Anik Choudhary vs State Of Jharkhand
2025 Latest Caselaw 3413 Jhar

Jharkhand High Court

Anik Choudhary vs State Of Jharkhand on 21 March, 2025

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

                                                              2025: JHHC: 10194

          IN THE HIGH COURT OF JHARKHAND AT RANCHI

                       W.P. (S) No. 6652 of 2014

     Anik Choudhary, son of Sri Chamru Choudhary, resident of Village
     Musalchak, P.O.- Lakhminia, P.S. Sahebpurkamal, Dist. Begusarai, Bihar
                                                    ...     ...      Petitioner
                                  Versus
     1. State of Jharkhand
     2. Director General-cum-Inspector General of Police, Jharkhand, Ranchi,
        Police Head Quarter, P.O. & P.S. Dhurwa, Dist. Ranchi, Jharkhand
     3. Deputy Inspector General of Police, Jharkhand Armed Police, P.O. &
        P.S. Dhurwa, Dist. Ranchi, Jharkhand
     4. Commandant, Jharkhand Armed Police-10, Hotwar, Ranchi, P.O.
        Hotwar, P.S. Hotwar, Dist. Ranchi, Jharkhand
                                                    ...     ... Respondents
                                  ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Diwakar Upadhyay, Advocate For the Respondents : Mr. Kunal Chandra Suman, Advocate

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st 14/21 March 2025

1. This writ petition has been filed for the following reliefs: -

"a) For issuance of an appropriate writ/order/direction in the nature of 'Certiorari' for quashing the order dated 28.09.2010 passed by the Disciplinary Authority (Resp.

No.4), and further for quashing the order dated 12.07.2011 passed by the Appellate Authority (Resp. No.3) whereby and whereunder the Petitioner has been compulsorily retired / dismissed from the services.

And

b) For issuance of an appropriate writ/order/direction in the nature of 'Mandamus' commanding upon the Respondents to reinstate the Petitioner after quashing the order of compulsory retirement with all consequential benefits in accordance with law.

And

c) Pass any other order/writ/direction as your Lordship may deem fit & proper in the facts and circumstances of the case and accordance with law."

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2. Submissions on behalf of the petitioner a. Learned counsel for the petitioner has submitted that though the concerned authorities have decided the case against the petitioner, but the impugned orders call for interference on account of non- compliance of the provision of Rule 843 of the Jharkhand Police Manual Volume-1 and also on account of the fact that the petitioner had sufficient reason for overstayed after the leave period. b. It is not in dispute that on 12.01.2010, the petitioner proceeded for leave for 12 days and he was scheduled to join on 25.01.2010 and ultimately, he joined on 30.05.2010.

c. It is submitted that earlier in the year 2008, the petitioner had suffered head injury while on duty due to which there were medical complications. He has further submitted that after the petitioner proceeded for leave on 12.01.2010, he suffered acute headache and Hypertension which was relatable to his earlier injury and he informed the concerned authorities about his medical condition vide two letters i.e. letter dated 30.01.2010 and 03.04.2010 annexing the medical documents.

d. The respondents issued charge-sheet to the petitioner and in spite of receiving information that the petitioner was not well, no enquiry in terms of Rule 843 of the Jharkhand Police Manual was conducted which provides that whenever an officer does not return on duty in time, enquiries shall be made by Superintendent/Commandant within one week from the native district and if it appears that the officer has not returned to his duty in time, then for no good reasons, he should be suspended and departmental proceedings should be taken up as per law.

e. He submitted that had the required enquiry in terms of Rule 843 of the Jharkhand Police Manual been conducted, the truth must have come on surface and the fact that the petitioner was unable to join his duty on medical reasons was sufficient ground for not joining the duty and over stayal cannot be termed as willful. f. The learned counsel submitted that without conducting the requisite enquiry in terms of Rule 843, enquiry proceeding was initiated and during the enquiry, the petitioner had again responded and had put

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the aforesaid facts on record regarding his medical condition, but the petitioner was unable to participate in the enquiry. g. He has referred to the enquiry report and has submitted that the petitioner has been found guilty by recording that the petitioner neither got himself treated in a government hospital, nor he had appeared before the authority for seeking extension of leave. h. The learned counsel submitted that in a medical condition, it cannot be expected of an employee to appear and seek extension of leave and it is only for this reason, Rule 843 of the Jharkhand Police Manual has been made that the authority is supposed to conduct an enquiry from the native village of the employee to find out the reasons for absence from duty.

i. The learned counsel submitted that the finding in the enquiry report does not refer to any previous record of the petitioner, although it was mentioned in the chargesheet that in 23 years of service, the petitioner had remained unauthorized absent on 15 occasions and on certain occasion, punishment was also imposed upon him. However, during the course of hearing, the learned counsel has not disputed that there have been a few instances of unauthorised absence from duty on the part of the petitioner.

j. The learned counsel submitted that the absence in the present case should be taken into consideration and the previous record has no bearing as there is no finding in the enquiry report with regard to past conduct of the petitioner much less any details of such conduct. k. The learned counsel submitted that when second show cause was issued to the petitioner, the past record has been taken into consideration and ultimately the petitioner has been compulsorily retired from services. The petitioner is otherwise scheduled to retire in the year 2026.

l. The learned counsel has also submitted that before the appellate authority, the petitioner had specifically taken a plea that no proper enquiry in terms of Rule 843 of the Jharkhand Police Manual was conducted, but the appellate authority has not at all considered the plea and has dismissed the appeal.

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m. The learned counsel relied upon the judgment passed by the Hon'ble Supreme Court reported in (2012) 3 SCC 178 (Krushnakant B. Parmar vs. Union of India & Anr.) Paragraph 18 to 21 and submitted that the question of unauthorized absence arises only when the absence from duty is willful.

n. He submitted that the medical condition of the petitioner is not in dispute; what is in dispute is that he did not get himself treated in a government hospital. The learned counsel has submitted that in view of the aforesaid judgment passed by the Hon'ble Supreme Court reported in (2012) 3 SCC 178 (supra), the impugned orders be set-aside and the petitioner be reinstated in service with full back wages.

Arguments on behalf of the respondents

3. The learned counsel appearing on behalf of the respondents has submitted that the charge-sheet was issued considering the present misconduct and also referring to the earlier service record of the petitioner. The learned counsel submitted that having not taken his treatment in the government hospital, the impugned action of the respondents does not call for any interference. He has submitted that in 23 years of service, the petitioner had overstayed the leave period on 15 occasions and he was given major punishment twice and minor punishment six times. He has submitted that the impugned orders do not call for any interference. However, during the course of hearing, the learned counsel could not point out any such finding in the enquiry report. Findings of this Court

4. Rule 843 and 826 of the Jharkhand Police Manual is quoted as under: -

"843. Punishment for absence without leave.--Willful overstayal of leave or absence from duty without leave shall be treated as misbehaviour and after obtaining the explanation of the officer concerned, proceedings shall invariably be drawn up and departmental punishment inflicted. If after explanation, it appears that a police officer had remained absent from duty due to any sufficient reason he shall be granted leave admissible to him for that period. If it is proved that he has violated the Rules at his own

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will, he can be inflicted with any punishment as provided in Rule

824. The Police Officer who shall be absent from duty without permission shall be liable under Section 29 of Act V of 1861, as amended by Section 9 of the Act VIII of 1895. Such action however, should be taken only in special circumstances. As a Rule whenever an officer does not return in time on duty, enquiries shall be made by the Superintendent/Commandant within one week from the S. P. of his native district, and should there appear that the officer has not returned to his duties in time for good reasons he should be suspended and departmental proceeding should be undertaken as per rule."

5. Rule 826 of the Jharkhand Police Manual is quoted as under:

826. Discrimination necessary in awarding punishments. --The punishment awarded should be in confirmity with the gravity of offence with which the officer is charged and offences involving moral turpitude shall be carefully discriminated from smaller wrong doings. It should also be borne in mind that the previous record of service of the officer concerned, if it is not already included in the charge of the proceeding shall not be taken into account for determining the quantum of punishment.

The objective of awarding punishment is firstly to keep a record of the wrong doing of the officer and secondly as a measure of correction to alert him to improve his work and conduct. Several punishments awarded in one lot such as dining inspections which do not provide an opportunity to the delinquent officer to improve himself are not likely to be helpful, ln any case, the punishment cannot be awarded without carefully considering the defence of the delinquent officer.

Before issuing orders of minor punishment, it is necessary to apprise the delinquent of the substance of the charges against him and he should be given adequate opportunity for defence. Alter this has been ensured, the punishment can be awarded. However, in the case of major punishments (see Rule 828) formal proceedings in P. M. Form No. 178 will have to be drawn up."

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6. In the judgment passed by this Court in the case of "Braj Kishor Singh Vs. State of Jharkhand" decided on 20th June 2025 reported in 2005 (2) BLJR 1415, this Court has interpreted the Rules 826 and 843 and has held as under:

"6. From joint reading of the Rules 826 and 843 of the Bihar Police Manual, it is clear that (i) the punishment awarded should be in conformity with the gravity of the offence; (ii) offences involving moral turpitude should be carefully discriminated from smaller wrong doings; (iii) the previous record of service of the officer concerned, if it is not already included in the charge of the proceeding, shall not be taken into account for determining the quantum of punishment; (iv) wilful overstayal of leave or absence from duty without leave will be treated as misbehaviour and after obtaining the explanation from the officer concerned, proceedings shall be drawn up and punishment shall be inflicted; (v) if after explanation, it appears that a police officer had remained absent from duty due to any sufficient reason, he shall be granted leave admissible to him for that period; (vi) if it is proved that he has violated the rules at his own Will, he can be inflected with any punishment as provided in Rule 824."

7. Thus, overstayal or absence from duty is punishable only when it is willful.

8. The aforesaid provision clearly mandates as a matter of rule that in case when the officer does not return on duty in time, enquiries are to be made by the Superintendent/Commandant within one week from his native district. This is apparently for the purpose of finding out the reason for overstayal as only willful overstayal are punishable under the rules.

9. Coming to the facts of this case, it is not in dispute that the petitioner proceeded for leave for 12 days on 12.01.2010; he was scheduled to join on 25.01.2010 and ultimately, he joined on 30.05.2010. It is further not in dispute that on 30.01.2010, the petitioner had prayed for extension of leave of 8 days by stating that he was suffering from Jaundice and hypertension and had also indicated that on earlier occasion while on duty he had suffered head injury and his suffering from Jaundice

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and Hypertension was on account of earlier head injury. However, the petitioner was suspended from 08.02.2010.

10. This Court finds that a charge-sheet was issued to the petitioner on the point of overstay and it was also indicated that the petitioner had overstayed his leave period on 15 occasions in his 23 years of service. Admittedly, prior to issuance of charge-sheet on account of overstayal, no enquiry in terms of Rule 843 of the Jharkhand Police Manual was conducted by the Superintendent/Commandant from the native district of the petitioner so as to find out the reasons for overstayal.

11. However, the enquiry proceeded and the petitioner had again also informed the authorities on 03.04.2010 giving his explanation for overstayal and in the enquiry, he had submitted his explanation, though he did not appear in the enquiry. The enquiry report also reveals that the information was duly given by the petitioner to the concerned authority regarding his illness and the petitioner had also prayed for earned leave for 126 days. Such prayer for grant of leave was in consonance with the aforesaid rules as willful overstayal of leave is treated as misbehavior and if after explanation, it appears that a police officer had remained absent from duty due to sufficient reason, he is to be granted leave admissible to him for that period.

12. The enquiry report records that the reason for absence as disclosed by the petitioner was Jaundice and Hypertension, but it has been recorded that since the petitioner did not get himself treated in a government hospital and that the petitioner himself did not appear for grant of extension of leave and hence the petitioner was held guilty.

13. This Court further finds that the enquiry report does not record any finding on the past conduct of the petitioner, although the chargesheet mentioned about his past conduct also. It also appears from the enquiry report that no material was placed before the enquiry officer regarding the past conduct of the petitioner. Thus, neither there was any material, nor there was any finding with regard to the past conduct of the petitioner. However, the past conduct has been taken into consideration while imposing punishment of compulsorily retirement. As per the rule as quoted above, the previous record of service of the officer concerned, if it is not already included in the charge of the proceeding, it shall not be

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taken into account for determining the quantum of punishment. This Court is of the view that once the previous record is to be included as a part of the charge, the same is also required to be proved for taking into consideration while deciding the quantum of punishment. In the present case, the previous record has been included in the charge, but has not been proved and there is no finding to this effect by the enquiry officer.

14. The petitioner filed appeal against the punishment order and had taken a specific plea that Rule 843 of the Jharkhand Police Manual was not followed, but the appellate authority while upholding the order of punishment is completely silent in connection with non-compliance of Rule 843 of the Jharkhand Police Manual. Rule 843 of the Jharkhand Police Manual reveals that the question of departmental proceeding and punishment on account of overstayal arises only when overstayal is willful. This Court finds that the fact that petitioner was suffering from Jaundice and Hypertension was not in dispute, but the enquiry officer held the petitioner guilty as he did not take treatment in government hospital and the petitioner did not come personally to seek extension of leave. The specific case of the petitioner throughout was that he was ill and under such circumstances, there was no question of the petitioner himself reporting for seeking extension of leave. This Court is of the view that only because of such circumstances, Rule 843 of the Jharkhand Police Manual mandates as a matter of rule that the enquiry from the native district of the employee has to be conducted when the employee does not join duty upon expiry of leave. Having not conducted such an enquiry from native village of the petitioner to find out the reasons for overstayal, the plea taken by the petitioner supported by medical documents that the petitioner was suffering from Jaundice and Hypertension cannot be questioned merely because he did not take treatment in government hospital. It was the respondents who did not act as per Rule 843 for which the petitioner cannot be made to suffer. Thus, the petitioner has sufficient reasons for overstayal and his overstayal was not willful, but on account of compelling medical condition. Accordingly, the petitioner could not be punished on account of overstayal.

15. In the judgment passed by the Hon'ble Supreme Court reported in (2012) 3 SCC 178 (supra), it has been held that if the absence is due to

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compelling circumstances under which it is not possible to report for or perform duty, such absence cannot be held to be willful and the employee cannot be held guilty of misconduct.

16. Considering the aforesaid facts and circumstances, this Court is of the considered view that the reason for overstayal was sufficiently explained by the petitioner. The medical condition of the petitioner is not in dispute during the period of overstayal and admittedly Rule 843 of the Jharkhand Police Manual was not followed to find out the real reason of absence of the petitioner by conducting an enquiry in his native place.

17. In view of the aforesaid facts and circumstances, the impugned orders cannot be sustained in the eyes of law and are accordingly set- aside. The petitioner is directed to be immediately reinstated in service.

18. Considering the totality of the facts and circumstances of this case, the petitioner would be entitled to all consequential benefits with continuity in service, but the back wages will be confined only to the extent of 50% as was granted by the Hon'ble Supreme Court in the case reported in (2012) 3 SCC 178 (supra). The period of overstayal/absence be adjusted against available earned leave as per rules under Jharkhand Police Manual.

19. This writ petition is hereby disposed of in the aforesaid terms.

20. The Respondent No.2 is directed to comply this order in letter and spirit upon receipt of a copy of this order.

21. Pending I.A., if any, is closed.

(Anubha Rawat Choudhary, J.) Mukul