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Jharkhand High Court · body

2019 DIGILAW 555 (JHR)

Jhumar Kumari (Constable) v. State of Jharkhand

2019-02-26

ANANDA SEN

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ORDER : 1. In this writ application, the petitioner has prayed for quashing the punishment order, passed by the Commandant, Jharkhand Armed Police-X, Hotwar vide memo no. 288 dated 18.08.2015, in departmental proceeding no. 11 of 2015, whereby her two annual increments have been stopped, which is equal to three black marks and also a warning was given to her. She also challenged the Appellate Order passed by the Deputy Inspector General of Police, Ranchi vide memo no. 2928 dated 29.12.2015, whereby the order of punishment was modified and she was ‘Censored”. The petitioner also prayed for a direction upon the respondent for payment of full salary with allowances for the period she remained discharged from service till her reinstatement. 2. The petitioner was appointed as lady Constable in Mahila Battalion, Jharkhand Armed Police-X, Hotwar, Ranchi on 30.11.2006. She joined there and was discharging her duties. She also received the necessary training. During training, she received information from her parent that her marriage was fixed and was scheduled to be solemnized on 10.07.2008. She applied for 20 days compensatory leave before the Commandant, JAP-VI for the purpose of marriage, which was rejected by the Commandant. She again filed a fresh application on 03.07.2008 for grant of 5 days casual leave for the said purpose. As per the petitioner, the fate of the said application was not communicated to her and as the date of marriage was 10.07.2008, which was not possible to be shifted and neither any information was given to her about the leave, for which she applied on 03.07.2008, she left the training Center in anticipation of sanction of casual leave. As per the petitioner, the circumstances were compelling and beyond her control. She returned on 22.07.2008, i.e. after 17 days and was served with a show cause notice seeking reply as to why she would not be dismissed from service for unauthorized absence. 3. The petitioner replied to the said show cause notice, but the authorities were not satisfied with the same. After a proceeding, she was dismissed from service w.e.f. 07.08.2008. 4. Aggrieved by the said order of dismissal, the petitioner preferred an appeal before the Appellate Authority, which was also dismissed. 5. Challenging both the aforesaid orders, the petitioner moved this Court in W.P.S. No. 6236 of 2009. After a proceeding, she was dismissed from service w.e.f. 07.08.2008. 4. Aggrieved by the said order of dismissal, the petitioner preferred an appeal before the Appellate Authority, which was also dismissed. 5. Challenging both the aforesaid orders, the petitioner moved this Court in W.P.S. No. 6236 of 2009. This Court, after hearing the parties, allowed the said writ application by remanding the matter to the Disciplinary Authority vide order dated 07.11.2014 and held that the punishment order was excessive and was too harsh, which shocks judicial conscience. After the matter was remanded, the petitioner was allowed to join duty on 11.01.2015. The Disciplinary Authority reviewed the quantum of punishment and vide order dated 18.08.2015 contained in Memo No. 288, stopped the increment of the petitioner for future two years, which is equivalent to three black marks and also ordered that the period which the petitioner was out of service, i.e. from 07.08.2008 to 10.01.2015, will be treated as ‘No work No pay’ and no salary would be paid to her for the said period. 6. Aggrieved by the said order, the petitioner preferred an appeal before the Appellate Authority. The Appellate Authority set aside the punishment order of withholding increment for two years and converted the same into ‘Censor”, but held that the other part of the order will remain as it is. The affect of the appellate order is that the petitioner was Censored and the period, which she remained out of service, was treated as ‘No work No pay’. 7. Aggrieved by the aforesaid order, the petitioner approached this Court by filing this writ application and prayed to set aside the appellate order and also prayed for a direction to pay full salary with allowances. 8. The State has filed counter affidavit justifying their action. 9. I have heard the counsel for the parties. Learned counsel appearing for the petitioner submits that when the Appellate Authority had modified the order of punishment, and converted the same to that of Censor, then he should have ordered for paying the back wages. He further submits that admittedly, when the dismissal was found to be bad then the petitioner is entitled to get the back wages. 10. Learned counsel appearing for the petitioner submits that when the Appellate Authority had modified the order of punishment, and converted the same to that of Censor, then he should have ordered for paying the back wages. He further submits that admittedly, when the dismissal was found to be bad then the petitioner is entitled to get the back wages. 10. Learned counsel for the respondents submits that the petitioner has committed grave misconduct and was absent unauthorizedly for a period of 17 days so the punishment is absolutely justified and the petitioner is not entitled to get any salary for the period, which she remained out of service. 11. After hearing the parties, I find that the facts are admitted in this case. The petitioner applied for compensatory leave for 20 days for solemnizing her marriage, which was rejected. She again applied for casual leave for 5 days for the said purpose. The authorities did not communicate their decision and as the date of marriage was approaching, the petitioner left the office. Admittedly, the petitioner returned after 17 days. A departmental proceeding was initiated against the petitioner for unauthorized absent and she was dismissed from service. This Court in W.P.S. No. 6236 of 2009 held that the dismissal order is too harsh and unjustified and thus remanded the matter. The disciplinary authority thereafter, set aside the dismissal order and inflicted the punishment of stoppage of increment for two years. It was further ordered that from the date of dismissal till the date of reinstatement the petitioner is not entitled to get any salary. When the aforesaid order was challenged in appeal, the Appellate Authority modified the order of punishment of stoppage of increment and only censored the petitioner but kept the order of nonpayment of salary intact. 12. While going through the appellate order, I find that the Appellate Authority has held that non-grant of leave for performing the marriage is against the Principles of Human Rights and the same should have been granted. The Appellate Authority thus, admits that non-grant of leave was in-human but went on to hold that overstaying for 17 days was not proper for the petitioner and, therefore, she has to be punished. The punishment, which was inflicted, was of censor. The Appellate Authority thus, admits that non-grant of leave was in-human but went on to hold that overstaying for 17 days was not proper for the petitioner and, therefore, she has to be punished. The punishment, which was inflicted, was of censor. I find no illegality in awarding the punishment of Censor simply because in the second application for leave the petitioner sought leave only for 5 days but she returned after 17 days. Her action would have been bonafide if she returned after 5 days, i.e. the period for which she had applied for casual leave. Thus, the punishment of Censor needs no interference and it is justified. 13. So far non-payment of salary is concerned, I find that this Court (on earlier occasion), the Disciplinary Authority as well as the Appellate Authority have already held that the order of dismissal was not proper. When it has been held that the dismissal was not proper and the dismissal was at the behest of the employer and the ground for dismissal was very fragile, there was no occasion to withhold the salary of the petitioner for the period she was out of service. So far as overstaying is concerned, she was already punished by awarding Censor. The Stoppage of salary for the period of dismissal on the facts of this case is not warranted. It was the respondents, who prevented her to work on a ground which had not legs to stand. 14. Thus, I hold that the petitioner is entitled to get her salary for the period, which she remained out of service, i.e. from the date of dismissal till the date of her reinstatement. Respondent no. 2 Director General-cum-Inspector General of Police, Jharkhand, Ranchi is directed to pass an order to the effect that the salary of the petitioner should be paid within a period of two months from the date of receipt/production of a copy of this order. 15. With the aforesaid observation and direction, this writ application is partly allowed.