Nirmal Oraon vs State of Jharkhand and Others

D.N. Patel

The present writ petition has been preferred against an order dated 12th March, 2009 (Annexure 5 to the memo of the petition) passed by respondent no. 4 whereby the. services of the petitioner have been terminated. The appeal, preferred against this order, has also been dismissed by the respondent no. 3 vide order dated 6th August, 2009 (Annexure 7 to the Memo of the petition). Thereafter, a revision application was preferred, which has also been dismissed by respondent no.2 vide order dt. 22nd September, 2010 (Annexure 8 to the memo of the petition). Thus, petitioner is challenging Annexure 5, 7 and 8 to the memo of the petition, mainly on the ground that the punishment imposed upon the petitioner is unreasonable excessive and shockingly disproportionate to the nature of misconduct.

Having heard counsel for the petitioner and looking to the memorandum of charges, which is at annexure 1 to the writ petition, it appears that on 5th October, 2007, at 10.30 a.m., petitioner was working as a Constable and was given some post to deliver at a particular police station and it is alleged that thereafter, petitioner never returned and remained absent on and from 5th October, 2007 and ultimately, the petitioner was suspended, vide order dated 28th January, 2008. This is the charge against the petitioner, as per annexure 1 to the memo of the petition.

The petitioner has given several reasons for his absenteesm and apart from those, it is further submitted by the counsel for the petitioner that there is a complete non application of mind on the part of the disciplinary authority for the reason that the period of absenteesm counted by the respondent is 371 days, whereas looking to the charge levelled against the petitioner, the petitioner is absent from 5th October, 2007 and he was suspended on 28th January, 2008. Thus, petitioner was absent for approximately three months and 23 days. But, it appears that respondents, while calculating the period of absenteesm, has included the period of suspension also and therefore, orders at annexure 1, 5, 7 and 8 may be quashed and the matter may be remanded for a fresh decision by the disciplinary authority for deciding the quantum of punishment. Moreover, the ground of sickness of the petitioner as well as his wife has also not been properly appreciated and therefore also, matter should be remanded and a fresh decision should be taken by the disciplinary authority. It is also submitted by counsel for the petitioner that petitioner had been working since long as a Constable and never any notice had been issued to the petitioner for any misconduct and he was working sincerely, honestly, diligently and to the satisfaction of the respondents and therefore, a direction may be given to the disciplinary authority to take a fresh decision for imposing an appropriate punishment.

Counsel appearing for the respondent submitted that petitioner has remained absent for 371 days. The chargesheet was issued, which is at annexure 1 to the memo of the petition. The petitioner has remained absent from 5th January, 2007 onwards. Thereafter, enquiry officer was appointed. Enquiry was conducted in accordance with law and on the basis of the enquiry report, which is at annexure 2, charge levelled against the petitioner was proved and therefore, services of the petitioner was terminated vide order at annexure 5 to the memo of the petition. Thereafter, the departmental appeal and a subsequent revision application has also been dismissed.

Having heard counsel for both sides and looking to the facts and circumstances of the case.

(I) it appears that the petitioner was absent from 5th October, 2007. The charge levelled against the petitioner is that on 5th October, 2007 at 10.30 a.m., petitioner, who was working as a Constable was assigned some post to deliver at a particular police station and thereafter, petitioner has never returned. Post was delivered at Gumla district and thereafter, as the petitioner never returned, he was suspended from 28th January, 2008. Thus, it appears that the petitioner remained absent on and from 5th October, 2007. As 371 days absenteesm has been mentioned in the enquiry report, it is apparent that the period after the petitioner was suspended has also been included as period of absenteesm. But looking to the chargesheet, it appears that there is absenteesm from 5.10.2007 and the petitioner was suspended from 28th January, 2008, i.e., there is absenteesm of three months and 23 days only.

(II) The punishment of dismissal from service has been imposed because of absenteesm of 371 days without taking into account the fact that Period after suspension can not be counted as period of absenteesm.

(III) Moreover, it appears that the petitioner was treated in a Govt. hospital. Documents of the govt. hospital have not been properly appreciated while imposing the punishment. Document of a Government hospital, prima-facie, can not be fabricated so easily. Therefore, while imposing the punishment, all care should have been taken by the respondents to verify these documents. Documents were also brought on record before the appellate authority.

In view of these facts, the punishment imposed appears to have been passed on wrong calculation of 371 days absenteesm and the order of punishment, passed by the disciplinary authority in March, 2009 (Annexure 5 to the memo of the petition) and the consequent orders at annexure 7 and 8, which are appellate as well as revisional orders, dated 6th August, 2009 and 22nd September, 2010 respectively, are quashed and set aside and the matter is remanded to the disciplinary authority, i.e. to respondent no. 4 for taking a fresh decision keeping in mind the aforesaid observations, so far quantum of punishment is concerned.

This decision will be taken, after giving adequate opportunity of being heard to the petitioner, as expeditiously as possible and practicable, preferably within a period of 12 weeks from the date of receipt of a copy of this order.

This writ petition is disposed of with the aforesaid directions.