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2016 DIGILAW 845 (JHR)

Binod Tiwari v. State of Jharkhand

2016-05-16

SHREE CHANDRASHEKHAR, VIRENDER SINGH

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JUDGMENT : Virender Singh, J. I.A. No. 67 of 2016 For the reasons carved out in the instant application and there being delay of only 32 days, to which learned counsel for the respondent-State has not raised any objection, the said delay hereby stands condoned. I.A. No. 67 of 2016 stands disposed of. L.P.A. No. 14 of 2016 Challenging the order of dismissal from service, the appellant-writ petitioner (hereinafter referred to as 'petitioner') approached the Writ Court in W.P.(S) No. 5601 of 2012 which stands dismissed vide judgment dated 30.10.2015, aggrieved thereof, the petitioner has filed the instant Letters Patent Appeal. 2. Heard the learned counsel for the parties and perused the documents on record. 3. Mr. Pramod Kumar, the learned counsel for the petitioner submits that the plea of illness taken by the petitioner must lead to a conclusion that the absence from duty was unintentional and once it is found so, the penalty of dismissal from service for unauthorised absence for 94 days was definitely disproportionate to the charges framed against the petitioner. 4. Percontra, the learned counsel for the respondent-State submits that inspite of notices issued to the petitioner, he did not participate in the enquiry proceeding. After conclusion of the enquiry, the petitioner was issued second show-cause notice which was received by him on 15.05.2001 and therefore, he cannot complain of breach of the rules of natural justice. Referring to the decision in “Union of India and Others Vs. Datta Linga Toshatwad” (2005) 13 SCC 709 , the learned counsel for the State submits that the gross indiscipline exhibited by the petitioner warrants punishment of dismissal from service which has rightly been inflicted upon him. 5. Briefly stated, a chargememo was served upon the petitioner on the allegation that vide order dated 13.04.2000 he was deputed on Police Vehicle No. BR12A/0524 with the escort party for collecting dress materials from Patna however, on 14.04.2000 he left the police vehicle at Patna and remained absent for 94 days. It appears that the Officer-in-Charge of Pakur P.S. with the escort party reached Patna on 14.04.2000 at about 7.00 a.m. in the morning and he instructed the petitioner to park the vehicles at the Kendriya Vastra Bhandar, Patna. It appears that the Officer-in-Charge of Pakur P.S. with the escort party reached Patna on 14.04.2000 at about 7.00 a.m. in the morning and he instructed the petitioner to park the vehicles at the Kendriya Vastra Bhandar, Patna. On 15.04.2000, when the Officer-in-Charge visited the Kendriya Vastra Bhandar for collecting the dress materials, he was informed that on 14.04.2000 itself the petitioner left the vehicle in the parking and did not return thereafter. It appears that the petitioner reported for duty on 18.07.2000. 6. After the petitioner absconded from duty, one Santosh Kumar Suman, Sub-Inspector of Police was sent to his home town for enquiring about his whereabouts and the Superintendent of Police of Vaishali was also requested to make an enquiry in this regard. However, no information could be gathered about the petitioner nor the petitioner informed the department, the reason for his absence. On 18.07.2000, he reported for duty and offered an explanation that from 14.04.2000 to 14.07.2000 he was under the treatment of one Dr. Siya Ram Roy for Jaundice. The enquiry report was submitted on 30.04.2001 and the second show-cause notice was issued to the petitioner on 05.05.2001. However, the petitioner did not respond to the second show-cause notice. The disciplinary authority accepting the enquiry report passed order of punishment dated 06.06.2001 of dismissal from service which has been affirmed by the appellate authority. 7. Since, the petitioner remained absent and did not participate in the disciplinary proceeding, the plea raised on behalf of the petitioner that the enquiry proceeding was held in breach of the rules of natural justice, must be rejected. 8. It is not a plea taken by the petitioner that before leaving police vehicle on 14.04.2000 he informed the escort party of his sickness. The petitioner had left duty at Patna from where he could have sent intimation to the department about his illness. Even his family members did not send information of his illness to the department. The abscondence of the petitioner for 94 days remained a mystery and production of a certificate from Dr. Siya Ram Roy, who appears to be a Physician, Surgeon and Child Specialist, only clouds his defence with suspicion. The facts of the case affirm the allegation that the petitioner's absence from duty was intentional and without any just excuse. The abscondence of the petitioner for 94 days remained a mystery and production of a certificate from Dr. Siya Ram Roy, who appears to be a Physician, Surgeon and Child Specialist, only clouds his defence with suspicion. The facts of the case affirm the allegation that the petitioner's absence from duty was intentional and without any just excuse. The witnesses examined by the department supported the charge framed against the petitioner and the conclusion of the enquiry officer has been accepted by the departmental authorities. The learned Writ Court, alive of the limitations of the judicial review, has observed thus : 9.(C) “On perusal, it appears that there is a concurrent finding in the orders of the disciplinary authority and appellate authority. This Court in exercise of jurisdiction under Article 226 of the Constitution of India cannot reappraise the evidence and cannot disturb the facts and finding given by the disciplinary authority as has been held by the Apex Court in case of State of U.P. and others Vrs. Raj Kishore Yadav and Another as reported in (2006) 5 SCC 673 at paragraph 4 held 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.” 9. Adverting to the plea raised on behalf of the respondents that the petitioner being a member of the disciplined force was expected to maintain discipline at all times, the learned Writ Court has observed thus ; 9.(b) “Moreover, members of the uniformed forces cannot remain absent themselves on frivolous pleas, having regard to the nature of duties entrusted to them. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Member of a uniformed forces who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. Member of a uniformed forces who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. In such case of dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged. This view has been illuminatively discussed in the case of Union of India and Ors. Vrs. Datta Linga Toshatwad as reported in (2005) 13 SCC 709 .” 10. Considering all aspects of the matter, we find no infirmity in the order passed by the learned Writ Court and resultantly, the instant Letters Patent Appeal stands dismissed.