High Court
Case Details
W. P. (S) No. 1871 of 2005 In the matter of an application under Article 226 of the Constitution of India --- Uttam Kumar @ Uttam Kumar Singh … … Petitioner Versus 1. The State of Jharkhand through Home Secretary, Government of Jharkhand, Ranchi 2. Superintendent of Police, Dhanbad 3. D.I.G., Coal Range, Bokaro … … Respondents For the Petitioner For the State --- : Mr. Rajesh Kumar, Advocate Mr. Manindra Kumar Sinha, Advocate Mr. Amit Kumar, Advocate : Mr. Saket Upadhyay, J.C. to A.A.G. ---
Legal Reasoning
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR P r e s e n t --- By Court: Dismissed by order dated 24.04.2002, the petitioner preferred an appeal which was dismissed by order dated 15.01.2005. Assailing both the orders, the petitioner has filed the present writ petition. 2. The brief facts of the case are that, the petitioner was appointed on the post of Constable on 08.09.1989. He was absent from duty from 26.11.1998 to 15.09.1999 and therefore, a departmental proceeding was initiated against the petitioner. An enquiry report was submitted in which the charge against the petitioner was found proved. The second show-cause notice was issued to the petitioner on 10.03.2002 to which the petitioner submitted his reply. By order dated 24.04.2002, the petitioner has been dismissed from service. 3. A counter-affidavit has been filed by respondents stating as under:- 5. “That the charges against the petitioner are that he had left Dhanbad Police Line along with full guards on 27.11.1998 for Kumardhubi O.P. Guard's reserve guard but from on way to 2 Kumardhubi, the petitioner absconded on the excuse of going to market after handing over Rifle and cartridges to the in-charge of the guard, Ram Lakhan Pandit, and after having absconded, without any intimation and information for 293 days, appeared on 16.09.99 during the parliamentary election of 1999. Again on 25.11.1999 the petitioner was ordered to join his duty on Pokharia Picket but he again did not join his duty till 07.02.2000. Hence the petitioner absconded since without any information and intimation and as such, he has indulged in indiscipline conduct etc. 6. That thereafter the Enquiry Officer conducted the departmental proceeding and after examining the witnesses and documents so exhibited, he found the petitioner guilty of the charges levelled against him and submitted his finding on 25.08.2001 vide Memo No. 1476/Pol. 7. That it is further stated and submitted that the disciplinary authority i.e. the answering respondent agreeing with the finding of the Enquiry Officer and after having minutely perused the documents, passed order dated 10.03.2002 vide Memo No. 1439/C, for an explanation from the petitioner against the proposed punishment of dismissal from service. Accordingly, the petitioner submitted his explanation. 8. That the answering respondent, after due consideration of the explanation of the petitioner, found the same unsatisfactory and finally vide order dated 24.04.2002 passed final order inflicting punishment of dismissal from service.” 4. Heard the learned counsel appearing for the parties and perused the documents on record. 5. The learned counsel appearing for the petitioner has submitted that when the petitioner received a phone call, he immediately left for his native village, after informing his 3 colleague. When he reached his village, he was informed that his brother had died due to lightening and thereafter, he lost his mental control. He was treated by the doctor at Kanke, Ranchi. When he recovered, he reported for duty on 16.09.1999. The learned counsel further submitted that the defence taken by the petitioner has not been considered by the departmental authorities and the penalty of dismissal from service has been passed, which is excessive and disproportionate to the charge framed and found proved against the petitioner. 6. Per contra, Mr. Saket Upadhyay, the learned counsel appearing for the respondents has submitted that the petitioner reported for duty on 16.09.1999 and again left on 25.11.1999 and he did not report for duty till 07.02.2000 and therefore, in these circumstances, the penalty of dismissal from service has been passed against the petitioner. He has further submitted that since the misconduct reported against the petitioner was repeated again and therefore, the departmental authorities took a serious view of the matter and imposed the penalty of dismissal from service. 7. A perusal of the charge-memo dated 13.02.2000 would disclose that two separate charges for unauthorised absence from 27.11.1998 to 15.09.1999 and 25.11.1999 to 07.02.2000 were framed against the petitioner. The plea taken by the petitioner in reply to the show-cause notice that he was treated at Kanke, Ranchi by Dr. B.B. Singh, is for the period between 11.12.1999 to 09.02.2000 and therefore, I find that there is no explanation offered by the petitioner for his unauthorised absence from duty between the period 27.11.1998 and 15.09.1999. However, I find that in his reply to the second show-cause notice, the petitioner has taken a specific plea that pursuant to order dated 22.10.1999, one Inspector namely, Nabhdeshwar Rai had visited his village on 01.11.1999 and enquired about the matter from the villagers and 4 the villagers had informed him that the petitioner due to the death of his brother lost his mental balance. I further find that the petitioner has brought on record the prescription of the doctor dated 11.12.1999 and certificate issued by the said doctor on 09.02.2000. A perusal of the penalty order as well as the appellate order would disclose that the defence specifically taken by the petitioner in reply to the second show-cause notice has not been considered by the departmental authorities. It has not been denied by the enquiry officer or by the disciplinary authority that the petitioner was suffering from mental illness. The documents produced by the petitioner have not been disputed by the respondents and therefore, I am of the opinion that the order of penalty has been passed by the respondents without considering the specific defence taken by the petitioner. 8. In “Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi & Ors.”, reported in 2004 (4) SCC 560, the Hon'ble Supreme Court has held as under, 12. “The disciplinary authority without caring to examine the medical aspect of the absence awarded to him the punishment of removal from service since their earlier order of termination of the appellant’s service under the Temporary Service Rules did not materialise. No reasonable disciplinary authority would term absence on medical grounds with proper medical certificates from government doctors as grave misconduct in terms of the Delhi Police (Punishment and Appeal) Rules, 1980. Non- application of mind by quasi-judicial authorities can be seen in this case. The very fact that the respondents have asked the appellant for re-medical clearly establishes that they had received the applicant’s application with medical certificate. This can never be termed as willful absence without any information to competent authority and can never be termed as grave misconduct.” 5 9. I am of the opinion that since the petitioner was appointed on 08.09.1989 and he continued in service for more than 9 years, the petitioner would have more than 10 years of service left and therefore, the disciplinary authority should consider the matter afresh in so far as the quantum of punishment is concerned. 10. In “Chairman-cum-Managing Director Coal India Ltd. & Anr. Vs. Mukul Kumar Choudhuri & Ors.”, reported in (2009) 15 SCC 620, the Hon'ble Supreme Court has held as under:- 21. “In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company’s rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.” 11. In view of the aforesaid discussion, this writ petition is allowed. The impugned orders dated 24.04.2002 and 15.01.2005 are quashed. The matter is remanded back to the disciplinary authority for a fresh consideration as indicated hereinabove. Jharkhand High Court, Ranchi Dated: 22.11.2013 Manish/A.F.R. (Shree Chandrashekhar, J.)