BHARAT GURUNG Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) By filing this writ petition, petitioner has prayed for setting aside the order dtd. 30/6/2011 (Annexure 7) passed in Departmental Proceeding No.26/2010 by respondent No.4 whereby and whereunder the petitioner has been dismissed from services. Petitioner has further prayed for setting aside the appellate order dtd. 29/10/2011 (Annexure 8) communicated by Memo No.1708 passed by respondent No.3, whereby the appeal preferred against the penalty order has been rejected by the appellate authority. Further, the petitioner has also prayed for a direction to the respondents to reinstate the petitioner in service with all consequential benefits including back wages, as the petitioner has not been gainfully employed in any government service from the date of dismissal.

(2.) Learned counsel appearing on behalf of the petitioner contended that though there is a delay in filing the writ petition, but the delay can be condoned considering the fact that the petitioner has been dismissed from service. He contended that as no third party right has been created in this case, thus, delay cannot stand in the way of the petitioner in getting justice. On the merits of the case, learned counsel argued that there is no legal evidence to suggest that the petitioner is involved in handing over 160 rounds of bullets to Annex Rana as Annex Rana himself before the Departmental Enquiry Officer has denied the allegation that he had given 160 rounds of bullets to the petitioner. He has categorically stated that due to the pressure of the Post In-charge, he had implicated this petitioner and had recorded his earlier statement. In view of this specific statement in the Departmental Proceeding, learned counsel for the petitioner contended that the respondents could not have punished the petitioner. He also submitted that the Enquiry Officer solely relied upon a statement in Departmental Proceeding No.24 of 2010, which was initiated against one Udesh Bagdas, which is absolutely illegal as the statement in a different Enquiry Proceeding cannot be used in the present proceeding, that too behind the back of the petitioner. He lastly argued that there are no materials against the petitioner in the Departmental Proceeding holding him guilty and his dismissal is perverse and needs to be set aside.

(3.) Respondents submitted that there is 10 years delay in approaching this Court. Dismissal order is dtd. 30/6/2011 and the appellate order is dtd. 29/10/2011. The petitioner slept for 10 years and has approached this Court by filing this writ petition only on 9/7/2021. The delay of 10 years is unexplained. He contended that 10 years is too long a period and after 10 years the matter cannot be reopened. On merits he contended that evidence was adduced and petitioner was found guilty. As per him, law of Evidence Act is not strictly applicable in a Departmental Proceeding. The guilt of the delinquent is based on preponderance of probability. Since the guilt has been proved, this Court exercising jurisdiction under Article 226 of the Constitution of India could not interfere with the order of punishment, when admittedly, there is no perversity in the findings of the Enquiry Officer and the punishment is also proportionate to the proved misconduct.