Sujit Narayan Prasad, J. - (1.) THE petitioner, being aggrieved by the orders dated 10.8.2010 and 11.11.2010, by which he was dismissed from service, has approached this Court.
(2.) THE brief facts, as has been argued by learned senior counsel appearing on behalf of the petitioner, is that the petitioner was posted in the district of Dhanbad and was entrusted with Lok Sabha General Election duty. On 20.4.2009 the petitioner, all of a sudden, fell ill, he was taken into hospital by one Assistant Sub -Inspector of Police. The petitioner remained there till 24.4.2009. Due to his hospitalisation during the said period, when he was searched out on 22.4.2009 at Police Line, Dhanbad, he was not found there. The same was reported by the Havildar to the higher authority. The Havildar gave written report to the Sergeant Major on which the Sergeant Major wrote that one Insas rifle, bannet, scabt along with 100 round bullets were issued in the name of the petitioner. The petitioner was round in drunken stage at Steel Gate quarreling with local people. The Officer In -Charge, Saraidhela Police Station had informed that he had hospitalised the petitioner by keeping his Insas rifle and 20 round bullets in his safe custody, but 80 round bullets were missing. Thereafter the petitioner was put under suspension on 26.4.2009. The Deputy Superintendent of Police, Dhanbad conducted a preliminary enquiry, submitted his report in which the petitioner was found guilty. Thereafter, a memorandum of charge was issued on 20th February, 2010 alleging therein that the petitioner after being unauthorisedly absent, found quarreling with local people in drunken stage and 80 cartridges from the arms issued to the petitioner were missing, which is a gross indiscipline and is an example of being a disqualified Police Constable. It has been submitted on behalf of the petitioner that after issue of memorandum of charge, the petitioner has submitted reply stating therein that he was not in drunken stage rather on 20th April, 2009 when he was performing election duty along with Insas rifle and other equipments. All of a sudden, he fell ill and fell down near Steel Gate which was seen by the Officer In -charge, Saraidhela Police Station. He by making reference in the written letter addressed to the authorities of the Patliputra Medical College and Hospital (PMCH), Dhanbad, hospitalised petitioner there. The petitioner remained there till 24.4.2009, thereafter he was released by strucking off his name from the register of the PMCH. Petitioner has further submitted that from 20.4.2009 to 24.4.2009 no request was made by the disciplinary authority or any authority to examine him medically, rather the Assistant Sub -Inspector, Saraidhela Police Station has hospitalised him when the petitioner was found in unconscious stage near Steel Gate. He has also stated in the case diary that the petitioner was found in unconscious stage along with his Insas rifle loaded with cartridges. Thereafter he was sent for treatment to the P.M.C.H., Dhanbad. It has been submitted that the petitioner since was in hospital, hence there was no question of taking any liquor by him on 20th April, 2009. If the petitioner has taken any liquor, then there must be a cogent evidence which is to be issued by the medical experts. It is not a case of the respondents that after taking liquor the petitioner was hospitalised from 20.4.2009 to 24.4.2009 and, as such, he could have been examined by the doctor as to whether the petitioner was in drunken stage or not.
(3.) IT has further been submitted that in absence of any cogent evidence with respect to taking liquor against the petitioner, the charge is baseless as because in the list of exhibits as has been referred in the memo of charges (Annexure -1) no document pertaining to medical certificate in support of the drunkenness of the petitioner has been annexed which itself reveals that the petitioner was not medically examined. It has further been submitted that since the petitioner was ill and as such on 22.4.2009 also he was in hospital. Since the petitioner was taken into hospital by the Sub -Inspector, Saraidhela Police Station hence it was the duty of the Officer In -charge to apprise the authorities that the petitioner is not in a position to report for election duty. Since he was in hospital, so it was beyond his control to give information apprising the authorities that he was not in a position to discharge his duty. The Enquiry Officer, without considering that aspect of the matter, has found the charges proved. The petitioner after issuance of second show -cause along with a copy of the enquiry report, has also apprised this fact to the disciplinary authority, but the disciplinary authority, without considering reply given by the petitioner has accepted the finding given by the Enquiry Officer. The petitioner filed a memorandum of appeal before the Deputy Inspector General of Police who has also rejected the appeal. It has been submitted on behalf of the petitioner that the appellate authority has not considered the entire matters and affirmed the order passed by the disciplinary authority. Thus, in the background of these facts and materials, the impugned order of dismissal is not sustainable in the eyes of law. The charges have been framed against the petitioner without any cogent evidence. The main charge against the petitioner is that he was in drunken stage but no medical evidence has been brought on record by the disciplinary authority. The petitioner was hospitalised during the relevant period, but no medical examination was held to assess his physical condition on 20.4.2009, rather the Officer In -charge, Saraidhela Police Station while hospitalising the petitioner in the hospital, has made a report with respect to the condition of the petitioner stating specifically that the petitioner was found in sub -unconscious stage. He has not stated in the report that the petitioner was in drunken stage. On this ground dismissal order has been assailed submitting that these facts have not been considered by the disciplinary authority or by the appellate authority. The order of dismissal has been passed in a very casual manner and is liable to be set aside.;