Nand Kishor aged about 37 years son of Late Bhola Ram Balmiki, resident of v. 1. State of Jharkhand. 2. Director General of Police Cum Inspector General of Police
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 2373 of 2023 Nand Kishor aged about 37 years son of Late Bhola Ram Balmiki, resident of H. No. 615 / 1 Railway Trafic Colony, P.O. Harharguttu, P.S. Bagbera, Jamshedpur, District East Singhbhum. … … Petitioner Versus 1. State of Jharkhand. 2. Director General of Police Cum Inspector General of Police, Government of Jharkhand, P.O. and P.S. Dhurwa, District Ranchi. 3. Deputy Inspector General of Police, Jharkhand Armed Police, P.O. and P.S. Doranda, District Ranchi. 4. Commandant, Jharkhand, Armed Police, Office at JAP – 7, Hazaribagh, P.O. and P.S. Hazaribagh, District Hazaribagh. … … Respondents --- CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- : Mr. Binod Singh, Advocate : Mr. Brajesh Kumar Singh, Advocate : Mrs. Pinky Tiwary, AC to AG --- For the Respondents For the Petitioner 10/10th June 2024 Lastly heard on 4th April 2024 1. 2. Learned counsel for the parties are present. This writ petition has been filed challenging the order of departmental punishment as contained in Memo No. 46 dated 22.07.2020 (Annexure 4) whereby the petitioner has been dismissed from service. The petitioner has also challenged the appellate order dated 03.11.2021, whereby the appeal has been dismissed. The petitioner has further challenged the order dated 06.07.2022, whereby the Director General Police cum Inspector General of Police, Government of Jharkhand has rejected the representation of the petitioner against his dismissal. Arguments of the Petitioner. 3. The learned counsel for the petitioner has submitted that though all the authorities have passed orders against the petitioner, but the impugned orders are perverse. 1 4. The learned counsel has referred to the charge memo as contained in Annexure - 1 dated 27.12.2018 and has submitted that the charge was only in connection with overstay after two days’ leave, i.e., from 21.06.2018 to 23.06.2018 and there was no charge of any specific days of absence. He has further submitted that in the charge memo itself it has been mentioned that one Durga Charan Bari had gone to find about the petitioner, and on 29.10.2018, the petitioner had given him an application stating that his mother was suffering from mental ailment and was under treatment, and he had stated in that letter that he would join on 16.11.2018. He submits that this aspect of the matter was sufficient reason for overstaying but has not been properly considered by the respondent authorities while passing the
Legal Reasoning
impugned orders. The learned counsel for the petitioner has submitted that the reason for absence of the petitioner was not willful and accordingly the punishment of dismissal was uncalled for. 5. The learned counsel while further advancing his arguments has submitted that as per the enquiry report, the medical certificate produced by the petitioner with regard to his illness was not taken into consideration by stating that the petitioner did not produce the prescription, receipt of the medicines purchased and also the wrappers of the medicines. The learned counsel submits that the medical certificate issued by the doctor was sufficient to prove the fact that even the petitioner was not well for a certain period of absence. The learned counsel has referred to the judgment passed by the Hon’ble Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India and another reported in (2012) 3 SCC 178, para 17 to submit that all the cases of absence do not call for punishment. The absence is required to be proved as willful, but in the instant case, there was no willful absence on the part of the petitioner and, therefore, the impugned orders cannot be sustained in the eyes of law. 6. The learned counsel has further submitted that so far as the second show cause is concerned, the same was not in accordance with law, inasmuch as, no specific averment was made in the second show cause asking the petitioner to respond to the enquiry report. Rather, 2 the second show cause simply stated that the petitioner was required to respond to the proposed punishment. He has referred to the judgment passed by the Hon’ble Supreme Court in the case of Managing Director, ECIL v. B. Karunakar reported in (1993) 4 SCC 727, and has in particular referred to Para 25 of the said judgment. The learned counsel submits that it is the constitutional right of the petitioner to respond to the enquiry report and, therefore, the constitutional right of the petitioner having been violated, the impugned orders cannot be sustained in the eyes of law. Arguments of the respondents 7. The learned counsel for the respondents, on the other hand, while opposing the prayer of the petitioner, has submitted that there are three concurrent orders against the petitioner. It is submitted that there are no perversity or illegality in the impugned orders calling for any interference under writ jurisdiction. Although, the allegation was in connection with overstay of the leave period but the petitioner remained absent even after issuance of show cause for a total period of 286 + 169 days. She has also submitted that the petitioner had taken a plea that for some time he was suffering from nasal infection but the medical certificate produced by the petitioner was regarding a dental problem. The learned counsel has also submitted that mere production of the certificate from the doctor is not sufficient, inasmuch as, neither any document regarding purchase of medicines nor any prescription of the doctor nor any wrappers of used medicines were produced by the petitioner and, therefore, the authority has rightly refused to rely upon the medical certificates submitted by the petitioner by citing reasons. She has submitted that the plea of the petitioner having been duly considered, the impugned orders cannot be said to be perverse. 8. The learned counsel has further submitted that so far as the plea of the petitioner in connection with treatment of mother is concerned, the documents in connection with the year 2009-2016 were produced and no document for the period involved in the present case was produced in connection with the ailment or treatment of mother of the petitioner. 3 9. The learned counsel has further submitted that the second show cause was issued to the petitioner and the petitioner responded to the same by referring to the findings of the Enquiry Officer and the Disciplinary Authority, after taking into consideration the materials on record including the enquiry report and the plea of the petitioner, passed the impugned order of punishment. The learned counsel has submitted that the petitioner also filed an appeal, and before the appellate authority also, his plea was considered, and the appeal was dismissed by citing reasons, and thereafter the petitioner filed his representation, which was also dismissed by citing reasons. The learned counsel submits that the conduct of the petitioner suffers from dereliction of duty and unauthorized absence without any proved justification before the Enquiry Officer and also before the respondent authorities, and accordingly the impugned orders do not call for any interference. Findings of this Court 10. The petitioner was a permanent employee of Jharkhand Armed Police. A charge memo dated 27.12.2018 was issued to the petitioner when the petitioner was posted in J.A.P. – 7, Hazaribagh. It was alleged that he had taken permission to avail two days leave i.e. one casual leave and the other was a holiday during the period from 21.06.2018 to 23.06.2018 but after availing the leave, he did not join the duty and remained unauthorizedly absent from the duty. It was stated in the charge memo itself that different letters dated 19.07.2018 and 25.09.2018 were issued to the petitioner under registered post but the petitioner did not join his duty. It was further mentioned that ultimately vide order dated 24.10.2018 one Durga Charan Bari was appointed to find out the real reason for absence of the petitioner from duty who went to the house of the petitioner and upon meeting, the petitioner gave a letter dated 29.10.2018 stating that mental condition of his mother was not well and she was under treatment in Mental Hospital, Ranchi and he undertook to join the duty on 16.11.2018. It was alleged in the charge memo that in spite of such letter dated 24.10.2018, the petitioner did not join the duty which reflected 4 indiscipline and dereliction of duty. The petitioner was suspended vide order dated 19.11.2018. Thereafter another letter dated 27.11.2018 was issued to the petitioner through registered post informing him about his suspension and he was asked to immediately join his duty. 11. The departmental proceeding was initiated against the petitioner in which he duly participated. At the stage of enquiry, two witnesses were examined from the side of the department including said Durga Charan Bari who had gone to the house of the petitioner as mentioned in the charge memo. 12. In defence before the enquiry officer, the petitioner had taken a stand that although he had taken leave for two days, but at that time, the mother of the petitioner had left the house on account of the fact that she was mentally disbalanced and it took time to find her out and provide treatment to her which took quite some time. In the meantime, Durga Charan Bari had come to his house on 16.11.2018, thereafter, the petitioner suddenly got ill due to which he could not join his duty. He claimed to have informed about this to the respondents by registered post. It was his specific case that his absence was not willful and he was absent from duty on account of mental illness of his mother and also of his own illness. 13. The Enquiry Officer considered the materials on record and observed that though the petitioner had mentioned about the treatment of his mother in Mental Hospital, Ranchi but no document was produced in connection with the treatment of his mother and the documents which were produced with regard to her treatment were relating to the period 2009 and 2006 which were much prior to the date of his unauthorized absence from duty. The disciplinary authority also considered the plea of the petitioner that he himself was not well and observed that the petitioner had only furnished the medical certificate with regard to his illness but he had neither produced any prescription nor any bill regarding purchase of his medicine nor any wrapper of the used medicine and rejected the explanation based on the medical certificate of illness of the petitioner. The Enquiry Officer held the petitioner guilty of the charges. 5 14. The enquiry report was forwarded to the petitioner vide memo no. 70 dated 06.11.2019 (Annexure- 3) mentioning therein that the views of the Enquiry Officer have been received wherein the petitioner has been found guilty of the charges levelled against him and considering the charges it was proposed to impose major punishment upon the petitioner. The petitioner was granted 15 days’ time to file his reply to the second show-cause notice and it was observed that in case, no reply is received, it would be assumed that the petitioner has nothing to say. The memo dated 06.11.2019 clearly reflects that a copy of the enquiry report was enclosed along with the said memo. 15. The petitioner has stated in rejoinder that he had filed reply to the second show cause dated 06.11.2019 but has not annexed a copy of his reply. The impugned order of the disciplinary authority (Annexure – 4) refers to last opportunity given to the petitioner vide letter dated 11.07.2020 and it has been mentioned that the petitioner had filed his response before the disciplinary authority. The response dated 16.07.2020 has been placed on record by the respondents in the counter-affidavit. The petitioner reiterated the same plea as was raised before the enquiry officer and stated that his mother was under treatment in Jamshedpur. He stated that at the stage of enquiry he could not produce certain medical documents with regards to illness of his mother and bills of medicines were available in his house which he could produce if asked for. With respect of his absence in the past, he stated that he suffered a fracture. He denied the charges and stated that he may be exonerated and stated that will not repeat the conduct. 16. The disciplinary authority considered the reply of the petitioner and recorded that the petitioner did not produce any document in connection with the treatment of his mother and the documents produced were not related to the period of absence of the petitioner from duty. The disciplinary authority also considered the fact that the petitioner had responded before the Enquiry Officer by stating that he had some problem in his nose but he had produced medical certificate and prescription in connection with the treatment of his tooth and no 6 document regarding purchase of any medicine was produced. The disciplinary authority arrived at a finding that the medical certificate issued by the petitioner was just an excuse. The disciplinary authority rejected the plea of the petitioner with regard to the illness of his mother and also regarding illness of the petitioner. The disciplinary authority observed that the petitioner had initially taken leave for the purposes 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 materials therefore the disciplinary authority passed an order of dismissal dated 22.07.2020. The disciplinary authority applied his independent mind on the materials on record and found the petitioner guilty by passing a speaking order and was of the view that it was not in interest of the police force to keep the petitioner in service and the only punishment for such misconduct was dismissal from service. 17. The Appellate Authority dismissed the appeal by a well- reasoned order dated 03.11.2021 and the revision was also dismissed by a well-reasoned order contained in memo dated 06.07.2022. The Revisional Authority also considered that the petitioner had remained absent from duty for 169 days at his own sweet-will without any permission and earlier also he had remained absent for 286 days. Ultimately, the Revisional Authority has dismissed his petition. 18. This Court finds that all the impugned orders passed in the present case are well reasoned orders. 19. Considering every aspect of the matter, this Court also finds that there has been no violation of principles of natural justice. The petitioner had participated in the enquiry in which witnesses were examined and he had also given his defence statement before the Enquiry Officer. The petitioner miserably failed to produce any document in connection with the treatment of his mother during the period of absence involved in the present case as the documents of her illness were related to the period 2009 and 2006 which were much before the period of absence involved in the present case. Therefore, the plea regarding illness of his mother was rightly rejected by the 7 Enquiry Officer, the disciplinary authority, appellate authority as well as the revisional authority. So far as the plea regarding his own illness after recovery of his mother is concerned, the petitioner had produced only one medical certificate that was disbelieved by the authorities by referring to the fact that the reason of his illness which was initially taken by the petitioner was his nozzle problem but the medical certificate was related to the tooth problem and his plea regarding illness was neither supported by any prescription/bill/wrapper of the used medicine regarding his treatment. The authorities have cited sound reasons in rejecting the plea of illness of the petitioner as a ground for unauthorized absence. 20. The law is well settled that there is no scope for re-appreciation of evidences/materials produced at the time of enquiry and considered by the authorities in the matter of disciplinary proceedings in absence of any perversity. The writ court’s power to review the order of disciplinary authority is very limited and the scope is only to examine as to whether the decision-making process is legitimate. The learned counsel for the petitioner has not been able to point out any procedural irregularity or perversity in the impugned proceedings and orders calling for interference under Article 226 of the Constitution of India. 21. The petitioner has raised a point that he was not granted an opportunity to respond to the findings of the enquiry officer which has led to violation of his constitutional rights and has relied upon the judgement passed by the Hon’ble Supreme Court reported in (1993) 4 SCC 727 (supra). The petitioner has relied upon paragraph 25 of the said judgement which is quoted as under: - “ 25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the 8 guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment.” 22. In the aforesaid judgement, the Hon’ble Supreme Court has considered the amended provision of Article 311 (2) of the Constitution of India as it stood after 42nd Constitutional Amendment Act. It has been observed in Paragraph no. 24 onwards of the said judgment that till 42nd Constitutional Amendment Act, the government servant had a right to receive the report of the Enquiry Officer and to represent against the findings recorded in it when the Enquiry Officer was not the disciplinary authority. This right was however exercisable by him at the second stage of the disciplinary proceedings that is when he was served with a notice to a show cause against the proposed penalty. The issuance of notice to show-cause against the penalty necessarily required the furnishing of the copy of the Enquiry Officer’s report since the right to show-cause against the penalty also implied the right to represent against the findings of the charges. This was considered to be an essential part of reasonable opportunity under Article 311 (2) of the Constitution of India as it originally enacted. It was observed that the right to receive the Enquiry Officer’s report and to show-cause against the findings of the report was independent of the right to show-cause against the proposed penalty and the two rights came to be confused with each other because of the law as stood prior to 42nd Amendment of the Constitution of India, the two rights arose simultaneously only at the stage when a notice to show-cause against the proposed penalty was issued. 23. In the aforesaid background, the Hon’ble Supreme Court observed in Paragraph no. 25 that the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the enquiry that is before the disciplinary authority takes into consideration the findings in the report. The right to show-cause against the penalty belongs to second stage when the disciplinary authority has considered the findings in the report and has come to a conclusion with regard to the guilt of the employee and proposed to award penalty on the basis of his conclusion. The first 9 right is a right to prove innocence. The second right is to plea for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Constitution Amendment Act. 24. The conclusion in Paragraph no. 29 of the judgment is that when the Enquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the Enquiry Officer’s report before the disciplinary authority arrives at its conclusion with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of employee’s right to defend himself against the charges levelled against him. A denial of the Enquiry Officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of principals of natural justice. 25. This court finds that the 2nd show cause issued in the present case dated 06.11.2019 (annexure-3) enclosed the enquiry report and forwarded the same to the petitioner and mentioned that the enquiry officer had found the petitioner guilty and the proposed punishment of the charges was a major penalty and the petitioner was asked to show cause within 15 days. At this stage, the disciplinary authority did not record his findings with regards to guilt of the petitioner. The second show-cause involved in the present case only mentions that the Enquiry Officer had found the petitioner guilty of the charges but it never stated that the disciplinary authority had reached at any conclusion that the petitioner was guilty and the show cause was confined with regards to the proposed punishment. Vide the second show-cause the disciplinary authority forwarded a copy of the enquiry report and the petitioner filed his response on the merits of allegation vide letter dated 16.07.2020 for consideration of the disciplinary authority. It is apparent from the order of the disciplinary authority that the plea raised by the petitioner through the second show cause reply on merits of the allegations was considered and the disciplinary 10 authority considered the materials on record in details and passed the impugned order of dismissal. 26. This court is of the considered view that merely because the disciplinary authority had mentioned that the proposed punishment of the charge was to impose major penalty, it cannot be said that the second show-cause was defective or was not in accordance with law or has caused any prejudice to the petitioner. 27. In view of the aforesaid findings, this court is of the considered view that the plea raised by the petitioner that he was not granted an opportunity to respond to the findings of the enquiry officer is devoid of any merits, hence rejected. The impugned action of the respondents cannot be said to violative of the law laid down by the Hon’ble Supreme Court in the judgement reported in (1993) 4 SCC 727(supra) considering the facts and circumstances of this case. 28. So far as the judgment passed in the case of Krushnakant B. Parmar -versus- Union of India and Another reported in (2012) 3 SCC 178 is concerned, the same does not apply to the facts and circumstances of the present case. Paragraph nos. 16, 17 and 18 of the said judgments are quoted as under:- “16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorized absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 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 form duty without any application or prior permission may amount to unauthorized 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 unauthorized 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.” 11 It has been clearly held in the aforesaid judgement of the Hon’ble Supreme Court that if the absence is the result of compelling circumstances under which it was not possible for the employee to report or perform the duty, such absence cannot be held to be willful. 29. In the present case the petitioner had given explanation with regard to his absence by citing medical reasons with respect to his mother and also of himself but the authorities have rejected his explanation on both counts. Therefore, the authorities came to a conclusion that the petitioner did not have any justifiable reason for his unauthorized absence from his duty. Since the findings of the authorities clearly reflect that the explanations furnished by the petitioner was rejected, it cannot be said that the absence of the petitioner was not willful. In view of the aforesaid findings, the judgment passed in the case reported in (2012) 3 SCC 178 (supra) does not help the petitioner in any manner. 30. In view of the aforesaid facts and circumstances and the findings recorded above, this Court finds no merits in this writ petition, which is hereby dismissed. 31. Pending interlocutory application, if any, is dismissed as not pressed. Aditi (Anubha Rawat Choudhary, J.) 12