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2021 DIGILAW 20 (JHR)

Amit Kumar Mishra v. State of Jharkhand

2021-01-07

SANJAY KUMAR DWIVEDI

body2021
JUDGMENT : Heard Mr. Indrajit Sinha, learned counsel for the petitioner and Mr. Gaurav Abhishek, learned counsel for the respondent-State. 2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard on merit. 3. The petitioner has preferred this writ petition for quashing the orders dated 13.05.2015, contained in Annexure-12 of the writ petition, whereby, the petitioner has been dismissed from service with immediate effect w.e.f. 13.05.2015. The further prayer is made for quashing the order dated 2 W.P. (S) No. 4737 of 2019 23.07.2019, whereby, the appeal preferred by the petitioner against the order dated 13.05.2015 has been dismissed as time barred in terms of Rule 852(Ka) of the Jharkhand Police Manual. 4. The petitioner was appointed on the post of constable on 16.06.2010. The petitioner made an application for grant of earned leave for a period of 35 days for the period from 30.05.2014 to 04.07.2014. Pursuant to the said application, he was granted earned leave. However, the petitioner did not submit his joining after availing the earned leave and he remained absent and to that effect, order dated 08.07.2014 has been passed, whereby, the salary of the petitioner was withheld. Thereafter, vide order dated 09.07.2014, the petitioner has been directed to submit his joining immediately, failing which, disciplinary action will be taken. On enquiry, it came to the knowledge of the respondents that the petitioner is getting treatment at his village and he will join his duty after Chhath Puja. Thereafter, vide order dated 03.11.2014, the petitioner was put under suspension with immediate effect i.e. 31.10.2014 in contemplation of departmental proceeding. The petitioner sent an application to the Commandant informing that he is suffering from Malaria fever and he is unable to attend his duty, as the doctor has advised him to take rest till he recovers. Vide memo dated 05.11.2014, the charge has been framed against the petitioner, which has been communicated to the petitioner. Thereafter, departmental proceeding was initiated against the petitioner, in which, statements of witnesses were recorded. A show-cause notice dated 24.04.2015 has been issued to the petitioner. Thereafter, the petitioner has been dismissed from service with immediate effect w.e.f. 13.05.2015. Vide memo dated 05.11.2014, the charge has been framed against the petitioner, which has been communicated to the petitioner. Thereafter, departmental proceeding was initiated against the petitioner, in which, statements of witnesses were recorded. A show-cause notice dated 24.04.2015 has been issued to the petitioner. Thereafter, the petitioner has been dismissed from service with immediate effect w.e.f. 13.05.2015. The petitioner preferred an appeal against the order dated 13.05.2015, which was dismissed vide order dated 23.07.2019 and that is why, the petitioner has moved before this Court. 5. Mr. Indrajit Sinha, learned counsel for the petitioner submits that the orders passed by the disciplinary authority as well as appellate authority are not sustainable. He further submits that initially the petitioner was suffering from malaria fever and the said fact was duly informed to the respondent authorities. He also submits that the statements of witnesses have been discarded by the disciplinary authority while passing the order of dismissal moreover by the enquiry officer. He further submits that the petitioner was not mentally fit to discharge his duty and, therefore, he could not submit his joining before the concerned authority. He further submits that the penalty of dismissal from service on the ground of unauthorized absence is so unreasonable and disproportionate to the charge framed and found proved against the petitioner that warrants interference of this Court. 6. Mr. Gaurav Abhishek, learned counsel for the respondent-State submits that the petitioner being a member of disciplined force has rightly been dismissed from service on account of his misconduct of unauthorized absence from duty. He further submits that the treatment allegedly undertaken by the petitioner during the period of unauthorized absence was not approved by the Department. 7. On perusal of the penalty order dated 13.05.2015, it transpires that the disciplinary authority though, noticed the defence of the petitioner that he was suffering from malaria, but the same was doubted by the disciplinary authority. The disciplinary authority as well as appellate authority both have proceeded in the similar manner disbelieving the defence taken by the petitioner. No doubt, the petitioner remained absent from duty unauthorizedly. However, considering the fact that the departmental authorities have not returned a finding that the sickness as referred by the petitioner was forged or fabricated, penalty of dismissal from service inflicted upon an employee who had put in about 5 years of service, prima facie, appears to be unreasonable. No doubt, the petitioner remained absent from duty unauthorizedly. However, considering the fact that the departmental authorities have not returned a finding that the sickness as referred by the petitioner was forged or fabricated, penalty of dismissal from service inflicted upon an employee who had put in about 5 years of service, prima facie, appears to be unreasonable. In “Chairman-cum- Managing Director Coal India Ltd. & Anr. Vs. Mukul Kumar Choudhuri & Ors.”, reported in (2009) 15 SCC 620 , the Hon'ble Supreme Court has observed as under:- “21. In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company’s rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.” 8. The question of choice of punishment and the quantum of punishment are within the jurisdiction and discretion of the departmental authority, however it is also well recognized that the punishment should not be so disproportionate to the misconduct alleged as to shock the conscience of the Court. While dealing with the punishment imposed in Court Martial, in Ranjit Thakur Vs. Union of India, reported in (1987) 4 SCC 611 , the Hon'ble Supreme Court observed that “the doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune form correction”. 9. Considering the fact that the respondents have not alleged previous misconduct of the petitioner nor the sickness as referred by the petitioner has been found forged or fabricated, the penalty order dated 13.05.2015, and the order dated 23.07.2019 passed by the appellate authority are quashed. 9. Considering the fact that the respondents have not alleged previous misconduct of the petitioner nor the sickness as referred by the petitioner has been found forged or fabricated, the penalty order dated 13.05.2015, and the order dated 23.07.2019 passed by the appellate authority are quashed. The matter is remitted to the disciplinary authority to take a fresh decision on the question of punishment to be imposed upon the petitioner. 10. Accordingly, the writ petition stands allowed and disposed of in the aforesaid terms.