Ramesh Kumar Dhurve vs The State Of Madhya Pradesh
2023 Latest Caselaw 8333 MP

                                                                                    1

        IN THE HIGH COURT OF MADHYA PRADESH
                                 AT JABALPUR
                                    BEFORE
               HON'BLE SHRI JUSTICE ANAND PATHAK

                   WRIT PETITION No. 15316 OF 2008

 BETWEEN:-
  RAMESH KUMAR DHURVE, AGED ABOUT
  42 YEARS,S/O SHRI RAM DAYAL DHURVE,
  REMOVED       CONSTABLE,    MADHYA
  PRADESH     POLICE,   R/O   VILLAGE
  DABRANI KHALODI, TEHSIL BICHHIYA,
  DISTRICT      MANDALA      (MADHYA
  PRADESH)
                                                        .....PETITIONER
 (BY SHRI SUSHIL KUMAR SHARMA - ADVOCATE )

 AND

 1.STATE   OF  MADHYA    PRADESH
 THROUGH ITS SECRETARY, HOME
 (POLICE)            DEPARTMENT,
 MANTRALAYA, VALLABH BHAWAN,
 BHOPAL (MADHYA PRADESH).
 2. THE INSPECTOR GENERAL OF
 POLICE, BHOPAL ZONE, BHOPAL
 (MADHYA PRADESH).
 3. THE SUPERINTENDENT OF POLICE,
 BHOPAL (MADHYA PRADESH).

                                                     .....RESPONDENTS
 ( SHRI MANU V. JOHN - PANEL LAWYER)
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       Reserved on                  :             05/01/2023
       Pronounced on                :            12/06/2023
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       This petition having been heard and reserved for order
coming on for pronouncement this day, this Court passed the
following:
                                     ORDER

Petitioner has preferred this petition under Article 226 of the Constitution of India seeking following reliefs:-

"(A) This Hon'ble Court may be pleased to quash the impugned orders dated 19/03/2001 (Annexure P-8), appellate order dated 21/02/2002 (Annexure P-10) and order of mercy appeal dated 26/10/2002 (Annexure P-11) and direct the Respondents to reinstate the petitioner in service as Constable with all consequential benefit. (B) The Respondents may also be directed to produce entire record pertains to departmental enquiry against the petitioner.

(C)Any other relief or reliefs, order or orders, direction or directions which this Hon'ble Court deems fit and proper may kindly be issued in favour of the petitioner. (D) Cost of the petition be awarded to the petitioner."

2. Precisely stated facts of the case are that petitioner was initially appointed as Constable in the Establishment of Madhya Pradesh Police. On 13/09/1997, petitioner while posted as Guard at Syndicate Bank did not turn up for duty, therefore, absence was recorded in Roj Namacha. Thereafter, between the period 13/09/1997 to 26/11/1997 for total 75 days, he remained absent without sanction of leave. Thereafter, streak of absence continued

and he remained absence on duty between the period 13/09/1997 to 6/1/1999 for total 335 days on difference occasions, therefore, charge-sheet was issued by Superintendent of Police, Bhopal on 14/09/1999. One Officer, SDO(P), Bairagarh was appointed as Enquiry Officer.

3. It appears that after service of summons over the petitioner twice, he appeared before the Enquiry Officer. He abjured his guilt and participated in the enquiry. After detailenquiry, Enquiry Officer submitted the enquiry report before the authority concerned and found the charge of unauthorized absence of petitioner for total 335 days between the period 13/9/1997 to 6/1/1999 on different intervals, as proved. Thereafter, the Superintendent of Police, Bhopal issued a show cause notice to the petitioner on 2/3/2001 and after giving opportunity of hearing, passed the impugned order dated 19/3/2001, by which the petitioner was removed / terminated from the service w.e.f. 19/3/2001. Said order was challenged by the petitioner before the Inspector General of Police, Bhopal in an appeal, but vide order dated 21/02/2002 said appeal was dismissed. Thereafter, mercy appeal preferred by petitioner before the Director General of Police also got dismissed vide order dated 26/10/2002, therefore, petitioner is before this Court.

4. It is the submission of learned counsel for the petitioner that in the departmental enquiry, petitioner was not afforded adequate opportunity of hearing by the Enquiry Officer and thereby, caused illegality and arbitrariness. Impugned order was passed in a slipshod manner without going into details.

5. Disciplinary Authority in the course of passing the order of termination has not applied its mind independently and already made up its mind before taking reply from the petitioner. Such act is contrary to the

principles laid down by Hon'ble Supreme Court as well as this Court in the matter of State of Orissa & Ors. Vs. Chandra Nandi, (2019) 4 SCC 357, Kamta Prasad Sharma Vs. State of M.P. & Ors. ILR 2022 MP 1846 and Purshottam Lvne Vs. State of Madhya Pradesh & Ors., 2014 (3) MPLJ

704.

6. Learned counsel for the State on the other hand opposed the prayer and submitted that sufficient opportunity of hearing was afforded to the petitioner in departmental enquiry and since petitioner remained absent for almost a year on different intervals, looking to the nature of duties, said allegations were found to be serious and after due enquiry and affording opportunity of hearing, impugned order has been petitioner. In fact petitioner did not cooperate in the enquiry and tried to protract the matter. No cogent documents were provided by the petitioner regarding his unauthorized absence for such long period at different intervals. When his streak of remaining absent for days together continued on different intervals, then charge-sheet was issued. He prayed for dismissal of the petition.

7. Heard learned counsel for the rival parties at length and perused the documents appended thereto.

8. This is a case, where the petitioner who happens to be a Police Constable assailed the impugned orders, whereby, his services have been terminated by the Superintendent of Police, Bhopal because of the long drawn unauthorized absence on different points of time. Non-seriousness of petition appears to the extent, where, he did not participate in the enquiry in correct perspective and when participated then did not produce any cogent reason for his unauthorized absence for such long period.

9. It appears that after going through the intermittent absence of petitioner from time to time, punishment of removal from service has been awarded.

10. So far as submission of petitioner while placing his case over the judgment of this Court rendered in the case of Kamta Prasad (supra) is concerned, same is misplaced for the reason that in that case, Enquiry Officer did not find the case as proved; whereas, in the present case, Enquiry Officer proved the case. . In the case of Kamta Prasad (supra) in the enquiry, Enquiry Officer has not proved the charges against the petitioner and thereafter Disciplinary Authority show caused him with a premeditated thought to punish him, but in the present case, charge against the petitioner has been proved by the Enquiry Officer, therefore, facts of this case move in different factual realm and therefore, decision of this Court in the matter of Kamta Prasad (supra) is of no help to the petitioner.

11. Even otherwise, it is true that opportunity of hearing should be given to the delinquent employee but on close scrutiny, it appears that due opportunity of hearing was given to the petitioner during enquiry proceedings. Perusal of impugned order passed by Superintendent of Police, Bhopal indicates that Superintendent of Police has narrated the facts and after discussion, concluded accordingly.

12. Appellate Authority and the Mercy Appellate Authority also considered the case and thereafter ensured passing of the order.

13. So far as, allegations regarding merit is concerned, no document has been presented by petitioner to show medical condition of the petitioner and / or family members of the petitioner, so as to give benefit of doubt to the petitioner.

14. In a disciplined force like Police, if conduct of a person remains like petitioner, it is disastrous to the moral and discipline of the force and by any standards his conduct cannot be termed as satisfactory. His conduct of long drawn absence not only makes his case vulnerable but if not handled sternly then it may have a cascading effect and may adversely affect morale of other police personnels. Therefore, by all parameters, his conduct was not of desired standard.

15. No case for interference under the discretionary jurisdiction under Article 226 of the Constitution of India is made out.

16. Even otherwise, it is the decision making process and not the decision itself which can be subjected to judicial review by this Court under discretionary jurisdiction under Article 226/227 of the Constitution of India. Guidance given by Apex Court in the case of Union of India and Anr. Vs. K.G.Soni (2006) 6 SCC 794 is worth consideration.

17. No case for interference is made out, petition sans merits and is hereby dismissed.

(Anand Pathak) Judge jps/-

JAI Digitally signed by JAI PRAKASH SOLANKI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,

PRAKASH postalCode=474001, st=Madhya Pradesh, 2.5.4.20=287738d30aabaeda9b10cecdf179cec86 5c7633f4cfb9e38ce14fcbb05b9522a, pseudonym=560BC50AD082B9BE54EE290EC8C B2193780D8357,

SOLANKI serialNumber=8D6BC1C9FCE36623D0BD6B8072 A2D8C01433EBD48AE4F609F108CA8F8DE6B522 , cn=JAI PRAKASH SOLANKI Date: 2023.06.13 12:38:22 +05'30'