IMPORTANT POINT
Absence due to compelling circumstances cannot be considered willful, and dismissal orders should consider all relevant aspects before being issued.

JUDGMENT :

S.N. PATHAK, J.

1. Heard the learned counsel for the petitioner and learned counsel for the respondents.

2. The petitioner has filed this writ petition seeking quashment of the order contained in Memo No. 160 dated 11.06.2009 issued by the Commandant Jharkhand Armed Police-2, Tatisilway, Ranchi, whereby the petitioner has been dismissed from services. Appellate order dated 22.01.2010 issued by Deputy Inspector General of Police, Jharkhand Armed Police, Ranchi is also under challenge.

3. Factual matrix of the case is that the petitioner was appointed on the post of Constable on 29.03.2006 in Jharkhand Armed Police-2, Tatisilwai, Ranchi. While the petitioner was posted in E-Company Camp, Giridih Stadium, a memo of charge for unauthorized absence of 75 days was issued. The enquiry officer submitted the enquiry report finding the petitioner guilty of the charges. Further, in the enquiry report it was observed that the petitioner was given ample opportunity to examine the witnesses, but the petitioner remained absent during the proceedings. Though letter was sent to the petitioner's residence, but the petitioner remained absent and the petitioner was found guilty of the charges. The order of dismissal dated 11.06.2009 was passed on the ground that in the past also the petitioner had remained absent from duty unauthorizedly and the petitioner was not interested in service and further the petitioner’s reply to show cause was not found satisfactory. Appellate authority also affirmed the dismissal order vide order dated 22.01.2010 on the ground that the petitioner has made concocted story in the reply furnished by him. Further, there was mention of the minor punishment (five) inflicted upon the petitioner for the past conduct. Challenging the said orders, the petitioner has filed this writ petition.

4. Learned counsel for the petitioner has submitted that the impugned order of dismissal, as affirmed by the appellate authority, has been passed by the disciplinary authority without taking into account the medical reports and disbelieving the same without any valid reason. Once the medical certificates have been accepted and without giving a finding it cannot be inferred that the absence was unauthorised. He further submits that the absence was not intentional or wilful, rather, it was under the compelling circumstances, which was beyond the control of the petitioner. Learned counsel for the petitioner further submits that if the allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence was wilful and in absence of such finding, absenteeism of the petitioner will not amount to misconduct. Learned counsel for the petitioner further submits that the enquiry report is perverse as no enquiry has been conducted under Rule 843 of the Police Manual. A report from Superintendent of Police of his native district is required to be obtained before coming to a finding, but in the case at hand, such procedure has not been followed, which violates Rule 843 of the Police Manual. Learned counsel further points out that no statement of witness was recorded during the enquiry proceeding and hence, the enquiry report is itself cryptic. To buttress his submissions, learned counsel also places reliance upon the judgment in the case of Krushnakant B. Parmar vs. Union of India and Another, (2012) 3 SCC 178 and S.R. Tiwari vs. Union of India, (2013) 6 SCC 602.

5. Per contra, counter affidavit has been filed. Mr. Devesh Krishna, learned counsel appearing for the respondents submits that a departmental proceeding was initiated against the petitioner on the charges of unauthorised absence. The petitioner had not given proper reply for his unauthorised absence. Taking into consideration the enquiry report coupled with the past service records of the petitioner, the disciplinary authority passed the penalty order. Learned counsel further submits that the reason for absenteeism of the petitioner has dul