DEVENDRA MOHAN JHA, Assistant Engineer (Dismissed) v. THE STATE OF BIHAR

appellate order dated 31.12.2002 affirming the order of punishment. 2 The manner in which the petitioner had conducted himself in service period is further reflected from his conduct in which he has assailed the appellate order passed in the year 2002 by filing an interlocutory application in the year 2009. There is absolutely no explanation in the said I.A. petition as to why the petitioner has assailed the appellate order after a period of more than six years and two months. It has to be noted that the respondents have already filed their counter affidavit with a copy on the counsel for the petitioner way back on 24.7.2007 and therefore, if the appellate order is now sought to be allowed to be assailed by the petitioner in this writ application the respondents will have to be given another opportunity of filing a supplementary counter affidavit. As the writ petition was filed on

2.12.2002 during the pendency of the departmental appeal, the respondents have also not taken note of the issues raised in the memo of appeal nor has counter affidavit dealt with the alleged infirmities in the 3 appellate order. That being so, when the petitioner also has not said a word about the findings arrived in the appellate order in the connected I.A.No. 1375/2009, this Court has to proceed that the reasons recorded with regard non-participation petitioner in the departmental proceeding remains uncontroverted. It has to be noted that the petitioner was subjected to a departmental proceeding by framing a memo of charge after placing him under suspension on 7.5.1999 and framing of charge on 3.6.1999. Thereafter petitioner repeated opportunity in course of departmental proceeding conducted by the Enquiry Officer but he did not choose to appear. The department had also taken care for informing the petitioner, on account of non-service of notice sent to him to his known present address and the permanent address, by publishing a press communiquØ in the newspaper. These facts are duly incorporated in the appellate order and reads as follows: ^^x& vihyh; vH;kosnu esa vkidk ;g dguk gS fd 4 fnukad 07-3-99 dk gM+rky vof/k esa dk;Zikyd vfHk;ark] flapkbZ izeaMy la[;k&2] >k>k teqbZ dk lwfpr dj eq[;ky; NksM+dj ?kj x;s rFkk vLoLFk gks tkus ds dkj.k mikftZr vodk’k dk vkosnu Hkstk ,oa Mkd izek.k i= ds varxZr under certificate of posting mikftZr vodk’k o‘f} vkosnu le; le; ij Hkstk] xyr ,oa Hkzked izrhr gksrk gS] D;ksafd eq[; vfHk;ark] ty lalk/ku foHkkx] Hkkxyiqj ds i=kad 1898 fnukad 22-5-2002 ls ;g Li"V gks tkrk gS fd vki fnukad 07-12-1998 ls 12-12-1998 rd dk vkdfLed vodk’k dk vkoaVu nsdj eq[;ky; NksM+ fn;s Fks] ftls vLohd‘r djrs gq, nSfud lekpkj i= esa izdkf’kr izsl&foKfIr fnukad 16-01-99 }kjk vkidks dk;Z ij mifLFkr gkjsus dk vkns’k fn;k x;k Fkk] ijarq vki dk;Z ij okil ugha mifLFkr gq,A iqu% dk;Zikyd vfHk;ark] flapkbZ izeaMy la[;k&2] >k>k ds i=kad 956 fnukad 04- 10-99 }kjk fuxZr izsl foKfIr ds ek/;e ls LosPNk ls vuqifLFkr jgsus fuyacu dk foHkkxh; vkns’k la[;k 07 fnukad 07-5-99 vc rd izkIr ugha djus] fuca/ku vof/k esa] fu/kkZfjr eq[;ky; esa ;ksxnku ugha djus dk lwpuk vafdr djrs gq, vkids }kjk /kkfjr HkaMkj lkefxz;ksa dk izHkkj lkSai nsus dk vkidks funs’k fn;k x;kA bu izsl foKfIr;ksa ds ckotwn vki fcuk mfpr vodk’k vkoaVu Lohd‘fr ,oa blesa foLrkj ls LosPNk iwoZd vuqifLFkr jgsA blls ;g Hkh Li"V gksrk gS fd vkidks vius fuyacu ,oa foHkkxh; dkjZokbZ dk iwjk tkudkjh Fkh rFkk vihyh; vH;kosnu esas cukoVh dkj.ksa dks n’kkZrs gq, Hkkzed dkxtkrksa ds vk/kkj ij rF;ksa dks rksM+&ejksM+ dj izLrqr djus dk ps"Vk dh gSA ;g bl rF; ls Hkh lEiq"V gksrk gS fd vkius vius vH;kosnu esa fcekjh ds dkj.k ’k;~;k ij iM+s jgus ds dkj.k e/kqcuh ds irk dk ckr dgh gS] ijarq vkids }kjk layXu Mkd izek.k ds varxZr ifjf’k"Vksa esa izs"kd ds irk esa e/kqcuh ds irk ds LFkku ij x‘g dk irk vafdr gS] tks vkids }kjk n’kkZ;s x;s xEHkhj ’kkfjfjd vLoLFkrk ds foijhr gS rFkk esy ugha [kkrk gSA blls ;g Li"V gks tkrk gS fd iwjk vuqifLFkfr vof/k esa vki vius xkao esa gh mifLFkr FksA f}rh; dkj.k i‘PNk vkids x‘g irk ij Hkh izsf"kr Fkk] ijarq tkucq> dj vkids }kjk bldk mRrj ugha lefiZr fd;k x;kA vkidk vlg;ksxkRed joS;k viuk;k tkuk vius vki esa ,d xEHkhj vkjksi gS rFkk vkids }kjk cjrk x;k vfu;ferrkvksa dks lEiq"V gks djrk gSA vkius dHkh Hkh ljdkj ;k foHkkx dks lwfpr djuk vko’;d ugha le>kA blfy, vkidk dFku cukoVh izrhr gksrk gS rFkk bl dkj.k ljdkj dks ekU; 5 ugha gSA** Before this Court only explanation given by Mr. Rajendra Nath Jha, learned counsel for the petitioner, is that the petitioner was very seriously ill and therefore, he could not appear in the departmental proceeding nor could he even submit his reply to the second show cause notice. Learned counsel for the petitioner has relied on two medical certificates, one

9.5.1999

24.2.2002. These two certificates in fact were also not produced when the petitioner allegedly joined after remaining absent from duty from 7.3.1999 as would be apparent from his joining report dated 25.2.2002, as contained Annexure 4 representation of the petitioner dated

26.2.2002 (Anneuxre 5). Thus, these two medical certificates were never brought to the notice of the department and in fact for the first time had seen the light of the day only for the purposes of this writ application. In that view of the matter, this 6 Court would find the plea of no notice of departmental proceeding petitioner to be one as a feigned ignorance and therefore, at least the petitioner cannot be allowed to make a grievance of not being given reasonable opportunity to participate in the departmental proceeding. If the petitioner himself did not choose to participate in the departmental proceeding and never informed the authorities about his illness he has to blame non-else but himself. That apart the two medical certificates talk about hypertension and/or paralytic attack of the petitioner. Both of them cannot be correct. There is nothing before this Court which would inspire confidence that the petitioner was ill to the extent that he was not in a position to move from his bed. As a matter of fact the petitioner ought to have, after his proceeding on leave without its being sanctioned on 7.3.1999, taken immediate steps for regularizing such absence, but as indicated above for a period of more than three years the petitioner remained absent 7 without any information and came out only with a joining report on 25.2.2002, by which time the departmental proceeding had already been completed. This Court, therefore, is satisfied that the only ground taken by the petitioner remaining absent course departmental proceeding on account of his illness does not find support from any authentic materials. These types of medical certificate can easily be manufactured/ obtained, especially when they are not supported by any document of hospitalization or prolonged treatment. Let it be noted that the learned counsel for the petitioner did not assail the impugned order of punishment on any other ground and as such, this Court has also not gone into the merits of the charge, which on the face of record seems to be quite serious and was found to have been also proved by the Enquiry Officer in his enquiry report. In that view of the matter, this Court would not find any merit in this 8 application, is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/