BIRENDRA KUMAR PANDEY, SON OF SRI KRISHNA PANDEY, RESIDENT OF VILLAGE: BANAHI, P.O: BANAHI, P.S.: SHAHPUR PATTI, DIST: BHOJPUR, BIHAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) In the accompanied writ application, the petitioner has inter alia prayed for quashing order dated 21.09.2004 passed by the commandant, Jharkhand Armed Police, whereby services of the petitioner has been dismissed and for quashing appellate order dated 05.03.2005 passed by Deputy Inspector General of Police, Ranchi and further for quashing revisional order dated 25.04.2013.

(2.) Bereft of unnecessary details, the facts as delineated in the writ application, is that the petitioner while posted at Chaibasa, a memo of charge was served upon the petitioner on 07.07.2003 alleging therein that the petitioner has not reported on duty since 26.03.2003. Pursuant thereto, the petitioner submitted his show cause reply, annexing the relevant documents, medical prescriptions, receipts etc, stating therein that the absence was because of compelling circumstances, which was beyond the control of the petitioner, but it is alleged that the enquiry officer without paying any heed to the genuine explanation of the petitioner disbelieved the medical reports of the petitioner and held the petitioner guilty of the charges. Thereafter, second show cause was issued. However, basing on the findings recorded by the enquiry officer, the disciplinary authority imposed the impugned punishment without appreciating the contentions raised by the petitioner in his second show cause reply. Against the order of disciplinary authority, the petitioner preferred appeal, which was rejected by passing a most cryptic order. Being aggrieved, the petitioner preferred memorial/revision, that was also rejected on the ground of limitation and order passed by the disciplinary as well as appellate authority was affirmed.

(3.) Learned senior counsel for the petitioner submitted that the impugned order of dismissal from services has been passed by the disciplinary authority without taking into account the medical reports and disbelieving the same without any valid reason. It has further been submitted that the absence was not intentional or wilful rather it was under the compelling circumstances, which was beyond the control of the petitioner. Learned senior counsel for the petitioner further submitted that if the allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding the absence will not amount to misconduct. In this context, learned senior counsel for the petitioner relied upon a judgment rendered in the case of Krushnakant B. Parmar Vs. Union of India & Anr as reported in (2012) 3 SCC 178 . It has further been submitted that what is not in the charge, cannot be taken into consideration for awarding punishment, but, in the appellate order passed by the appellate authority dated 5.3.2005, while passing the order, the punishment awarded earlier has been taken into consideration. In support of his submission, he has referred to the judgment rendered in the case of M.V. Bijlani Vs. Union of India & Ors as reported in (2006) 5 SCC 88 . Learned senior counsel for the petitioner further submits that the enquiry report is perverse as no enquiry has been conducted under Rule 843 of the Police Manual. A report from the local police to the Superintendent of Police of said district is required to be done before coming to a finding, but in the case at hand such procedure has not been followed violating Rule 843 of the Police Manual. It has further been submitted while awarding punishment the past services of the petitioner has been taken into account without giving any notice, which is in violation of the laws laid down by the Honourable Apex Court in the case of Indu Bhushan Dwivedi Vs. State of Jharkhand & Anr as reported in (2010) 11 SCC 278 .