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2011 Supreme(Pat) 2187
IN THE HIGH COURT OF PATNA
NAVIN SINHA, J.
Jitendra Kumar Rajak - Petitioner
Vs.
The State of Bihar & Ors. - Respondents
CWJC No. 3229 of 2009
Decided on : 4.11.2011
For the Petitioner: Mr. Ram Hriday Prasad.
For the Respondents: Mr. Shivam Singh.
The enforcement of discipline in the Police force is of paramount consideration, and dismissal for repeated unauthorized absence is justified.
Headnote:
Unauthorized Absence - Service Dismissal - Rule 843 of the Bihar Police Manual - Rule 843 of the Bihar Police Manual - Absence without leave treated as misbehavior, explanation required, discipline paramount, dismissal justified for repeated unauthorized absence
Fact of the Case:
The petitioner, a Constable in the Bihar Military Police, was dismissed from service due to unauthorized absence. The petitioner had earlier challenged the dismissal orders but failed to prove any procedural impropriety or prejudice caused to him.
Finding of the Court:
The Court found that the petitioner failed to prove any procedural impropriety or prejudice caused to him. The Court emphasized that it cannot sit as an appellate authority to re-assess evidence and that the petitioner had not come with clean hands, abusing the process of the Court.
Issues: The issues included the petitioner's unauthorized absence, procedural impropriety, and the quantum of punishment imposed.
Ratio Decidendi: The Court held that absence without leave is a misconduct, and the enforcement of discipline in the Police force is paramount. It emphasized that the petitioner failed to demonstrate any prejudice and that dismissal for repeated unauthorized absence was justified.
Final Decision: The writ application was dismissed.
(Per: Hon'ble Mr. Justice Navin Sinha)
Navin Sinha, J.— The petitioner, a Constable in the Bihar Military Police was dismissed from service on grounds of unauthorized absence by an order dated 4.6.2001 in pursuance of departmental proceedings. The Appeal was rejected on 14.7.2002. The Memorial before the Director General of Police was rejected on 11.10.2004.
2. The petitioner had earlier preferred C.W.J.C. No. 405 of 2005, Ed.-Reported in 2008(2) PLJR 180, questioning the impugned orders. On 21.11.2007, without setting them aside, the matter was remanded to the Director General of Police for reconsideration in light of the provisions of Rule 843 of the Bihar Police Manual. The Director General of Police by order dated 6.11.2008 has maintained the dismissal.
3. The petitioner was appointed as a Child Constable on compassionate grounds upon death of his father in harness. On attaining majority he was appointed as a Constable in the year 2000 on compassionate ground.
4. A memo of charge dated 31.10.2000 was served upon him for un-authorized absence from 6.7.2000 to 11.9.2000, a total of 68 days. The petitioner joined on 12.9.2000. A second charge was that the petitioner again absented from 14.9.2000 to 4.10.2000, an absence of 17 days when he joined on 5.10.2000. The third charge referred to his earlier conduct of unauthorized absence even as a Child Constable from 24.4.1997 to 17.7.1997 when appropriate orders for penalty had been passed.
5. The petitioner alleges at Paragraph-6 of the petition that no copy of the charge memo was served upon him. The respondents in their counter affidavit denying the same have annexed as "Annexure-C", the reply to the charges submitted by the petitioner on 16.11.2000. There is no rejoinder to the counter affidavit. Likewise the petitioner alleges that copy of the enquiry report was never furnished to him. The respondents have again enclosed as "Annexure-D", the reply to the second show cause submitted by the petitioner on 9.2.2001. The Court has gone through the same. It is a detailed reply and does not contain any statement that no copy of the enquiry report had been furnished.
6. In C.W.J.C. No. 405 of 2005, Ed.-Reported in 2008(2) PLJR 180, the petitioner was unable to satisfy the Court of any procedural impropriety in the conduct of the departmental proceedings much less any prejudice caused to him. The contention on his behalf was as follows:-
"Learned counsel for the petitioner submits that in view of the unimpeachable medical certificates, respondents ought to have taken lenient view in the matter and ought to have given lesser punishment. Respondents have inflicted harsh punishment which is not warranted in law in view of the explanations offered by the petitioner."
7. It is therefore apparent that the issue was confined by the petitioner himself to the question of the quantum of punishment, a matter not within the jurisdiction of the Court unless it was found shocking to the conscience of the Court. No such finding was arrived at. On the contrary, in view of the submission made that no proper enquiry in terms of Rule 843 of the Bihar Police Manual had been held and that certain others may have been given the benefit of the same, noticing that the petitioner was a habitual deserter in the counter affidavit, the Court without interfering and/or setting aside the order of punishments simply remanded the matter back to the Director General of Police for reconsideration in light of Rule 843 of the Bihar Police Manual with a direction to also consider the aspect of the harshness of the punishment on a representation to be submitted by the petitioner.
8. Under Article 226 of the Constitution, exercising judicial review over an order of punishment passed in a departmental proceeding, this Court cannot sit as an appellate authority to re-assess evidence and to arrive at any other possible finding even if another view is possible than that taken by the enquiry officer or the disciplinary authori
