Lal Mohan Singh v. The State Of Bihar

Patna High Court CWJC No.15220 of 2012 (4) dt.06-03-2013 3 of the departmental proceeding, it would transpire that on 9.2.2005 a report was submitted that the petitioner had become absent from duty and in view of this report, he was placed under suspension. After the order of suspension was passed, a departmental proceeding was drawn up against him and since the petitioner was absent from the place of his posting, the memo of charge contained in memo no. 2457 dated 19.09.2006 was also sent by special messenger which was received by his son Vivek Kumar Singh on 19.10.2006. Despite service of memo of charge, the petitioner did not appear before the Enquiry Officer nor did he even file any written statement of defence. In such circumstance the Enquiry Officer had proceeded to hold the departmental proceeding ex-parte and after examination of two witnesses on

1.12.2006 and 15.12.2006, namely, Mahadev Chaudhary and Mahanand Chaudhary, he having found the charges of un- authorised absence to have been proved without any doubt, he had submitted his enquiry report holding the petitioner guilty. Such enquiry report was thereafter considered by the Superintendent of Police, the disciplinary authority and he also before taking any further action had again ensured service of the enquiry report along with the show cause notice to the petitioner and this show cause notice along with the enquiry report was also served on the Patna High Court CWJC No.15220 of 2012 (4) dt.06-03-2013 4 son of the petitioner, namely, Vivek Kumar Singh on 16.02.2007. The petitioner even thereafter did not file any comment/reaction to the enquiry report where after the impugned order of punishment was passed by the Superintendent of Police, Purnea

30.04.2007. The petitioner thereafter, however, had filed an appeal before the Deputy Inspector General of Police, Purnea and in the memo of appeal he had for the first time disclosed his defence that he was actually ill and undergoing mental treatment at Ranchi. In this regard, it was his specific plea that while he was ill and was at Ranchi he had sent written information to the Superintendent of Police, Purnea registered post. Unfortunately, he did not annex this evidence with the memo of appeal to show that the petitioner had got the Superintendent of Police abreast with regard to his illness. Consequently, the Deputy Inspector General of police on the basis of his perusal of the materials on record and the memo of appeal had found the charge against the petitioner to have been proved and the appeal of the petitioner was, accordingly, dismissed while affirming the order of punishment of his removal from service passed by the disciplinary authority. The petitioner being dissatisfied with the appellate Patna High Court CWJC No.15220 of 2012 (4) dt.06-03-2013 5 order had thereafter filed his memorial before the Director General of Police and had again raised the issue as with regard to his being absence being not un-authorised because he had allegedly given information in writing about his illness from Ranchi by registered post to the Superintendent of Police. It was this aspect which was gone into by the Director General of Police with the help of the record and found that there was no communication at all made by the petitioner after he became absent from duty muchless about his illness or being treated at Ranchi as claimed by him either in the memo of appeal or in the memorial filed before the Director General of Police. In this connection the finding of the Director General of Police, Bihar, Patna reads as follows :- ^^ vihy eseksfj;y dh leh{kk vfHkys[kks a ds vk/kkj ij dh x;h A c[kkZLr flikgh@ 196 yky eksgu flag fnukad 25-02-2005 dh jkf= ls fcuk fdlh lwpuk ds vuqifLFkr gks x;s A xfBr vkjksi dh lwpuk Kkikad 2457@ j0dk0] fnukad 19-08-2006 ds }kjk Hksth xbZ] ftls vipkjh ds iq= foosd dqekj flag ds }kjk izkIr fd;k x;k A vkjksfir us dksbZ Li’Vhdj.k lefiZr ugha fd;k A vipkjh dks lapkyu ds nkSjku mifLFkfr gsrq lwpuk muds x‘g irs ij Hkstk x;k A vihy eseksfj;y esa vipkjh us vius vuqifLFkr jgus dk dkj.k ekufld jksx ls vLoLFkrk crk;k gS] ftldk bZykt mUgksaus jkWaph esa djk;k A os fnukad 25-02-2005 ls drZO; ls Qjkj Fks A mUgsa fnukad 30-04-2007 dks lsok ls c[kkZLr fd;k x;k gSs] tcfd muds fpfdRldh; izek.k i= ds vuqlkj os fnukad 03-08-2007 dks LoLFk gq, ;kfu lsok c[kkZLrxh vkns”k ds pkj ekg ds ckn LoLF; gksuk crk;k x;k gS A mudk fpfdRldh; izek.k Patna High Court CWJC No.15220 of 2012 (4) dt.06-03-2013 6 i= ljdkjh vLirky dk ugha gS A brus yEch vof/k rd vodk”k ij jgus ij Lo;a ;k muds ifjokj us dksbZ lwpuk foHkkx dks ugha Hkstk vkSj u gh ekaxs x;s Li’Vhdj.k dk dksbZ tckc fn;s A chekjh dh voLFkk esa vipkjh ds }kjk iqfyl v/kh{kd iwf.kZ;kWa dks lwpuk nsus dk ftdz gS] mldk Hkh dksbZ izekf.kd lcwr miyC/k ugha gSa A drZO; ls vuqifLFkr vof/k djhc <kb o’kZ ls vf/kd dh gS A muds }kjk fn;k x;k fpfdRlh; izek.k i= Hkh ekU; ugha gS A vihy eseksfj;y esa vU; dksbZ Bksl rF; cpko esa ugha fn;k x;k gS A buds fo:) drZO;ghurk] vuq”kklughurk dk i;kZIr lk{; ik;k x;k A vr,o mi;qZDr of.kZr rF;ksa ds vkyksd esa iwf.kZ;k ftyk cy ds lsok c[kkZLr flikgh@ 196 yky eksgu flag }kjk lefiZr vihy eseksfj;y dks Hkyh & HkkWafr fopkjksijkUr vLohd‘r fd;k tkrk gS A** Mr. Rajeev Roy, while assailing aforementioned order of the Director General of Police had basically concentrated on the aspect that it was not open for the Director General of Police to record findings as a disciplinary authority and, in fact, his observation is based on extraneous materials. In the considered opinion of this Court, if a person who remains un-authorisedly absent from duty and does not communicate the disciplinary authority the reason for his absence and raises this issue for the first time in the memo of appeal and consequently in the memorial, the issue can only be answered by the appellate authority or the authority deciding the memorial. Patna High Court CWJC No.15220 of 2012 (4) dt.06-03-2013 7 Here in this case the petitioner had specifically raised in his memo of appeal the following plea : ^^ vihydrkZ ekufld jksx fo”ks’kK Mk0 v”kksd dqekj ukx RINPAS jkWaph ds bykt esa Fkk A vihydrkZ fnukad 1-3-2005 ls fnukad 3-8-2007 rd jkWaph esa vius “kkyk ds ikl jgdj Mk0 v”kksd dqekj ukx ls bZykt djk;kA bldh lwpuk vihydrkZ us jft’V~zh }kjk vkj{kh v/kh{kd egksn; dks Hksth A bykt ds nkSjku Mk0 ukx us csM jsLV esa jgus vkSj cjkcj tkWap djkrs jgus dh lykg nh A Mk0 ukx us vihydrkZ dks fnukad 3-8-2007 dks fQVus”k izek.k i= fn;k A jkWaph ls ykSV dj ?kj vkus ij vihydrkZ ds iq= us bls c[kkZLrxh vkns”k ,oa vU; dkxtkr fn;k A lqfo/kk gsrq jft’V~zh dh jlhn ,oa Mk0 uke ds fizlfdzi”ku rFkk fpfdRlk izek.k i= dh Nk;k izfr;kWa vuqyXu gS A** and thus, it was incumbent for him to produce evidence to show that while staying at Ranchi in course of his treatment between 1.3.2005 and 3.8.2007 he had sent any registered letter from Ranchi to the Superintendent of Police as with regard to his alleged illness. Obviously, no such document was produced by the petitioner because the memo of appeal does not show that any enclosure was attached with the memo of appeal inasmuch as the appellate authority while rejecting the appeal of the petitioner had held as follows :- ^^ eSaus bl fo0 dk0 lafpdk ,oa vkjksfir ds }kjk lefiZr vihy vH;kosnu ij iqfyl v/kh{kd iwf.kZ;k }kjk nh x;h dafMdkokj fVII.kh dh xgu foospuk dh A ;g fo0dk0 vkjksfir ds fcuk fdlh lwpuk ds Qjkj gksus ds vkjksi esa izkjEHk dh xbZ gS A iqfyl v/kh{kd iwf.kZ;k ds dk;kZy; Kkikad 321 jk0dk0 fnukad 4-2-2007 ds }kjk vkjksfir ls vafre cpko Patna High Court CWJC No.15220 of 2012 (4) dt.06-03-2013 8 Li’Vhdj.k dh ekWax dh xbZ A bl i= dks fo”ks’k nwr }kjk vkjksfir ds x‘g irs ij Hkstk x;k A blds ckotwn Hkh vkjksfir u rks drZO; ij mifLFkr gq, vkSj uk gh cpko i{k izLrqr fd;s tks vkjksfir dks vuq”kklughurk ,oa drZO;ghurk dk ifjpk;d gS A bl izdkj iqfyl v/kh{kd iwf.kZ;k }kjk iznRr lsok ls c[kkZLrxh dh ltk vkjksi ds vuqikr esa lgh gS A blesa fdlh Hkh izdkj ds gLr{ksi djus dh vko”;drk ugha gS A vr% vihy vH;kosnu vLohd‘r fd;k tkrk gS A ** Assuming that the petitioner had enclosed any such evidence, the same must have been available to the petitioner even at the stage when he filed the memorial assailing the order of the appellate authority but as noted above the petitioner did not produce such documents before the Director General of Police. Thus, it became more than clear that the petitioner had no proof of sending his information as with regard to his absence from duty muchless on his being ill at Ranchi as claimed by him in his memorandum of appeal and, therefore, the finding arrived by the Director General of Police cannot be found faulted either on facts or in law. Nonetheless, this Court had given an additional opportunity to the petitioner by an order dated

28.02.2013 inasmuch as after perusal of the materials on record that there is no such communication made by the petitioner as claimed by him in the memo of appeal that while he was being treated at Ranchi and remained in the house of his brother-in-law he had already sent an information to the Superintendent of Police with regard to his illness. The order Patna High Court CWJC No.15220 of 2012 (4) dt.06-03-2013 9 of this Court dated 28.02.2013 reads as follows:- “Having regard to the fact that the authorities have recorded a finding of fact that the petitioner during the stage of illness had never informed the authorities about his being unwell whereas the petitioner both in the memo of appeal and the memorial had specifically asserted to have sent such information by registered post, as can be found at page 15 and 30 of this writ petition, this Court would give one more indulgence to the counsel for the petitioner to produce that evidence of sending of that registered letter which has been claimed to be sent by the petitioner about his giving information of his illness. Mr. Rajiv Roy, learned counsel for the petitioner, prays for and is allowed time till 4th of March, 2013 and if such document is not filed by Mr. Roy on affidavit it will be an evidence of fact that there was no such document. List this case on 4.3.2013 under the heading „for Admission II‟. Let the original record produced by the respondents be also kept till disposal of this application.” In compliance of the aforementioned order dated

28.02.2013 the petitioner has filed a supplementary affidavit enclosing a copy of the registration slip bearing No. 152 dated 25/6/. From this registration slip it does not become clear that in which year it was sent nor the application sent along with this registered letter has been produced. What really makes this document doubtful is that the petitioner having claimed to be stationed at Ranchi, his permanent address being of Saran district Patna High Court CWJC No.15220 of 2012 (4) dt.06-03-2013 10 having his village and post office at Basdila whereas some registration receipt showing a registered letter addressed to the Superintendent of Police, Purnea sent from Panditpur post office has been produced. This document, therefore, which was never brought to the notice either of the appellate authority or the revisional authority, even otherwise does not inspire any confidence; muchless the assertion of the petitioner that he had informed the authority with regard to his un-authorised absence is proved. It has to be also taken into note that the petitioner is adept in remaining absent from duty inasmuch as even earlier he was found to have indulged in a similar misconduct for which a departmental proceeding being departmental proceeding no. 67/05 was initiated against him for the charge that he remained un- authorised absence from duty from 29.01.2005 on the eve of first phase of general election of the Bihar Legislative Assembly. In the said departmental proceeding the charge against the petitioner was found to be proved and he had been subjected to punishment of one Black mark by way of withholding of his increment for six months. It is, thus, apparent that even after the order of punishment, the conduct of the petitioner did not improve and as such when the petitioner was member of a police force, his Patna High Court CWJC No.15220 of 2012 (4) dt.06-03-2013 11 repeated indulgence of remaining absent from duty without having sanctioned leave by itself would be a gross misconduct inasmuch as charge of unauthorized absence from duty of a general employee vis-à-vis member of police force has to be viewed separately inasmuch as the discipline being the core of conduct of the member of police force, he cannot run away from duty without obtaining prior leave. In the present case, the petitioner had remained admittedly absent from duty for the period of three years without sanction of leave and as such this Court does not find any error in the impugned orders passed by the authorities dismissing him from service for the misconduct proved against him. That being so, this writ application is wholly misconceived and is, accordingly, dismissed. Amin/- (Mihir Kumar Jha, J)