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2009 DIGILAW 1375 (JHR)

Rama Shankar Ram v. State of Jharkhand

2009-11-05

D.G.R.PATNAIK

body2009
JUDGMENT : Petitioner’s grievance in this writ application is against the order of his dismissal dated 28.11.2003 passed by the Commandant, Jharkhand Armed Police-7, Hazaribagh (Respondent No. 3). The petitioner has prayed therefore for quashing the impugned order of his dismissal as also for issuing a direction upon the respondents to reinstate him in service as constable with full back wages. 2. Heard learned counsel for the petitioner and the learned counsel for the respondent State. 3. The petitioner was appointed as a constable in the Bihar Military Police, Bokaro in the year 1986. He was transferred and posted at Hazaribagh. During his tenure at Hazaribagh, a complaint was filed against him by one Kedar Nath Singh on 17.3.1998 and pursuant to such complaint, a departmental proceeding was initiated against the petitioner after serving him a charge sheet. The petitioner had submitted his written statement in his defence in the inquiry conducted. During the pendency of the proceeding, the petitioner was dismissed from service pursuant to the findings in another departmental proceeding. Such an order of dismissal was challenged by the petitioner before this court and the same was set aside, where-after, he was reinstated in service at Hazaribagh. After his reinstatement, the proceeding referred to in the present writ application, which had remained suspended, was resumed and at the conclusion of the inquiry, the Inquiry Officer had recorded his findings that charge against the petitioner was proved. It also appears that before the Disciplinary Authority could take any action on the basis of the inquiry report, the petitioner was transferred from Hazaribagh to Deoghar and a copy of the inquiry report along with the second show-cause notice was forwarded to the petitioner through his concerned superior in office at Deoghar. The petitioner though did not submit replies in response to the third show-cause notice, but demanded supply of certain documents which were claimed as necessary to enable him to submit his effective show-cause replies. However, the impugned order was passed by the respondent no. 3 dismissing the petitioner from service. 4. The petitioner has challenged the impugned order on two grounds: i.The order of dismissal is illegal and against the Rules in as much as, the respondent no. 3 had ceased to continue as the Disciplinary Authority since after the petitioner’s transfer to Deoghar and he could not have exercised any power whatsoever 2. 3 dismissing the petitioner from service. 4. The petitioner has challenged the impugned order on two grounds: i.The order of dismissal is illegal and against the Rules in as much as, the respondent no. 3 had ceased to continue as the Disciplinary Authority since after the petitioner’s transfer to Deoghar and he could not have exercised any power whatsoever 2. to pass an order of dismissal or to pass any such order against the petitioner. ii.Even otherwise, the impugned order suffers from illegality in as much, while recording the order of punishment, the respondent no. 3 had allowed himself to be influenced by extraneous considerations namely, the petitioner’s purported past conduct, although no such past conduct had constituted any part of the charge which was originally framed against the petitioner by the Inquiry Officer. 5. Counsel for the petitioner informs that the petitioner had filed an appeal before the competent authority against the impugned order of dismissal, but the same was dismissed by the Appellate Authority, which according to the learned counsel, is also perverse in as much as, it was passed mechanically without application of mind and without adverting to the several grounds raised in the Memorandum of Appeal filed by the petitioner. 5. A counter-affidavit has been filed on behalf of the respondents. Shri Manoj Tondon, learned counsel for the respondents submits that though, the counsel for the petitioner appears to advert to the provisions of Rule 825 of the Police Manual in support of his contention that the respondent no. 3 could not have passed the impugned order of punishment after the petitioner’s transfer from Hazaribagh to Deoghar, but no such specific inference can be drawn by mere reading of Rule 825 of the Police Manual. Learned counsel however concedes that a similar issue on being raised before this court in an earlier writ application referred to by the counsel for the petitioner, this court had observed that after the transfer of the Government servant to another posting, the appointing authority at the previous posting cannot exercise its jurisdiction to act under the provisions of Rule 825 of the Police Manual. 6. 6. As regards the other ground taken by the petitioner, by referring to the provisions of Rule 826 of the Police Manual, learned counsel concedes that though, the petitioner’s previous conduct also appears to have been taken into consideration, but it is doubtful as to whether the same has constituted any part of the decision making process for inflicting punishment on the petitioner, in view of the fact that the Inquiry Officer, on the basis of the findings that charge has been proved, had recommended accordingly to the Disciplinary Authority and it was this part of the findings that had precisely weighed upon the mind of the Disciplinary Authority to inflict the punishment. .7. Having heard learned counsel for the parties and having gone through the impugned order, I find force in the argument advanced by the counsel for the petitioner. As informed at the Bar, a similar issue was raised before this court in the case of Prem Chand Ram vs. State of Bihar and others [2000 (2) PLJR 918] in which after discussing the scope and application of the provisions of Rule 824 and 825 of the Bihar Police Manual, this court had observed that only the Superintendent of a district who is the controlling officer of concerned police officer can inflict punishment. 8. Admittedly, in the present case, much prior to the day when the impugned order was passed, the petitioner stood transferred to another district namely, Deoghar where his controlling authority was the Commandant, Jharkhand Armed Police-5, Deoghar. It cannot be disputed therefore that the respondent no. 3 who had earlier exercised control over the petitioner while he was posted at Hazaribagh district, had ceased to remain the controlling authority of the petitioner on and after the date of the petitioner’s transfer to Deoghar. 9. It also appears from perusal of the impugned order that though, the respondent no. 3 had considered the findings of the Inquiry Officer to the effect that charge against the petitioner stood proved, but in addition, the respondent no. 3 has also adverted to the past conduct of the petitioner at length. It cannot be said therefore that the past conduct, which admittedly did not constitute any part of the original charge against the petitioner and being extraneous consideration, had not influenced the mind of the respondent no. 3 to inflict punishment of dismissal. 10. 3 has also adverted to the past conduct of the petitioner at length. It cannot be said therefore that the past conduct, which admittedly did not constitute any part of the original charge against the petitioner and being extraneous consideration, had not influenced the mind of the respondent no. 3 to inflict punishment of dismissal. 10. In the light of the above discussions, this application is allowed. The impugned orders dated 28.11.2003 (Annexure-7) as passed by the respondent no. 3 and 26.03.2004 (Annexure-8) as passed by the Appellate Authority namely, respondent no. 2, are hereby set aside. The matter is remanded back to the competent authority of the petitioner at Deoghar namely, the Commandant, Jharkhand Armed Police-5, Deoghar, to pass a fresh order on the basis of the inquiry report submitted by the Inquiry Officer in the disciplinary proceeding conducted against the petitioner. In the process, the petitioner shall be given an opportunity to submit his grounds of defence, if any, and to be heard. The entire exercise must be initiated and completed within a period of four months from the date of receipt / production of a copy of this order. The respondent nos. 2 and 3 shall transmit all the relevant documents pertaining to the inquiry conducted against the petitioner, to the Commandant, Jharkhand Armed Police-5, Deoghar, within two weeks from the date of this order. Let a copy of this order be given to the learned counsel for the respondent State.