SANJAY KUMAR SHARMA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard counsel for the parties. The petitioner was dismissed from service by the order issued under Memo No. 1494 dated 16.5.2001 by the Commandant, JAP-4, Bokaro Steel City-Respondent no. 4 as contained in Annexure-9 for the charge of having remained absent from duty after proceeding to deliver 'daak' on 14.3.2000 till he finally submitted his joining on 31.5.2000. The appeal preferred by the petitioner has also been rejected vide memo no. 249 dated 8.2.2003 as contained in Annexure-12.

(2.) As per the petitioner, he was appointed as constable in June 1997 in the Bihar Military Police Force and posted at BMP, Bokaro. He underwent mandatory training and at the relevant point of time he was deputed on duty of messenger to deliver letters- "weekly Daak" to various offices at Patna, Ranchi and Dhanbad. On 14.3.2000 a warrant was issued for delivery at certain centers at Patna, Ranchi and Dhanbad to be delivered by the petitioner. According to the petitioner, while returning after delivering of such warrant at the respective offices he fell seriously ill on 27.3.2000 and, thereafter, undertook treatment at Nawada Sadar Hospital. After undergoing treatment and recovery, he reported for his joining on 31.5.2000 at BMP, Bokaro but for his absence from his duty he was issued charge sheet vide Annexure-5 issued on 15.5.2000 with the charge that he had proceeded with official 'daak' being warrant no. 2837174 on 14.3.2000 afternoon to be delivered at Dhanbad, Patna and Ranchi, however he failed to report about the delivery of the 'daak' and has become an absconder. A letter was also issued on 25.4.2000 at his home address, but he has not reported his joining. Thereafter, an inquiry was conducted against the petitioner in which he admittedly participated and the inquiry report was submitted vide Annexure-7 by the Inquiry Officer, Inspector, JAP-4, Bokaro Steel City on 30.9.2001 i.e. after creation of the successor State of Jharkhand. The Inquiry Officer in his report held the petitioner partially guilty on humanitarian ground that he has long years of service left. The petitioner had produced the copies of the medical prescriptions in order to show that he was undergoing treatment which were also considered by the Inquiry Officer along with the show cause and the deposition of the prosecution witnesses. Petitioner was however found not to have communicated relating to his illness and absented from duty. The Disciplinary Authority i.e. Commandant, JAP-4, Bokaro Steel City issued second show cause notice contained at Annexure-7, thereby he disagreed with the findings of the Inquiry Officer and gave opportunity to the petitioner to respond to the proposed punishment of dismissal from service. The petitioner, thereafter, filed the second show cause once again taking the same plea of having suffered from illness during the said period and also having given communication/intimation to the office of JAP about his absence. The impugned order of punishment, thereafter, has been passed by the Commandant, JAP as contained in Annexure-9 by which the petitioner has been held guilty and imposed punishment of dismissal from service with immediate effect. The Disciplinary Authority has taken into account that the petitioner had failed to make any intimation about his absence from duty and in the command order certain over writings were found. It is the case of the petitioner that he had furnished the warrant lastly on 27.3.2000 in the office of Accountant General of Bihar and there was no over writing there in respect of which command order has itself been produced. The Disciplinary Authority has also taken into account that the petitioner had not been successful in the basic training even after having joined in July, 1997 and his plea that his family is entirely dependent upon the service of the petitioner was not found acceptable by the respondent no. 4, Commandant, BMP(JAP)-4, BSL. He found that petitioner should have been more diligent in his duties since, even after having been served with second show cause he left duty while he had been deputed for law and order duty in Giridih. In these circumstances, the respondent no. 4 considered it proper to impose the major punishment of dismissal from service. The Appellate Authority, by a cryptic order has affirmed the order passed by the Disciplinary Authority by observing that the Disciplinary Authority after taken into account the charge established against the petitioner, gave adequate opportunity to the him by serving second show cause and thereafter, passed the order of punishment.

(3.) Learned counsel for the petitioner has primarily assailed the impugned order of punishment on the ground that the order of punishment is disproportionate to the misconduct, which is said to have been established. It is submitted on his behalf that the petitioner is a young man having career ahead and the misconduct of absence from duty as alleged was not so grave so as to warrant imposition of major punishment by dismissal of service. The petitioner's absence from his duty could have been adjusted as extraordinary leave or any other minor punishment by giving opportunity to improve his conduct. Counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court rendered in the case of Shri Bhagwan Lal Arya Vrs. Commissioner of Police, Delhi & others, 2004 4 SCC 560 in support of his contention. It is submitted that in the said case also dismissal of service of a constable for absence of 2 months, 7 days and 17 hours on medical ground was found to be not a grave misconduct or continued misconduct rendering him unfit for police service.