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2014 DIGILAW 1220 (JHR)

Basant Prakash v. State of Jharkhand

2014-12-05

APARESH KUMAR SINGH

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Judgment : Aparesh Kumar Singh, J: Heard learned counsel for the parties. 2. The petitioner, who was a constable under Bihar Military Police, was proceeded against for unauthorized absence of 257 days in Departmental Proceeding No.2/98 and was dismissed from service on 28.1.1999, Annexure 1, by the Commandant, Bihar Military Police-12 on the basis of misconduct established against him. He, however, Preferred an appeal against that apparently more than five years later on 6.5.2004, which was not entrained by the appellate authority, as the same had not been inconformity with the Police Manual Rules. The petitioner came before this Court against rejection of his appeal in writ petition being WP(S) No.1379/2005, which was disposed of by judgment dated 30.3.2005, Annexure 5. The learned Single Judge of this Court held that if the appeal memorial did not comply with the requirement of Rule 852(Kha), the petitioner should be given one opportunity to submit all the documents. Therefore the matter was remitted to the appellate authority to decide the appeal on merit and dispose of the same within a period of four months. Thereafter, the order dated 25.7.2005, passed on his Appeal by the Deputy Inspector General, Jharkhand Armed Police, Ranchi, has upheld the punishment order, which is also impugned in the present writ petition as Annexure 7. 3. Learned Senior Counsel for the petitioner has assailed the impugned order on the ground; (i) that the petitioner was in service for about 22 years with an unblemished records and on the solitary instance of absence in the present case for 257 days he has been imposed with a disproportionate punishment of dismissal from service. (ii) It is submitted that the petitioner was suffering from mental illness during the period of his absence, from which he was cured and reported thereafter to the controlling officer but none of the documents/prescriptions relating to his treatment have been given any heed by the Disciplinary Authority as well as the Appellate Authority. (iii) It is further submitted that the allegation of unauthorized absence, in such circumstances, would not amount to a deliberate misconduct on the part of the employee. (iv) The employee has sufficient explanation to satisfy the reasons for his absence but the respondents have failed to consider the same. (iii) It is further submitted that the allegation of unauthorized absence, in such circumstances, would not amount to a deliberate misconduct on the part of the employee. (iv) The employee has sufficient explanation to satisfy the reasons for his absence but the respondents have failed to consider the same. (v) According to the petitioner, in similar circumstances in the case of unauthorized absence the Hon’ble Supreme Court as well as this Court has interfered with the punishment on the principle of proportionality. (vi) He has relied upon the judgment rendered by the Hon’ble Supreme Court in the case of Chairman cum Managing Director, Coal India Limited and another Vs. Mukul Kumar Choudhury and others, reported in 2009 (15) SCC 620 ; in the case of Bhagwan Lal Arya Vs. Commissioner of police, Delhi and another, reported in 2004 JCR 107 (SC) as also a judgment rendered by the learned Single Judge of the Patna High Court in the case of Vijay Kumar Singh Vs. State of Bihar & ors., reported in 2000 (1) BBCJ 223 . (vii) it is further submitted that the grounds raised by the petitioner in appeal, Annexure 2, have not been considered with proper reasonings by the appellate authority in the impugned order as well. The impugned order, therefore, would also suffer on that count. Therefore, it is prayed that the punishment of dismissal from service being sever on the petitioner be set aside and the matter be remanded to the respondents to take a lenient view on the question of punishment after considering the explanation of the petitioner. The petitioner, who may have reached the age of superannuation now, would be entitled to at least monetary benefits of post retirement. 4. Respondents have appeared and filed their counter affidavit. It is submitted by the learned counsel for the respondents that an alternative remedy of memorial under Rule 853 of the Police Manual has not been invoked before approaching this Court by the petitioner, on which ground alone the writ petition could be dismissed. He has relied upon a judgment rendered in the case of Kanaiyalal Lalchand Sachdev Vs. State of Maharashtra, reported in 2011 (2) SCC 782 , para 23 thereof. He has relied upon a judgment rendered in the case of Kanaiyalal Lalchand Sachdev Vs. State of Maharashtra, reported in 2011 (2) SCC 782 , para 23 thereof. It is further submitted that the petitioner had no plausible explanation for his absence for a period of 257 days and the appeal itself was preferred after more than 5 years of the order of punishment. Still the appellate authority had considered the case of the petitioner on merit and rejected the same also taking into account that the petitioner himself had stated that he was suffering from mental Schizoaffective Disorder. The petitioner has only completed 21 years of service and could not have been granted the voluntary retirement in the facts and circumstances of the case, which has rightly been rejected by the appellate authority. 5. I have heard learned counsel for the parties and gone through the relevant materials on record. On perusal of the relevant materials, it appears that the petitioner was proceeded against for unauthorized absence without any intimation, while he was deputed to join at Patna from his Battalion Headquarter at Tatisilwai through Force Order No.236686 dated 11.12.1997. During this period notices were sent upon him by the Commandant on 17.1.1998 and on 2.2.1998 as well but he failed to report. Even he did not submit any reply to the show cause notices issued to him before initiation of the departmental proceeding. After initiation of the departmental proceeding in his written statement he took a plea that while he was in the process of joining at G. Company as per the Commandant's order, some person informed him about illness of his family and he proceeded straightway to his village home without intimation as he was not in a proper state of mind. His wife remained ill for long time and that his father also passed away. It further appears that during period of his absence a communication was also sent to the Superintendent of Police of his home district by the Commandant on 24.2.1998 to inquire about his whereabouts. The Superintendent of Police, Gumla, in his letter dated 19.3.1998, intimated on inquiry through the Officer Incharge, Simdega, that the petitioner was at his village home indulging in cultivation and also doing some business of selling of meat , fish etc. and was quite well living with his family. The Superintendent of Police, Gumla, in his letter dated 19.3.1998, intimated on inquiry through the Officer Incharge, Simdega, that the petitioner was at his village home indulging in cultivation and also doing some business of selling of meat , fish etc. and was quite well living with his family. It further appears that on conclusion of the departmental inquiry, while he was asked to furnish his reply to the second show cause, the petitioner himself stated that he wanted to proceed on voluntary retirement because of family reason. All these facts were considered by the appellate authority and it was found that the petitioner had completed only 21 years of service and in the aforesaid circumstances his plea for voluntary retirement could not be accepted. Therefore the punishment of dismissal from service was imposed. It appears from the documents also produced in support of his treatment, which are at Annexure 3 series that the petitioner had undergone treatment for Schizo affective Disorder at the Ranchi Institute of Neuron-Psychiatry and Allied Sciences. The certificate of Medical Superintendent of RINPAS is also enclosed as testimony in support of the aforesaid fact. Considering all these facts and circumstances, by a well reasoned order, the Deputy Inspector General of Police has rejected the petitioner’s appeal on reconsideration after remand by this Court in the previous writ petition being WP(S)1379/2005. 6. It, therefore, appears from consideration of all the relevant materials on record that the petitioner had proceeded on leave without any intimation for a long period of 257 days. It further appears that the departmental proceeding was conducted after due opportunity to the petitioner where he took a plea that he wanted to seek voluntary retirement because of his family condition. It, however, also appears that the petitioner tried to make out a case of his mental illness as suffering from Schizo affective Disorder. Though the order of Disciplinary Authority was passed on 28.1.1996, he preferred an appeal after more than 5 years on 6.5.2004 before the appellate authority, which was rejected initially but was decided on merit after remand by this Court earlier. From the judgments relied upon by the learned senior counsel for the petitioner, it appears that the factual backgrounds of the said case were different. From the judgments relied upon by the learned senior counsel for the petitioner, it appears that the factual backgrounds of the said case were different. In the case of Mukul Kumar Choudhury (supra), the respondent/employee had proceeded on sanctioned leave but did not report his duty despite reminder and remained absent for a considerable length of time. In such circumstances, while considering the gravity of misconduct vis-à-vis punishment imposed upon the said employee, the order of removal from service was interfered with by the Hon’ble Court. 7. In the case of Bhagwan Lal Arya (Supra), as a matter of fact, the employee had fallen ill during parade, whereafter he was taken to the police dispensary and when his condition did not improve he was taken to home town, Gwalior from where he sent application for leave on medical grounds supported with medical certificates from competent medical authority. 8. In the case of Vijay Kumar Singh (supra) also the said constable proceeded on leave officially and thereafter overstayed on leave. 9. In the case of hand, as has been noticed hereinabove, the petitioner without any intimation had proceeded on unauthorized leave and as would appear, he was not even interested in continuing in service as he made an application for voluntary retirement. Considering all these facts, the Disciplinary Authority as well as the Appellate Authority found the charges established against the petitioner and imposed the order of punishment, which was also upheld in appeal. Therefore, the punishment of dismissal from service also does not appear to be disproportionate to the misconduct established against the petitioner. 10. Accordingly this writ petition is dismissed. 11. I.A.No.2200 of 2007 also stands disposed of.