RAJESH KUMAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The petitioner was appointed as a constable in the Indian Reserve Battalion and has reported for the training pursuant to the appointment letter dated 26th April, 2005 (Annexure-B to the supplementary counter-affidavit). Petitioner, while undergoing training, left the training centre without informing the superior and without getting any leave on 2nd November, 2005 and has returned on 17th November, 2005. Thereafter, vide order dated 7th February, 2006 (Annexure No. 2) petitioner was discharged from the services without assigning any reason. Feeling aggrieved, the petitioner preferred an appeal, which was also rejected by the Deputy Inspector General of Police. Feeling aggrieved, the petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India. I have heard learned counsel for the parties and have carefully perused the record.

(2.) Dr. S.N. Pathak, learned senior advocate appearing for the petitioner has vehemently argued that the petitioner was dismissed from service because the petitioner remained absent without any leave as stated in paragraph 33 of the counter-affidavit. Mr. Pathak further contends that unauthorized absent amounts to misconduct and dismissal for the alleged misconduct requires prior notice and an opportunity of hearing to the delinquent employee/petitioner as provided under Article 311 of the Constitution of India read with Rule 828(2) of the Jharkhand Police Manual. Dr. Pathak has further contended that as per Rule 828 of the, Jharkhand Police Manual termination, dismissal-removal are the major penalty, which can only be inflicted after following the due procedure as prescribed under Rule 828. Dr. Pathak, learned senior advocate further contends that a constable is neither the executive officer nor a ministerial officer, therefore, he shall not be treated as probationer as per Rule 668 of the Jharkhand Police Manual. Therefore, compliance of Rule 828 of the Jharkhand Police Manual before passing the order of dismissal-removal from services is mandatory. Dr. Pathak while placing reliance on the judgment of the Apex Court in the case of Union of India & others v. Mahaveer C. Singhvi, 2010 8 SCC 220, has argued that if dismissal is for the reason of misconduct and outcome of discreet enquiry and if employee was not put on notice and was not heard before passing the order of dismissal, same is liable to be set aside. Dr. S.N. Pathak, in the last, has vehemently argued that respondents, in the counter-affidavit, have admitted that petitioner was dismissed from the service and have not stated that petitioner was discharged, therefore, it should only be treated as dismissal and not the discharge, therefore, compliance of Rule 828 of the Jharkhand Police Manual was mandatory.

(3.) On the other hand Mr. Ajit Kumar learned Additional Advocate General has vehemently argued that' the police, constable is Executive Officer as provided in Appendix 41 of the Police Manual therefore petitioner constable was probationer. He further contends that as per Rule 668 of Jharkhand Police Manual, Executive Officer or ministerial cadre on probation can be removed/discharged from service without following formalities as laid down under Rule 828 of the Jharkhand Police Manual.