Vijay Kumar vs The State Of Jharkhand Through The ...
2021 Latest Caselaw 4055 Jhar

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     W.P.(S) No. 3026 of 2015
            (An application under Article 226 of the Constitution of India)

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               Vijay Kumar                               ..... Petitioner
                                 Versus

1. The State of Jharkhand through the Secretary/Principal Secretary, Department of Home, having its office at Project Building, P.O & P.S.-Dhurwa, Town and District-Ranchi.

2. The Director General of Police, Jharkhand, having its office at Police Headquarter, P.O. & P.S.-Dhurwa, Town and District- Ranchi.

3. The Inspector General of Police, North Chhotanagpur Range, Bokaro, P.O. & P.S.-Bokaro, District-Bokaro.

4. The Deputy Inspector General of Police, Koyla Range, Bokaro, P.O. & P.S.-Bokaro, District-Bokaro.

5. The Superintendent of Police, Dhanbad, P.O. & P.S. Dhanbad, District-Dhanbad.

6. The Deputy Superintendent of Police, Sindri, P.O. & P.S. Sindri, District-Dhanbad. ..... Respondents

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For the Petitioner : Mr. Manoj Tandon, Advocate For the Respondents : Mr. Navneet Toppo, A.C. to S.C.-V PRESENT HON'BLE MR. JUSTICE DEEPAK ROSHAN

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By Court: Heard through V.C.

2. The instant writ application has been preferred by

the petitioner praying therein for quashing part of the order

as contained in Memo No. 1339 dated 31.10.2013 whereby

the petitioner has been taken back in service with effect

from the date of joining instead of reinstatement and it was

further ordered that his two increments will be withheld

with cumulative effect with a further direction that he

would not be paid anything for the period of absence from

duty and the period of absence from duty shall be treated

as break in service.

3. Mr. Manoj Tandon, learned counsel for the petitioner

submits that earlier the petitioner was removed from his

service and pursuant to that after exhausting all the

remedies of appeal and memorial, he preferred a writ

application before this Court being W.P.(S) No. 520 of 2013.

He further submits that the said writ application was

allowed in favour of the petitioner and the impugned order

of removal was quashed and set aside. Finally, the case was

remitted back to the disciplinary authority to pass an order

afresh after considering the plea of the petitioner and

recording a specific finding as indicated in the judgment of

the Hon'ble Supreme Court in the case of Krushnakant B.

Parmar Vs. Union of India and another, reported in

(2012) 3 SCC 178.

4. Mr. Tandon further submits that pursuant to the

aforesaid order the petitioner brought the said order to the

notice of the respondent-authorities and the Director

General of Police has issued an order for reinstatement;

however, at the concluding paragraph he has stated that

since the order of punishment was issued by Deputy

Inspector General; as such the said officer was directed to

pass an appropriate order within 8 weeks.

Subsequently, the petitioner was taken back in

service; however, in the concluding paragraph it has been

stated that the period of absence would be treated as break

in service and the petitioner will also not be entitled for any

salary for the intervening period i.e. from the date of

termination till re-appointment; thus, in effect it was

treated as fresh appointment.

5. Learned counsel lastly submits that the concluding

part of the impugned order is bad in law, inasmuch as, on

the one hand it has not been passed in true letter and spirit

as per the direction of the writ court passed in the earlier

writ application, as there is no finding that there was any

willful and deliberate absence of this petitioner and on the

other hand there is no law, rule to the effect that when the

order of termination has been quashed by a competent

Court, it will not be treated as reinstatement.

Learned counsel fairly submits that the last portion

of the order may be quashed and set aside.

6. Mr. Navneet Toppo, learned counsel appearing for

the respondent-State tries to defend the order and reiterate

its stand made in the counter-affidavit; however, he is

unable to show a single line to the effect that there is any

finding of the disciplinary authority that absence of the

petitioner was willful and deliberate.

Learned counsel further unable to show any rule that

if the order of termination is quashed; then the petitioner

can only be appointed as fresh appointee and his

appointment will not be considered as reinstatement.

7. Having heard learned counsel for the parties and

after going through the documents available on record, it

appears that while the petitioner was posted at Dhanbad,

he was granted leave for five days on 01.12.2008. However,

due to illness he could not report for duty and he sent an

application on 08.12.2008 to the Superintendent of Police,

Dhanbad, which was duly received in the office of

Superintendent of Police on 11.12.2008. However, due to

long absence; the petitioner was put under suspension and

finally he was terminated from service.

Subsequently, after exhausting all the remedies the

petitioner preferred a writ application which was allowed by

this Court by remitting the matter back to the disciplinary

authority to pass a fresh order after considering the plea of

the petitioner and recording a specific finding as indicated

in the judgment of the Hon'ble Supreme Court in the case

of Krushnakant B.Parmar (supra).

For brevity, relevant portions of the order passed in

W.P.(S) No. 520 of 2013 is quoted hereinbelow. 7, 8, 9, 10,

11.

"7. A perusal of the documents on record would indicate that the petitioner had initially sent an application on 08.12.2008 to the Superintendent of Police, Dhanbad which was received in the office of the Superintendent of Police on 11.12.2008. The petitioner in his defence has taken a specific plea that he was suffering from Jaundice and only after he was declared fit by the doctor, he could join his duty. It is stated by the petitioner that in compliance of notice dated 25.04.2010, the petitioner presented himself in the office of Superintendent of Police and gave his explanation. These facts have not been controverted by the respondents in the counter affidavit filed in the present proceeding.

8. In "Krushnakant B. Parmar Vs. Union of India and another", reported in (2012) 3 SCC 178, the Hon'ble Supreme Court has held as under:

16. "In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether "unauthorised absence from duty" amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.

18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct."

9. It appears that an enquiry was conducted by one Parmeshwar Shukla who had inspected the medical papers and O.P.D. entry made in the name of the petitioner. He questioned the doctor also, who had treated the petitioner. However, he submitted a report stating that the doctor had issued certificate under the influence of the wife of the petitioner. A copy of this report has admittedly not been supplied to the petitioner and therefore, it could not have been relied upon against the petitioner.

10. A perusal of the orders impugned in the present writ

petition, would disclose that the departmental authorities have not recorded a finding that the absence from duty was willful and intentional. In view of the fact that, during the career span of 22 years the petitioner was never found guilty of any misconduct and in fact, he has been rewarded on Fifteen occasions for his good service, would indicate that the petitioner remained absent from duty because of some compelling circumstances. The plea taken by the petitioner was required to be examined by the departmental authority and a finding in this regard should have been recorded by the departmental authorities before inflicting punishment of dismissal from service, which admittedly has not been done in this case and therefore, I am of the opinion that it would be in the interest of justice to remit the matter back to the disciplinary authority to pass an order afresh after considering the plea of the petitioner and recording a specific finding as indicated in the judgment of the Hon'ble Supreme Court in "Krushnakant B. Parmar Vs. Union of India and another", reported in (2012) 3 SCC 178.

11. The impugned orders dated 29.12.2010, 08.10.2011 and 17.11.2012 are hereby quashed and the disciplinary authority is directed to pass an order within a period of eight weeks from the date of communication of this order."

8. After going through the aforesaid order passed by

the writ court in the earlier writ application it is crystal

clear that in the earlier order of removal there was no

finding of willful and deliberate absenteeism and that is the

reason the writ court specifically directed the concerned

authority to pass a fresh order after recording a specific

finding as indicated in the judgment of the Hon'ble

Supreme Court in Krushnakant B.Parmar (supra).

However, after going through the impugned order

(Annexure-24); it appears that this time also no such

finding has been recorded by the disciplinary authority.

From perusal of the impugned order, it appears that except

the last few paragraphs it is just the repetition of the earlier

impugned order.

For better appreciation of the case the

concluding paragraph of the impugned order is quoted

herein below:-

"vr% foHkkxh; dk;Zokgh esa jf{kr vfHkys[k ekuuh; mPp U;k;ky; }kjk ikfjr vkns"k ,oa iqfyl eq[;ky; }kjk ikfjr vkns"k dk xgjkbZ ,oa lq{kerk ls voyksduksijkar lsok ls gVk;s x;s fyfid fot; dqekj dks bl foHkkxh; dk;Zokgh esa iwoZ esa ikfjr vkns"k dks U;quhd`r djrs gq;s /kuckn ftyk cy esa ;ksxnku dh frfFk ls lsok esa okil ysus dk vkns"k fn;k tkrk gS vukf/kd`r :i ls vodk"k ls [email protected] jgus ds vkjksi esa budk nks o'kZ dk osru o`f} tIr fd;k tkrk gS ftldk ekU; rhu dyd ds lerqY; nsuk rFkk bldk izHkko Hkfo'; ij Hkh iMsxkA fuyacu dh fLFkfr esa ftl vof/k esa os dk;kZy; esa mifLFkr jgs ml vof/k dks

v)ZmikftZr vodk"k esa lek;ksftr fd;k tkrk gS vkSj blds vkyksd esa bl vof/k dk buds Hkqxrku ds nkos ds fuiVkj dk vkns"k fn;k tkrk gS dRrZO; ls [email protected] vof/k dk osru &HkRrk dk dk;Z ugha gks osru ugh ds vk/kkj ij tIr fd;k tkrk gSA dRrZO; ls vukf/kd`r [email protected] vof/k dks lsok esa VqV ekuk tk;sxk A"

9. At the cost of repetition, on the one hand there is no

finding to the effect that the absence of the petitioner was

willful and deliberate and on the other hand; no

explanation has been given as to why the petitioner's

service will not be deemed to be reinstatement. It is a

settled proposition of law that if any delinquent is

dismissed from service and subsequently if the order of

removal is quashed and set aside by a competent Court

then it will be deemed to be a reinstatement. Reference in

this regard may be made the case of Deepali Gundu

Surwase Versus Kranti Junior Adhyapak

Mahavidyalaya (D.ED.) and Others, reported in (2013)

10 SCC 324 wherein the Hon'ble Apex Court in paragraph

no. 38.1 has held as under:

"38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule."

Even accepting the contention of the

respondent that since it has been ordered that the

reappointment of the petitioner will be treated as break in

service; then in effect it will be another punishment;

whereby his entire past service will become infructuous so

far as his retirement benefit is concerned.

10. At this stage, it is relevant to mention here that the

petitioner has served for about 22 years without any

punishment of even a 'Nindan' and he has been awarded

fifteen times for good service.

Thus, this Court holds that the concluding part

of the order of punishment whereby it was ordered that the

intervening period from the date of termination till the date

of re-appointment shall be treated as break in service; is

bad in law.

11. It is further held that since the disciplinary authority

did not give any finding with regard to willful and deliberate

absenteeism; the last portion of the impugned order does

not have any legs to stand in the eye of law. It is also not in

compliance to the earlier order in true letter and spirit for

the same reason.

12. Consequently, the impugned order of punishment as

contained in Memo No. 1339 dated 31.10.2013 is modified

to the extent that the finding in the concluding part that

the intervening period from the date of termination till the

date of re-appointment will be treated as break in service; is

quashed and set aside.

13. Since the matter has been remitted earlier also; as

such, no fruitful purpose would be served to remit the

matter again to the same authority who has passed this

order without taking into consideration the earlier order

passed by the writ Court.

In view of the aforesaid facts and circumstances and

the discussion made hereinabove, the instant writ

application, is hereby, partly allowed and this Court holds

as under:

(a) Past services of the petitioner will be taken into

consideration and the intervening period from the date of

termination till the date of re-appointment will be treated as

continuous service for the purpose of calculating the

retirement benefit;

(b) For back wages of the intervening period from the

date of termination till the date of reinstatement; the

concerned respondent shall take a decision in the matter

keeping in mind that the absence was not willful and

deliberate, as there is no finding to that effect, and the

petitioner due to illness could not report for duty and he

sent an application dated 08.12.2008 to the

Superintendent of Police, Dhanbad which was duly received

in the office of Superintendent of Police on 11.12.2008.

14. Consequently, the respondents are directed to

pass a fresh order with regard to payment of all

consequential benefits to this petitioner in view of the

aforesaid directions within a period of 12 weeks from the

date of receipt/production of copy of this order and further

pay the entire amount to the petitioner within a further

period of 4 weeks.

15. With the aforesaid terms the instant writ application

stands disposed of.

(Deepak Roshan, J.) Jharkhand High Court, Ranchi Dated: 28th October, 2021 Amardeep/ AFR