ASHOK KUMAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) In the instant writ application, the petitioner has inter-alia prayed for quashing the order of dismissal dated 17.01.2008 issued by the Joint Secretary, Co-operative Department, Jharkhand, Ranchi and also for direction to the respondents to regularize the period of absence by granting leave on medical ground and other leave as may be permissible.

(2.) The facts as emanated in the writ application, is that initially the petitioner was appointed as Co-operative Extension Supervisor in the year 1989. In the year, 2005 the petitioner was relieved by the Joint Registrar, Cooperative Societies, Purnia to join the office of the Registrar, Co-operative Societies, Jharkhand Ranchi on being allotted Jharkhand Cadre. While working as such, the petitioner suffered from Jaundice with Hepatitis-B. On 08.10.2005, he gave his joining at Ranchi, Jharkhand. Due to unauthorized absence from duty and despite of several notices in the newspaper, the petitioner was placed under suspension vide order dated 08.04.2006 as evident from Annexure-5. On the very same day, the departmental proceeding was initiated and charge was framed against the petitioner. In pursuance to the charges, the petitioner submitted his reply to the charges. The matter was inquired into by the inquiry officer and the inquiry officer conducted the inquiry holding the petitioner guilty of all the charges. On the basis of the inquiry report, a second show cause notice issued to the petitioner vide Annexure-7 to the writ petition and receipt of the second show cause notice, the petitioner replied the same and on 17.01.2008, the impugned order of punishment has been passed by the respondents as evident from Annexure-9 to the writ petition. Being aggrieved by the impugned order of punishment vide Annexure-9, the petitioner has challenged the same in this Court under Art. 226 of the Constitution of India.

(3.) Mr. P. A. S. Pati, learned counsel for the petitioner has submitted with vehemence that the inquiry officer and the disciplinary authority have mentioned in no uncertain terms that the petitioner was medically unfit but the disciplinary authority has passed the order of punishment imposing major punishment which is harsh, excessive and disproportionate to the alleged charges. Learned counsel for the petitioner further submits that the impugned order of punishment has been passed by the Joint Secretary who is not competent to pass such orders and as per the resolution no.1393 dated 01.08.2007 vide Annexure-T to the counter-affidavit, the competent authority for awarding major punishment is the Secretary. In the instant case, admittedly the Joint Secretary has passed the order and there is nothing on record to show that the approval of the Cabinet or the Secretary has been obtained prior to infliction of punishment vide Annexure-9 to the writ petition. Learned counsel for the petitioner further submits that the disciplinary authority has gone beyond the charges and the memo of charges does not refer to habitual absenteeism. On that score, the impugned order is assailable. Learned counsel for the petitioner in order to buttress his submissions has referred to paragraph 12 of the judgment in the case of Chhel Singh Vs. MGB Gramin Bank, Pali and Others reported in (2014) 13 SCC 166, wherein the Honourable Apex Court has been pleased to hold that it is neither a case of the disciplinary authority nor the inquiry officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though, he was not ill during the said period. In absence of such evidence and finding, it was not open to the inquiry officer or the disciplinary authority to disbelieve the medical certificates issued by the doctors without any valid reason.