Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 349 (MP)

Ram Singh Tomar v. State of M. P.

2018-03-22

VIVEK AGARWAL

body2018
ORDER 1. Petitioner has filed this petition being aggrieved by order dated 5.4.2014 whereby petitioner has been visited with penalty of dismissal from service. 2. Charge of the petitioner is to the effect that he had proceeded on earned leave for a period of seven days on 5.8.2013 and he was required to report for duty on 12 noon on 13.8.2013 but he did not report back on the date as a result charge sheet was issued against him on 11.9.2013. 3. It is petitioner's contention that since an accident had taken place on 11.8.2013, therefore, he was in custody since 11.8.2013 and a formal arrest was issued on 19.8.2013 and he was presented before the concerned Magistrate. Thereafter, he was in jail and, therefore, he had made a request for postponing the departmental enquiry as he was in custody and his mental status was not upto the mark which is reflected at Annexure P-9. He submits that without considering such communication as was made by the petitioner, departmental enquiry was continued. Enquiry officer on 12.12.2013 asked him to remain present on 20.12.2013 but in fact the statements were recorded on 20.2.2014 as contained in Annexure P-4 and in his statement he has categorically mentioned that because of circumstances, he was detained by the Police Station, Gole Ka Mandir on 11.8.2013 under the pressure of the relatives of the deceased Ajay Tomar, he could not report on 13.8.2013. He has placed reliance on the judgment of this Court in Writ Petition No. 4369/2003 (Rajendra Meena v. State of M.P. and others) as decided on 11.1.2005 wherein the coordinate Bench has decided in paragraph 11 that when petitioner made a request that his mental condition is not proper and enquiry be kept in abeyance, then the authorities were required to take a decision on such request, otherwise, it amounts to violation of principles of justice. 4. Shri Yogesh Singhal, when asked to what decision was taken on his request as contained in Annexure P-9, he could not show any material from the return to substantiate that any decision was taken by the authorities on such request as was made by the petitioner. 5. Moreover, petitioner was released on bail on 24.2.2014 and the circumstances reveal that petitioner was since in custody could not produce evidence in defence to demonstrate that he was in fact under illegal detention from 11.8.2013. 5. Moreover, petitioner was released on bail on 24.2.2014 and the circumstances reveal that petitioner was since in custody could not produce evidence in defence to demonstrate that he was in fact under illegal detention from 11.8.2013. The fact which is mentioned in reply to the show cause notice issued by the disciplinary authority on 20.3.2014 enclosing copy of the enquiry report for the comments of the petitioner, petitioner has categorically mentioned that under the pressure of the relatives of deceased Ajay Tomar, he was taken into custody at about 1 a.m. on 12.8.2013 and this fact can be verified from the news paper cutting of Dhainik Bhaskar showing his detention. But ignoring all these aspects and without affording any opportunity of leading evidence to substantiate his taking into custody on 12.8.2013, impugned order has been passed. 6. Petitioner had filed an appeal and mercy appeal which too have been rejected by the appellate authority and disciplinary authority respectively. 7. Shri Yogesh Singhal, learned counsel for the respondents submits that this plea of arrest on 11.8.2013 is an afterthought. It is submitted that even in the bail application, his date of custody has been shown as 19.8.2013, however, he has failed to show that what action was taken on the requests of the petitioner as is contained in Annexure P-9, inasmuch as there is no speaking order on record to demonstrate that whether such request was accepted or rejected by the authorities. However, he orally submits that such request was rejected. But, rejection order has not been filed by the respondents on record and no reason has been assigned for not filing rejection on record. 8. Under the facts and circumstances of the case, when petitioner consistently had taken a plea that he was illegally detained on 11.8.2013 itself, then it was incumbent upon the authorities to permit him to examine or should have examined on their own officials of Police Station, Gole Ka Mandir to verify or contradict the statement given by the petitioner about his illegal detention on 11.8.2013. 9. 9. Thus, from the facts and circumstances of the case, it is apparent that non-reporting of the petitioner was beyond his control, inasmuch as he was illegally detained in custody on 11.8.2013 by the Police Station, Gole Ka Mandir and, therefore, it cannot be said that charge in regard to willful absence of the petitioner is prima facie made out. 10. Thus, the impugned orders deserve to be quashed and are hereby quashed. However, liberty is reserved in favour of the respondents that since petitioner has been released on bail if they shall desire, may conduct further enquiry from the stage of issuance of charge sheet and take a suitable decision after affording him an opportunity of producing defence witnesses in support of his contention that he was illegally detained in custody at Police Station, Gole Ka Mandir, Gwalior, on 11.8.2013. It is made clear that quashment of orders will permit the petitioner to continue in service but he will not get salary and other allowances for the period but this period will be treated as period in service for all other purposes. 11. Accordingly, the petition is allowed and disposed of.