Dismissed

Jainendra Kumar v. State of Jharkhand And Anr.

Jharkhand HC13 Jun 2022WPC/3639/2009

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a dismissal order. The Court rejected the petitioner's claims of *ex-parte* proceedings and non-supply of the enquiry report, noting his habitual unauthorized absence and failure to respond to notices despite his alleged illness.

What did the court decide?

The writ petition was dismissed; no interference with the dismissal order was granted.

Jainendra Kumar Vs State of Jharkhand And Anr. — Service and Employment | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No. 3639 of 2009

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Jainendra Kumar Son of Sri Deonath Paswan resident of VillageMahuvet P.O. Gharaya P.S. Bazirganj and District Gaya (Bihar)

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… … Petitioner

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Versus

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The State of Jharkhand 2. The Superintendent of Police, Jamtara

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… … Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Jai Prakash, Senior Advocate Ms. Omiya Anusha, Advocate For the Respondents : Mr. Faisal Allam, Advocate ---

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11 /13.06.2022 Heard Mr. Jai Prakash, learned Senior counsel appearing on behalf of the petitioner along with Ms. Omiya Anusha, Advocate.

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2. Heard Mr. Faisal Allam, learned counsel appearing on behalf of the respondents.

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3. This writ petition has been filed for the following reliefs:

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“For issuance of an appropriate writ(s)/order(s)/direction(s) in the nature of certiorari for quashing the order dated 13.10.2007 passed by respondent no. 2 whereby and whereunder the respondent no. 2 has dismissed the petitioner from the services, in violation of the principles of natural justice and by violating the legal procedure to be followed in the case punishment and for any other writ/order/direction as to Your Lordships may appear fit and proper in the facts and circumstances of the case.”

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Arguments of the petitioner

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4. The learned Senior counsel for the petitioner submits that the entire departmental proceeding was conducted ex-parte . He also submits that the charge-sheet against the petitioner was issued on 21.09.2006 as contained in Annexure- 3 on the ground that the petitioner left without intimation on 05.02.2006 and thereafter, did not join the duty. He submits that the said allegation itself is selfcontradictory. He submits that it was also mentioned in the chargesheet itself that the petitioner had left for taking medicine, but did not

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return, so it cannot be said that the petitioner had left without intimation.

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5. The learned senior counsel submits that the petitioner has been a patient of mental illness which is apparent from the prescriptions annexed as Annexure- 1 series. The first prescription is of 07.02.2006 and the last one is of 02.04.2009. The learned senior counsel submits that a certificate was also issued by the concerned doctor treating the petitioner in Rajendra Institute of Medical Sciences (RIMS) that the petitioner has been a patient of depression (mental illness) and under his treatment since 07.02.2006 to 02.04.2009.

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6. The learned Senior counsel submits that thereafter, the petitioner approached the respondents to join his services, but ultimately, he was informed that he has been terminated on account of unauthorized absence from duty vide order dated 13.10.2007, which is impugned in the present writ petition.

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7. The learned Senior counsel further submits that the petitioner was not even given the copy of the enquiry report so as to enable the petitioner to respond to the findings recorded in the enquiry report. He also submits that this amounts to gross violation of principles of natural justice and in view of the fact that the petitioner has been dismissed from service, the second show-cause coupled with the copy of the enquiry report, was required to be given to the petitioner. The learned Senior counsel also submits that the petitioner was provided a copy of the order of punishment only when he asked for it upon joining in the year 2009.

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8. The learned counsel for the petitioner has referred to a judgment passed by the Hon’ble Supreme Court reported in (1993) 4 SCC 727 (Managing Director, ECIL, Hyderabad Vs. B. Karunakar and Others). He has referred to paragraphs 24 to 28 of the said judgement.

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Arguments of the respondents

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9. The learned counsel appearing on behalf of the respondents, on the other hand, has opposed the prayer and has submitted that the medical prescriptions which have been annexed along with the writ petition are not admitted from the side of the respondents. He has also

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submitted that the petitioner did not take leave and go, rather he had made an entry in the register kept with the guard that he was leaving to buy medicines. He also submits that upon buying medicine also, the petitioner was supposed to come back, but he never returned and no intimation was given from the side of the petitioner. The learned counsel submits that it is not in dispute that the charge-sheet was served upon the petitioner as back as in the year 2006, but the petitioner did not care to inform the enquiry officer regarding his illness and deliberately remained away from the enquiry. The petitioner was found guilty in the enquiry proceedings and the disciplinary authority passed the order of punishment after issuing second show cause.

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10. The learned counsel for the respondents further submitted that the second show-cause was issued to the petitioner vide order dated 22.09.2007 , but there was no response and ultimately, the petitioner was dismissed vide order dated 13.10.2007.

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11. The learned counsel has also submitted that the petitioner was charge-sheeted not only on account of his unauthorized absence from 05.02.2006, but also on account of his previous conduct wherein the petitioner has been found to be unauthorizedly absent and such conduct has been a habitual conduct of the petitioner. The learned counsel has also submitted that unauthorized absence of the petitioner from 05.02.2006 is an admitted fact and on account of the admitted fact on the point of absence without intimation/absence without leave and also the past conduct of the petitioner, no interference is called for in writ jurisdiction.

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12. The learned counsel for the respondents has also submitted that no prejudice has been caused to the petitioner on account of alleged non-supply of the enquiry report as the findings of the inquiry report that the petitioner remained unauthorizedly absent from 05.02.2006 and that there were many similar previous conducts of the petitioner, is not in dispute. The learned counsel has also submitted that the documents regarding the medical treatment of the petitioner have been disputed in the counter-affidavit. The learned counsel for the petitioner submits that repeated intimation was given to the petitioner,

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but the petitioner having not participated in the inquiry, has subsequently come up with a plea of mental illness.

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Findings of this Court

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13. The petitioner was working as constable at Jamtara and on 05.02.2006.

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14. The case of the petitioner is that he suddenly fell ill and proceeded to Asansol for his treatment after making entry in the Register regarding his departure. His further argument is that he was subsequently taken to mental disease specialist in RIMS and from 07.02.2006 he remained under treatment of a doctor namely Dr. Ashok Kumar Prasad till 02.04.2009. In support of the aforesaid contention, the petitioner has in particular referred to a certificate issued by the doctor namely Dr. Ashok Kumar Prasad that the petitioner was suffering from mental illness from 07.02.2006 to 02.04.2009 and was under his treatment.

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15. In the meantime, the petitioner was issued a charge-sheet dated 21.09.2006 and was put under suspension. As per the charge-sheet, following allegations have been levelled:

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(a) The petitioner left Jamtara without informing anybody on 05.02.2006 in the morning to get medicine from Asansol, but thereafter did not join his duty.

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(b) The petitioner is a habitual absentee. Various orders were issued against him in connection with unauthorized absence and as many as 12 such earlier instances have been mentioned in the charge-sheet. The petitioner was also punished earlier for allegation of absenting from duty by stoppage of increment for six months.

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The petitioner was charged for absconding from duty, indiscipline and irresponsible behaviour. The charge-sheet also enclosed copy of the exhibits and gave the list of witnesses.

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16. It is not in dispute that the petitioner was served with the charge sheet but he did not respond. It has been stated by the petitioner in the writ petition that although the charge-sheet was sent to the petitioner, but the petitioner could not understand the import and implication of the charge-sheet on account of his mental illness and therefore, he

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could not file any explanation to the charge-sheet. It is also not in dispute from the side of the petitioner that the petitioner was issued repeated notices to participate in the departmental proceedings but he admittedly did not participate. It is also admitted by the petitioner that he was issued show cause notice dated 22.09.2007 (Annexure-4) to which also he never responded. The only excuse taken by the petitioner for not responding to the aforesaid proceeding and notices is that he was mentally ill from 07.02.2006 to 02.04.2009 and was under treatment of Dr. Ashok Kumar Prasad.

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17. This Court finds that the petitioner, in spite of due knowledge and notices with regards to the departmental proceedings and also having receipt 2^nd show cause notice dated 22.09.2007 (Annexure-4), neither participated in the disciplinary proceedings nor ever intimated the authorities about his so-called mental illness nor responded to the show cause notice dated 22.09.2007 (Annexure-4). The petitioner did not even inform the authorities about the reasons for his unauthorized absence from duty even at the time of re-joining his duty or thereafter. The petitioner has brought on record one letter dated 06.04.2009 asking for documents regarding his dismissal and in this letter also the petitioner has not mentioned a word about his so-called illness much less about his so-called mental illness or about any reason whatsoever for non-appearance in departmental proceedings or not replying to show cause dated 22.09.2007. The plea of mental illness has been raised for the first time in writ petition, which has been vehemently disputed by the respondents. Such disputed questions of facts cannot be adjudicated and considered in writ jurisdiction. Thus, the plea taken by the petitioner, that though his receive the charge-sheet, but he could not understand its import on account of mental illness, is devoid of any merit, hence rejected. Accordingly, this court does not find any illegality in the ex-parte departmental proceedings against the petitioner as the petitioner neither responded to the chargesheet issued to him not participated in the enquiry proceedings in spite of repeated notices issued to him for participation in the proceedings.

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18. This Court also finds that as per the statement made by the petitioner at paragraphs 5, 6 and 7 of the writ petition, the petitioner

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had left his place of duty on 05.02.2006 and thereafter, he went to Asansole and somebody who knew the petitioner saw the mental condition of the petitioner and informed his relatives and thereafter, he was brought to Ranchi and on 07.08.2006, the petitioner was taken to Dr. Ashok Kumar Prasad, a Mental Decease Specialist of RIMS. However, from the writ record, the said Dr. Ashok Kumar Prasad has certified that the petitioner was under his treatment since 07.02.2006 to 02.04.2009. Thus, the stand of the petitioner in the writ petition that he was taken to Dr. Ashok Kumar Prasad on 07.02.2006 and the certificate shows that he was under the treatment of Ashok Kumar Prasad from 07.02.2006 cannot be reconciled. The stand of the petitioner about his mental illness from 07.02.2006 to 02.04.2009 being under treatment of Dr. Ashok Kumar Prasad is falsified by the specific plea of the writ petitioner himself. This Court also finds that as per the case of the petitioner, he left the place of duty on 05.02.2006 and while leaving, he had mentioned it in the register itself that he was not well and was going to Asansole to buy medicine. This conduct of the petitioner itself goes to show that the petitioner was capable of understanding and was conscious of the fact that he was leaving his place of duty and such conduct indicates mental alertness of the petitioner. Admittedly he did not seek any permission or informed his higher authority before leaving his place of duty and did not return. Considering the totality of the facts and circumstances of the case, the plea of mental illness taken by the petitioner appears to be an afterthought.

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19. It is further case of the petitioner that the respondent No. 2, after receipt of enquiry report and before accepting the same, was under a legal duty to issue a show-cause notice to the petitioner along with a copy of the enquiry report, but the said procedure was not followed and the petitioner was not issued the first show-cause notice as to what he had to say anything on the enquiry report.

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20. This Court finds that the case of the petitioner as per writ petitioner was that after the enquiry, the show-cause was to be issued to the petitioner in two parts. The 1^st show-cause ought to have been issued as to whether the enquiry report should be accepted or not and

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thereafter, the 2^nd show-cause should have been issued with regard to the proposed punishment.

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21. Upon perusal of the show-cause (Annexure- 4), it is apparent that the disciplinary authority has referred to the findings of the enquiry officer and has also mentioned that the enquiry officer found the petitioner guilty of the charges and the disciplinary authority proposed punishment of dismissal. Through this show cause, the disciplinary authority gave an opportunity to the petitioner to respond to the charges and also with regard to the proposed punishment clearly mentioning that if no reply is received, it will be assumed that the petitioner has nothing to say. From the perusal of the writ petition, it appears that essentially the grievance of the petitioner is that he was not issued the first show-cause notice and was straightaway issued a notice asking the petitioner to submit his explanation within 8 days as against the proposed punishment vide letter dated 22.09.2007 (delivered to him only on 06.10.2007) and thus, the grievance of the petitioner from the pleading in the writ petition is that the departmental proceeding is vitiated on account of violation of principles of natural justice as he was not granted opportunity to file reply against the findings of the enquiry officer. For this, the petitioner has relied upon the judgement passed by Hon’ble Supreme Court reported in (1993) 4 SCC 727 (Supra).

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22. Paragraphs 28, 29 and 30(v) of the aforesaid judgement passed by the Hon’ble Supreme Court in the case of “ Managing Director, ECIL, Hyderabad Vs. B. Karunakar and Others” reported in (1993) 4 SCC 727 are quoted as under:

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“28. The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a “reasonable opportunity of being heard in respect of the charges against him”. The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that “where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such

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person any opportunity of making representation on the penalty proposed”, it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee’s reply to the enquiry officer’s report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer’s report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges.

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29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. 30 …….

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[v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is

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dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice.”

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23. Upon perusal of the notice dated 22.09.2007, this Court finds that the disciplinary authority has mentioned about the charge and indicated about completion of departmental enquiry and that the enquiry officer has found the petitioner guilty and the petitioner was asked to show cause regarding the charge levelled against the petitioner as well as the proposed punishment within a period of 8 days failing which it will be assumed that the petitioner has nothing to say. The aforesaid show cause notice dated 22.09.2007 reflects that by the said letter the disciplinary authority summarized the entire background and findings of the enquiry officer and gave an opportunity to the petitioner to submit an explanation with regard to the charges, which as per the enquiry officer was proved, and also against the proposed punishment.

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24. The stand of the petitioner in the writ petition that he was given opportunity to show cause only against the proposed punishment is also incorrect, rather the show cause dated 22.09.2007 granted

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opportunity to the petitioner to present his stand with regard to the charges as well as the proposed punishment.

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25. The aforesaid judgment passed by the Hon’ble Supreme Court as relied upon by the petitioner does not contemplate issuance of two show cause notices; one before accepting the enquiry report and second before imposing the punishment. Rather, it only contemplates grant of opportunity of hearing to the delinquent with regard to the enquiry report which has been done in the instant case by issuance of show cause notice dated 22.09.2007, but the petitioner did not respond to the show cause notice and did not even raise any grievance before the authority that the enquiry report was not forwarded along with the show cause notice by which he was also directed to respond to the charges said to have been proved before the enquiry officer in the enquiry proceedings.

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26. This Court further finds that the show-cause notice issued to the petitioner on 22.09.2007 was admittedly served upon the petitioner to which the petitioner never responded. In case, the enquiry report was not forwarded with the show cause, the petitioner could have brought this to the notice of the authority. There being no response to the notice, the impugned order of punishment was passed. Thereafter, the petitioner vide letter dated 06.04.2009, stated that he had not received the order of termination and thereafter, filed the present writ petition.

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27. This Court further finds that in the aforesaid judgement, the Hon’ble Supreme Court also decided the point regarding any prejudice caused to the delinquent employee on account of non-receipt of the enquiry report. This Court finds that the absence of the petitioner without leave is an admitted fact on record. It is also admitted that the petitioner had been habitual in absenting himself without leave and had also been punished on a number of occasions earlier and was given opportunity to mend his ways. On account of the aforesaid admitted position on record, no prejudice has been caused to the petitioner on account of alleged violation of principles of natural justice alleging non-furnishing of enquiry report and accordingly, the petitioner is not entitled to any relief under Article 226 of the Constitution of India.

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28. This Court also finds that the past conduct of the petitioner regarding his unauthorized absence from duty and the fact that earlier also punishment imposed upon the petitioner is not in dispute and there has been altogether 12 such previous instances.

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29. So far as the respondents are concerned, their specific case is that the charges against the petitioner are that of repeated absence from duty without leave and the medical documents which the petitioner has filed in support of his illness, have been specifically denied by the respondents in the counter-affidavit. It has been stated in the counter-affidavit that the petitioner was found guilty in the departmental proceeding and the respondent No. 2 informed the petitioner about the finding of the enquiry officer and asked him to furnish his explanation within 8 days, but the petitioner did not submit his reply and ultimately, the impugned order has been passed. The impugned order is dated 13.10.2007 and even as per the case of the petitioner, the letter dated 22.09.2007 i.e., the 2^nd show-cause was served upon the petitioner on 06.10.2007. It further appears that in spite of receipt of the letter dated 22.09.2007 on 06.10.2007, the petitioner did not take any step to respond to the 2^nd show-cause and ultimately, the impugned order of dismissal has been passed.

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30. The impugned order further reflects that the petitioner is a habitual absentee without leave from time to time and earlier on three occasions, he was also punished and on 12.07.1992, the petitioner was dismissed from service, but pursuant to the order passed by the District authority, he was taken back into service, but in spite of opportunity to mend his ways, the petitioner did not improve which has an adverse impact on the other police officials working in the organization leading to indiscipline amongst them. The disciplinary authority while passing the order of punishment recorded that the authority had gone through the records and agreed with the findings of the enquiry officer and consequently, dismissed the services of the petitioner.

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31. This Court finds that the impugned order of dismissal of the petitioner is a well-reasoned order considering the entire background and the specific charge of habitual absence from duty. During the

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course of argument and even in the writ petition, the allegation of habitual absence from duty is not denied. It is further not denied that the petitioner was earlier also punished for his unauthorized absence on a number of occasions. No ground for interference with the impugned action or order has been made out by the writ petitioner calling for interference under Article 226 of the Constitution of India. 32. As a cumulative effect of the aforesaid findings, the present writ petition is dismissed.

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33. Pending interlocutory application, if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Pankaj/Mukul

Jainendra Kumar v. State of Jharkhand And Anr.

Case brief

What is this about?

What did the court decide?

Jainendra Kumar v. State of Jharkhand And Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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