IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.221 of 2004 DINANATH PRASAD S/O KUNJAN SINGH R/O VILL- BHAGHOI TOLA PS- HASPURA,DISTT- AURANGABAD -------------------------PETITIONER Versus 1. THE STATE OF BIHAR 2. THE D.G.P, BIHAR, PATNA 3. THE D.I.G. (B.M.P),PHULWARISHARIF, PATNA 4. THE COMMANDAND (B.M.P)-5, PATNA 5. THE INSPECTOR (S) BMP, PATNA----RESPONDENTS. ----------- For the Petitioner: Mr.S.K.Verma & Mr. S.K.’Ghosarvery’ Advoctes For the State: Mr. M.K.Singh, AC to SC-I ----------- 4 5.7.2010 Heard learned counsel for the parties. Though it is not pleaded in the writ application as to when the petitioner was appointed as a constable in Bihar Military Police (BPM) but it is stated at the bar that he was appointed some time in the year 1992. He filed the writ application because he came to be dismissed from service on an ex parte enquiry held against him by Commandant of Bihar Military Police-5 on finding of guilt having been recorded against him. Some facts which are undisputed is that the petitioner was granted leave for fifteen days from 7.11.98 to22.11.98. After availing the leave he never reported back for duty for over a year. Petitioner was treated as deserter from the force and a departmental enquiry was ordered against him. Since the petitioner never appeared before the enquiry officer, enquiry was held, evidence both oral and documentary were produced and finding against the petitioner of not reporting to the force after the period of leave was over, came to be established. The disciplinary - 2 - authority passed order of dismissal by way of annexure-2 to the writ application. Appellate forum affirmed the order of dismissal and even memorial filed before the D.G-cum-I.G was turned down. Petitioner now challenges these orders in the present writ application. The first submission on behalf of the petitioner is that the petitioner was not given any opportunity to properly defend himself. The petitioner was not in a position to defend himself since he was mentally ill. The evidence which he produced before the appellate authority after he came to know of the order of dismissal was not appreciated or accepted in the right prospective and the net result is that serious prejudice is now caused to him or his family members since they have lost the source of livelihood. Counter affidavit filed on behalf of the State reveals another aspect of the matter. The dismissal of the petitioner from service was not because of the first aberration of the kind. There is reflection from record that the petitioner had over stayed leave seven times in the past. Two cases of desertion were also recorded but the authorities were indulgent enough by not passing any stern order. It was in the chain of things that even in the year 1998 he went on leave for fifteen days, decided to not report for almost a year. There is categorical statement in the counter affidavit that the authority did their level best to serve notice on - 3 - the petitioner to ensure his participation in the enquiry. Seven instances have been cited but it was because of the total lack of cooperation or response from the petitioner that they had to proceed ex parte. The appellate order and the memorial order also indicate that the explanation offered by the petitioner about his mental condition of insanity is based on some prescription of a doctor which is more by way of a defence than reflecting the actual state of affairs. The medical certificate only indicates that the petitioner had got medical help from the doctor but it does not corroborate the pleading made in paragraph-6 of the writ application that the petitioner was admitted in Ranchi Mental Hospital and he was discharged on 28.12.99. In absence of clear evidence having been produced by the petitioner showing his admission and discharge, the appellate authority did no wrong in coming to a conclusion that the doctor’s prescription was more an effort to procure a document to cover the misconduct of the petitioner. Petitioner had compelled the respondents to proceed in the departmental enquiry ex parte. Complete stonewalling by the petitioner and his deliberate non-participation in the enquiry was the reason for proceeding ex parte. He cannot be given the benefit or protection for his own conduct deliberate in intent and purpose. The Court could have taken a holistic view of the entire matter including the quantum of punishment against the petitioner provided the order of dismissal was passed for his first - 4 - aberration but it is not so. There has been misconduct on the part of the petitioner for every year he has remained in service. Obviously he is not cut out for job because he is not used to live in a disciplined environment. The respondents have to take a view which is more stringent in the matters of indiscipline for persons belonging to uniformed force and they cannot be treated at par like any civilian in this regard. Allowing such person to continue in service can only be at the cost of spoiling the discipline of the force. Petitioner has been shown enough indulgence and the decision taken against him is totally his creation. From the material and the statement available on record he has obviously pushed the authority too far and had acquired the habit of living on the edge. This writ application has no merit and it is dismissed. RPS (Ajay Kumar Tripathi,J.)