BASANT PRAKASH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THE petitioner, who was a constable under Bihar Military Police, was proceeded against for unauthorized absence of 257 days in Departmental Proceeding No. 2/98 and was dismissed from service on 28.1.1999, Annexure 1, by the Commandant, Bihar Military Police -12 on the basis of misconduct established against him. He, however, Preferred an appeal against that apparently more than five years later on 6.5.2004, which was not entrained by the appellate authority, as the same had not been inconformity with the Police Manual Rules. The petitioner came before this Court against rejection of his appeal in writ petition being WP(S) No. 1379/2005, which was disposed of by judgment dated 30.3.2005, Annexure 5. The learned Single Judge of this Court held that if the appeal memorial did not comply with the requirement of Rule 852(Kha), the petitioner should be given one opportunity to submit all the documents. Therefore the matter was remitted to the appellate authority to decide the appeal on merit and dispose of the same within a period of four months. Thereafter, the order dated 25.7.2005, passed on his Appeal by the Deputy Inspector General, Jharkhand Armed Police, Ranchi, has upheld the punishment order, which is also impugned in the present writ petition as Annexure 7.

(3.) RESPONDENTS have appeared and filed their counter affidavit. It is submitted by the learned counsel for the respondents that an alternative remedy of memorial under Rule 853 of the Police Manual has not been invoked before approaching this Court by the petitioner, on which ground alone the writ petition could be dismissed. He has relied upon a judgment rendered in the case of Kanaiyalal Lalchand Sachdev v. State of Maharashtra, reported in : 2011 (2) SCC 782, para 23 thereof. It is further submitted that the petitioner had no plausible explanation for his absence for a period of 257 days and the appeal itself was preferred after more than 5 years of the order of punishment. Still the appellate authority had considered the case of the petitioner on merit and rejected the same also taking into account that the petitioner himself had stated that he was suffering from mental Schizoaffective Disorder. The petitioner has only completed 21 years of service and could not have been granted the voluntary retirement in the facts and circumstances of the case, which has rightly been rejected by the appellate authority.