Jharkhand High Court
Hira Lal Singh vs The State Of Jharkhand on 1 February, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.4745 of 2009
With
I.A. No.5940 of 2020
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Hira Lal Singh ... ... Petitioner
Versus
1. The State of Jharkhand.
2. The Director General of Police, Jharkhand, Ranchi.
3. The Inspector General of Police, Special Branch,
Ranchi.
4. The Deputy Inspector General of Police, Special
Branch, Ranchi.
5. The Superintendent of Police, Special Branch, Ranchi.
... ... Respondents
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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner :Mr. Diwakar Upadhyay, Adv.
For the Res.State : Mr. Devesh Krishna, S.C
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12/01.02.2021
I.A. No.5940 of 2020
Heard learned counsel for the parties through
V.C.
2. The instant interlocutory application has been
preferred by the petitioner praying for an amendment in the
main writ application as due to inadvertence; the order in
appeal and order passed in memorial has not been annexed
with this writ application.
3. Learned counsel for the petitioner submits that
due to inadvertence the two orders i.e. order in appeal and
order passed in memorial have not been annexed with the
main writ application and if the proposed amendment is
allowed; the nature of prayer will not change, inasmuch as,
by the disciplinary authority the petitioner was dismissed
from his service and the said order has been upheld by the
appellate authority as well as by revisional authority.
4. Mr. Devesh Krishna, learned counsel for the
respondent-State opposes the interlocutory application and
submits that both the aforesaid orders were already within
the possession of the petitioner and as such the same
should have been filed along with the writ application itself.
5. Looking to the averments made in the I. A. and
also the fact that since the order in appeal and order in
revision are connected with the impugned order of
punishment; as such, the instant interlocutory application
being I.A. No.5940 of 2020 is hereby allowed and the same
shall be treated as part of the main writ application for
future reference.
W.P.(S) No.4745 of 2009
6. With consent of the parties, the instant writ
application has been taken up today for hearing.
7. The instant writ application was initially
preferred for quashing the order of punishment as
contained in Memo No.765 dated 26.02.2005 whereby the
petitioner was removed from service. By the amendment
application the petitioner has further challenged the
appellate order dated 19.07.2006 whereby the appeal
preferred by the petitioner was dismissed and also the
order passed by the revisional authority in Memorial as
contained in Memo No.433/D dated 11.06.2007 whereby
the order of punishment passed by the disciplinary
authority has been sustained up to the highest level.
8. The case of the petitioner is that he was
appointed on the post of constable on 14.05.1988. On
09.12.2003 while he was in service; he reported his
superior officer and went on leave on the ground that his
daughter was seriously ill and thereafter, when he did not
returned to duty in time; a charge-sheet was issued on
02.04.2003 and subsequently enquiry was conducted and
vide order dated 28.05.2003, the enquiry officer held the
petitioner guilty. On 28.07.2003 the final explanation was
sought from the petitioner to which he duly replied and
thereafter he has been dismissed from service vide order
dated 26.02.2005 and the order of dismissal has been
sustained by the superior authorities.
9. Learned counsel for the petitioner submits that
amongst various grounds; he has taken two grounds that
Rule 843 of Bihar Police Manual has not been complied in
the instant case, inasmuch as, as per the rule whenever an
officer does not return in time on duty, enquiry shall be
made by the Superintendent of the Commandant within
one week from the Superintendent of Police of his native
district. He further submits that since the said mandatory
provision was not complied; the impugned order is bad in
law. He further submits that he has taken specific ground
before the disciplinary authority as well as the appellate
and revisional authority that he went on leave after hearing
that his daughter was seriously ill but while he was on
leave; he himself fallen ill and that is the reason he could
not return in time. However, this ground has not been
considered or answered by the disciplinary authority or by
the superior authorities; as such, the impugned order may
be quashed.
10. Mr. Devesh Krishna, learned counsel for the
respondent-State submits that the petitioner never
appeared before the disciplinary authority. He further
referred to the letter dated 26.05.2004 (Annexure-E of the
counter affidavit) and submits that when the petitioner did
not respond to the show cause notice dated 28.03.2003, he
was again issued a fresh second show cause notice asking
him to reply; as such it is incorrect to say that principal of
natural justice was not complied. As a matter of fact, the
petitioner never appeared before the disciplinary authority
though he filed the reply to second show cause notice. He
further referred to a judgment in the case of Jitendra
Kumar Razak Vs. the State of Bihar passed in C.W.J.C
No.3229 of 2009 and submits that the issues of Rule 843
of Bihar Police Manual has been fully discussed in this
case and as per which he is not entitled for any relief on
that ground. However, learned counsel for the petitioner
could not demonstrate that the ground taken by the
petitioner in his second show cause reply and/or in the
appeal; has been discussed or answered.
11. Having heard learned counsel for the parties and
after going through the documents available on record and
averments made in the respective affidavits; it appears that
the respondent-State has given ample opportunity to the
petitioner before passing the order of punishment.
However, from record it also appears that the
petitioner has taken two specific grounds; one with respect
to non-compliance of Rule 843 of Bihar Police Manual and
other with respect to the reason of his not joining the duty
in time. From the order of punishment passed by the
disciplinary authority as well as the appellate order passed
by the appellate authority, it does not transpires that these
specific grounds has been dealt with rather the only
explanation given by the appellate authority is that the
petitioner has been given ample opportunity to defend his
case.
12. In view of the aforesaid facts it clearly transpires
that the specific ground with respect to compliance to Rule
843 of Bihar Police Manual and also the fact that he
himself fallen ill while he was on leave; has not been dealt
with by the disciplinary authority and/or by the appellate
authority.
13. In this view of the matter this Court is of the
opinion that the impugned order deserves to be quashed
and the matter should be re-examined.
14. Consequently, the impugned order as contained
in Memo No.765 dated 26.02.2005, appellate order dated
19.07.2006 and also the order passed by the revisional
authority in Memorial as contained in Memo No.433/D
dated 11.06.2007, are hereby, quashed and set aside and
the matter is remitted back to the disciplinary authority to
pass a fresh order only on the aforesaid two grounds as to
whether the benefits of Rule 843 of Bihar Police Manual
can be availed by the petitioner and whether from the facts
and circumstances of the case the petitioner was genuinely
prevented to join his duty.
15. It goes without saying that since the matter is
very old; the disciplinary authority is expected to pass the
fresh order within a period of four months from the date of
receipt / production of a copy of this order. The disciplinary
authority will be free to issue notice to the petitioner, if so
advised, and in that case the petitioner shall fully cooperate
with the disciplinary authority.
16. With the aforesaid terms, the instant writ
application stands disposed of.
(Deepak Roshan, J.)
Fahim/-
