IN THE MATTER OF AN APPLCIATION UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA CIVIL WRIT JURISDICTION CASE No.5437 of 1996 RAVINDRA MANDAL S/O BANWARI MANDAL R/O VILL. LAKSHMIPUR, MADARI CHAK, PS- MANIHARI, DISTT- KATIHAR-----------------------PETITIONER Versus 1. THE STATE OF BIHAR THROUGH DIRECTOR GENERAL & INSPECTOR GENERAL OF POLICE, BIHAR, PATNA 2. DEPUTY INSPECTOR GENERAL OF POLICE, PURNEA RANGE, PURNEA 3. SUPERINTENDENT OF POLICE, PURNEA---RESPONDENTS. ----------- P R E S E N T HON’BLE MR. JUSTICE AJAY KUMAR TRITPATHI ***** A.K.Tripathi,J. Petitioner was an erstwhile constable and had served the respondent State for about 18 years before a disciplinary proceeding came to be initiated against him when it was discovered that the petitioner has not been dispensing his responsibility and has been missing for a year and half but was drawing salary off and on. A proper chargesheet was drawn up against him, enquiry held and based on the findings the order of punishment of dismissal came to be passed. The said order of dismissal was upheld by the appellate authority as well as by the I.G.–cum-D.G. of Police in the memorial. The present writ application has now been filed challenging those orders. Learned Senior counsel representing the petitioner submits that there is no clear and decisive evidence to hold that the petitioner was absent for the long period of time. Some evidence supports him for the period he was alleged to have absent. He has supporting documents to show that it was for bona fide reason and - 2 - that petitioner was not given proper opportunity to defend himself in the enquiry which was conducted behind his back. Brief background is that the petitioner was deputed by the then District Magistrate to protect the life and property of one Mrs. Babra Ribero as she was receiving threat to her life from anti social elements. Initially two constables were deputed to guard her, one was recalled and the other, the petitioner, deserted her from December, 1988. It was in this background the departmental proceeding was initiated and held. Besides other submissions learned Senior counsel submits that the disciplinary authority and other authority took a very casual approach in rejecting the evidence brought by the petitioner that he was under the treatment of one Dr. Shrikant of Ranchi Mental Hospital, Kanke who certified that the petitioner was suffering from some mental ailment and he was under his supervision from 12.7.1990 to 11.12.1990. This evidence or the prescription of the doctor was rejected only on the ground that the petitioner failed to provide the medical bills for procurement of the medicines which were supposed to have prescribed or used by him. If the major part of his absence he had valid and cogent reasons then the punishment of dismissal ought not to have been passed. But from reading of annexures which have been annexed by the petitioner and also the State, it is evident that initially the petitioner deliberately chose not to participate in the - 3 - enquiry. He stonewalled the proceeding but he joined the proceeding only at a later stage when he realized that his deliberate absence or non-cooperation will not frustrate the enquiry. Contention of learned Senior counsel that Mrs. Ribero had supported him in her evidence will have to be tested in the light of totality of the evidence which had come during the course of enquiry. It does not emerge that the charge of absence of the petitioner from duty from December, 1988 was not established. Obviously the lady was kind hearted and indulgent to the petitioner but other witnesses have clearly and categorically supported the charge. So for as the prescription of the doctor is concerned, the Court can take a judicial notice that in many a cases where a constable had gone missing from his duty for months or years together, a prescription of a doctor from Kanke Mental Hospital, Ranchi was obtained without any supporting evidence to show that the person was ever admitted for a closer treatment either in the hospital or in the private nursing home of the doctor or the medicines prescribed were even used or consumed by the so called patient as part and parcel of the treatment obtained by him. Medical certificate may not be good enough to hold that the petitioner was suffering from a mental illness which covers up the major part of his absence when he went missing from duty. Obviously it was obtained by the petitioner to cover up his omission or lapses which is of serious - 4 - kind. The order of punishment therefore is not based in absence of findings in this regard. Petitioner did have a responsibility towards the duty which had been assigned to him and more so since he was part of a disciplined force. However one submission of learned Senior counsel which is subject to verification of the service record of the petitioner does merit consideration. His categorical assertion at the bar is that the petitioner has absolutely clear service record, if not a good service record for a period of 18 years before he had to face the present disciplinary proceeding. If that was so, then imposition of the kind of ultimate punishment of dismissal ought not to have been imposed upon him as the punishment may suffer from the principle of disproportionately being too harsh. To some extent if what has been stated at the bar is correct then the Court is of the opinion that the matter may require reconsideration from the point of quantum of punishment which ought to have been imposed upon the petitioner for the charge. If his aberration was first of its kind then dismissal from service is an ultimate punishment, which this Court has described as a punishment of death sentence for an employee. There cannot be a more severe punishment than the punishment of dismissal. In view of the above the matter is remanded back to the disciplinary authority who shall look into the service record of the petitioner and if he finds that the service record of the - 5 - petitioner is otherwise good and above board before the present proceeding and the order of punishment, he may consider imposing any other punishment except the punishment of dismissal. If the service records do not corroborate the stand and statement made by learned Senior counsel then the orders passed in this regard which are subject matter of challenge may not require any interference. This writ application is disposed of with the direction that the decision on this score would be communicated to the petitioner within a period of three months from the date of communication or production of a copy of this order stating the actual state of affairs. This writ application is allowed to the extent indicated above. Patna High Court, Patna Dated the 2nd November, 2010 NAFR/RPS/SR. Secy. (Ajay Kumar Tripathi, J.)