IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3229 of 2009 ======================================================= Jitendra Kumar Rajak .... .... Petitioner/s Versus The State Of Bihar & Ors .... .... Respondent/s ======================================================= Appearance : For the Petitioner/s : Mr. Ram Hriday Prasad, Adv. For the Respondent/s : Mr. Shivam Singh, Adv. ======================================================= CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL JUDGMENT (Per: HONOURABLE 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. The petitioner had earlier preferred C.W.J.C. No. 405 of 2005 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. The petitioner was appointed as a Child 2 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. A memo of charge dated 31.10.2000 was served upon him for unauthorized absence from 6.7.2000 to 11.09.2000, 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. 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 3 the same. It is a detailed reply and does not contain any statement that no copy of the enquiry report had been furnished. In C.W.J.C. No. 405 of 2005 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.” 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 4 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. 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 authority. The fact that the petitioner was unauthorizedly absent for 68 days and 17 days respectively has not been denied or disputed. There is no contention that even a leave application had been submitted. If he had filed a reply to the charge and relies upon any medical documents, it was for him to participate in the enquiry and prove the same. Submission of the documents does not amount to proof of the document. If the respondents have disbelieved his defence, this Court cannot substitute its views by re-assessment of the medical documents. If the petitioner refused to participate in the proceeding after having filed a reply, it is not open 5 for him to urge that the proceeding is ex parte. In any event, these issues attained finality with C.W.J.C. No. 405 of 2005 when this Court did not set aside the earlier orders of punishment. The petitioner has not come with clean hands when he asserts that the charge memo was not supplied to him and the enquiry report not furnished. The petitioner has clearly abused the process of Court. The Court could have simply dismissed the writ petition on this ground alone imposing exemplary costs. The remedy under Article 226 is discretionary in nature a precondition being fairness and truthfulness on part of the petitioner failing which the writ petition can be dismissed on that ground alone as held in (2010) 4 SCC 728 (Oswal Fats and Oils Limited v. Additional Commissioner (Administration), Bareilly Division) at Paragraph-20 as follows:- 20. It is settled law that a person who approaches the court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a 6 person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person.” A litigant has the right to vindicate his grievance before the Court. But he cannot be permitted to utilise the process of Court by resorting to incorrect statements and that too, vital incorrect statements. Once the charge of unauthorized absence has not been denied the question of any prejudice having been caused after the respondents have disbelieved his defence in the manner furnished by him, the question of prejudice does not arise. In fairness to the petitioner the Court shall however proceed to deal with Rule 843 of the Bihar Police Manual which reads as follows:- “843. Punishment for absence without leave- Wilful overstayal of leave or absence from duty without leave shall be treated as misbehaviour and after obtaining the explanation of the officer concerned proceedings shall invariably be drawn up and departmental punishment inflicted. If after explanation, it appears that a police officer had remained absent from duty due to any sufficient reason he shall be granted leave admissible to him for that period. If it is proved that he has violated the rules at his own will, he can be inflicted with any punishment as provided in rule 824. The Police Officer who shall be absent from duty without permission shall be liable under Section 7 29 of Act V of 1861 , as amended by section 9 of the Act VIII of 1895. Such action however, should be taken only in special circumstances. As a rule whenever an officer does not return in time on duty, enquiries shall be made by the Superintendent/Commandant within one week from the S.P. of his native district, and should there appear that the officer has not returned to his duties in time for good reasons he should be suspended and departmental proceeding should be undertaken as per rule.” It is apparent that absence from duty without leave is a mis-conduct. Before taking action the Rule visualizes calling upon the officer for an explanation after which proceedings may be drawn up and appropriate punishment inflicted. If the explanation furnished is adequate the proceedings may not be gone through and he may be granted leave admissible to him for the period. Therefore it is apparent that even if a departmental proceeding is resorted to without a preliminary enquiry, no prejudice can be said to have been caused to the delinquent if he was furnished full opportunity for defence during the departmental enquiry but was unable to satisfy the authorities for a justification of absence, much less participate in the enquiry. The emphasis laid upon the concluding lines of the Rule that the Superintendent of Police shall make an enquiry from the native district and satisfy himself for 8 absence of any reasonable justification and then only suspend and proceed departmentally cannot be interpreted in a manner prohibiting a departmental enquiry unless and until such enquiry from the native district is first held. The strength of the Police force has not remained the same since 1978. Today, with a vast posse of Policemen recruited from all over the State and posted at different places than their original district, if Rule 843 is to be interpreted in the manner as urged on behalf of the petitioner, departmental proceedings against a Constable for unauthorized absence shall become virtually impossible. A section of the police force shall have to be kept reserved away from normal duty to be sent from one district to another for purposes of such preliminary enquiry. The number of districts within the State has also not remained the same since 1978. The submission of the petitioner that the fresh order dated 6.11.2008 is not in the true spirit of the directions given in C.W.J.C. No. 405 of 2005 as it does not consider the absence of any enquiry under Rule 843 of the Police Manual merits no consideration for reasons of the discussion aforesaid. Counsel for the State has rightly relied upon 9 a judgment of the Supreme Court in (2010) 5 SCC 349 (Union of India & Ors. Vs. Alok Kumar) to submit that it is for the petitioner to demonstrate of the prejudice that has been caused to him in absence of such preliminary enquiry. It was rightly submitted that it was for the petitioner to utilize the departmental proceedings by leading his defence. He does not deny the unauthorized absence, his defence has been disbelieved, all procedures by way of a second show cause notice and a reply to the same have been followed. Reference may usefully be made to paragraph-83 of the judgment in the case of Alok Kumar (supra) “83. Earlier, in some of the cases, this Court had taken the view that breach of principles of natural justice was in itself a prejudice and no other “de facto” prejudice needs to be proved. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the rule is merely directory the element of de facto prejudice needs to be pleaded and shown. With the development of law, rigidity in these rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of the non- mandatory rules or violation of natural justice as it is understood in its common parlance. Taking an instance, in a departmental enquiry where the department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself 10 except that some copies of formal documents had not been furnished to the delinquent. In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof.” Learned counsel for the State has also aptly relied upon a judgment reported in (2009) 16 SCC 621 (Union of India Vs. Debashish Ghosh) to support his contention that in a uniformed disciplined force, the aspect of discipline is of paramount consideration and the Court may not interfere with the same. It has rightly been urged that if dereliction of duty in absence of any proper explanation is not considered as a severe mis-conduct, the very edifice of the disciplined force may collapse. In the case of Debashish Ghosh (supra) the Constable repeatedly absented himself with the Supreme Court observing at Paragraph-9 as follows:- “9. The learned counsel for the respondent also says that the punishment of dismissal was disproportionate considering that on earlier occasions he was either given imprisonment punishment for 28 days or merely warned. The same offence had been committed on the basis of which the proceedings were initiated against him. We do not agree. BSF is a uniformed service and, therefore, discipline is extremely important for such Force. It was obvious that during the nine years that he served in the BSF, he has overstayed his leave for seven times. Thus, he had probably developed a habit of not joining in time after exhausting his leave. 11 In that view, we do not feel that the punishment is disproportionate to the misconduct on the part of the delinquent respondent.” Emphasising the aspect of discipline in the uniformed service, the Supreme Court in (2005) 13 SCC 709 (Union of India v. Datta Linga Toshatwad) has held at Paragraph-6 as follows:- “6. One cannot ignore the large number of cases which come to this Court of members of uniformed forces remaining absent from duty without any reasonable explanation. Whenever action is taken, the usual plea taken is of having been ill or some such false pretext, and even fake or false medical certificates are produced in support of such a plea. We would not have taken a serious view of the matter had it not been a case of a constable belonging to CRPF remaining absent for an indefinite period. 8. The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16-6-1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed 12 forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged.” The fresh impugned order dated 6.11.2008 in pursuance of the observations of this Court in C.W.J.C. No. 405 of 2005 holds that for reasons of his repeated unauthorized absence, he was a deserter, indicative of his indiscipline, selfish attitude and lack of seriousness towards work. That such a person was not fit to be kept in the Police service. Earlier also he had displayed such tendency even as a Child Constable. It must be kept in mind that the last item formed a part of the charge for purposes of assessment of his conduct. The enforcement of discipline in the Police force is the duty of the respondents. The Court cannot substitute and/or rewrite its views of discipline upon them. If the respondents have opined that he was a bad apple liable to rot the whole box, the Court finds it 13 difficult to substitute its own views based either on sympathy or any alleged prejudice when the petitioner has not been able to demonstrate any. Merely because another officer at any other point of time may have had a more lenient attitude towards unauthorized absence cannot be sufficient justification for this Court by invoking Article 14 of the Constitution to re-write the standards of discipline in the uniformed force when the order impugned adequately sets out the reasons which cannot be stated to be arbitrary, fanciful or not germane. The writ application stands dismissed. Patna High Court Dated 04th of November, 2011 P. Kumar/NAFR ( Navin Sinha, J.)