- (1.) Heard learned counsel for the parties. The petitioner has been served with a punishment of withholding of increment for two years, which is equivalent to three black marks by the impugned order dated 04.02.2003 passed by the Superintendent of Police (Railway), Dhanbad as contained in Annexure-7. The appellate authority-cum-D.I.G. (Railway), Ranchi vide order dated 26.12.2003 as contained in Annexure-9, has affirmed the original order of punishment. Both these orders are under challenge in the present writ petition.
(2.) The petitioner was, a Havildar in the police force at the relevant point of time, posted at G.R.P., Dhanbad when he was served with a chargesheet contained at Annexure-4 for having unauthorizedly remained in absence from duty without any information or prior sanction of leave from 1.12.1999. Other charges also related to his absence from duty without proper information and for having avoided on being duty in the forthcoming elections of Bihar Vidhan Sabha. Despite being communicated through letter dated 27.01.2000, he did not appear before the Superintendent of Police (Rail), Dhanbad and it was alleged in the chargesheet that such unauthorized absence on his part to avoid being on duty, is reflective of serious misconduct of indiscipline, negligence in performing duty, disobedience of the orders of the higher authorities and being unworthy of a member of the police force. According to the petitioner, he furnished a detailed reply to the aforesaid chargesheet contained at Annexure-5 giving reasons for his absence that he was suffering from Tuberclosis in the aforesaid period. An inquiry was thereafter conducted by the Inspector of Police, (Rail) Dhanbad. During the course of inquiry, the doctor who had treated him, had also deposed that he was in indoor treatment for certain period of time on account of having suffered from suspected Tuberclosis. It is submitted on behalf of the petitioner that after the conclusion of the inquiry, no inquiry report was served upon him nor any show-cause notice was issued by the disciplinary authority-cum-Superintendent of Police, (Rail) Dhanbad indicating the proposed punishment. The impugned order has been thereafter passed, which is in the nature of major punishment without following the procedure of conduct of disciplinary proceeding wherein the issuance of second show-cause notice and service of inquiry report is a sine qua non before any order of punishment is passed by the disciplinary authority. He has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors., 1993 4 SCC 727 and also in the case of Union of India and Ors. & S.K. Kapoor, 2011 4 SCC 589. According to him, the ratio of the aforesaid judgments, is that the materials which are being used for imposing punishment, should be furnished to the delinquent in order to allow him to defend himself against the proposed punishment after submission of inquiry report and before disciplinary authority passes the order of punishment.
(3.) In such circumstances, the appellate order, which has confirmed the original order even after taking into account the genuine grounds of unauthorized absence of the petitioner on account of having suffered from Tuberclosis, is also bad in law for the same reasons.;