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2014 DIGILAW 1190 (JHR)

Anil Kumar Singh v. State of Jharkhand

2014-12-02

SUJIT NARAYAN PRASAD

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Order : The petitioner, being aggrieved by the orders dated 12.9.2005, 4.11.2006 and 14.2.2008 passed by the disciplinary, appellate and revisional authority respectively, has preferred the writ petition challenging the same. 2. The brief fact, as has been pointed out by the senior counsel appearing on behalf of the petitioner is that the petitioner has been appointed as a Constable in the Jharkhand Police. In the year 2003 he was posted in Bokaro Police. He was granted ten days' leave from his office and went to his native village. Meanwhile due to illness he could not be able to present in the office after lapse of the granted leave of ten days. It has been submitted by the senior counsel appearing for the petitioner that the petitioner was under treatment of one Dr. J.P. Sharma, Lakhisarai from 20.6.2003 to 18.10.2003 and thereafter he was referred to Mental Hospital, Ranchi for treatment under Dr. Durga Bhagat from 20.10.2003 to 15.4.2004 and after getting the fitness certificate, he joined his duty on 17.4.2004. 3. It has been argued by the learned senior counsel for the petitioner that without serving memo of charge and without seeking his show-cause reply, an ex-parte departmental proceeding has been initiated. Thereafter without providing any opportunity of being heard Enquiry Officer has submitted ex-parte finding holding the petitioner guilty of the charges. The copy of the enquiry report has not been served to the petitioner, hence the petitioner could not be able to defend the charges. The disciplinary authority, after receiving the enquiry report, has issued a second show-cause notice on 14.3.2005. The petitioner had filed a detailed reply to the show-cause notice against the proposed punishment of the dismissal vide his reply dated 21.3.2005. 4. It has been further pointed out by the senior counsel appearing for the petitioner that the disciplinary authority, without considering the reply of the second show-cause notice and without considering the medical certificate annexed therein, has passed the order of dismissal on 12.9.2005 against which a detailed appeal has been preferred before the Deputy Inspector General of Police, Coal Range. The appellate authority also without considering the plea taken by the petitioner in the memorandum of appeal has affirmed the order passed by the disciplinary authority. The petitioner preferred revision before the Director General of Police who has also not considered the illness of the petitioner. The appellate authority also without considering the plea taken by the petitioner in the memorandum of appeal has affirmed the order passed by the disciplinary authority. The petitioner preferred revision before the Director General of Police who has also not considered the illness of the petitioner. On this background, the learned senior counsel for the petitioner has submitted that the order of dismissal of the authorities is not proper on the ground that the plea taken by the petitioner in the reply of second show-cause notice relating to his mental illness has not at all been discussed by the disciplinary authority. It has further been submitted that the petitioner was on sanctioned leave for a period of ten days but thereafter due to mental illness, he could not be able to appear in the office. In support thereof he has brought into the notice of the disciplinary authority that it is due to reason beyond his control he could not be able to present himself in the office, but without considering this aspect of the matter, the order of dismissal has been passed. Hence, non-consideration of reply to the show-cause notice given by the petitioner makes the order of dismissal improper. 5. It has further been submitted that as the petitioner has brought to the notice of the disciplinary authority with respect to the mental illness, so specific finding ought to have been given by the disciplinary authority on the basis of reply to the second show-cause notice in which the petitioner has given fact relating to his mental illness. However, in the impugned order dated 12.9.2005 the disciplinary authority has discussed with respect to the mental illness of the petitioner, but merely on the basis of presumption the fact related to the petitioner has been disbelieved and, as such, the disciplinary authority has not acted in a proper manner while imposing harsh punishment of dismissal from service. 6. On the other hand, counsel for the respondents-State has defended the impugned order saying that since there is concurrent finding of the disciplinary authority, the appellate authority and revisional authority, the same cannot be interfered under Article 226 of the Constitution of India. 7. Heard the parties. 8. 6. On the other hand, counsel for the respondents-State has defended the impugned order saying that since there is concurrent finding of the disciplinary authority, the appellate authority and revisional authority, the same cannot be interfered under Article 226 of the Constitution of India. 7. Heard the parties. 8. From perusal of the record it appears that the petitioner was granted sanctioned leave from 16.6.2003 to 25.6.2003 i.e. for the period of 10 days but he has not presented himself in the office after lapse of the sanctioned leave, rather he reported the office on 17.4.2004 i.e. after lapse of about ten months. The plea taken by the petitioner that since he was mentally ill during the relevant period and that is the reason he could not be able to present himself in the office has not been considered rather medical certificate has been disbelieved, without giving any specific finding with respect to the illness of the petitioner, the same has been rejected merely on the ground of surmises. This plea of learned senior counsel for the petitioner cannot be accepted in view of the fact that the petitioner admittedly was on sanctioned leave from 16.6.2003 to 25.6.2003 and after lapse of the sanctioned leave he has not given any information even by post to the competent authority bringing to their notice that due to the circumstances beyond his control he was not in a position to present himself in the office, rather after completion of the enquiry he reported to the office on 17.4.2004. Thereafter, he has brought the fact about his mental illness through reply to the second show-cause notice. Prior to the said date no information has ever been communicated to the competent authority and that is why the disciplinary authority has disbelieved the medical prescriptions. 9. Further, unauthorised absence of about ten months amounts gross misconduct for a member of the disciplined Force, that too without giving any information to the competent authority, as indicated herein above, and that cannot be taken in a casual way. 10. 9. Further, unauthorised absence of about ten months amounts gross misconduct for a member of the disciplined Force, that too without giving any information to the competent authority, as indicated herein above, and that cannot be taken in a casual way. 10. Since the disciplinary authority has given specific finding that has been dealt with by the appellate authority as well as by the revisional authority and, as such, this Court sitting under Article 226 of the Constitution of India cannot reappraise the evidence and cannot disturb the facts and findings given by the disciplinary authority as has been dealt with by the Hon'ble Apex Court in the case of State of U.P. & ors. Vs. Raj Kishore Yadav and another reported in (2006) 5 SCC 673 at para 4 as follows: “.................... It is a settled law that the High Court has limited scope of interference in the administrative action of the State in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India and, therefore, the findings recorded by the enquiry officer and the consequent order of punishment of dismissal from service should not be disturbed.” 11. In view of the above, I find no illegality in the impugned orders. This writ petition is hereby dismissed.