Jharkhand High Court
Goverdhan Oraon (Constable ... vs The State Of Jharkhand on 6 April, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 364 of 2019
with
I.A.No.1271 of 2021
Goverdhan Oraon (Constable No.1850), Aged about 44 years, son of
Late Charkha Oraon, Resident of Village-Nagari, P.O-Nagri-Nawadih,
P.S-Kisko, Dist-Lohardaga. ...... Appellant
Versus
1.The State of Jharkhand.
2.The Director General of Police-cum-Inspector General of Police,
Jharkhand, Project Building, P.O. & P.S-Dhurwa, Dist-Ranchi.
3.The Deputy Inspector General of Police, South Chhotanagpur, Ranchi,
P.O., P.S. & Dist-Ranchi.
4.The Senior Superintendent of Police, Ranchi, P.O., P.S. & Dist-
Ranchi.
5.The Superintendent of Police (Town), Ranchi, P.O., P.S. & Dist-
Ranchi. ..... Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. Suraj Deo Munda, Advocate
For the Respondents : Mr. Sanjay Sah, A.C to A.A.G-IV
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Oral Judgment:
Order No.08/Dated: 06th April, 2021
1. With consent of the parties, hearing of the matter has been done
through video conferencing and there is no complaint whatsoever
regarding audio and visual quality.
I.A.No.1271 of 2021
2. This interlocutory application has been preferred under Section
5 of the Limitation Act for condoning the delay of 52 days in
preferring this Letters Patent Appeal.
3. Heard.
4. In view of the submissions made on behalf of the parties and
the averments made in the interlocutory application, we are of the
view that the appellant was prevented by sufficient cause in
preferring the appeal within the period of limitation.
5. Accordingly, I.A.No.1271 of 2021 is allowed and delay of 52
days in preferring the appeal is condoned.
L.P.A. No.364 of 2019
6. The instant intra-court appeal under Clause 10 of the letters patent,
is directed against the order/judgment dated 18.02.2019 passed by the
learned Single Judge of this Court in W.P.(S) No.3839 of 2017 by which
the second show cause notice dated 17.07.2006 issued by the
Superintendent of Police (Town), Ranchi has been declined to be
interfered with by dismissing the writ petition.
7. The brief facts of the case, which requires to be enumerated, read
as under:
The writ petitioner was appointed as 'Constable' on 15.10.1999.
The writ petitioner thereafter, remained unauthorisedly absent from
21.03.2003 to 06.02.2005. A departmental proceeding was initiated
against him, however, he did not choose to appear in the aforesaid
departmental proceeding. After 688 days the writ petitioner again joined
service on 07.02.2005 and again remained absent and as such, on
17.07.2006 a second show cause notice was issued against him asking
him to furnish a suitable reply as to why he should not be dismissed from
service as the charges of unauthorised absence has been proved. The writ
petitioner challenged the aforesaid notice by filing writ petition being
W.P.(S) No.3839 of 2017.
The writ Court after hearing the learned counsel for the parties,
has dismissed the writ petition on the ground that the second show cause
notice which was issued on 17.07.2006 has been challenged in the year
2017 by filing writ petition as also on the ground that the writ petitioner
has given no reply to the said notice on the plea that he was mentally
unstable and as such, he did not participate in the said departmental
proceeding which was initiated against him.
Learned Single Judge, therefore, has come to the finding that the
writ petitioner has only challenged the second show cause notice that too
after lapse of period of 11 years from the date of its issuance, hence
dismissed the writ petition. The aforesaid impugned order is the matter
of present intra-court appeal.
8. Mr. Suraj Deo Munda, learned counsel for the writ petitioner-
appellant has submitted that the learned Single Judge has not appreciated
the fact while dismissing the writ petition that writ petitioner could not
be able to participate in the departmental proceeding as he was suffering
from mental illness.
9. Per contra, Mr. Sanjay Sah, learned A.C to A.A.G-IV appearing
for the respondents-State of Jharkhand has submitted that learned Single
Judge is correct in passing the impugned order as the show cause notice
was issued in the year 2006 which has been assailed in the year 2017.
Further the writ petitioner has been dismissed from service but very
surprisingly the order of dismissal has not been questioned by the writ
petitioner.
10. This Court has heard learned counsel for the parties and having
considered the rival submissions made on behalf of the parties, the fact
which is admitted in this case is that a departmental proceeding was
initiated against the writ petitioner by serving memorandum of charge
for unauthorised absence from service while writ petitioner was working
as 'Constable' in the disciplined force in the State of Jharkhand in the
Ranchi District Police.
Since he was absenting from duty, therefore, he was suspended
from service, however, the order of suspension was revoked on
21.12.2002. A memorandum of charge was issued on 28.11.2005 for
unauthorised absence from duty treating it to be gross indiscipline and
dereliction of duty with specific stipulation made therein to submit his
explanation within 15 days. But, the writ petitioner did not submit his
explanation within stipulated time and hence a departmental proceeding
has been initiated, in which the writ petitioner did not participate. The
enquiry officer has proceeded with the enquiry report and on its
conclusion submitted a finding for unauthorised absence and dereliction
of duty. The enquiry officer has submitted its report vide dated
25.04.2006 to the disciplinary authority which has been accepted by him
and thereafter, the second show cause was issued on 17.07.2006 and sent
it through post to the writ petitioner as it is evident from copy of Memo
no.1430 dated 17.07.2006 which is postal receipt having been appended
as Annexure-E-1 & E-2 to the counter affidavit filed on behalf of the
respondent-State of Jharkhand.
The writ petitioner had chosen not to give reply and as such, the
writ petitioner was dismissed from service vide District Order
No.3416/2006 with effect from 07.10.2006 which is appended as
Annexure-F to the counter affidavit filed on behalf of the State of
Jharkhand.
11. Thus, it is evident that the writ petitioner had already been
dismissed from service vide order dated 07.10.2006 but he approached
this Court by invoking jurisdiction conferred under Article 226 of the
Constitution of India by filing writ petition being W.P.(S) No.3839 of
2017 wherein only second show cause notice has been challenged
leaving apart the order of dismissal dated 07.10.2006.
However, the learned Single Judge, could not incorporate the fact
in the impugned order about the order of dismissal dated 07.10.2006
even though the same was part of the pleading as per the stand inter alia
taken by the respondents in the counter affidavit. Further since we are
sitting in the intra-court appeal and exercising the power conferred under
Article 226 of the Constitution of India, have considered the pleading
made in the counter affidavit filed by the respondent-State about the
order of dismissal dated 07.10.2006 which has been annexed as
Annexure-F.
The learned Single Judge, however, has only considered the prayer
made by the writ petitioner in the writ petition wherein the second show
cause notice has been questioned and based upon the said prayer writ
petition has been dismissed on the ground that the second show cause
notice has been assailed after lapse of 11 years on the issuance of such
notice.
12. This Court, therefore, is of the view that the learned Single Judge
even though has not recorded the fact about dismissal of the writ
petitioner-appellant vide order dated 07.10.2006 while dismissing the
writ petition, even then, we find no reason to interfere with the impugned
order as per the stand of the respondent-State as the moment the writ
petitioner was dismissed on 07.10.2006, the second show cause notice
dated 17.07.2006 merged with the order of dismissal as such dismissal
order ought to have been challenged but the writ petitioner-appellant did
not assailed the same even though the writ petition has been filed in the
year 2017. In view thereof, the impugned order requires no interference.
13. Accordingly, the instant appeal fails and is dismissed.
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Saket/-
N.A.F.R.
