IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6373 of 1998 Harendra Prasad Singh, son of Late Binda Prasad Singh, resident of village- Chakbaria, P.O.- Baria, District-Patna. ------------ Petitioner. Versus 1. The State Of Bihar & Ors through the Chief Secretary, Govt. of Bihar, Patna. 2. The D.G. cum I.G. of Police, Bihar, Patna. 3. The D.I.G. of Police, B.M.P. Central Zone, Patna. 4. Commandant, B.M.P.-5. ------------------Respondents. ---------------------------------- 3 20.12.2011 Heard learned counsel for the petitioner and learned counsel for the State. This writ application has been preferred for quashing the order of dismissal passed against the petitioner by the Commandant B.M.P.-5 dated 13.1.1997 as well as the appellate order passed by the D.I.G. dated 18.4.1998 upholding such dismissal as well as the order passed by the Director General of Police , Bihar, Patna dated 11.10.1999 by which also the order of dismissal has not been interfered with. The relevant facts which are required to be noticed are as under:- The petitioner was appointed as Constable on 27.2.1977 in B.M.P. - 5. On 21.9.1995 the petitioner proceeded on compensatory leave for 15 days and was placed under suspension for overstaying since 7.10.1995. The petitioner did not join and sent a request to extend his leave under registered cover on 11.10.1995 on account of his illness. On 10.1.1996, the 2 petitioner was charged for overstaying since 7.10.1995. The petitioner finally joined the post on 23.5.1996. He filed a petition in defence on 13.6.1996. After due enquiry, the report was submitted on 11.7.1996. The second show cause notice was issued to the petitioner on 20.8.1996 in which it was indicated that the petitioner deserved to be dismissed from service. The petitioner replied to the same on 13.9.1996. Thereafter the order of dismissal dated 13.1.1997 has been passed. Learned counsel for the petitioner submits that the allegation against the petitioner is only with regard to staying beyond the period of leave granted to him. He submits that he had submitted a medical report of the Doctor under whose treatment the petitioner was treated but the same has not been considered by the authorities either at the stage of inquiry or passing the final order of dismissal. Learned counsel further submits that from his reply to the show cause itself it would be evident that he had requested for examining various witnesses including the Doctor who had treated him but the same was not done. The petitioner has also referred to his show cause dated 13.9.1996 in which he has also relied upon the provisions of Rule 8 of the Bihar Police Manual which deals with punishment 3 on account of absence of leave which stipulates that whenever the person does not return in time for duty, enquiry shall be made by the Superintendent of Police/ Commandant of the native district within one week. Learned counsel submits that this was not followed. Learned counsel further submits that the past conduct of the petitioner has also been noticed while passing the order of dismissal, which according to him, is not justified since for the same he had already been punished and once final order was passed, the matter could not be reopened again. Learned counsel, while summing up his argument, submits that in any view of the matter, the petitioner having completed almost twenty years of service, did not deserve the maximum punishment of dismissal, because his and his family’s whole future is at stake inasmuch as nothing will be left for surviving either for himself or his family. He further submits that the charge was not relating to moral turpitude or such a misconduct for which dismissal was the appropriate punishment. He has also relied on the decision of this Court in CWJC No. 3154/95 dated 17.10.1995 in the case of Ramdeo Singh, ( Annexure- 6 to the writ application), who had also been charged with absence besides other charges also and the period 4 was 105 days. Upon being dismissed from service, he had filed the said writ petition which was allowed and the order of dismissal had been quashed on the ground that the punishment was both disproportionate to the gravity of the charges as well as discriminatory. Further in the case of Vishwanath Ram the only punishment given was one black mark for being absent for 195 days. This decision is noted in the case of Ramdeo Singh (supra). The counsel has also relied on the order passed by the Director General-cum- Inspector General of Police in the case of Chandran Kumar Jha, who was dismissed and pursuant to an order of remand by this Court, the dismissal order was removed by the Director General-cum-Inspector General of Police, against whom there was charge of absence from duty and his past conduct was also taken into consideration. A copy of the order has been annexed as Annexure-9 to the rejoinder filed by the petitioner. The interference was made on the ground that provisions of Rule 843 of the Bihar Police Manual was not complied with. Learned counsel for the petitioner in support of his contention has relied upon the decisions rendered in the following cases:- 5 i) State of U.P. Vrs. C.S.Sharma reported in AIR 1968 Supreme Court 158, the proposition being that omission to give opportunity to officer to produce his witness and lead evidence vitiates the whole proceedings. ii) Bhursinh Hamsinh Rajput Vrs. The State of Gujrat and others reported in 1982 (1) SLJ-697, the proposition being that order of removal on allegation of absence from duty after over looking the medical certificate submitted by the Charged Officer by the disciplinary authority shall stand vitiated. iii) Rabindra Nath Vrs. State of Bihar reported in 1983 B.B.C.J. -33, the proposition being that the enquiry report accepted by the disciplinary authority without applying his mind and the show cause submitted also being rejected without assigning reasons cannot sustain the punishment. Learned counsel for the State on the other hand, relying upon the counter affidavit and its Annexures, states that from the examination of various witnesses it is apparent that the petitioner did not cross examine them. He further submits that the various letters sent by the Office to the petitioner calling him to join had also been proved and the petitioner has not objected or contested the same. 6 He submits that during examination of the petitioner, when he was pointedly asked with regard to him being absent from duty on twenty nine occasions, he had replied that it was on account of illness or accident which he had absented himself. Learned counsel also submits from paragraph no. 7 of the counter affidavit that the prescription of the Doctor submitted by the petitioner stated that he was suffering from cirrhosis of liver but the same is contested on the ground that the Doctor never called for ultrasound or scan report of the liver and thus it was ridiculous for him to give a finding that the petitioner was suffering from such a serious disease and also the fact that no specialist was consulted by the petitioner in Patna. Learned counsel for the petitioner, by way of reply, has submitted that it is not proper for the authority to go into the merit and authenticity of the medial prescription with regard to the actual illness of the petitioner. In any case, if they had any doubt, the Doctor was required to be called and examined, moreso, since the same was with regard to the particular person who had examined the petitioner and also for the reason that there was no procedure to verify the fact that due to the disease the petitioner did not attend his duty. On the alleged point / issue the petitioner was not required to cross examine any 7 witness. He submits that for any other valid or disputed question of fact, no witnesses have been examined by the prosecution so as to require their cross examination by the petitioner. Considering the facts and circumstances of the case, this Court though feels that a person in uniform service should have a higher level discipline, sincerity and sense of duty in comparison to any other service, but in the facts and circumstances of the present case, the punishment inflicted upon the petitioner appears to be disproportionate and discriminatory. The contention of the learned counsel for the petitioner is also appropriate to the extent that after putting in almost twenty years of service, the authority should have been conscious of the fact that the petitioner being advanced in age and having been suspended could not be left in lurch by inflicting the extreme punishment of dismissal from service. This Court also finds that in similar cases of absence from duty, the punishment inflicted is much less than dismissal. In the present case also the petitioner should not have been discriminated to such an extent so as to dismiss him from service. The Authorities were not misplaced in holding that such a person like the petitioner was 8 not fit to be retained in service but he need not have been dismissed and it would have been appropriate that he was made to compulsorily retire. The view of the court is fortified from the decision rendered by this court in the cases of Ramdeo Singh and Vishwanath Ram (supra). For the reasons aforesaid, the orders dated 13.1.1997, 18.4.1998 and 11.10.1999 are set-aside. The matter is remanded to the Commandant, B.M.P.-5, who shall pass an appropriate order in accordance with law after giving opportunity to the petitioner and taking into consideration the observations made hereinabove. The writ petition, accordingly, stands allowed to the extent indicated above. This order setting aside the dismissal will not automatically mean that the petitioner is taken back in service. Consequential benefits shall be dependant on the order passed pursuant to the present remand. Sudha (Ahsanuddin Amanullah, J.)