ORDER
N.N. Tiwari, J.
1. In this writ application the petitioner has prayed for quashing the orders dated 13.3.2003 and 13.4.2003 passed by the Superintendent of Police, Dhanbad as contained in Annexures 5 & 8 whereby the petitioner has been awarded punishment of stoppage of one annual increment of pay which would amount to two black marks in his service record and forfeiture of his pay for the period from 29.2.2000 to 30.12.2000 (total 307 days) and for a direction to the respondents to pay the petitioner’s salary of the said period in view of the order passed by the Inspector General of Police, Ranchi Zone, Ranchi (respondent No. 3). The petitioner further prayed for a direction to the respondents to promote and post him as Inspector of Police from the date the other similarly situated persons have been given promotion and posted as such.
2. The petitioner’s case is that he was appointed as Inspector of Police in the year 1980. After completing training the police training college, the petitioner was posted at different places and since March 1987 he is posted in Dhanbad. By Memo No. 1466 dated 5.4.2000, the petitioner was served with a charge-sheet (Annexure-1) initiating a departmental proceeding being No. 111/2000. The charge was that he was relieved by Dhanbad District Order No. 263/2000 w.e.f. 1.3.2000 for Special Branch Bihar, Patna but he avoided to receive the said order and remained absent and did not join the transferred place which is an act of indiscipline and serious misconduct. The Deputy Superintendent of Police (Law & Order), Dhanbad was appointed Enquiry-cum-Conducting Officer. The petitioner filed his detailed show cause reply (Annexure-2) denying the charges and stating, inter alia, that due to serious protracted illness, he was unable to discharge his duly and he had given due information to the department. Initially he was suffering from Typhoid which was followed by Jaundice and low back pain and all along he was under the treatment of a local doctor and was in bed rest as per the medical advice till 29.2.2000. The enquiry officer after taking evidences and completing the enquiry, submitted his report dated 30.9.2002 (Annexure-3) holding the petitioner not guilty of the charges. The Superintendent of Police, Dhanbad, who is the disciplinary authority, differed with the conclusion of the enquiry officer and by his Memo No. 6954 dated 27.11.2002 as contained in Annexure-4 recommended for adjusting the period of absence against the earned leave. He thereafter forwarded the file of the proceeding to the Deputy Inspector General of Police, Coal Range, Bokaro. The Superintendent of Police, Dhanbad (respondent No. 5) issued another order by Memo No. 907 dated 13.3.2003 (Annexure-5) modifying his earlier order dated 27.11.2002 whereby it was observed that for serious illness like Typhoid, the petitioner should have taken treatment from any specialized doctor in a good Government hospital, but he took the treatment of Dr. M. Pd. who is an ordinary doctor and as such on his certificate the petitioner cannot be given pay for the period from 29.2.2000 to 31.12.2000 (307 days) which would otherwise amount to encouraging indiscipline in the department. It is relevant to mention that by order dated 9.1.01 (Annexure-6) the petitioner’s transfer to the Special Branch, Bihar, Patna was cancelled and he was adjusted in Dhanbad District Police. Subsequently, Memo No. 43 dated 27.2.2003 (Annexure-7) issued from the office of the Director General of Police-cum-Inspector General of Police, Jharkhand, Ranchi, the petitioner along with others was given promotion to the rank of Inspector of Police and he was waiting for his posting along with others. According to the petitioner, the Superintendent of Police, Dhanbad issued the order of posting of similarly situated persons, but no order was issued for his posting as Inspector of Police rather in order to frustrate the order of his promotion, the Superintendent of Police Dhanbad (respondent No. 5) again passed the third order in the name of final order dated 13.4.2003 (Annexure-8), whereby in the same Departmental Proceeding No. 111/2000, the petitioner has been held guilty of absence from duty from 29.2.2000 to 31.12.2000 for a period of 306 days and the pay of the said period has been forfeited and the said period has been adjusted against extra ordinary leave. The petitioner’s one annual increment of pay has been stopped which tantamount to two black marks in his service record. It is pertinent to mention that by Memo No. 1196 dated 23.7.2001, the Inspector General of Police, Ranchi Zone had ordered the Superintendent of Police, Dhanbad to adjust the petitioner’s period of illness from 29.2.2000 to 30.12.2000 against the admissible earned leave and to pay his salary after sanctioning the said leave. According to the petitioner, ignoring the finding of the enquiry officer and the order of the Inspector General of Police as well as the rules, procedures and provisions of law, the Superintendent of Police, Dhanbad (respondent No. 5) strangely passed three different orders one after the other and the last order Annexure-8 has been arbitrarily passed just after the order of promotion and on that ground the petitioner’s promotion has been withheld.
3. The respondents contested the petitioner’s claim by filing counter affidavit and justifying the three different orders. It has been stated inter alia, that the medical certificate produced by the petitioner is doubtful and managed one. The petitioner remained sick for 10 months, but he did not get medical treatment from a good doctor and was under the treatment of one Dr. M. Pd. who is an ordinary doctor of Dhanbad. The order issued by Memo No. 907 dated 13.3.2003 was passed by way of modification of the earlier order forfeiting the petitioner’s salary on the ground of “No work no pay”. Thereafter, the respondent No. 5 again received an instruction by the respondent No. 4 by Memo No. 323 dated 15.3.2003 and he passed the final order dated 13.4.2003 (Annexure-8) holding the petitioner guilty of misconduct, indiscipline and violating Rule 796 (A) of the Police Manual and as such his salary for the period from 29.2.2002 to 30.12.2000 (306 days) was forfeited on the principle of “No work no pay” and the petitioner’s increment for one year has been stopped without affecting his future increment. It would be just equal to two black marks in his service record. The order of the Inspector General of Police, Ranchi Zone, regarding payment of the petitioner’s salary was a conditional order and was passed before the final order dated 13.4.2003 (Annexure-8).
4. Dr. S.N. Pathak, learned counsel appearing on behalf of the petitioner submitted that the impugned order dated 13.3.2003 (Annexure-5) and the order dated 13.4.2003 (Annexure-8) are wholly arbitrary, illegal’ and without jurisdiction as the Superintendent of Police, Dhanbad has no authority in law to modify the order dated 27.11.2002 (Annexure-4) which was once passed by him. Learned counsel submitted that the Superintendent of Police, being the disciplinary authority, once having applied his mind and passed the order dated 27.11.2002 directing adjustment of the period of ten months against the earned leave, cannot change his earlier order and cannot pass different orders as contained in Annexure-5 & 8 whereby the petitioner’s salary of the said period has been sought to be forfeited and the petitioner’s increment of one year has been stopped which amounts to two black marks in his service record. Learned counsel submitted that even the order as contained in Annexure-4 was whimsical and wholly without any basis and the petitioner was not given any opportunity of hearing before disagreeing with the conclusion of the enquiry officer.
5. Mr. Saurav Arun, learned counsel appearing on behalf of the respondents representing the learned A.G., supported the three different orders on the ground that the earlier two orders were not final and the third order is the final order.
6. Having considered the submissions of the learned counsel and the materials available on record, I find that the enquiry officer after discussing and considering the evidences and materials on record including the medical evidence adduced by the petitioner, came to the finding that the petitioner could not be proved guilty of the charge and that the Inspector General of Police has already ordered for adjustment of the period of illness of the petitioner against the admissible earned leave and to pay his salary of the said period. On submission of the said report by the enquiry officer, the Superintendent of Police, Dhanbad (respondent No. 5) had gone into the matter in detail and had raised a suspicion on the ground that the petitioner has taken treatment of serious illness like Typhoid from Dr. M. Pd. who is an ordinary doctor of Dhanbad. However, in the conclusion, he recommended for adjustment of the said period of absence against the earned leave of the petitioner and sent the file for approval to the Inspector General of Police, Ranchi Zone, Ranch through the Deputy Inspector General of Police, Coal Range, Bokaro. From the said order it appears that after going through all the records, the respondent No. 5 applied his mind and directed to adjust the period of absence of the petitioner against his admissible earned leave. Subsequently without any fresh material and any special reason on record, the respondent No. 5 suo motu modified his earlier order dated 27.11.2002 denying the petitioner’s salary of the said period from 29.2.2000 to 30.12.2000 and holding him guilty of indicipline and misconduct. Again by the third order the respondent No. 5 the Superintendent of Police, Dhanbad issued the impugned order dated 13.4.2003 Annexure-8 whereby the petitioner’s salary for the period of his absence has been forfeited and increment of one year has been stopped, amounting to two black marks in his service record. There is absolutely no legal justification for passing the second and the third order in the same matter and on the same material. The respondents could not show any provision under which the order once passed can be reviewed/revised by the same authority without any fresh material or any fresh ground. In my opinion, when the disciplinary authority once applied his mind and recorded his finding and decided to adjust the period of absence of the petitioner against the earned leave by order dated 27.11.2002, there was no occasion for the respondent No. 5 to pass subsequent orders as contained in Annexures-5 & 8 dated 13.3.2003 & 13.4.2003. The Superintendent of Police having once applied his mind and passed the order dated 27.11.2002 as contained in Annexure-4 became functus offico and he has no jurisdiction review or revise his earlier order. The said impugned orders as contained in Annexures-5 & 8 are thus wholly illegal and without jurisdiction and are vitiated in law. Though the petitioner has alleged mala fide against the respondent No. 5 and claimed that the said impugned orders were deliberately issued to frustrate the order dated 27.2.2003 (Annexure-7) whereby the petitioner was given promotion to the post of Inspector of Police along with others, yet the petitioner’s said allegation cannot be entertained in absence of the categorical description constituting and demonstrating mala fide against the respondent No. 5 and without impleading him a party in person. However, issuance of different orders on three different dates supply some reason to believe that the petitioner was not given fair and reasonable treatment and the petitioner’s apprehension of oblique motive behind issuing Annexures-5 & 8, just after the order of promotion as contained in Annexure-7, cannot be completely ruled out.
7. For the reasons aforesaid, the impugned orders dated 13.3.203 & 13.4.2003 issued by the Superintendent of Police respondent No. 5 as contained in Annexures-5 & 8 respectively cannot be allowed to sustain. This writ application is accordingly allowed the orders as contained in Annexures-5 & 8 are quashed. Consequently, the order issued by the respondent No. 5 by his Memo No. 6954 dated 27.11.2002 revives. The petitioner’s absence for the period from 29.2.2000 to 30.12.2000 shall be accordingly adjusted against his admissible earned leave and the said period shall be regularized accordingly with all consequential benefits. If the order of the petitioner’s promotion dated 7.2.2003 is withheld due to the said impugned orders as contained in Annexures-5 & 8 and for no other reason, the same will be given effect to by posting the petitioner to the promoted post with all consequential benefits maintaining his seniority as per the gradation list, within a period two months. However, there shall be no order as to costs.