Madhya Pradesh High CourtManoj Kumar Saxena vs The State Of Madhya Pradesh on 31 July, 20121

 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
                 AT JABALPUR

                     W.P. No. 12811/2006 (s)
                    MANOJ KUMAR SAXENA
                               VS.
                  STATE OF M.P. & OTHERS


Present:           Hon'ble Shri Justice Rajendra Menon.



      Shri Rajendra Shrivastava, learned counsel for the
petitioner.
      Shri Swapnil Ganguly, learned Panel Lawyer for the
respondents State.


Whether approved for reporting:           Yes/ No

                           ORDER( 31-7-2012 )

              Petitioner who was working as a Constable in the
Police   Department     has   been   dismissed   from   service.
Dismissal of the petitioner was due to certain allegations of
misconduct leveled against him in a charge sheet Annexure P/
1 dated 16.5.2005. A departmental enquiry was conducted
and on the basis of finding of guilt recorded in a departmental
enquiry, punishment in question of dismissal from service has
been imposed.      Appeal filed by the petitioner having been
dismissed, petitioner is before this Court.22.          Shri Rajendra Shrivastava, learned counsel for the
petitioner taking me through the allegations leveled in the
charge sheet, statements of some witnesses had tried to
emphasize that allegations of unauthorized absence has not
been properly established, the main allegation is pertaining to
the unauthorized absence for a period of more than 828 days,
the said period has been regularized by the Competent
Authority and therefore, action taken after regularization of the
absence is not permissible. Accordingly contending hat the
allegation of unauthorized absence is not established in the
facts and circumstances of the case and punishment imposed
is too harsh, Shri Shrivastava prays for interference into the
matter.3.          Shri Swapnil Ganguly, learned Panel Lawyer
appearing for the respondents, refutes the aforesaid and
points out that all the allegation leveled against the petitioner
are with regard to unauthorized absence on various occasions
and the departmental authorities found that even though on
more than 12 occasions in the past, the period of unauthorized
absence was regularized by treating it as "leave without
wages" or otherwise, the petitioner did not improve his conduct
and therefore, action is taken on the ground of habitual
misconduct. Shri Swapnil Ganguly emphasized that charge in
this regard against the petitioner is that inspite of the fact that
on more than 12 occasions in the past with regard to 828 days
he was unauthorizedly absent and inspite of opportunities for
improvement, he has not improved himself and therefore,
action is taken. Accordingly, Shri Swapnil Ganguly states that
as action taken against the Member of Force is due to3unauthorized absence on various occasions for a long period
of time, no case is made out for interference.4.          I have heard learned counsel for the parties and
perused the record. From the record, it is clear that against
the petitioner three allegations were leveled. First allegation in
the charge sheet was that the petitioner was unauthorizedly
absent since 25.12.2004. Second allegation was with regard
to unauthorized absence on 12 previous occasions for a total
period of 828 days and third allegation was with regard to
unauthorizedly remaining away from the basic training course
which commenced on 1.1.2004.           From the evidence and
material that came on record allegations are found to be
proved and as the evidence adduced in this regard is
assessed by the Enquiry Officer and a finding given. It cannot
be said that the finding is perverse or illegal to such a extent
warranting interference.5.          With regard to the contention of Shri Rajendra
Shrivastava to the effect that      the period of unauthorized
absence on 12 previous occasions stands condone, as is
evident from the statement of one of the witnesses namely
Shri Kishan Lal Kushwaha, the Clerk concerned, on a perusal
of the statement of Shri Kishan Lal Kushwaha it is seen that he
has only indicated that on 12 previous occasions also
petitioner remained unauthorizedly absent and the manner in
which period was treated. Shri Swapnil Ganguly is right in
contending that on all the 12 occasions a lenient view was
taken and the period was treated as either period spent on
duty or treated on the principles of "no work no wages".
Statement of witness is only to the effect that inspite of lenient4view taken in the past, petitioner has not improved. That being
             so, it cannot be said that this charge is not proved.          Fact
             remains that petitioner is a Member of armed force, namely the
             Police Department and for unauthorized absence of a long
             period, impugned action is taken.        In the absence of any
             statutory provisions shown to be violated in taking the action
             and in the absence of material to show that the finding of
             unauthorized    absence      recorded   is   perverse   or   illegal,
             interference into the matter by this Court exercising jurisdiction
             underArticle 226of the Constitution is not called for.6.          If the petitioner feels that for the unauthorized
             absence as alleged in the charge sheet, the punishment of
             dismissal from service is too harsh and at least one more
             opportunity should be granted to improve his conduct and to
             establish his bonafide, it is for the petitioner to submit a mercy
             appeal and it is exclusively for the competent authority to
             evaluate the matter on the administrative side and take a
             decision.7.          Accordingly, finding no case for interference on the
             grounds raised, liberty is granted to the petitioner to submit a
             mercy appeal in this regard to the competent authority of the
             department who can grant benefit to the petitioner. On the
             same being done, the mercy appeal that may be filed by the
             petitioner, be decided by a speaking order within a period of
             two months of its receipt.8.          Petition stands disposed of with the aforesaid.(RAJENDRA MENON)
                                                       JUDGE
Mrs.mishra