Patna High Court
Amit Kumar Mishra vs The State Of Bihar on 11 January, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3293 of 2020
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Amit Kumar Mishra Son of Sambhu Sharan Mishra, resident of Village-
Raghopur, P.S. Rivilgang, District- Saran. ... ... Petitioner/s
Versus
1. The State of Bihar Bihar.
2. The Director General Of Police, Bihar, Patna.
3. The Deputy Inspector General of Police, Purnia Range, Purnia.
4. The Superintendent of Police, Purnia.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Hansraj
For the Respondent/s : Mr. Md. N.H. Khan (SC1)
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CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 11-01-2024
Heard learned counsel for the petitioner and
learned counsel for the State.
2. The present writ petition has been filed by the
petitioner with prayer to quash the memo No. 4005 dated
13.12.2010
(Annexure-1) which is the dismissal order passed by
the Superintendent of Police, Purnia and the order contained in
memo No. 761 dated 26.06.2019 (Annexure-3) passed by
D.I.G., Purnia Range, Purnia and the order contained in memo
No. 1048 dated 13.11.2019 passed by the Director General of
Police, Bihar, Patna.
3. Counsel for the petitioner submits that petitioner
was appointed as constable on 09.01.2001. He was in service of
Bihar Police and sent for training at Bihar Military Police 7 at
Katihar. He was alloted trainee constable No. 352 / 384 in the
department. It has been submitted that during period of training,
he was allowed to avail one day holiday and was allowed to
leave headquarter for two days. The petitioner was departed
Patna High Court CWJC No.3293 of 2020 dt.11-01-2024
from training centre in the afternoon on 28.12.2007 and
supposed to join on 31.12.2007, but he did not joined. As a
consequence, he was suspended on 13.10.2009. The
departmental proceeding was initiated and the said departmental
proceedings resulted into punishment order bearing memo No.
4005 dated 13.12.2010 passed by the Superintendent of Police,
Purnia.
4. Counsel for the petitioner submits that petitioner
was completely unaware of his dismissal due to the reason that
he was sufferer of mental illness and went under treatment
before a specialized hospital at Ranchi and Annexure-5 is a
medical prescription attached in the writ petition. Counsel
further submits that doctor under which he was under treatment
had given certificate that he was found fit to do his usual work
on 27.12.2016, thereafter he has returned back and then he
received information that he has been removed from service.
Thereafter, he filed memo of appeal on which final decision has
come by the appellate authority, D.I.G., Purnia Range on
22.06.2019 who has rejected his appeal, thereafter the petitioner
has preferred memorial before the Director General of Police
and the same was also rejected on 13.11.2019. Thereafter, the
petitioner has preferred the present writ petition.
Patna High Court CWJC No.3293 of 2020 dt.11-01-2024
5. Counsel for the petitioner submits that from the
appellate order, it transpires that opportunity of any defence has
not been provided to the petitioner as he has never appeared to
submit his show-cause and not appeared before the Enquiry
Officer. Counsel also submits that the appellate authority has
acknowledged the medical report which indicates that the
petitioner was not mentally and physically fit, But stopped
himself to pass any order on merit due to the reason that the said
appeal was filed after such a long gap.
6. Counsel further submits that at least petitioner be
granted opportunity to defend himself and the appellate officer
may be directed to pass order on the basis of documents
provided before him. He submits that the Director General of
Police has also not given its own finding rather rejected the
memorial only acknowledging the appellate order and has not
applied his independent mind at the time of deciding the
memorial.
7. Counsel for the State submits that the petitioner
was admittedly in the service and without any information, he
has not joined the force for about 7-8 years. The provision of
filing appeal before the appellate authority is just 30 days,
therefore, the appellate authority has rightly rejected the appeal
Patna High Court CWJC No.3293 of 2020 dt.11-01-2024
on the limitation itself.
8. Counsel also submits that the order of Director
General of Police is absolutely in accordance with law and fit to
be sustained due to the reason that on all the materials, there is
already finding of the appellate authority and no new material
has been placed before him. Hence, there is no question of
entertainment of the writ petition.
9. Upon going through the pleadings, it transpires to
this Court that the petitioner was dismissed from his service due
to unauthorized absence after initiation of departmental
proceeding in which he has not received any opportunity to
defend himself due to the reason that he was suffering from
mental illness. The prescription he has already attached in
Annexure-5 of the writ petition and certificate of doctor is also
there. As such, this Court restrain himself to pass any order on
merit because the authority is supposed to pass order on merit,
but from the order passed by the appellate authority, it transpires
that appellate authority restrained himself only due to point of
limitation, and therefore, in the interest of justice and
considering the judgment of Salahuddin Khan Vs. The Union
of India, through Secretary, Ministry of Home Affairs and
Ors. reported in 2019 (4) PLJR 546 in which this Court has
Patna High Court CWJC No.3293 of 2020 dt.11-01-2024
decided that in case of unauthorized absence and enquiry held
ex-parte as petitioner did not participate in the proceeding,
particularly due to the reason of suffering of his mental illness
supported by medical prescription about his treatment then it is
necessary to pass order on merit and it is due to this reason that
order of D.I.G. (Annexure-3) and order of D.G.P (Annexure-6)
are hereby set aside and matter is remanded back to the D.I.G.
to pass order afresh on merit considering the documents of the
petitioner.
10. It is also directed that such exercise on passing
order shall be made within three months from the date of
production of order.
11. With the aforesaid direction, the present writ
application is hereby disposed off.
(Dr. Anshuman, J.)
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