1. Heard learned Advocate for the petitioner as well as learned counsel for the State.

2. The petitioner has invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for the following reliefs:-

"I. For setting aside the order dated 22.01.2017 passed by commandant, Mahila Sastra Vahini, Sasaram in Memo no. 14/GO through which she was dismissed from the post of constable as she was alleged to be not found fit for police services and was dismissed from 18.06.2013 and for setting aside order dated 13.05.2022 passed by deputy Inspector General of Police, Vishesh Sastra Police in memo no. 1072 through which the representation of the petitioner has been rejected confirming the order passed in memo no. 14/ GO dated 22.01.2017.

II. For issuance of directions to respondent authorities to reinstate the petitioner to her services as the authority has passed the order of dismissal without considering the representation and applications given by the petitioner through which she has stated a number of times that she was suffering from serious ailments thus she was helpless to join her services."

3. Indisputably the petitioner was appointed as a lady Constable of Armed Police at Bihar on 28th August, 2011. After her appointment she was posted in Mahila Sastra Vahini, Sasaram "B" Company at Bodh Gaya. While posted, as such the petitioner took Casual Leave on 15th June, 2013 and she was supposed to join on 18th June, 2013. However, she did not join, as a result of which a departmental proceeding was initiated against the petitioner on 02.03.2016 on the following charges:-

4. It is also not disputed that the petitioner did not appear in the departmental proceeding. Therefore, on the basis of the report of the Enquiry Officer, order of punishment was passed ex parte for dismissal of service against the petitioner on 22nd January, 2017. Only then the petitioner had felt that she should take appropriate step against the order of punishment and after a lapse of 5 years and 6 months she submitted a representation before the appellate authority. It is the grievance of the petitioner that the appellate authority did not take any action on the above mentioned representation. Hence, the instant writ petition.

5. Learned Advocate on behalf of the petitioner submits that during the period of absence the petitioner was suffering from Neurological disorder for a prolonged period of time which rendered her impossible to join her service. She has annexed some medical documents starting from 7th September, 2014 to 21st October, 2016. It is contended on behalf of the petitioner that time to time she informed about her illness and inability to join her service to her higher authorities and in order to establish the said averment the learned Advocate for the petitioner refers to Annexure-5, which is a prescription of Dr. Ashok Kumar Singh (Neurologist) and the photostat copy of the postal acknowledgment showing that the said prescription was sent by the petitioner on 3rd November, 2017 to Mahila Sastra Vahini, Sasaram.

6. Learned Advocate for the petitioner has raised the following objections against the process of departmental enquiry:-

"(I) He refers to Rule 843 of the Bihar Police Manual.

The said Rule runs thus:-

"843 Punishment for absence without leave- Wilful overstayal of leave or absence from duty without leave shall be treated as misbehaviour and after obtaining the explanation of the officer concerned proceedings shall invariably be drawn up and departmental punishment inflicted. If after explanation, it appears that a police officer had remained absent from duty due to any sufficient reason he shall be granted leave admissible to him for that period. If it is proved that he has violated the rules at his own will, he can be inflicted with any punishment as provided in rule 824. The Police Officer who shall be absent from duty without permission shall be liable under Section 29 of Act V of 1861, as amended by section 9 of the Act VIII of 1895. Such action however, should be taken only in special circumstances. As a rule whenever an officer does not return in time on duty, enquiries shall be made by the Superintendent/Commandant within one week from the S.P. of his native district, and should there appear that the officer has not returned to his duties in time for good reasons he should be suspended and departmental proceeding should be undertaken as per rule."

7. It is submitted by the learned Advocate for the petitioner that if a Police personnel is absent from duty without leave, the departmental punishment can only be inflicted after obtaining explanation of the delinquent employee followed by departmental proceedings.

8. No representation was called for in the instant case from the petitioner by the respondent authorities. Therefore, unilateral action of the respondent authorities cannot be sustained.

9. Learned Advocate on behalf of the petitioner next refers to the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005. He draws my attention to Rule 17 (5) (c). The said Rule recommends as follows:-

"17 (5) (c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry about such charge, it may, by an order, appoint a government servant or a legal practitioner to be known as the "Presenting officer' to present on his behalf the case in support of the articles of charge."

10. It is contended by the learned Advocate on behalf of the petitioner that in the instant case no Presenting Officer was appointed by the disciplinary authority. On this score, learned counsel for the petitioner refers to an unreported decision of this Court in C.W.J.C. No. 15089 of 2016 (Imteyaz Jhankar Vrs. The State of Bihar & Ors.). He specially refers to the following paragraph from page 8 of the above mentioned decision:-

"In the circumstances so discussed above where there was no Presenting Officer either to lead or to prove the evidence that was collected against the petitioner, the Enquiry Officer could not have assumed this duty to examine the evidence himself and to hold the same sufficient to uphold the guilt of the petitioner."

11. It is submitted by the learned Advocate for the petitioner that only on the reason that the departmental proceeding was conducted without appointment of Presenting Officer, the order of punishment passed by the disciplinary authority was quashed by this Court and the writ petition was allowed with all consequential reliefs.

12. Learned counsel for the petitioner refers to another decision of this Court in the case of Pramod Kumar Singh Vrs. The State of Bihar & Ors, reported in MANU/BH/0528/2006 : (2006) 3 PLJR 296. It is submitted by the learned Advocate for the petitioner that on factual score this decision is also applicable because in the above mentioned reported decision the delinquent employee was on unauthorized leave. He specially refers to paragraph-10 of the aforesaid Judgment which is reproduced below:-

"10. Having heard the counsel for the parties and having perused the documents including the prescriptions issued by the attending physicians on 30.9.2004, 3.10.2004 and 4.10.2004, Annexure-2 series as also the application of the petitioner dated 30.9.2004, Annexure-1 and 5.10.2004, Annexure-5, I am satisfied that the findings reached by the Enquiry Officer and the Managing Director that the petitioner was feigning illness is merely ipse dixit of the authorities. If the authorities disbelieved the contents of the prescriptions, Annexure-2 series and the request contained in application dated 30.9.2004 and 5.10.2004, Annexures-1 and 5, then they ought to have referred the petitioner to a Medical Board or to a physician of their choice. Without referring the petitioner to the Medical Board/physician, there was absolutely no material before the authorities to conclude that the petitioner was feigning illness. In the circumstances, I have no option but to hold that there was no material to conclude that the petitioner was wilfully absent from his place of duty for more than 35 days as has been held in the impugned order and, accordingly, suspension order dated 7.10.2004, Annexure-6, Enquiry Report dated 1.11.2004, Annexure-C to the supplementary affidavit and the impugned order dated 6.11.2004, Annexure-10 is set aside with direction to the authorities of the Corporation to reinstate the petitioner forthwith and to pay the entire arrears of salary not only for the period of suspension but also for the period of his removal within a period of three months from the date of receipt/production of a copy of this order."

13. Learned Advocate for the petitioner next refers to another unreported decision passed by the Division Bench of this Court on 20th September, 2021 in Letter Patent Appeal No. 490 of 2021 in the case of Anil Kumar @ Anil Kumar Lakada Vrs. The State of Bihar & Ors.. The Hon'ble Division Bench of this Court on due consideration of the precedent held that the enquiry report was submitted only on the initial show cause supplied by the appellant and though in the enquiry, witnesses were examined and documents also taken into consideration, but because the appellant had not participated in the enquiry, he could neither have replied to such documents/materials nor cross-examine the witnesses. This aspect alone may not vitiate the enquiry. However, when at the appellate and memorial stage, the appellant had specifically raised issues, both on facts as well as in law and had also enclosed supporting documents, especially with regard to his illness, giving doctors' certificates, in the considered opinion of the Court, the same were required to be looked into as the purpose of giving a person a chance to file an appeal/memorial is that there is no miscarriage of justice and if there has been any omission at the previous stage, the superior authorities are able to correct such mistake.

14. The petitioner was not given liberty to correct the mistake occurred in the decision making process of the disciplinary authority. Moreover, her representation dated 15th June, 2022 remained unheard. Learned Advocate, therefore, submits that the petitioner ought to be given an opportunity to plead his innocence before the departmental authority and after giving an opportunity to the petitioner final decision ought to have been taken by the respondent authorities.

15. A counter affidavit has been filed on behalf of respondent no. 5. Learned Advocate for the respondents submits that when the authority found that the petitioner was not joining her duty, the respondents sent several notices vide Memo No. 930/RK dated 23rd July, 2013, Memo No. 1190, dated 30th August, 2013, Memo No. 1543, dated 23rd October, 2013, Memo No. 1543, dated 14th August, 2015 and Memo No. 1852, dated 20th September, 2015, but she neither joined her duty nor responded to the aforesaid notice sent to her. When the petitioner failed to submit any reply of the notices, such act was also misbehaviour due to the negligence in sending the reply.

16. It is further contended by the learned Advocate for the respondents that the instant writ petition suffers from delay and laches. The petitioner cannot get any equitable relief for the delay because she has approached this Court after about 5 years and 6 months from the date of passing of the impugned order of dismissal from service.

17. Having heard the learned counsels for the parties and on careful consideration of the Judgments refers to by the learned counsel for the petitioner as well as the case of the respondents, this Court likes to record at the outset that nature of Government job in different cadre and posts is undoubtedly different. An employee in group 'C' and Group 'D' post in General Administration is required to carry out his duty in one manner, but the duty of an Armed Police Personnel is quite different from the other. The Police Department performs essential duties of protection of law and order. This Department is considered to be an essential part of the Criminal Administration of justice in so far as it relates to investigation of a criminal case or to maintain peace and tranquility in the society. This essential nature of service cannot be equated with others. Therefore, dereliction of duty committed by the employees of different Departments ought to be considered differently. It will be a great lapse of justice delivery system, if the rice and puked rice are treated equally. At the same time I like to record that the Judgment delivered by the Hon'ble Apex Court or different High Courts are not to be read as equips theorem, nor are they to be construed as statutes and all observations must be read in a context in which they appear.

18. In the instant case, I am in agreement with the learned Advocate on behalf of the petitioner that the departmental enquiry did not follow Rule 17 (5) (c) of the C.C.A. Rules, 2005. Even Rule 843 of the Bihar Police Manual was not strictly adhered too because of the fact that the petitioner's contention was not considered. The petitioner was not issued any notice to submit her reply to the show cause or her defence against the charges.

19. At the same time, I am not unmindful to note that unauthorized absence from the duty by a Police personnel is amounts to gross misconduct and negligence.

20. Now is the question as to whether the petitioner was compelled to stay away or the nature of her ailment compelled her to take unauthorized leave.

21. This answer can only be procured from the expert opinion. Therefore, this Court is of the view that the petitioner's representation dated 15th June, 2022 ought to be considered by the appellate authority after giving an opportunity to the petitioner or her representative of being heard.

22. It is specifically directed that the petitioner shall deposit all medical documents and papers to the appellate authority within one month from today and the appellate authority shall send the medical documents to the Head of the Department, Neurology, AIIMS, Patna for his independent opinion, as to whether the nature of ailment was sufficient for a person to remain away from the duty for about three years or a person can perform even clerical duties in the office of Mahila Sastra Vahini with the nature of her ailment as stated in the prescription and other medical documents.

23. On the basis of the said medical report which shall be obtained within three months from the date of submission of medical documents by the petitioner, the appellate authority shall dispose of the representation dated 15th June, 2022 filed by the petitioner.

24. With the above direction the instant writ petition is disposed of on contest.

25. There shall be however no order as to costs.