Suresh Soren vs The State Of Jharkhand
2023 Latest Caselaw 1825 Jhar

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                    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                     W.P.(S) No. 177 of 2020
                Suresh Soren                                    ... ... ... Petitioner
                                           VERSUS
         1. The State of Jharkhand
         2. The Director General of Police, Jharkhand, Ranchi
         3. The Deputy Inspector General of Police, Dumka.
         4. The Superintendent of Police, Godda.              ... ... ... Respondents

CORAM : HON'BLE DR JUSTICE S.N. PATHAK For the Petitioner Mr. Rama Kant Tiwari, Advocate For the Respondents Mr. J.F. Toppo, GA-V Mr. Neil Abhijit Toppo, AC

05/01.05.2023 Heard.

2. Petitioner has approached this Court with a prayer for quashing memo no. 1571/Go., Dated 07.10.2016, passed by DIG, Santhal Pargana Region, Dumka whereby appeal of the petitioner has been rejected on 07.10.2016. Petitioner has further prayed for quashing memo no. 1766/Go., Dated 18.06.2012, passed by the Superintendent of Police, Godda (Respondent no.

4), whereby and whereunder petitioner has been dismissed from the service with immediate effect.

3. Petitioner joined his service as a Constable in Godda District on 10/11.05.2000. During his service, petitioner faced charge that at the time of training at JAP-4, Bokaro, he was sent for Mela Duty at Deoghar. After Mela Duty, he was given leave for four days and was directed to present himself on 21.08.2011 for duty. However, petitioner could not present himself and after 32 days, he presented himself for duty on 22.09.2011 at Training Centre, JAP-4, Bokaro. Thereafter, his service was returned to Godda district and it was ordered to settle salary for the back period after inquiry. As per report submitted by duty officer, Police Centre, Godda, on 10.10.2011, petitioner was absent from night of 08.10.2011 and still he not presented himself for duty. On this charge, his salary was stopped. Thereafter, petitioner was asked to file show cause, but he chose not to file the same. Thereafter, departmental inquiry started against him. Petitioner filed his show-cause. However, on the basis of charges against the petitioner, the Superintendent of Police, Godda, vide memo no. 1766/Go,

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Dated 18.06.2012, dismissed him from the service with immediate effect which was challenged by him before the Deputy Inspector General of Police, Santhal Pargana, Dumka. The said appeal of the petitioner was rejected vide order dated 07.10.2016. Being aggrieved, petitioner has knocked door of this Court.

4. Mr. Rama Kant Tiwari, learned counsel appearing for the petitioner submits that petitioner is a sincere person and there is no complaint from any corner against him. Petitioner could not present himself for duty in time because on 05.05.2011, his wife gave birth to a child and both mother as well as child were not well and were admitted in the Hospital and for that purpose petitioner was busy for their treatment. The matter was duly informed by him before the authorities concerned. After recovery of mother and child, petitioner presented himself for performing duties. Learned counsel further argues that while he was posted at Godda, he fell ill and after due information to the authorities, he underwent treatment under one Dr. Ashok Kumar Gupta, Medical Officer, Sadar Hospital, Dumka and he remained under treatment from 08.10.2011 to 30.04.2012. After his recovery, he reported for duties on 01.05.2012. Order of dismissal from the service is too harsh and not commensurate to the charges levelled against the petitioner. The appellate authority has also not considered facts and circumstances of the case and as such the impugned orders passed by the respondent nos. 2 and 4 are fit to be quashed and set aside. The impugned orders is in utter violation of Rule 826 of Jharkhand Police Manual. Petitioner has not been allowed to adduce evidence nor the principles of natural justice has been followed in this case.

5. Mr. J.F. Toppo, learned GA-V appearing on behalf of the State submits that petitioner has violated the basic rule of a disciplined force. He unauthorisedly absented from the duties on several occasions and even did not bother to file reply to show-cause. Such attitude of the members of a disciplined force is not acceptable and as such no interference is warranted. Writ petition is fit to be rejected.

6. From bare perusal of the case at hand, it appears that though petitioner has violated the basic rule of a disciplined force and absented himself without prior permission but the punishment appears to be disproportionate to the charges levelled against him. In the case of the RC/

petitioner the concerned authority alleged that he failed to maintain devotion to duty and his behavior was unbecoming of a government servant. The question whether 'unauthorised absence from duty' amounts to failure of devotion to duty or behavior unbecoming of a government servant, cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 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 wilful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization etc. but in such cases the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a government servant. In a departmental proceeding if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the said absence from duty is wilful. However, in absence of such finding, the absence will not amount to misconduct. This Court feels that when the charges are not so grave, such a harsh punishment is not warranted.

7. Similar issue fell for consideration in the case of Krushnakant B. Parmar Vs. Union of India and another reported in (2013) 3 SCC 178, the Judgment passed in the case of M.V. Bijlani V. Union of India reported in (2006) 5 SCC 88 has also been discussed. It is relevant to quote para-18 to 20 of the Judgment passed in the case of Krushnakant B. Parma (Supra), which reads as under:

"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 wilful, in the absence of such finding, the absence will not amount to misconduct.

19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.

20. The question relating to jurisdiction of the court in judicial review in a departmental proceeding fell for consideration before this Court in M.V. Bijlani v. Union of India [(2006) 5 RC/

SCC 88 : 2006 SCC (L&S) 919] wherein this Court held: (SCC p. 95, para 25) "25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

8. Having heard counsel for the parties, considering judicial pronouncements as well as facts and circumstances of the case, I find merits in this case. It appears that the punishment awarded to the petitioner is too harsh and is not commensurate to the charges levelled against him. The law is well settled. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. The punishment of dismissal from service is too harsh and the same needs interference by this Court.

9. In the circumstances, the impugned memo no. 1571/Go., Dated 07.10.2016, passed by DIG, Santhal Pargana Region, Dumka whereby appeal of the petitioner has been rejected as also the memo no. 1766/Go., Dated 18.06.2012, passed by the Superintendent of Police, Godda (Respondent no. 4), whereby and whereunder petitioner has been dismissed from the service with immediate effect, are hereby quashed and set aside. Respondents are directed to reinstate the petitioner in service with immediate effect, if there is no other legal impediments, with 25% backwages.

10. The writ petition stands allowed.

(Dr. S.N. Pathak, J.)

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