Jharkhand High Court
Om Prakash Mishra vs State Of Jharkhand & Ors. on 6 September, 2013
Equivalent citations: 2014 (1) AJR 777
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
W.P.(S) No. 7751 of 2006
(An application under Article 226 of the Constitution of India)
Om Prakash Mishra ... ... ... Petitioner
Versus
1. The State of Jharkhand.
2. The Director General of Police Jharkhand, Ranchi.
3. The Deputy Inspector General of Police, Jharkhand
Armed Police Ranchi.
4. Commandant Jharkhand Armed Police-3 Govindpur, Dhanbad
For the Petitioner : Mr. Dr. S.N. Pathak, Senior, Advocate
Mr. Rishikesh Giri & Rakesh Kr. Roy, advocates
For the Respondents : Miss. Rakhi Rani, J.C. to S.C.-II
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
By Court: The petitioner has approached this Court challenging the
penalty order dated 31.08.2004 and the appellate order dated 25.10.2005.
2. The brief facts of the case are that, the petitioner was appointed as a constable on compassionate ground. The petitioner was granted leave for two days from 22.4.2003 and he was directed to report on 25.4.2003 however, as he did not report for duty therefore, a departmental proceeding was initiated against the petitioner. The charge memo dated 06.12.03 was served to the petitioner on the allegation that he remained absent unauthorisedly from 25.4.2003 and he was suspended w.e.f. 02.09.2003. An enquiry was conducted and charges against the petitioner were found proved. The disciplinary authority passed the order of removal from service on 31.8.2004. The petitioner preferred an appeal which was dismissed by order dated 25.10.2005. In these circumstances, the petitioner has filed the present writ petition.
3. A counter-affidavit has been filed on behalf of the respondents stating as under:
6. "That, with regard to the statement made in paragraph-3 of the writ petition, it is stated and submitted that the departmental proceeding against the petitioner was started on his willful absence from duty and without giving any information of his where about.
The proceeding was conducted complying all due 2 process of law for conduction of a proceeding. He was given full opportunity at all level to defend himself, all papers were supplied to him. The final order was passed after giving the petitioner full opportunity to defend himself.
7. That with regard to the statement made in paragraph-4 and 5 of the writ petition it is stated that it requires need no comment.
8. That with regard to the statement made in paragraph-6,7 and 8 of the writ petition it is stated that the petitioner was absent from duty from 25.4.03 but he never informed about his illness, nor his doctor, nor his family members, nor his native villagers, though it is legally required as mentioned in rule 783(d) of police manual. He received personally all concerned papers during conduction of departmental proceeding and also final show-cause before passing of final order, but he did not informed about his mental or any other illness. Thus when the petitioner was finally dismissed for his willful absence from duty, the medical papers were got prepared afterwords as an excuse.
9. That with regard to the statement made in paragraph-9, 10 and 11 of the writ petition it is stated the contention is denied. The petitioner was on leave for two days from 23.04.03 to 24.04.03. When he did not report on duty on 25.04.03., he was informed through S.P. Buxar to join his duty by letter no.-1080/R.O. dated 07.07.03 and 1504/R.O. dated 29.08.03 and copies of these letters were also sent to his home address by registered post. Two officers S.I. Mudrika Singh of Simri P.S. (District Buxar) and S.I. Jagdish Tiwari of J.A.P.-3, Govindpur personally went to his home and asked him to join duty but the petitioner outright denied to join duty or continue service.
10. That the petitioner was suspended. The charges were framed and departmental proceeding was started against the petitioner. All papers were received by the petitioner but he willfully did not appear before the conducting officer. The conducting officer gave his finding complying all due process of law. Before passing the final order in proceeding, the petitioner was given an opportunity to defend himself. The finding of conducting officer and final show-cause were received personally by the petitioner on 08.08.04. When the petitioner again did not reply in the given period then finally the petitioner was discharged on 31.08.04 by the respondent no.4. Before this dismissal order the petitioner, nor his family never complained about his any illness. The discharge order was received personally by the petitioner but he did not mention the date.
11.That it is further submitted that if the petitioner was not satisfied by the decision of respondent no.-4 in the departmental proceeding, he should 3 have filed an appeal before respondent no.-3 i.e. , D.I.G., J.A.P. Jharkhand Ranchi with in three months. But after about one year of his dismissal the petitioner again made his mind to restart the service of the constable and he filed an appeal before D.I.G. J.A.P. Jharkhand Ranchi and gave an afterthought excuse of mental illness. Since his appeal petition was time-barred. Therefore his appeal was rightly dismissed by the respondent no.-3."
4. Heard learned counsel for the parties and perused the documents on record.
5. Dr. S.N. Pathak, learned Senior counsel appearing for the petitioner has contended that for unauthorised absence of about 150 days, the order of removal from service has been passed, which is in violation of the principles of natural justice. He has submitted that no finding has been recorded either by the enquiry officer or by the disciplinary authority holding that the unauthorised absence was deliberate and intentional and therefore, the order of penalty of removal from service, could not have been passed against the petitioner. He has further submitted that the defence taken by the petitioner has not been dealt with by the appellate authority and therefore, the impugned orders are liable to be quashed.
6. As against the above, learned counsel appearing for the respondents submitted that the petitioner remained absent from duty without any just cause and inspite of letters dated 07.07.2003 and 29.08.2003, he did not report for duty, and even though he received all the documents including the enquiry report, he did not submit his reply to the second show-cause notice and in such view of the matter the order of removal from service has been passed by the disciplinary authority which has been approved by the appellate authority.
7. Before dealing with the contention raised by the learned Senior counsel appearing for the petitioner, it would be useful to notice the judgments referred by the learned counsel for the petitioner.
8. In "Krushnakant B. Parmar Vs. Union of India and another", reported in (2012) 3 SCC 178, the Hon'ble 4 Supreme Court 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, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant."
18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.
19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.
................................................................................ ................................................................................
21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the inquiry officer or the appellate authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3-10-1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of telephone calls dated 29-9-1995, etc, but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty.
................................................................................ ................................................................................
25. Taking into consideration the fact that the charged officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant has not worked for a long time we direct that the appellant be paid 50% of the back wages but there shall be no order as to costs."
59. Learned Senior counsel appearing for the petitioner has further submitted that though the charges which have been framed against the petitioner and found proved, in the departmental enquiry, the order of removal from service is excessive and disproportionate to the charges found proved. In support of his contention, he has referred the judgment of "Union of India and another Vs. B.C. Chaturvedi ", reported in (1995) 6 SCC 750.
10. On a perusal of the documents, it would appear that the petitioner who was granted leave for two days, did not report for duty at all, inspite of letters dated 07.07.2003 and 29.08.2003. He neither informed the authority about his alleged illness nor sought any extention of leave. A departmental enquiry therefore, was conducted in the absence of petitioner. It would appear from the document which has been filed by the respondents that the petitioner received all the documents of departmental proceeding on 08.08.2004 still, he did not file his reply to the second show-cause notice. The plea of mental illness taken by the petitioner could not have been ascertained by the appellate authority as the appellate authority was not holding an enquiry. However, it would appear from the materials on record that the medical certificate produced by the petitioner before the appellate authority that he was allegedly under treatment till 08.08.2005 and therefore, he could not report for duty. However, the stand of the petitioner is falsified by the receipt memo (Annexure A-7 to the counter-affidavit) whereby the petitioner himself has received all the documents on 08.08.2004. The plea raised by the learned Senior counsel appearing for the petitioner that since there has not been any evidence recorded either by the enquiry officer or by the disciplinary authority that the unauthorised absence of the petitioner was deliberate, the order of removal from service could not have been passed against the petitioner, is also not tenable for the simple reason that the petitioner neither sought extention of leave granted to him nor he ever informed the authority about his alleged mental 6 illness. His absence from duty till the time the penalty of removal from service has been passed, is sufficient proof of the fact that the absence from duty was deliberate on the part of petitioner. I see no reason to entertain this writ petition. Accordingly, the writ petition is dismissed.
(Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated 06/09/ 2013 Satyarthi/A.F.R.