IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9456 of 2008 KHAGESH CHANDRA JHA, SON OF KAILASH CHANDRA JHA, RESIDENT OF VILLAGE BISHAUNI, P.S. PARBATTA, DISTRICT KHAGARIA. ----- PETITIONER Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR GENERAL OF POLICE, PATNA, BIHAR. 3. THE INSPECTOR GENERAL OF POLICE, EASTERN ZONE, BHAGALPUR. 4. THE DEPUTY INSPECTOR GENERAL OF POLICE, EASTERN ZONE, BHAGALPUR. 5. THE SUPERINTENDENT OF POLICE, BHAGALPUR. 6. THE DEPUTY SUPERINTENDENT OF POLICE(MAIN), BHAGALPUR. For the petitioner :- Mr. Chitranjan Sinha, Sr. Advocate Mr. Amish Kumar Jha, Advocate For the State :- Mr. Shailendra Kumar Jha, A.C. to S.C. 14. ----------- 2 17.5.2011 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. The petitioner was working as a Constable at Bhagalpur. He took leave from 23.5.2002 for a period of three days. He joined on 11.7.2002. It is not in dispute that the petitioner was absent for about 1½ months without any application. The absence of the petitioner resulted in initiation of a disciplinary proceeding. In the disciplinary proceeding show cause was ultimately served on the petitioner but he did not reply. In any event after the enquiry, the disciplinary authority vide order dated 28.1.2004 punished the petitioner by dismissing him from service. After the order of punishment the petitioner filed an appeal. In the appeal the petitioner has raised several points, including the fact that he has stated that the order was passed ex- parte and that he had filed an application by ordinary process for grant of leave. However, no order was passed granting leave to 2 the petitioner. It has also been stated in the grounds of appeal that the petitioner was not served show-cause before the order was passed dismissing him from service. The appellate authority, supposedly, considered the show-cause and passed the order dated 12.12.2007 upholding the order of the disciplinary authority. In the facts of this case it appears that the petitioner did not appear before the enquiry officer nor did he file a show-cause. There is a dispute with respect to the fact regarding issuance of show-cause before institution of the disciplinary proceeding. There is also a dispute regarding the fact that the enquiry report was served on the petitioner for filing his second show-cause. Even if the facts are accepted in favour of the State, there is a glaring illegality in the order contained in Anneuxre-4/1. The appellate authority ought to have considered the fact that the petitioner did not get an opportunity or did not avail the opportunity to file show-cause before the enquiry officer nor did he receive second show-cause and as such he had been deprived of an opportunity to place the facts surrounding the circumstances and the grounds on which he had absented himself from work. In this context the explanation given by the petitioner before the appellate authority ought to have been considered by the appellate authority before passing an order upholding the order of dismissal. The order by the disciplinary authority and the appellate authority should be a reasoned order, moreso, when the delinquent has for whatever reason, given no explanation by filing a reply to the show-cause at the two earlier stages. 3 Learned counsel for the petitioner points out that the disciplinary authority has also exceeded his jurisdiction by taking into account the previous records of the petitioner while awarding him punishment of dismissal. Referring to Rule 826 of the Bihar Police Manual, learned counsel for the petitioner submits that it is not permissible to consider the previous records of an officer, unless they have been included in the charge of the proceedings for the purposes of fixing the quantum of punishment. The disciplinary authority has awarded punishment considering this aspect which has been confirmed by the appellate authority. I, therefore, find that the impugned orders contained in Annexures 3 and 4/1 have been passed on extraneous considerations. However, considering the fact that the petitioner had been on unauthorized leave, I would only quash that part of the order by which a major punishment of dismissal has been awarded to the petitioner. I, therefore, quash Annexures 3 and 4 on the grounds discussed aforesaid. I direct that the petitioner should appear with a copy of this order before the disciplinary authority who will consider the fact that the quantum of punishment awarded to the petitioner is excessive, in view of the fact that the petitioner was absent just for 1½ months. If the petitioner is able to show prima facie that his absence was due to valid reasons, such as, illness supported by documents, the concerned authority will consider awarding a punishment lesser than dismissal to the petitioner. The petitioner would not be entitled to be reinstatement or payment of salary, till the disciplinary authority 4 passes an appropriate order. Considering that the matter relates to the year 2002, it would be proper for the disciplinary authority to pass an order within a period of four months of the receipt/production of the order. The petitioner should produce a copy of this order within a period of one month before the disciplinary authority. In case the petitioner does not co-operate or appear or does not produce the order within time fixed by this Court, the disciplinary authority will be free to pass any appropriate order. This writ application is allowed to the extent mentioned aforesaid. Sanjay ( Sheema Ali Khan, J.)