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2023 DIGILAW 775 (JHR)

Basudeo Sao v. State of Jharkhand

2023-06-15

S.N.PATHAK

body2023
JUDGMENT : S.N. PATHAK, J. 1. Heard the learned counsel for the petitioner and learned counsel for the respondents. 2. The petitioner has filed this writ petition seeking quashment of the order contained in Memo No. 160 dated 11.06.2009 issued by the Commandant Jharkhand Armed Police-2, Tatisilway, Ranchi, whereby the petitioner has been dismissed from services. Appellate order dated 22.01.2010 issued by Deputy Inspector General of Police, Jharkhand Armed Police, Ranchi is also under challenge. 3. Factual matrix of the case is that the petitioner was appointed on the post of Constable on 29.03.2006 in Jharkhand Armed Police-2, Tatisilwai, Ranchi. While the petitioner was posted in E-Company Camp, Giridih Stadium, a memo of charge for unauthorized absence of 75 days was issued. The enquiry officer submitted the enquiry report finding the petitioner guilty of the charges. Further, in the enquiry report it was observed that the petitioner was given ample opportunity to examine the witnesses, but the petitioner remained absent during the proceedings. Though letter was sent to the petitioner's residence, but the petitioner remained absent and the petitioner was found guilty of the charges. The order of dismissal dated 11.06.2009 was passed on the ground that in the past also the petitioner had remained absent from duty unauthorizedly and the petitioner was not interested in service and further the petitioner’s reply to show cause was not found satisfactory. Appellate authority also affirmed the dismissal order vide order dated 22.01.2010 on the ground that the petitioner has made concocted story in the reply furnished by him. Further, there was mention of the minor punishment (five) inflicted upon the petitioner for the past conduct. Challenging the said orders, the petitioner has filed this writ petition. 4. Learned counsel for the petitioner has submitted that the impugned order of dismissal, as affirmed by the appellate authority, has been passed by the disciplinary authority without taking into account the medical reports and disbelieving the same without any valid reason. Once the medical certificates have been accepted and without giving a finding it cannot be inferred that the absence was unauthorised. He further submits that the absence was not intentional or wilful, rather, it was under the compelling circumstances, which was beyond the control of the petitioner. Once the medical certificates have been accepted and without giving a finding it cannot be inferred that the absence was unauthorised. He further submits that the absence was not intentional or wilful, rather, it was under the compelling circumstances, which was beyond the control of the petitioner. Learned counsel for the petitioner further submits that if the allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence was wilful and in absence of such finding, absenteeism of the petitioner will not amount to misconduct. Learned counsel for the petitioner further submits that the enquiry report is perverse as no enquiry has been conducted under Rule 843 of the Police Manual. A report from Superintendent of Police of his native district is required to be obtained before coming to a finding, but in the case at hand, such procedure has not been followed, which violates Rule 843 of the Police Manual. Learned counsel further points out that no statement of witness was recorded during the enquiry proceeding and hence, the enquiry report is itself cryptic. To buttress his submissions, learned counsel also places reliance upon the judgment in the case of Krushnakant B. Parmar vs. Union of India and Another, (2012) 3 SCC 178 and S.R. Tiwari vs. Union of India, (2013) 6 SCC 602 . 5. Per contra, counter affidavit has been filed. Mr. Devesh Krishna, learned counsel appearing for the respondents submits that a departmental proceeding was initiated against the petitioner on the charges of unauthorised absence. The petitioner had not given proper reply for his unauthorised absence. Taking into consideration the enquiry report coupled with the past service records of the petitioner, the disciplinary authority passed the penalty order. Learned counsel further submits that the reason for absenteeism of the petitioner has duly been considered by the disciplinary authority as well as by the appellate authority and having found no sufficient ground, the impugned order has been issued. Therefore, learned counsel submits that there is no infirmity in the impugned order of dismissal, nor the same suffers from any illegality. 6. Therefore, learned counsel submits that there is no infirmity in the impugned order of dismissal, nor the same suffers from any illegality. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons: (i) It is not in dispute that the petitioner proceeded for 12 days leave on 21.6.2008 and he did not report for his duty on time, rather, he joined the duty after 75 days. (ii) Unauthorized absence of the petitioner led to initiation of a departmental proceeding, which finally culminated into his dismissal, based on the findings returned by the enquiry officer. This dismissal order was passed on 11.6.2009. (iii) The petitioner has duly narrated the entire mis-happening with supportive medical reports as to what prevented him for not joining the duty. The petitioner has stated that he was suffering from hepatitis and jaundice. Indeed, this ailment takes long time to cure. (iv) The reply of the petitioner has not been considered in its right perspective by the authority concerned including the appellate authority as well as revisional authority. Even the enquiry officer has not come with a finding that absenteeism was deliberate or intentional and not due to compelling circumstances. In absence of such findings, the impugned dismissal order requires to be interfered with. (v) The provisions of Rule 843 of Jharkhand Police Manual is also attracted in the present case, which reads as under: “Willful overstay of leave or absence from duty without leave shall be treated as misbehaviour and after obtaining the explanation of the officer concerned proceedings shall invariably be drawn up and departmental punishment inflicted. If after explanation, it appears that a police officer had remained absent from duty due to any sufficient reason he shall be granted leave admissible to him for that period. If it is proved that he has violated the Rules at his own will, he can be inflicted with any punishment as provided in Rule 824. The Police Officer who shall be absent from duty without permission shall be liable under Section 29 of Act V of 1861, as amended by Section 9 of the Act VIII of 1895. Such action however, should be taken only in special circumstances. The Police Officer who shall be absent from duty without permission shall be liable under Section 29 of Act V of 1861, as amended by Section 9 of the Act VIII of 1895. Such action however, should be taken only in special circumstances. As a Rule whenever an officer does not return in time on duty, enquiries shall be made by the Superintendent Commandant within one week from the S.P. of his native district, and should there appear that the officer has not returned to his duties in time for good reasons he should be suspended and departmental proceeding should be undertaken as per rule.” (vi) From bare perusal of the aforesaid rule, it appears that after obtaining the explanation from the concerned employee, departmental proceeding may be initiated and the concerned persons may be inflicted punishment. It further appears that after explanation, if it appears that a police officer had remained absent from duty due to any sufficient reason, he shall be granted leave admissible to him for that period. It also appears from perusal of the aforesaid rules, that whenever an officer does not return in time on duty, enquiries shall be made from the Superintendent of Police of his native district. (vii) The aforesaid procedure has totally been misplaced in the case at hand. Here, in the present case, the dismissal order was issued without obtaining any explanation from the petitioner, though the petitioner has duly explained the authority about his compelling circumstances under which he could not report for duty. The respondents have also not brought on record that any enquiry was made from the Superintendent of Police of native district of the petitioner. Therefore, it can comfortably be said that the dismissal order based on the enquiry report is violative of Rule 843 of the Police Manual. (viii) The disciplinary authority as well as appellate authority has passed the order of dismissal on the ground of past misconduct, but the instance of past misconduct has not been disclosed in the memo of charge. The petitioner has not been given any notice of the instance of past misconduct. (ix) The findings returned by the enquiry officer are based on no evidence, as no witness was examined to substantiate the charge. (x) Dismissal amounts to forfeiture of the entire amount which has been earned by an employee in his service tenure. The petitioner has not been given any notice of the instance of past misconduct. (ix) The findings returned by the enquiry officer are based on no evidence, as no witness was examined to substantiate the charge. (x) Dismissal amounts to forfeiture of the entire amount which has been earned by an employee in his service tenure. The Constitution provides right to livelihood and such right cannot be snatched away by order of dismissal in cases where absenteeism is not deliberate and willful. The Hon’ble Apex Court in Para-17 in case of Krushnakant B. Parmar vs. Union of India and Another, (2012) 3 SCC 178 has held as under: “17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc. but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.” (xi) The Hon’ble Apex Court in Para-19 in case of Chairman, Life Insurance Corporation of India and Others vs. A. Masilamani, (2013) 6 SCC 530 has held as under: “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over” and “to regard as” or “deem to be.” Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order [Vide Indian Oil Corporation Ltd. vs. Santosh Kumar and Bhikhubhai Vithalabhai Patel vs. State of Gujarat].” 7. As a cumulative effect of the aforesaid rules, observations, guidelines, the impugned penalty order dated 11.6.2009 (Annexure-2) passed by the Disciplinary Authority and the appellate order dated 22.01.2010 (Annexure-3), are hereby quashed and set aside. As a cumulative effect of the aforesaid rules, observations, guidelines, the impugned penalty order dated 11.6.2009 (Annexure-2) passed by the Disciplinary Authority and the appellate order dated 22.01.2010 (Annexure-3), are hereby quashed and set aside. The petitioner is directed to be reinstated in service. However, the petitioner is not entitled for any back wages and period of absence from duty shall be regularised by the respondent-authority in accordance with law and same shall be treated as period spent on duty without break in service for the purpose of pension and post retiral benefits. 8. Resultantly, the writ petition stands allowed with the directions and observations, indicated above.