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2009 DIGILAW 984 (JHR)

Haris Chandra Singh v. State of Jharkhand

2009-07-17

D.G.R.PATNAIK

body2009
JUDGMENT: D.G.R.Patnaik, J. Heard Sri A.K.Sahani, learned counsel for the petitioner and J.C. to S.C.-III for the respondents. 2. The petitioner in this writ application has prayed for an order quashing the order dated 10.07.1994 (Annexure-4) passed by the Senior Superintendent of Police, Ranchi (Respondent No. 5) whereby the petitioner was dismissed from service. A further prayer has also been made for an order quashing the appellate order dated 25.04.2002 (Annexure-10) whereby the petitioner’s appeal against the impugned order of his dismissal, was dismissed. 3. Facts of the petitioner’s case in brief are as follows :The petitioner was appointed on the post of Constable in the Ranchi District Police Force on 18.03.1982. Almost four years later, on 19.03.1986, he was posted as Writer Constable in the Pension Branch Office of the Respondent No. 4, till 12.12.1987. The Respondent No. 4, by his letter of recommendation dated 27.01.1989, recommended for the petitioner’s promotion to the higher post of Assistant Sub-inspector of Police. A similar recommendation was made in favour of the petitioner by the then Director General-cum-Inspector General of Police, Bihar, Patna vide letter of recommendation dated 13.02.1989 (Annexure-1). By order dated 10.04.1989 (Annexure-2), he was asked to undergo training for the Pension Branch. In terms of the recommendations, he was asked by the authorities to officiate in the post of A.S.I.(Pension) in the Pension Branch and while discharging his services in such capacity, he was served with a notice of suspension on 30.04.1991 on the allegation that he had submitted wrong T.A. Bills and on such charge, a disciplinary proceeding was initiated against him. During the period of his suspension, he was paid subsistence allowance. On 10.07.1994, the impugned order of his dismissal (Annexure-4) was passed by the Respondent No. 5 namely the Senior Superintendent of Police, Ranchi. Even though the disciplinary proceeding was initiated against him and notice of such initiation was served on him along with the charges calling upon him to submit his explanation to the charges and to defend himself in the proceeding, the petitioner did not respond and consequently, the disciplinary proceeding continued against him ex-parte and finally, the impugned order of his dismissal was passed against him on 10.07.1994 by the Senior Superintendent of Police, Ranchi. 4. The petitioner preferred an appeal against the order of his dismissal before the appellate authority namely the Inspector General of Police, Jharkhand, Ranchi (Respondent No. 3). 5. 4. The petitioner preferred an appeal against the order of his dismissal before the appellate authority namely the Inspector General of Police, Jharkhand, Ranchi (Respondent No. 3). 5. During the pendency of this writ application, his appeal was dismissed and the order of dismissal was communicated to him vide letter dated 25.06.2002. By amending his writ application, the petitioner has introduced the prayer for quashing the order of dismissal of his appeal. 6. The petitioner has assailed the impugned order of his dismissal from service and the order of dismissal of his appeal mainly on two grounds :- (i) That the petitioner, being admittedly holding the rank of A.S.I., the Senior Superintendent of Police, Ranchi had no jurisdiction to dismiss the petitioner and as such, the impugned order of dismissal as passed by the Senior Superintendent of Police, Ranchi, was without jurisdiction. (ii) The petitioner had specifically demanded a copy of the enquiry report in order to enable him to submit his defence against the proposed punishment but he was not served with any copy of the enquiry report and the order of dismissal was passed against him without affording adequate opportunity to him to defend his case. 7. Elaborating the grounds, Sri A.K.Sahani, learned counsel for the petitioner would first refer to the Annexure-1 which is an order issued by the office of the Deputy Inspector General of Police, (Head Quarter), Bihar, Patna whereby he was granted promotion to the post of A.S.I. (Pension) though for a period of six months on temporary basis. Pursuant to the aforesaid order, the petitioner was promoted to the post of A.S.I.(Pension). Referring next to Annexure-5, which is a clarificatory letter dated 17.03.1999 issued by the Deputy Inspector General of Police, South Chhotanagpur Region, Ranchi and addressed to the Assistant to the Inspector General of Police (Inspection), Bihar, Patna, learned counsel explains that the letter of the D.I.G. categorically acknowledges that on the date of his dismissal from service, the petitioner was holding the post of A.S.I. and as such, the competent authority for passing the order of his dismissal was the D.I.G. of Police and the appeal against the order of dismissal passed by the D.I.G. of Police in such matters, can be heard and disposed of by the Inspector General of Police. Learned counsel explains further that the letter (Annexure-5) also emphasizes that the Senior Superintendent of Police, Ranchi did not have the competence or authority to dismiss the services of the petitioner. Referring further, to Annexure-7 which is a letter issued on 14.03.2000 by the office of D.I.G. of Police, South Chhotanagpur Region, Ranchi and addressed to the Assistant to the Inspector General of Police (Inspection), Bihar, Patna, learned counsel explains that the letter clarifies that in several correspondences concerning the petitioner, his rank has been mentioned as A.S.I. Learned counsel argues that in the light of such admissions, the respondents cannot treat the petitioner as a constable. Rather, the petitioner has to be treated as an officer of the rank of A.S.I. Learned counsel would next refer to the provisions of Rule 824(5) of the Police Manual and explain that as laid down under the provisions of the Rule, for purposes of punishment, an officer, while officiating in a higher rank, shall be treated as belonging, to that rank irrespective of the rank in which the cause of action arose. Learned counsel argues that the petitioner was admittedly officiating in the higher rank and according to the provisions of this Rule, he has to be treated as belonging to that rank for the purposes of punishment and in this view of the matter, the competent authority to pass an order for termination of his services, is admittedly not the Senior Superintendent of Police. Referring next to the impugned order (Annexure-4), learned counsel submits that even in the impugned order, it has been categorically acknowledged that by his letter dated 07.08.1994, the petitioner had demanded a copy of the enquiry report expressing his inability to submit his show cause replies effectively, in absence of the enquiry report. Yet, the copy of the enquiry report was not supplied to him and the impugned order of his termination was passed. This, according to the learned counsel, is gross violation of the principles of natural justice. 8. A counter affidavit sworn by the Deputy Superintendent of Police (H.Q.), Ranchi has been filed on behalf of the respondents. Yet, the copy of the enquiry report was not supplied to him and the impugned order of his termination was passed. This, according to the learned counsel, is gross violation of the principles of natural justice. 8. A counter affidavit sworn by the Deputy Superintendent of Police (H.Q.), Ranchi has been filed on behalf of the respondents. It has been pointed out that the petitioner had earlier moved this Court by filing several writ applications vide C.W.J.C. No. 554 of 1993 (R), C.W. J.C. No. 2940 of 1993(R), M.J.C. No. 186 of 1993(R) and C.W.J.C. No. 1277 of 1994(R), each one of them somehow or other related to the present case. On the merits of the petitioner’s claim, the stand taken by the respondents is that the petitioner who was a Writer Constable of the Ranchi District Police Force, was allowed to work on the vacant post of A.S.I.(Pension) pursuant to a direction given by the Police Headquarters, Bihar Patna to grant ad hoc promotion to the petitioner for a period of six months to work smoothly with pension matters. In the order of his promotion, it was specifically stated that he will have his seniority in the grade of Constable and not of the promotional post. It is added that contrary to the claim of the petitioner, no direction was given to him by his superior officer to undergo any training. Rather, he was only made aware of the Rules and provisions of pension only to enable him to function smoothly in pension matters. It is also explained that though he was granted ad hoc promotion to officiate as A.S.I.(Pension), but no benefit in the pay was given to him on such post. It is further explained that even though the promotion to the post of A.S.I.(Pension) on ad hoc basis was given to the petitioner, such post cannot strictly be construed as a post in the A.S.I. Cadre, since it was only a temporary ad hoc arrangement and the petitioner cannot therefore claim his post of A.S.I. accordingly to Rule 668(a) of the Bihar Police Manual. 9. Referring to the petitioner’s grounds that he was not afforded adequate opportunity of defending himself, it is stated by the respondents that the petitioner was granted reasonable and sufficient opportunity to participate in the disciplinary proceeding and to defend himself but the petitioner did not choose to appear at all. 9. Referring to the petitioner’s grounds that he was not afforded adequate opportunity of defending himself, it is stated by the respondents that the petitioner was granted reasonable and sufficient opportunity to participate in the disciplinary proceeding and to defend himself but the petitioner did not choose to appear at all. It is also pointed out that the petitioner was reverted to the post of Constable with effect from 01.03.1990 and against the order of his reversion, he had preferred a writ application vide C.W.J.C. No. 2940 of 1993 (R) which was later withdrawn by the petitioner on the ground that he would prefer an appeal. Referring to Annexure-6 which has been filed by the petitioner, it is explained by the counsel for the respondents that on the query raised by the office of the D.I.G. of Police, South Chhotanagpur Region, Ranchi, it was clarified by the letter (Annexure-6) that the petitioner holds the post of Constable and not that of A.S.I. 10. From the perusal of the Annexure-A it appears that the same is an order passed by a Division Bench of this Court in C.W.J.C. No. 554 of 1993 (R) in the writ application filed by the petitioner concerning nonpayment of his salary during the certain period. Apparently, the writ application does not bear any relevance to the facts of the present case. Annexure-A/1 is a copy of the order passed in C.W.J.C. No. 2940 of 1993(R) which was a writ application filed by the petitioner against an order dated 26.03.1993. The writ application was disposed of by permitting the petitioner to withdraw the same in order to enable him to prefer appeal before the appropriate forum. This writ application also does not bear any relevance to the facts of the present case. Annexure-A/2 is a copy of the order passed in C.W.J.C. No. 1277 of 1994 (R) in which the petitioner had sought for an order directing the appellate authority to dispose of the appeal preferred by the petitioner expeditiously. In compliance with the order passed by this Court, the appellate authority had disposed of the appeal and the order passed in the appeal has been impugned and challenged by the petitioner in this writ application. 11. In compliance with the order passed by this Court, the appellate authority had disposed of the appeal and the order passed in the appeal has been impugned and challenged by the petitioner in this writ application. 11. Referring to the grounds advanced by the petitioner, his first contention is that since he was promoted to the post of A.S.I. (Pension), he is entitled to be treated, for all practical purposes, as holding the post of A.S.I. and therefore the Senior Superintendent of Police had no authority and jurisdiction to terminate his services. 12. Admittedly, the petitioner being a Writer Constable was given ad hoc temporary promotion to officiate in the post of A.S.I.(Pension). The letter of promotion however indicates that such promotion was given on certain conditions that the petitioner would not be entitled to claim his seniority in the rank of A.S.I. and that his seniority would be counted only on his substantive post of Constable. Secondly he would not be entitled to the scale of pay as applicable to the post of A.S.I. 13. It implies from the above conditions that though the petitioner was given ad hoc promotion to officiate in the higher rank, but his substantive post was that of constable. However, considering the provisions of the Rule 824(5) of the Police Manual, for the purposes of punishment, since he was officiating in a higher rank, he shall have to be treated as belonging to that rank irrespective of the rank in which the cause of action arose. 14. Learned counsel for the respondents would want to impress that the post of A.S.I.(Pension) is not equivalent to the regular post of A.S.I. Learned counsel has not placed on record any such category of post in the hierarchy of the police service which can be denoted as A.S.I. (Pension). The hierarchy as maintained and reflected in the police manual, indicates that higher post above the post of Constable is that of A.S.I. The A.S.I. may be assigned to work in a particular department like in the present case, in the Pension Department, but this in itself would not constitute a different post. 15. The hierarchy as maintained and reflected in the police manual, indicates that higher post above the post of Constable is that of A.S.I. The A.S.I. may be assigned to work in a particular department like in the present case, in the Pension Department, but this in itself would not constitute a different post. 15. It is not in dispute that the Senior Superintendent of Police does not have authority to terminate the services of officers of the rank of A.S.I. As such, in terms of the provisions of Rule 824(5) of the Police Manual, for the purposes of punishment, the petitioner has to be treated as an officer of the post on which he was officiating and in this view of the matter, the Senior Superintendent of Police could not possibly exercise jurisdiction to pass any order terminating the services of the petitioner. 16. As regards the second ground, admittedly the disciplinary proceeding was conducted ex-parte on the petitioner's failure to participate inspite of notices served upon him. Thus, an ex-parte report was submitted in the disciplinary proceeding against the petitioner. Nevertheless, as admitted even in the impugned order of termination, the petitioner had, by a written request, demanded a copy of the enquiry report expressing his intentions to submit his defence. The same was admittedly not supplied to the petitioner before the punishment of termination was inflicted on him. I find force in the argument of the learned counsel for the petitioner that by refusing to supply a copy of the enquiry report and by failing to serve a show cause notice to explain against the proposed punishment, the petitioner was deprived of his right of defence and that the order of his termination therefore, is in gross violation of the principles of natural justice and equity. From the perusal of the appellate order it appears that though the petitioner had taken both these grounds specifically in the appeal, but the same were dismissed without assigning reasons and apparently, without application of mind. 18. In the light of the above discussions, I find merit in this writ application. Accordingly, the same is allowed. As prayed for by the petitioner, the impugned orders dated 10.07.1994 and 25.04.2002 Annexure-4 and 10 respectively, are hereby set aside. The petitioner shall be entitled to reinstatement in service. 18. In the light of the above discussions, I find merit in this writ application. Accordingly, the same is allowed. As prayed for by the petitioner, the impugned orders dated 10.07.1994 and 25.04.2002 Annexure-4 and 10 respectively, are hereby set aside. The petitioner shall be entitled to reinstatement in service. However, since there is no submission from the petitioner in his pleadings that after termination of his services, he was not gainfully employed all along, he shall be entitled only to 50% of back wages.