Aparesh Kumar Singh, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner, who was a constable under Bihar Military Police, was proceeded against for unauthorized absence of 257 days in Departmental Proceeding No. 2/98 and was dismissed from service on 28.1.1999, Annexure 1, by the Commandant, Bihar Military Police -12 on the basis of misconduct established against him. He, however, Preferred an appeal against that apparently more than five years later on 6.5.2004, which was not entrained by the appellate authority, as the same had not been inconformity with the Police Manual Rules. The petitioner came before this Court against rejection of his appeal in writ petition being WP(S) No. 1379/2005, which was disposed of by judgment dated 30.3.2005, Annexure 5. The learned Single Judge of this Court held that if the appeal memorial did not comply with the requirement of Rule 852(Kha), the petitioner should be given one opportunity to submit all the documents. Therefore the matter was remitted to the appellate authority to decide the appeal on merit and dispose of the same within a period of four months. Thereafter, the order dated 25.7.2005, passed on his Appeal by the Deputy Inspector General, Jharkhand Armed Police, Ranchi, has upheld the punishment order, which is also impugned in the present writ petition as Annexure 7. Learned Senior Counsel for the petitioner has assailed the impugned order on the ground; (i) that the petitioner was in service for about 22 years with an unblemished records and on the solitary instance of absence in the present case for 257 days he has been imposed with a disproportionate punishment of dismissal from service. (ii) It is submitted that the petitioner was suffering from mental illness during the period of his absence, from which he was cured and reported thereafter to the controlling officer but none of the documents/prescriptions relating to his treatment have been given any heed by the Disciplinary Authority as well as the Appellate Authority. (iii) It is further submitted that the allegation of unauthorized absence, in such circumstances, would not amount to a deliberate misconduct on the part of the employee. (iv) The employee has sufficient explanation to satisfy the reasons for his absence but the respondents have failed to consider the same. (v) According to the petitioner, in similar circumstances in the case of unauthorized absence the Hon'ble Supreme Court as well as this Court has interfered with the punishment on the principle of proportionality. (vi) He has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Chairman cum Managing Director, Coal India Limited and another v. Mukul Kumar Choudhury and others, reported in : 2009 (15) SCC 620; in the case of Bhagwan Lal Arya v. Commissioner of police, Delhi and another, reported in : 2004 JCR 107 (SC) as also a judgment rendered by the learned Single Judge of the Patna High Court in the case of Vijay Kumar Singh v. State of Bihar & ors., reported in, 2000 (1) BBCJ 223. (vii) it is further submitted that the grounds raised by the petitioner in appeal, Annexure 2, have not been considered with proper reasonings by the appellate authority in the impugned order as well. The impugned order, therefore, would also suffer on that count. Therefore, it is prayed that the punishment of dismissal from service being sever on the petitioner be set aside and the matter be remanded to the respondents to take a lenient view on the question of punishment after considering the explanation of the petitioner. The petitioner, who may have reached the age of superannuation now, would be entitled to at least monetary benefits of post retirement.
(3.) RESPONDENTS have appeared and filed their counter affidavit. It is submitted by the learned counsel for the respondents that an alternative remedy of memorial under Rule 853 of the Police Manual has not been invoked before approaching this Court by the petitioner, on which ground alone the writ petition could be dismissed. He has relied upon a judgment rendered in the case of Kanaiyalal Lalchand Sachdev v. State of Maharashtra, reported in : 2011 (2) SCC 782, para 23 thereof. It is further submitted that the petitioner had no plausible explanation for his absence for a period of 257 days and the appeal itself was preferred after more than 5 years of the order of punishment. Still the appellate authority had considered the case of the petitioner on merit and rejected the same also taking into account that the petitioner himself had stated that he was suffering from mental Schizoaffective Disorder. The petitioner has only completed 21 years of service and could not have been granted the voluntary retirement in the facts and circumstances of the case, which has rightly been rejected by the appellate authority.;