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2025 DIGILAW 435 (JHR)

Nand Kishor v. State of Jharkhand

2025-02-14

DEEPAK ROSHAN, M.S.RAMACHANDRA RAO

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JUDMGENT : Deepak Roshan, J. The instant appeal is directed against the order dated 10.06.2024 passed by learned Single Judge in W.P(S) No. 2373 of 2023, whereby the prayer of the writ petitioner for quashing the order of dismissal as contained in Memo No. 46 dated 22.07.2020 and also the appellate and revisional order dated 03.11.2021 & 06.07.2022, respectively preferred by the petitioner, has been dismissed. 2. The brief facts of the case are that while the appellant was posted as Constable in JAP-7, Hazaribagh, he had taken permission to avail two days’ leave i.e., one casual leave and one Holiday during the period from 21.06.2018 to 23.06.2018, but after leave he did not join his duty and remained in unauthorized absence, as a result thereof a departmental proceeding was initiated against him by issuing charge-sheet, which culminated in his dismissal. The appellant filed appeal and revision respectively which were also dismissed and hence he preferred writ petition, in which the learned Single Judge after considering each and every aspect of the matter dismissed the writ petition vide order dated 10.06.2024, which is impugned herein. 3. From perusal of the record, it appears that a charge memo dated 27.12.2018 was issued to the appellant and it has been alleged that he had taken permission to avail two days’ leave, but he did not join the duty and remained in unauthorized absence from duty. Though, letters dated 19.07.2018 and 25.09.2018 were issued to the appellant, but he did not join his duty and finally forced with this situation, on 24.10.2018 one Durga Charan Bari was appointed to find out the reason for absence of the appellant from duty. When the said Durga Charan Bari went to his house, for the first time the appellant gave a letter dated 29.10.2018 stating therein that mental condition of his mother was not well and she was under treatment in Mental Hospital, Ranchi, and as such he could not join his duty. Then he promised to join the duty on 16.11.2018. It has further been alleged in the charge memo dated 27.12.2018 that in spite of the letter given by the appellant on 24.10.2018 to Durga Charan Bari, he did not join his duty, which reflects indiscipline and dereliction of duty. Then he promised to join the duty on 16.11.2018. It has further been alleged in the charge memo dated 27.12.2018 that in spite of the letter given by the appellant on 24.10.2018 to Durga Charan Bari, he did not join his duty, which reflects indiscipline and dereliction of duty. Due to the aforesaid reason, the appellant was also suspended vide order dated 19.11.2018 and a letter was also issued to this effect on 27.11.2018. 4. From the record, it further transpires that the departmental proceeding continued after following principles of natural justice; inasmuch as, in the departmental proceeding the petitioner had duly participated and at the stage of enquiry two witnesses were examined from the side of the department including the said Durga Charan Bari, who had gone to the house of the appellant. The appellant had taken a stand that although he had taken leave for two days, but at that time, the mother of the appellant had left the house on account of the fact that she was mentally disturbed, that it took time to find her out and provide treatment to her, which took quite some time; however, from the the enquiry report, it appears that the Enquiry Officer has categorically mentioned in his report that no document was produced by the appellant in connection with the treatment of his mother, and the documents which were produced were with regard to her treatment were relating to the period 2006 and 2009, whereas the instant case relates to the second half of the year 2018; thus at this stage itself it can be said that the factual finding given by the Enquiry Officer on the basis of the documents produced by the appellant himself appears to be correct. From the record, it further transpires that after the enquiry report was submitted by the Enquiry Officer to the Disciplinary Authority, the enquiry report was forwarded to the appellant vide Memo No. 70 dated 06.11.2019, wherein it was categorically mentioned that the Enquiry Officer has proved the charges leveled against him, and it has been proposed to impose major penalty upon the appellant, for which a second show-cause was issued granting 15 days’ time to file his reply; however as per the respondents, no reply to the second show-cause was filed by the appellant. From the record, it further appears that in the rejoinder affidavit filed before this Court, the appellant had taken a stand that he had filed reply to the second show-cause, but the learned Single Judge has categorically mentioned in paragraph-15 of its order that no such copy of the reply to the second show-cause has been annexed with the rejoinder. 5. The impugned order of dismissal passed by the Disciplinary Authority refers to last opportunity given to this appellant vide letter dated 11.07.2020 to which the appellant had filed his response before the Disciplinary Authority, wherein the appellant had taken the same plea what has been taken by him before the Enquiry Officer. The Disciplinary Authority duly considered the representation dated 16.07.2020 and has observed that the appellant has reiterated the same plea and did not produce any documents in connection with treatment of his mother and the documents produced were not related to the period of absence of the appellant from duty. From perusal of the impugned order, it further appears that the Disciplinary Authority has also considered the fact that the appellant has responded before the Enquiry Officer by stating that he has some problem in his nose, but had produced medical certificate and prescription in connection with the treatment of his tooth and no other document like purchase of any medicine etc. were produced, and in such a situation the Disciplinary Authority arrived at a finding that medical certificate issued by the appellant was just an excuse. As a matter of fact, from the impugned order of dismissal, it appears that the appellant had initially taken leave for the purpose of marriage of his brother, but thereafter he took the plea of illness of his mother and then of his own illness which was not substantiated by any materials and therefore the disciplinary authority passed an order of dismissal dated 22.07.2020. 6. After going through the aforesaid finding to the effect that the appellant was unable to prove his stand before the Enquiry Officer as well as before the Disciplinary Authority in spite of availing several opportunities, the order of dismissal has been passed, which cannot be said to be non-reasoned order. After going through the aforesaid facts and chain of events we are of the firm opinion that the principles of natural justice have been duly followed in the entire proceedings. After going through the aforesaid facts and chain of events we are of the firm opinion that the principles of natural justice have been duly followed in the entire proceedings. Further, it also appears that the appellant filed an appeal before the Appellate Authority as well as revision, but both the authorities have rejected the plea of the appellant. From the available records, it transpires that though the appellant was granted leave for 3 days, but he remained absent from duty for 286 days without giving any plausible reason and the reason which has been stated by the appellant before the Enquiry Officer, before the Disciplinary Authority and before the other appellate authorities has not been substantiated by the documents as stated in the foregoing paragraphs. 7. The learned Single Judge has rightly held in para-19 of its order that there has been no violation of principles of natural justice and the writ petitioner has miserably failed to produce any document in connection with treatment of his mother during the period of his absence; inasmuch as, the documents which were produced with regard to illness of his mother related to the period from 2009 and 2006 which were admittedly much before the period of absence involved in the present case, and therefore learned Single Judge has rightly held that the plea regarding illness of mother of the writ petitioner was rightly rejected by the Enquiry Officer, Disciplinary Authority, Appellate Authority as well as Revisional Authority. 8. We cannot shut our eyes from the fact that the appellant belongs to a disciplined force and if such type of indiscipline and callousness should occur; then certainly it will affect the discipline of the entire force. Moreover, the conduct of the appellant with regard to his stand before the respondent authorities clearly goes to show that frequently he changed his stand and the disciplinary authority has rightly rejected the same by observing that the medical certificate of the mother which was produced before the Enquiry Officer was for the period much before the period in question. Even otherwise, the law is now well settled that under writ jurisdiction the court has no power to re-appreciate the evidence. Looking to the overall facts and circumstances of this case we can safely hold that the absence of the appellant from duty was willful. 9. Even otherwise, the law is now well settled that under writ jurisdiction the court has no power to re-appreciate the evidence. Looking to the overall facts and circumstances of this case we can safely hold that the absence of the appellant from duty was willful. 9. Having regard to the aforesaid discussion, we do not find any reason to interfere with the order passed by learned Single Judge and hence the instant appeal stands dismissed; however, there is no order as to cost. Pending I.A., if any, is also closed.