BINDESHWARI SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application has been preferred by petitioner, a constable, against the order contained in memo No. 891 dated 14th April, 1995, whereby and where under, Superintendent of Police, Muzafferpur removed him from service for the charges of overstayal of leave. The admitted fact is that a departmental proceeding No. 15/91 was initiated against the petitioner on thirteen counts, all relating to overstayal of leave during different periods, right from the date of his appointment i.e. 6th October, 1959. It was alleged that the petitioner all the times overstayed for certain days after the end of leave. For example petitioner was granted three days casual leave vide Patna District Order No. 3027/64 but he reported after ten days on 17th July, 1964. On 20th April. 1974 he was allowed eight days casual leave vide Muzafferpur Rail Order No. 1042/74 but he reported after fifteen days. Similarly he was allowed five days ' casual leave vide Muzafferpur Rail District Order No. 572/76 on 24th March, 1976 but he reported twenty days thereafter. Similar were the other allegations.

(2.) THE Enquiry Officer took into consideration that during 32 years of service career, the petitioner overstayed after the leave period for 12 times but the periods were regularized towards leave. The recent absence from duty was found to be genuine. because of petitioners illness. Being satisfied with the medical report submitted by petitioner the enquiry officer reported in favour of petitioner.

(3.) FROM the impugned order dated 14th April, 1995 it will be evident that though the respondents alleged that the petitioner overstayed after the end of leave but no allegation was levelled that the periods of overstayal of leave were unauthorized absence from duty, amounting to misconduct. A person can remain unauthorized absent for different reasons. One can show sufficient ground for such absence. But till it is alleged and proved that the unauthorised absence from duty amounts to misconduct and the person abandoned the duty, no penal order can be passed. 4A. Under Rule 165 of Bihar (Jharkhand) Service Code 1952 specific provision has been made how the period of absence from duty after the end of leave is to be counted which reads as follows : - "(1) A Government servant who remains absent after the end of his leave is entitled to no leave -salary for the period of such absence and that period will be debited against his leave account as follows, unless his leave is extended by the Government - (a) If the Government servant is governed by the Old Leave Rules, the period of absence will be debited against his leave account as though, it was leave on half average pay. (b) If the Government servant is governed by the Revised Leave Rules, the period of absence should be debited as follows : - (1) Government servants in Superior service : - Half Pay leave (ii) Government servants in Inferior service : - As earned leave (2) Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of Rule 56 '' The Rule 165 being specific to count the period of absence after the end of leave, and in absence of any allegation that the ''unauthorized absence from duty amounts to misconduct '', the competent authority is bound to regularize the period of absence as per Rule 165 of Bihar (Jharkhand) Service Code, 1952.