IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.221 of 2004
DINANATH PRASAD S/O KUNJAN SINGH R/O VILL-
BHAGHOI TOLA PS- HASPURA,DISTT- AURANGABAD
-------------------------PETITIONER
Versus
1. THE STATE OF BIHAR
2. THE D.G.P, BIHAR, PATNA
3. THE D.I.G. (B.M.P),PHULWARISHARIF, PATNA
4. THE COMMANDAND (B.M.P)-5, PATNA
5. THE INSPECTOR (S) BMP, PATNA----RESPONDENTS.
-----------
For the Petitioner: Mr.S.K.Verma & Mr. S.K.’Ghosarvery’
Advoctes
For the State: Mr. M.K.Singh, AC to SC-I
———–
4 5.7.2010 Heard learned counsel for the parties.
Though it is not pleaded in the writ application as
to when the petitioner was appointed as a constable in Bihar
Military Police (BPM) but it is stated at the bar that he was
appointed some time in the year 1992.
He filed the writ application because he came to be
dismissed from service on an ex parte enquiry held against him by
Commandant of Bihar Military Police-5 on finding of guilt having
been recorded against him.
Some facts which are undisputed is that the
petitioner was granted leave for fifteen days from 7.11.98
to22.11.98. After availing the leave he never reported back for
duty for over a year. Petitioner was treated as deserter from the
force and a departmental enquiry was ordered against him. Since
the petitioner never appeared before the enquiry officer, enquiry
was held, evidence both oral and documentary were produced and
finding against the petitioner of not reporting to the force after the
period of leave was over, came to be established. The disciplinary
-2-
authority passed order of dismissal by way of annexure-2 to the
writ application. Appellate forum affirmed the order of dismissal
and even memorial filed before the D.G-cum-I.G was turned
down. Petitioner now challenges these orders in the present writ
application.
The first submission on behalf of the petitioner is
that the petitioner was not given any opportunity to properly
defend himself. The petitioner was not in a position to defend
himself since he was mentally ill. The evidence which he
produced before the appellate authority after he came to know of
the order of dismissal was not appreciated or accepted in the right
prospective and the net result is that serious prejudice is now
caused to him or his family members since they have lost the
source of livelihood.
Counter affidavit filed on behalf of the State
reveals another aspect of the matter. The dismissal of the
petitioner from service was not because of the first aberration of
the kind. There is reflection from record that the petitioner had
over stayed leave seven times in the past. Two cases of desertion
were also recorded but the authorities were indulgent enough by
not passing any stern order. It was in the chain of things that even
in the year 1998 he went on leave for fifteen days, decided to not
report for almost a year.
There is categorical statement in the counter
affidavit that the authority did their level best to serve notice on
-3-
the petitioner to ensure his participation in the enquiry. Seven
instances have been cited but it was because of the total lack of
cooperation or response from the petitioner that they had to
proceed ex parte.
The appellate order and the memorial order also
indicate that the explanation offered by the petitioner about his
mental condition of insanity is based on some prescription of a
doctor which is more by way of a defence than reflecting the
actual state of affairs. The medical certificate only indicates that
the petitioner had got medical help from the doctor but it does not
corroborate the pleading made in paragraph-6 of the writ
application that the petitioner was admitted in Ranchi Mental
Hospital and he was discharged on 28.12.99. In absence of clear
evidence having been produced by the petitioner showing his
admission and discharge, the appellate authority did no wrong in
coming to a conclusion that the doctor’s prescription was more an
effort to procure a document to cover the misconduct of the
petitioner. Petitioner had compelled the respondents to proceed in
the departmental enquiry ex parte. Complete stonewalling by the
petitioner and his deliberate non-participation in the enquiry was
the reason for proceeding ex parte. He cannot be given the benefit
or protection for his own conduct deliberate in intent and purpose.
The Court could have taken a holistic view of the
entire matter including the quantum of punishment against the
petitioner provided the order of dismissal was passed for his first
-4-
aberration but it is not so. There has been misconduct on the part
of the petitioner for every year he has remained in service.
Obviously he is not cut out for job because he is not used to live in
a disciplined environment. The respondents have to take a view
which is more stringent in the matters of indiscipline for persons
belonging to uniformed force and they cannot be treated at par like
any civilian in this regard. Allowing such person to continue in
service can only be at the cost of spoiling the discipline of the
force. Petitioner has been shown enough indulgence and the
decision taken against him is totally his creation. From the
material and the statement available on record he has obviously
pushed the authority too far and had acquired the habit of living on
the edge.
This writ application has no merit and it is
dismissed.
RPS (Ajay Kumar Tripathi,J.)