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2014 DIGILAW 1180 (JHR)

Manoj Kumar Singh v. Union of India

2014-12-01

SUJIT NARAYAN PRASAD

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Order The petitioner being aggrieved with order of termination dated 04.10.2002 passed by the Major Officer Commanding and also order dated 19.01.2007 passed by Colonel, Group Commander, has approached this Court. 2. It has been submitted that the petitioner was appointed to the post of Luskar 35th Battalion NCC and joined on 02.06.1988 and after being posted from one place to another he was transferred at Hazaribagh at Sainik School, Tilaiya and gave his joining. 3. It has been submitted that on 12.04.2001, the petitioner had filed an application for leave and accordingly leave was sanctioned from 16.04.2001 to 21.04.2001. The petitioner proceeded for native place at Saupol. It has been submitted by the counsel for petitioner that after reaching Supol he fell ill and during treatment it was detected that he was suffering from Hepatitis/Jaundice and he was advised to take complete bed rest. 4. After becoming medically fit petitioner joined to his office on 02.07.2001 alongwith all medical certificates. Petitioner was directed vide letter dated 07.07.2001 to get the medical report countersigned by the Chief Medical Officer of Government Hospital, so that his leave could be adjusted. When he approached the local Civil Surgeon Cum Chief Medical Officer the petitioner was told to get verified at Saharsha from where the petitioner was treated. Accordingly, the petitioner apprised this fact with the concerned authorities and sought for leave so that he could go to Saharsa and get the medical certificate countersigned but leave was not granted. 5. In the meantime, a disciplinary proceeding was initiated on 14.08.2001 without any information in this regard to the petitioner. However vide letter dated 21.02.2002, petitioner was directed to remain present at N.C.C. Sainik School, Tilaiya on 26.02.2002 for Court’s enquiry. On 25.02.2002, the memo of charge was issued to the petitioner leveling therein two charges: (i) Petitioner remained absent without leave/information with effect from 1300 hours on 14.08.2001 till date. (ii) Giving the false address (Permanent and present address both) in Service Book. 6. Petitioner accordingly presented himself on 26.02.2002 and he was directed to give his reply. The petitioner requested to supply certain documents from the disciplinary authority but the same was not supplied and as such, he could not file reply to show cause. (ii) Giving the false address (Permanent and present address both) in Service Book. 6. Petitioner accordingly presented himself on 26.02.2002 and he was directed to give his reply. The petitioner requested to supply certain documents from the disciplinary authority but the same was not supplied and as such, he could not file reply to show cause. Though, the departmental proceeding was initiated but in spite of several requests made by the petitioner, the relevant documents sought for was not be supplied by the concerned authorities. 7. The petitioner, since did not appear before the inquiry officer, as such the order has been passed in this regard on 04.10.2002. It is further submitted that the higher authority had already made recommendation to terminate the services of the petitioner and accordingly he has been terminated. Petitioner has challenged the order of termination dated 04.10.2002 mainly on the grounds: (i) That even assuming that the petitioner has not participated in the departmental proceeding then also the Department can proceed ex-partie but the decision ought to have been taken by the disciplinary authority on the basis of material available on record. (ii) It has been submitted by counsel for petitioner by placing reliance upon letter dated 19th June, 2002 that the higher authorities had already made up their mind with regard to decision to terminate the petitioner from service which was communicated to the disciplinary authority and as such the entire departmental proceeding was merely a formality, since the higher authorities have already made up their mind to terminate the petitioner from service. 8. On the other hand, counsel for the respondents has submitted that the petitioner since has not appeared in the departmental proceeding in spite of repeated notices given to him and as such the department was not left with other option but to pass order of dismissal. 9. Heard the parties and perused the documents on record. 10. A departmental proceeding had been initiated against the petitioner on the charge of unauthorized absence from duty. Petitioner did not participate in the inquiry although he had demanded relevant documents but the same was not provided to him. 11. The authority passed the order of dismissal on 04.10.2002 on the ground that the petitioner had not appeared before the Enquiry Officer and as such he disobeyed the order of the Enquiry Officer, hence was dismissed from service. 12. 11. The authority passed the order of dismissal on 04.10.2002 on the ground that the petitioner had not appeared before the Enquiry Officer and as such he disobeyed the order of the Enquiry Officer, hence was dismissed from service. 12. When a departmental proceeding had been initiated, the authority was supposed to provide an opportunity to defend by serving a notice to the delinquent employee. Requirement of law is to apprise delinquent employee with respect to initiation of departmental proceeding. If the delinquent employee has appeared in the initial stage of proceeding but subsequently he stopped from appearing before the Enquiry Officer, the disciplinary authority has got ample power to proceed ex partie by recording the reason that in spite of notices having been served upon the delinquent employee, he did not appear. Thereafter, appropriate report is to be passed by the Inquiry Officer regarding proving or disproving of charge. 13. If the Enquiry Officer submits the enquiry report before the disciplinary authority, the disciplinary authority can accept or defer with the findings of the Enquiry Officer. 14. Here, in the instant case, from perusal of order dated 04.10.2002, it is evident that the Enquiry Officer has not given any finding regarding proving or disproving of the allegation leveled against the petitioner. 15. It is further evident that the disciplinary authority has also not assigned any reason on merit rather the order of dismissal has been passed solely on the ground that the petitioner has not appeared before the Enquiry Officer on repeated requests, which is misconduct. Office order dated 04.10.2002 is quoted hereinabove:- "1. An enquiry was convened to look into your case pertaining to absence from duty since 14 Aug' 2001. 2. You have not presesnted before the enquiring officer inspite of repeated letters by Lt Col R K Dewan, officer detailed to conduct the Departmental enquiry and failed to comply with, any request and not made Yourself available for recording of your statement. The enquiring officer has opined to terminate your service as per existing rules. 3. In view of the above your service is hereby terminated with immediate effect as per Bihar (Jharkhand) Board's miscellaneous Rules 166 and 167." 16. The enquiring officer has opined to terminate your service as per existing rules. 3. In view of the above your service is hereby terminated with immediate effect as per Bihar (Jharkhand) Board's miscellaneous Rules 166 and 167." 16. Thus, the disciplinary authority has dismissed the petitioner from service merely on the ground of findings given by the Enquiry Officer that since the delinquent employee failed to comply the request of the Enquiry Officer and not made available for recording of his statement. 17. Admittedly, no order has been passed on merit. Hence, in my view, the order dated 04.10.2002 is not sustainable in the eye of law and the same is hereby quashed. The matter is remanded before the competent authority to see afresh from the initial stage of inquiry, conclude the same and take a decision in accordance with law within a period of three months from the date of receipt of copy of this order. 18. It is made clear that if the petitioner will not co-operate with inquiry, the authorities will be at liberty to proceed ex-partie. 19. Writ petition is disposed of in the terms indicated above.