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2010 DIGILAW 234 (JHR)

Shriman Narayan Singh v. State of Jharkhand

2010-02-11

D.G.R.PATNAIK

body2010
JUDGMENT D.G.R. Patnaik, J. Heard counsel for the parties. 2. Challenge in this writ application is to the order dated 12.6.2003 (Annexure3) passed by the petitioner's disciplinary authority whereby the petitioner was dismissed from service. Challenge also is to the order dated 17.2.2004 (Annexure5) passed by the appellate authority whereby the appeal filed by the petitioner against the impugned order of his dismissal, has been rejected. 3. The petitioner was a constable in the State Police Service. A departmental proceeding was initiated against him on the charge that on 3.8.2002, while he was posted on duty at the eastern gate of Nepal House, Doranda, he was not found present at the place of duty during his duty period. On the contrary, he was found in a drunken condition and on being directed by his senior officer to remain at his place of duty, he abused his senior officer using unparliamentary language. The petitioner was promptly taken away and produced before a doctor at the RIMS for pathological test to confirm that he was under the influence of alcohol. However, the doctor referred him for treatment to the RINPAS. 4. The petitioner submitted his replies to the show cause notice and was allowed to' participate in the departmental proceeding. At the conclusion of the proceeding, the Inquiry Officer found the charges proved against the petitioner and submitted his enquiry report to the petitioner's disciplinary authority. The disciplinary authority, upon perusing the enquiry report and agreeing with the findings recorded by the Inquiry Officer, proceeded to punish the petitioner by passing the impugned order of dismissal from service. 5. Against the impugned order of dismissal, the petitioner preferred an appeal before the appellate authority. However, the appellate authority passed the impugned order, dismissing the appeal. 6. Assailing the impugned orders of his dismissal and that of the appellate authority, the petitioner has raised the following grounds:- Firstly that the findings of the Inquiry Officer, as recorded in the enquiry report, are perverse and against the weight of evidence on record. The perversity is because of the fact that though one of the charges was that the petitioner was found in a drunken condition during his duty hours and he was even taken to the doctor to obtain confirmation of his alleged drunkenness, but no such confirmation or certificate was obtained from the doctor. The perversity is because of the fact that though one of the charges was that the petitioner was found in a drunken condition during his duty hours and he was even taken to the doctor to obtain confirmation of his alleged drunkenness, but no such confirmation or certificate was obtained from the doctor. Rather, the doctor had referred the petitioner to the RINPAS for treatment indicating thereby that the petitioner, at the relevant time, was suffering from mental ailment. The charge that the petitioner being in a drunken condition having not been substantiated by any corroborative evidence, the same could not have been held to be proved. The other part of the charge namely that the petitioner had indulged in abuses against his superior officer, cannot also be claimed to have been proved in view of the fact that the aggrieved person, against whom the alleged abusive language was used, was not examined at the departmental proceeding and neither have any of the witnesses purportedly present at the time of alleged occurrence, been produced and examined. Instead, the written complaint filed by the alleged aggrieved officer, has been accepted in evidence and relied upon by the Inquiry Officer. The petitioner had therefore suffered serious prejudice. 7. The above facts have not been disputed by the respondents in their counter affidavit. Learned counsel for the respondents would however submit that the fact that the petitioner was found indulging in abusing his superior officer, has been admitted by the petitioner himself by offering his explanation that his abusive conduct was on account of his unstable mental condition. As such, the mere non-examination of the complainant or the witness to prove the charges, has not caused any prejudice to the petitioner. 8. From the perusal of the enquiry report and the show cause replies submitted by the petitioner, it does appear that he had virtually acknowledged the charges though explaining the alleged conduct asa result of his unstable mental condition. However, this in itself cannot be taken sufficient for drawing the inference that the charges against the petitioner stands proved. The proof of the charges would certainly depend upon independent support and not on the basis of some indirect admission made by the petitioner. It is the duty of the prosecution to prove the charge against the delinquent employee, if not beyond reasonable doubt, but at least by way of preponderance of probabilities. The proof of the charges would certainly depend upon independent support and not on the basis of some indirect admission made by the petitioner. It is the duty of the prosecution to prove the charge against the delinquent employee, if not beyond reasonable doubt, but at least by way of preponderance of probabilities. The findings recorded by the Inquiry Officer on the basis of hearsay statements of witnesses, cannot be accepted as a finding recorded after due compliance with the requirements of reasonable opportunity given to the delinquent employee and the requirements of natural justice. 9. The second ground advanced by the petitioner is that before proceeding to impose the extreme punishment, no second show cause notice was served upon the petitioner nor was a copy of the enquiry report served upon him. 10. The above statements of the petitioner have been denied by the respondents in their counter affidavit. The stand taken is that upon receiving the enquiry report, the disciplinary authority issued a second show cause notice to the petitioner, directing him to explain, within 15 days of the date of notice, to explain as to why he should not be dismissed from service and thereafter, upon considering the materials available on record as well as the defence taken by the petitioner in the enquiry proceedings, the impugned order of punishment was passed. 11. Even if contented that a second show cause notice was served upon the petitioner, yet, it is not denied by the respondents that a- copy of the enquiry report was not served upon the petitioner. In absence of' a copy of the enquiry report, the petitioner was certainly deprived of the opportunity of submitting his proper and effective explanations against the proposed punishment. The failure to serve him with a copy of the enquiry report has to be deemed as a failure to give him reasonable opportunity of defence, in all fairness. 12. The third ground advanced by the petitioner is that even by taking the extreme view, the charge of indulging in abuses against his superior officer, in itself cannot be deemed as so severe as to invite the extreme punishment of dismissal. 12. The third ground advanced by the petitioner is that even by taking the extreme view, the charge of indulging in abuses against his superior officer, in itself cannot be deemed as so severe as to invite the extreme punishment of dismissal. Learned counsel for the petitioner argues by referring to the provisions of Rule 826 of the Bihar Police Manual, that the punishment awarded should be in conformity with the gravity of the offence with which the officer is charged and offences involving moral turpitude shall be carefully discriminated from smaller wrong doings. In the present case, the charge is comparatively a smaller wrong doing for which the petitioner did not deserve the extreme punishment. 13. Learned counsel for the respondents, on the other hand, would submit that the petitioner being a member of the disciplined force, is obliged to maintain strict discipline in his conduct. The misconduct as represented by the charge framed against him, cannot be treated as small wrong doing. The petitioner was not only found in a drunken condition but he had also indulged in abuses against his superior officer using unparliamentary language. Learned counsel adds that furthermore, in the past also, the petitioner's service records confirm that he had indulged in frequent acts of misconduct. 14. As already observed above, this charge, like the other charge, has also not been strictly proved by cogent and reliable evidence since neither the complainant, who is the alleged victim of the petitioner's misbehaviour, nor the material witnesses, were examined in the departmental proceeding. The only evidence in this context is the written complaint of the complainant and that of the senior police officer •namely the Dy. S.P., whose evidence is based on hearsay. Such evidence could not have been relied upon to draw a definite finding of' the proof of guilt against the petitioner. Even if the finding of guilt could be recorded on the basis of the petitioner's own admission of his conduct, as appearing from his explanation offered, the inference, which at best, could be drawn is that the petitioner has abused his colleague. It may be noted that the charges do not refer to any previous act of misconduct indulged by the petitioner, if any, and therefore the quantum of punishment had to be decided only on the basis of the only charge that he had used abusive language against his colleague. It may be noted that the charges do not refer to any previous act of misconduct indulged by the petitioner, if any, and therefore the quantum of punishment had to be decided only on the basis of the only charge that he had used abusive language against his colleague. The mere use of abusive language in certain condition, may not necessarily be considered •as an act of grave misconduct to merit the extreme punishment. 15. A similar issue came up for consideration before the Supreme Court in the case of Ram Kishanvs. Union of India and Others, (1995)6 S.C.C. 157 which was relied upon by a Single Bench of this Court in the case of Chandrama Singh vs. State Bank of India & Others, reported in 2003(4) JLJR 66 . In the case of Ram Kishan vs. Union of India (supra), the Supreme Court has recorded the following observations on the issue as to whether in the nature of the charge framed against the delinquent employee, the punishment of dismissal from service was proportionate to the gravity of charge:- , "...It is next to be seen whether imposition of the punishment of dismissal from service is proportionate to the gravity of the imputation. When abusive language is used by anybody against the superior, it must be, understood in the environment in which that person is situated and the circumstances surrounding the event that led to the use of abusive language. No strait jacket formula could be evolved in adjudging whether the abusive language in the given circumstances would warrant dismissal from service. Each case has to be considered on its own facts. What was the nature of the abusive language used by the appellant was not stated." "On the facts and circumstances of the case, we are of the considered view that the imposition of punishment of dismissal from service is harsh and disproportionate to the gravity of charge imputed to the delinquent constable: Accordingly, we set aside the dismissal order. We hold that imposition of stoppage of two increments with cumulative effect would be an appropriate punishment. So we direct the disciplinary authority to impose that punishment." 16. We hold that imposition of stoppage of two increments with cumulative effect would be an appropriate punishment. So we direct the disciplinary authority to impose that punishment." 16. As has been observed, even though the act of using abusive language against superior officer is an act of misconduct and there may be no strait jacket formula, which could be evolved for adjudging whether the abusive language in the given circumstances would warrant dismissal from service, in the present case however, in absence of any evidence to suggest the nature of abusive language allegedly used by the petitioner, it• is difficult to hold that the alleged act of misconduct on the part of the petitioner did invite only the extreme punishment and no lesser punishment. 17. The cumulative effect of the above findings on each of the grounds raised by the petitioner, is that in view of the fact that the petitioner was not served with a copy of the enquiry report alongwith the second show cause notice, and he thereby having been deprived of a reasonable opportunity of defending his' case, the impugned order of punishment is bad and cannot be sustained in law. The respondents shall reinstate the petitioner in service with immediate effect. However, since the petitioner has himself invited the proceeding to be' initiated against him and further, since there is no claim on his part that he was not gainfully employed during the period from the date of dismissal, till date, there shall be no order towards payment of back wages. Nevertheless, the period from the date of his dismissal till the date of his reinstatement shall be treated as spent on duty.