BALU SINGH Vs. STATE OF M P

JUDGEMENT

(1.) The petitioner before this Court has filed this present petition being aggrieved by order dt. 23-1-2006 by which punishment of removal from service has been inflicted upon him. The petitioner is also aggrieved by order dt. 25-3-2006 by which the appeal/preferred by the petitioner has been dismissed.

(2.) The contention of the petitioner is that he was appointed as a Constable in the Special Armed Force of the State of M. P. in the year 1992 and a charge-sheet was issued alleging certain misconduct. It was alleged that the petitioner was absent from 9-6-2001 without proper leave application and thereafter an ex parte enquiry was conducted. An order of dismissal was passed on 22-11-2002. Petitioner being aggrieved by order of dismissal preferred an appeal before the appellate authority and the appellate authority vide order dt. 2-8-2005 has reinstated the petitioner back in service. The Departmental Enquiry as it was an ex parte enquiry was set aside and the Enquiry Officer was directed to conclude the enquiry afresh after permitting the petitioner to participate in the enquiry. Petitioner's grievance is that the respondents in a most mechanical and casual manner have now again completed the Departmental Enquiry and they have not looked into the documents relied upon by the petitioner at all and the petitioner has again been removed from service vide impugned order dt. 23-1-2006. He has further stated that his appeal has been dismissed vide impugned order dt. 25-3-2006. Learned counsel for the petitioner has vehemently argued before this Court that the petitioner while he was posted at Shajapur suffered a fracture on 12-1-2001 and was referred to E Company, Indore. He has further stated that on 19-4-2009 he was referred to MY Hospital (which is a hospital of the State Government) and he was under treatment up to 10-1-2002. The petitioner has further stated that on 8-7-2002 he was admitted in Ratlam Hospital which is again a Government Hospital and he was operated at Ratlam and was in hospital till 27-11-2002. Petitioner has further stated that while he was undergoing treatment he was discontinued from service that too by holding an ex parte Departmental Enquiry and the enquiry officer in the subsequent enquiry also has not looked into the various medical certificate hence the findings arrived at deserves to be set aside. Learned counsel for the petitioner has vehemently argued before this Court that the punishment awarded to the petitioner is extremely harsh and even if the charge of unauthorised absence is proved the punishment of removal from service is excessive. He has placed reliance on a judgment delivered by the Apex Court in the case of Chairman Cum Managing Director, Coal India Ltd. and another vs. Mukul Kumar Choudhuri and others, 2009 15 SCC 620. Learned counsel for the petitioner has also raised another ground before this Court and his contention is that no presenting officer was appointed while conducting the Departmental Enquiry. He has vehemently argued before this Court that the enquiry officer himself has acted as a presenting officer, meaning thereby a Judge has acted as prosecutor in the present case. He has further informed this Court that the enquiry officer has not only examined the witnesses, he has cross-examined the petitioner at length and thereafter has submitted a finding, holding the petitioner guilty of unauthorised absence. Learned counsel for the petitioner has prayed for quashing of the Departmental Enquiry on this count also.

(3.) A reply has been filed on behalf of the respondent-State and the stand of the State is that the petitioner was absent for total 532 days and he has filed medical certificates only for 137 days. The respondents have stated that the petitioner was absent from 9-6-2001 to 21-1-2002 and the medical certificate is in respect of the period w.e.f. 8-7-2002 to 21-11-2002. The stand of the respondent-State is that the petitioner being a member of disciplined force, as he was unauthorisedly absent for a period of 532 days has rightly been dispensed with from service and there is no procedural error in the Departmental Enquiry warranting interference. Respondent-State has also argued before this Court that the petitioner has been rightly inflicted with the punishment of removal from service and in absence of violation of any statutory provision of law and in absence of violation of principles of natural justice and fair play, the question of interference by tills Court in the matter of Departmental Enquiry, does not arise. Respondents have also produced before this Court the original Departmental Enquiry record and have prayed for dismissal of the present writ petition.