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2010 DIGILAW 540 (JHR)

Shambhu Saran Singh v. State of Jharkhand

2010-04-26

DILIP KUMAR SINHA, GYAN SUDHA MISHRA

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JUDGMENT : D.K. SINHA, J. 1. The Appellant has preferred this appeal under Clause-10 of the Letters Patent which is directed against the order impugned (sic) passed by the learned Single Judge in W.P.(S) No. 356 of 2002 on 26.3.2003 by which the prayer that was made by the Appellant for quashing the order of punishment dated 5.7.2001 awarded by the Disciplinary Authority (Respondent No. 2) in a proceeding and confirmed by the Appellate Authority on 13.10.2001, was dismissed. 2. The short question which falls for consideration in the instant appeal is as to whether the action of the Respondent No. 2, i.e. the Disciplinary Authority inflicting the punishment of stoppage of increment of the Appellant for six months and withholding his salary during the period he was put under suspension, except what he had received as subsistence allowance, was justified and maintainable on the stipulated charge? 3. Precisely, the fact as reflected was that the Appellant Shambhu Saran Singh was posted as the in charge of the constables on guard in the bungalow of a sitting Judge of Patna High Court, with four other constables. An inspection was held on 11.4.2000 at 9.10 hours by the commandant wherein it was found that the constable No. 202 Ram Raj Singh was not there in the barrack of guards and on query the Appellant admitted having permitted the said constable to leave and to have his meal out side the premises, as their food was not being prepared in the barrack. The Appellant admitted that he had recorded such permission given to the constable in the register maintained in the barrack. The learned Counsel pointed out that on physical verification, the constable Ram Raj Singh was found taking his meal by a witness. His sentry duty was to begin at 10 O'clock for two hours whereas inspection was held on the same day at 9.10 hours. The Appellant was put under suspension contemplating a domestic proceeding with the imputation of charge that he had allowed the constable Ram Raj Singh to go for his meal outside the barrack when the Appellant had knowledge about the proposed inspection on the very day. The Appellant was put under suspension contemplating a domestic proceeding with the imputation of charge that he had allowed the constable Ram Raj Singh to go for his meal outside the barrack when the Appellant had knowledge about the proposed inspection on the very day. One Shamlal Singh, a police officer of the rank of inspector, was appointed as Enquiry officer who exonerated the Appellant from the charge aforesaid, after examining the witnesses observing in the report that the Appellant had no knowledge about the time of inspection, otherwise he could not have allowed to leave the post and that the constable was not away during hours of his sentry duty. 4. The matter was referred to the Disciplinary Authority i.e. the Respondent No. 2 for approval who reversed the finding of the Enquiry Officer' recorded on 29.3.2001 and inflicted punishment by stopping the increment of the Appellant herein for six months and by withholding his salary for the period of his suspension except what he had received as subsistence allowance. 5. Mr. Kalyan Roy, learned Counsel, submitted that the imputation of charge as framed against the Appellant could not be substantiated in course of enquiry and the report of the Enquiry Officer was reversed by the Disciplinary Authority i.e. Respondent No. 2 without assigning reasons. Even no opportunity was given to the Appellant to show cause before forming his opinion by way of reversing the enquiry report recording his disagreement with the finding arrived at by the Enquiry Officer. 6. The Appellant then preferred a departmental appeal before the Respondent No. 3 i.e. Deputy Inspector General of Police who summarily dismissed the appeal by his concurrent finding as given by the disciplinary authority stating that the Appellant ought not to have had allowed the constable No. 202 Ram Raj Singh to go for his meal as the Appellant had prior information regarding proposed inspection of the barrack by the commandant of JAP where he was in charge. 7. The learned Counsel assailed the impugned order passed by the learned Single Judge on the count that the Appellant though was exonerated from the charge imputed against him in the limited proceeding but the Disciplinary Authority did not issue any show cause before expressing his disagreement with the report and imposing punishment. 7. The learned Counsel assailed the impugned order passed by the learned Single Judge on the count that the Appellant though was exonerated from the charge imputed against him in the limited proceeding but the Disciplinary Authority did not issue any show cause before expressing his disagreement with the report and imposing punishment. Yet the learned Single Judge did not appreciate this aspect of natural justice that no opportunity was granted to the Appellant to show his causes. Even the appellate authority was not justified while dismissing the appeal without appreciating the fact that in case of difference of opinion the disciplinary authority ought to have given grounds for such disagreement and in that manner the Appellant was denied the right of Audi Alteram Partem. 8. A counter affidavit was filed on behalf of the Respondent-State in which certain stand was taken that a formal proceeding was contemplated as provided under the Police Manual, Rule 828(C) against the delinquent Appellant. Mr. Mishra, the learned Government Advocate distinguished between the regular department proceeding and an enquiry by referring Rule 828(C) of the Jharkhand Police Manual as hereunder : 828(C)-In case in which, forfeiture of increment is proposed to be an adequate punishment, this may be inflicted without formal enquiry in the form of a proceeding but every such matter shall state clearly: first, the charges against the defaulter; then his answer to each charges, one by one; and lastly, the finding upon each charge of the officer inflicting the punishment. In such cases, the Superintendent need not hold the enquiry himself, nor shall the delinquent have the right to appear before him, but he has the right to appear before the officer deputed to record the evidence and to take his defence; and such officer, who shall not be below the rank of Inspector, shall come to a clear finding on each charge and shall submit the record with this recommendation to the Superintendent for orders. 9. The Punishment Inflicting Authority- cum- Disciplinary Authority need not accord reasons for the difference of the opinion with the Enquiry Officer, Mr. 9. The Punishment Inflicting Authority- cum- Disciplinary Authority need not accord reasons for the difference of the opinion with the Enquiry Officer, Mr. Mishra added, and therefore, the procedure adopted during formal enquiry of the Appellant in the form of departmental proceeding need not be adhered to, when an enquiry under the Police Manual was conducted under the Rule 828(C), as such, the Disciplinary Authority cum punishment inflicting authority was well within his jurisdiction to differ from the opinion of the Enquiry Officer. The Disciplinary Authority i.e. Respondent No. 2 reversed the finding of the Enquiry Officer by exercising his jurisdiction and inflicted punishment by withholding increment of the Appellant for six months and the salary for the period of his suspension except what he had received as subsistence allowance as the imputation of charge against the Appellant was found proved. The Jharkhand police Manual does not provide any provision for second show cause to the delinquent in case of disagreement, by the Disciplinary Authority with that of the finding of the Enquiry Officer in a limited enquiry like the present one. The learned Counsel for the Respondent- State further contended that the Appellant had preferred an appeal before the appellate authority i.e. Respondent No. 3 who, after scrutinizing and examining the grounds rejected the appeal stating the reasons that when the Appellant was well aware of the Commandant's visit to the barrack for inspection of guards on the date fixed, he should not have allowed any constable to go out for any reason whatsoever. The conduct of the Appellant was treated contrary to the discipline of the police force who had shown disrespect to the commandant, as such, the Appellate Authority was justified in upholding punishment awarded by the Commandant- Respondent No. 2 to the Appellant. 10. Having regard to the facts and circumstances, we find that the learned Single Judge, dismissed the writ petition of the Petitioner-Appellant with the following observation : On hearing the parties, I find that the services of Petitioner was placed on deputation for duty in the residence of one of the Hon'ble Judge of the Patna High Court. Though a Constable was on duty but the Petitioner allowed such constable to leave the duty place without any authority. Though a Constable was on duty but the Petitioner allowed such constable to leave the duty place without any authority. In such situation, as a constable is supposed to be vigilant while on duty at the residence of any Hon'ble Judge, and there being dereliction of duty, I am not inclined to interfere with the minor punishment inflicted on Petitioner. 11. In our considered view, the learned Single Judge failed to appreciate that the Appellant-Petitioner was though in charge of the constables/ sentries deputed at the bungalow of an Hon'ble Judge and there was no arrangement for preparation of food inside the barrack within the premises, his permission to one of the constables to have his meal out side the barrack much prior to the scheduled time to stand at sentry duty, in our opinion was based upon human consideration. The finding of the learned Single Judge that the Petitioner-Appellant allowed the constable without authority is contrary to the admitted fact that the Appellant was in charge of the constables. 12. The Disciplinary Authority (Respondent No. 2), after examining the report, reversed the finding of the Enquiry Officer on the ground that when the Appellant had information that the commandant would visit for inspection, he should not have allowed the constable to leave the post and in his view, the charge of dereliction of duty was proved against the Appellant and he consequently, imposed the punishment as stated herein before. The Disciplinary Authority, of course, did not examine the circumstances by which the Appellant allowed the constable Ram Raj Singh to go and have his meal much prior to the Scheduled hours of his sentry duty. The Enquiry Officer in his report has mentioned that the Commandant/Disciplinary Authority having received the oral explanation from the Appellant as to the cause of absence of he constable Ram Raj Singh, sent his body guard to verify the veracity of his statement who found the said constable taking his food at the place where common mess was running and that he had sufficient margin of time before he could stand to his duty of sentry. Neither the Disciplinary Authority nor the Appellate Authority took notice to the attending circumstances by which the Appellant permitted the constable Ram Raj Singh to leave the barrack and in our view, the punishments that were imposed upon him were disproportionate and without application of rational mind. 13. Neither the Disciplinary Authority nor the Appellate Authority took notice to the attending circumstances by which the Appellant permitted the constable Ram Raj Singh to leave the barrack and in our view, the punishments that were imposed upon him were disproportionate and without application of rational mind. 13. Rule 826 of the Jharkhand Police Manual assigns principles governing punishment, and to quote, The punishment awarded should be in conformity with the gravity of offence with which the officer is charged and offences involving moral turpitude shall be carefully discriminated from smaller wrong doings. It should also be borne in mind that the previous record of service of the officer concerned, if it is not already Included in the charge of the proceeding shall not be taken into account for determining the quantum of punishment. The objective of awarding punishment is firstly to keep a record of. the wrong doings of the officer and secondly as a measure of correction to alert him to Improve his work and conduct. Several punishments awarded in one lot such as during Inspections which do not provide an opportunity to the delinquent officer to improve himself are not likely to be helpful. In any case, the punishment cannot be awarded without carefully considering the defence of the delinquent officer. 14. The above provisions clearly speak that the punishment proposed to be awarded should be in conformity with the alleged gravity of offence which the delinquent stands charged. However, the fact remains as to whether the Appellant was awarded proportionate punishment? Reply can safely be made in the negative. Although we are in agreement with the view taken by the Appellate Authority that the Appellant is the member of disciplined force and he ought to have ensured that the fellow constable should have waited in view of the ensuing visit of the commandant, the fact remains that there was a long gap between the time when the constable was busy to take his meal and was not on duty and the time when the commandant turned up for the visit and found the constable missing. This, in our view, was not deliberate on the part of the constable as also the Appellant and his absence was merely due to error in his judgment while calculating the time gap and hence was not deliberate. This, in our view, was not deliberate on the part of the constable as also the Appellant and his absence was merely due to error in his judgment while calculating the time gap and hence was not deliberate. Besides, it was the duty of the constable also to be vigilant about the visit of his superior officer and the Appellant at the most had a supervisory role, hence the punishment imposed on the Appellant in our view is not in conformity with the offence with which the Appellant had been charged. Offence, in our view was not grave nor it involved morale turpitude so an to impose punishment of stoppage increment in salary for six months and additional stoppage of payment of his salary for the period during which he was put under suspension. We are of the view that the ends of justice would have been met if the Appellant would have been left with a warning to be careful in future as in our opinion the Appellant at the most would have been held for the charge that he did not take sufficient care to warn the fellow constable to wait in view of the ensuing visit of the commandant. The fact that the constable had gone to take his meal and the same was permitted by the Appellant and due to error of judgment in expecting the commandant's visit, it could not be treated as such a lapse which would justify punishment of stoppage of increment in salary for six months and also withholding the salary of the Appellant for the period during which he was put under suspension 15. Having regard to the facts and circumstances of the case we set aside the order of punishment imposed on the Appellant by which the increment in salary for six months have been imposed along with the stoppage of the salary for the period of suspension. The appeal is accordingly allowed but without cost.