before Zonal Inspector General of Police, Bokaro and Zonal Inspector General of Police, Bokaro after having considered the appeal minutely and other materials available on record passed an order vide memo no.660 dated 08.10.2011 dismissing the appeal of the petitioner. 11. That it is humbly stated and submitted that the petitioner preferred an appeal before Director General of Police, Jharkhand and the Director General of Police, Jharkhand has passed an order modifying the dismissal of petitioner from service to removing him from the service. It is stated and submitted that the orders passed by the Conducting Officer, Disciplinary Authority, and Appellate Authority are reasoned and correct and based on materials available on record and as such requires no interference.” 4. Heard counsel for both the parties and perused the documents on record. 5. Mr. It is stated and submitted that the orders passed by the Conducting Officer, Disciplinary Authority, and Appellate Authority are reasoned and correct and based on materials available on record and as such requires no interference.” 4. Heard counsel for both the parties and perused the documents on record. 5. Mr. Manoj Tandon, learned counsel appearing for the petitioner has submitted that the petitioner served for 22 years without punishment of even a 'nindan' and during his service period, he has been awarded Fifteen times for good service and therefore, there was no reason for the petitioner to remain absent from duty for 472 days without any just cause and reason. The petitioner has taken a specific plea that due to his illness, he could not join his duty and in support of his plea, the petitioner submitted various prescriptions issued by the doctor however, without recording a finding that the absence from duty was willful and intentional, order of dismissal from service has been passed by the disciplinary authority which has been affirmed by the appellate authorities also, which is not justified in view of the decision of the Hon'ble Supreme Court in “Krushnakant B. Parmar Vs. Union of India and another”, reported in (2012) 3 SCC 178 . 6. Per contra, Mr. Pravin Kumar Rana, learned counsel appearing for the respondents, reiterating the stand taken in the counter affidavit, has submitted that as the petitioner remained absent for 472 days unauthorisedly, a departmental proceeding was initiated against him and the enquiry officer found the petitioner guilty of the charge levelled against him. 7. A perusal of the documents on record would indicate that the petitioner had initially sent an application on 08.12.2008 to the Superintendent of Police, Dhanbad which was received in the office of the Superintendent of Police on 11.12.2008. The petitioner in his defence has taken a specific plea that he was suffering from Jaundice and only after he was declared fit by the doctor, he could join his duty. It is stated by the petitioner that in compliance of notice dated 25.04.2010, the petitioner presented himself in the office of Superintendent of Police and gave his explanation. These facts have not been controverted by the respondents in the counter affidavit filed in the present proceeding. 8. In “Krushnakant B. Parmar Vs. It is stated by the petitioner that in compliance of notice dated 25.04.2010, the petitioner presented himself in the office of Superintendent of Police and gave his explanation. These facts have not been controverted by the respondents in the counter affidavit filed in the present proceeding. 8. In “Krushnakant B. Parmar Vs. Union of India and another”, reported in (2012) 3 SCC 178 , the Hon'ble Supreme Court has held as under: 16. “In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct.” 9. It appears that an enquiry was conducted by one Parmeshwar Shukla who had inspected the medical papers and O.P.D. entry made in the name of the petitioner. He questioned the doctor also, who had treated the petitioner. However, he submitted a report stating that the doctor had issued certificate under the influence of the wife of the petitioner. A copy of this report has admittedly not been supplied to the petitioner and therefore, it could not have been relied upon against the petitioner. 10. A perusal of the orders impugned in the present writ petition, would disclose that the departmental authorities have not recorded a finding that the absence from duty was willful and intentional. A copy of this report has admittedly not been supplied to the petitioner and therefore, it could not have been relied upon against the petitioner. 10. A perusal of the orders impugned in the present writ petition, would disclose that the departmental authorities have not recorded a finding that the absence from duty was willful and intentional. In view of the fact that, during the career span of 22 years the petitioner was never found guilty of any misconduct and in fact, he has been rewarded on Fifteen occasions for his good service, would indicate that the petitioner remained absent from duty because of some compelling circumstances. The plea taken by the petitioner was required to be examined by the departmental authority and a finding in this regard should have been recorded by the departmental authorities before inflicting punishment of dismissal from service, which admittedly has not been done in this case and therefore, I am of the opinion that it would be in the interest of justice to remit the matter back to the disciplinary authority to pass an order afresh after considering the plea of the petitioner and recording a specific finding as indicated in the judgment of the Hon'ble Supreme Court in “Krushnakant B. Parmar Vs. Union of India and another”, reported in (2012) 3 SCC 178 . 11. The impugned orders dated 29.12.2010, 08.10.2011 and 17.11.2012 are hereby quashed and the disciplinary authority is directed to pass an order within a period of eight weeks from the date of communication of this order. 12. In view of the aforesaid, this writ petition is allowed. Petition allowed.