Jitendra Kumar Singh vs State of Jharkhand

The petitioner is aggrieved of the appellate order dated 25.07.2011 by which punishment of forfeiture of two annual increments equivalent to 3

black marks has been inflicted upon him and he has been denied salary for the period between 24.12.2009 to 14.11.2010 and for the period between

15.11.2010 to 14.08.2011. The period between 24.12.2009 to 14.11.2010 is the period of absence from duty and the period between 15.11.2010 to

14.08.2011 is the period during which he has remained terminated from service. On denial of salary plea taken by the petitioner is that once the order

of dismissal from service is modified/converted into forfeiture of two annual increments it stands admitted by the respondents that the petitioner had

just excuse for his absence from duty for the period between 24.12.2009 to 14.11.2010 and, therefore, he cannot be denied salary for the aforesaid

period.   Â

Briefly stated, the petitioner who was appointed on 08.01.2000 when he was posted at CCRDhanbad while returning home on 24.12.2009 met with

an accident. He has claimed that he was admitted at Satyam Nursing Home, Mahuda by the Mahuda Police from where he was referred to the

Bokaro General Hospital. When he did not report for duty, on 04.01.2010 a show-cause notice was issued to him and through letter dated

04.06.2010 dispatched to his home address he was directed to report for duty within two days. The respondents have pleaded that on 20.06.2010

another letter was issued to him for joining within two days and this letter was delivered to his younger brother through special messenger at his home

address, however, when he did not report for duty a departmental proceeding was initiated in which a charge of unauthorized absence from duty has

been found proved. A second show-cause notice was issued to the petitioner on 31.10.2010 and by an order dated 15.11.2010 the disciplinary

authority has inflicted punishment of dismissal from service upon him. The appellate authority, however, has interfered with the punishment of

dismissal from service which was reduced to punishment of forfeiture of two annual increments equivalent to 3 black marks. Â

The enquiry report dated 31.10.2010 records that through speed-post dated 21.10.2010 petitioner’s elder brother namely, Rajiv Kumar Singh

has sent a letter to the enquiring officer informing him that in a motor-cycle accident the petitioner has suffered serious head injury and he was under

treatment at Bokaro General Hospital. In this letter his brother has stated that the aforesaid injury has affected the eye and memory of the

petitioner due to which he is unable to submit his defence. It is also found that on 23.06.2010 an application with medical certificates was sent to the

Superintendent of Police, Dhanbad and before that on 10.01.2010 petitioner’s brother namely, Rajiv Kumar Singh has submitted an application on

behalf of the petitioner. It has also come on record that after order dated 02.06.2010 was received by the petitioner’s brother, an application

with medical certificates was sent to the Superintendent of Police on 27.06.2010 which however was rejected. In his memo of appeal the petitioner

has taken a specific stand that from time to time applications with medical certificates were submitted on his behalf still, the departmental proceeding

continued in his absence. In paragraph no.5 of his appeal he has stated that his stand can be verified by examining driver and staff of Mahuda

Police Station and doctor and nurse of Bokaro General Hospital. He has produced medical certificates of Bokaro General Hospital, copy of the bill

etc. and asserted that on account of head injury he remained unconscious for about 20 days and on account of his injuries he was unable to participate

in the departmental proceeding. On his mother’s illness due to which he proceeded on leave on 24.12.2009 he has produced medical certificates

and requested examination of Dr. Arvind Kumar who has treated his mother. Â

The appellate order dated 25.07.2011, however, does not refer to the aforesaid stand taken by the petitioner. Genuineness or otherwise of the

medical certificates produced by the petitioner has not been doubted by the appellate authority and the letters written to the enquiring officer and the

Superintendent of Police, Dhanbad stand admitted in the enquiry report. It is also a fact that the witnesses examined in the departmental enquiry

have all spoken about absence of the petitioner from duty and notices issued to him, but none of the witnesses have deposed that absence of the

petitioner from duty was willful and intentional. In the above facts, it must be concluded that on account of his injuries the petitioner was prevented

from attending his duty and he could not participate in the departmental enquiry.Â

Scope of Article 226 of the Constitution of India in dealing with departmental enquiries has been dealt with in various judgments of the Supreme

Court. By now it is well-settled that the High Court may interfere where the departmental authorities have held the proceeding against the

delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the

conclusion appears to be so arbitrary that no reasonable person can arrive at that conclusion. In cases where it has been shown that the

departmental authorities have excluded relevant materials from consideration or taken into account irrelevant materials which disabled the authorities

to reach at a just conclusion, a writ of certiorari would lie. May be the appellate authority has used the expression modified (laâ€kkfs/kr) while

interfering with the punishment order dated 15.11.2010, it remains a fact that the appellate authority in its order dated 25.07.2011 has simply concurred

with the disciplinary authority that the petitioner has remained absent for a long period and inspite of notice did not report for duty. Neither the

disciplinary authority nor the appellate authority has referred to the letters written to the enquiring officer and the Superintendent of Police, Dhanbad

by which the petitioner's injury with medical certificates was communicated to the authorities. Exclusion of these relevant materials which fortify

the stand taken by the petitioner has rendered decision of the departmental authorities unsustainable. The appellate authority has held that the

punishment of dismissal from service on the proved charge of misconduct is excessive [bl foHkkxh; dk;Zokgh es a mDr izekf.kr vkjksiks ads fy, iqfyl

v/kh{kd }kjk iznRr lsok ls c[kkZLrxh dh ltk T;knk irzhr gksrk gA]. Charge found proved against the petitioner is absence from duty, which on admitted

facts cannot be held willful and intentional and accordingly, in the aforesaid facts, finding serious infirmity in the impugned order dated 25.07.2011, it is

quashed. It is held that the order of dismissal from service was illegal. The petitioner is held entitled for salary and other allowances for the entire

period during which he has remained under suspension and out of the service.

The writ petition stands allowed.Â