JUDGMENT :

Heard through V.C.

2. The instant writ application has been preferred by the petitioner praying for quashing and setting aside the order dated 19.05.2010 passed by the respondent No.4 (Annexure-4); whereby the petitioner has been dismissed from service and also the order dated 16.01.2013 passed by respondent No.3, whereby the appeal preferred by the petitioner has been rejected.

The petitioner has further challenged the order dated 02.03.2015, whereby the memorial preferred was also rejected.

3. The facts of the case lie in a narrow compass.

The petitioner was appointed as constable on 19.08.2004. Just few months before, his father who was also a police constable, was killed by the extremists on 26.04.2004, while posted in Bishunpur Police Station, Gumla and resultantly the petitioner was mentally disturbed. From the averments made in the writ application it further transpires that the mother of this petitioner was also suffering from mental illness after the death of her husband.

In the year, 2007 the petitioner has taken leave on 06.02.2007 for the purpose of his marriage in which the petitioner was to rejoin his duty on 13.02.2007, but the petitioner could not join on the said date. It has been stated that during period of leave the petitioner was suffering from mental disorder.

Due to the aforesaid incidence, a charge-sheet was issued to the petitioner on 11.06.2008; however, no reply was filed. It has been stated in the writ application that the charge-sheet has not been received by the petitioner. During course of departmental proceeding the brother of the petitioner appeared before the authorities and submitted a detailed note of reply and also informed the department that the petitioner was suffering from mental disorder. However, the said reply was not considered and the order of termination has been passed by the disciplinary authority. The petitioner has also preferred appeal and memorial, respectively; but could not succeed.

4. Mr. A.K.Sinha, learned senior counsel for the petitioner while referring to the impugned order (Annexure- 4) submits that there is no finding in the impugned order that it is a wilfull absence and the Hon’ble Apex Court in the case of Krushnakant B. Parmar Vs. Union of India and Another, reported in (2012) 3 SCC 178 has held that the disciplinary authority has to give a finding that it was a wilfull absence. Para 16 and 17 of the said judgment is quoted hereinbelow:-

“16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.”

5. The next limb of argument of learned senior counsel is that the reply/information was filed by the brother of the petitioner itself proves that the petitioner was suffering from mental disorder. He further draws attention of this Court that the father of the petitioner who was killed in an extremist’s activity was also a police constable and the petitioner was badly affected by that incident and the disciplinary authority for the reason best known to him just rejected th