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2011 DIGILAW 66 (JHR)

Gangadhar Jha v. State of Jharkhand

2011-02-01

J.C.S.RAWAT

body2011
Order This petition has been filed by the petitioner for seeking writ of Certiorari for quashing the order dated 29th September, 2004 passed by the Disciplinary Authority as contained in Annexure-5 to the writ petition whereby the disciplinary authority has dismissed the petitioner from his services and the appellate authority vide Annexure-6 to the writ petition, confirmed the punishment order passed by the disciplinary authority. 2. learned counsel appearing for the petitioner contended that he is only pressing his petition only• on the ground that the punishment did not commensurate with the charges and it is disproportionate and shocking, as such, the punishment should be reduced. Learned counsel further contended that the petitioner is to retire after two years from today and he is a low paid employee. 3. learned counsel appearing for the State refuted the contention and contended that the punishment awarded by the disciplinary authority is not disproportionate and he further supported the order of the disciplinary authority, but he did not deny the fact that the petitioner is going to retire within two years from today. 4. The petitioner has been charged while he was on duty, he entered into the Office of his superior officer for seeking leave and he was in a drunken condition. Thereafter, he was examined by the doctor and he was found under the influence of alcohol. The enquiry officer found him guilty and the disciplinary authority after considering the show-cause to the petitioner, passed the impugned order of punishment by way of dismissal of the petitioner from the services. The petitioner filed the departmental appeal which was ultimately dismissed by the appellate authority. Now, I have to analyze as to whether the punishment is shocking and disproportionate. I will like to discuss the legal proposition as discussed in different Rulings. 5. In the case of Ram Kishan vs. Union of India and Others reported in (1995)6 157, in which it has been observed in paras-11 and 12 which is quoted as under: "11. 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 a 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. 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 a 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 straitjacket 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. 12. 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. However, since the appellant himself is responsible for the initiation of the proceedings, we find that he is not entitled to back wages; but, all other consequential benefits would be available to him." 6. In the case of Hussaini vs. Hon Chief Justice of Allahabad High Court Judicature at Allahabad & Ors., reported in (1985)1 SCC 120 , the matter came up again for the consideration, in which it has been observed in paras 4 and 5 which is quoted as under: "4. Appellant was a low paid safai jamadar. We do not propose to minimise the gravity of his misconduct for which the High Court thought fit to impose maximum punishment of dismissal from service simultaneously denying him all retiral benefits. Without in any manner detracting from the view taken by the High Court we are of the opinion that there is some scope for taking a little lenient view in the matter of punishment awarded to the appellant. The lenience if at all would render the post dismissal life of the low paid employee a little tolerable and keep him away from the penury and destitution. . 5. How much is the cushion or the elbow room in' the matter of punishment? Appellant cannot be reinstated in service. He must remain out of his last employment. The lenience if at all would render the post dismissal life of the low paid employee a little tolerable and keep him away from the penury and destitution. . 5. How much is the cushion or the elbow room in' the matter of punishment? Appellant cannot be reinstated in service. He must remain out of his last employment. Therefore, the only course open to us is to convert the order of punishment into one of compulsory retirement so that while denying service to the appellant he will be ensured retiral benefits." 7. A Bench of this Court in CWJC No. 2189 of 1995(R), in an identical case, where the departmental authority passed the dismissal order of the appellant and the said order was quashed and it was held that the punishment awarded by the departmental authority was disproportionate to the nature of the charges leveled against him. In that case, the petitioner was charged that he entered into the Chamber of the Administrative Secretary to the Deputy General Manager, Ranchi in absolute drunken condition and thereafter he slumped into vacant chair of the stenotypist with his foot on the table and he was driven out from the Chamber under the instructions of the superior. He was further charged that he was caught red handed in the act of flitching a Voltage Stabilizer which was being used in the . Telex Room by the Assistant Security Officer. In these identical facts, the punishment of dismissal was found disproportionate. The Bench of this Court held in para-12 of the said judgment quoted as under:- "12. Taking into consideration the entire facts of the case and the Principle of Law decided by the Supreme Court, in my opinion dismissal of the petitioner from service would be disproportionate to the nature of charges leveled against him. The Disciplinary Authority is required to reconsider the quantum of punishment imposed upon the petitioner taking into consideration the facts and circumstances of the case." 8. In the case in hand, the petitioner also entered into the Chamber of his superior in a drunken condition to seek the leave from him. In the facts and circumstances of this case, I also of the considered view that the imposition of punishment of dismissal from service is harsh and disproportionate to the gravity of the charge imposed to the delinquent constable. In the facts and circumstances of this case, I also of the considered view that the imposition of punishment of dismissal from service is harsh and disproportionate to the gravity of the charge imposed to the delinquent constable. I also of the considered opinion that the petitioner being a constable should maintain the discipline while he performs his official duties. His retention in the service is not appropriate. But, if the petitioner is removed from the service, his entire family after his dismissal would become destitute. It would have been just and proper to retire the petitioner compulsorily from the service so that his family members would not become destitute after his retirement At the same time, he would not disturb the discipline of the force. The punishment order passed by the respondents is disproportionately shocking and requires reconsideration in the light of the above observations. The disciplinary authority requires to reconsider the quantum of punishment imposed upon the petitioner taking into the facts and circumstances of the case and also the observation made in the judgment. 9. Taking into consideration the facts and circumstances of this case, the writ petition is allowed and the impugned order of punishment of dismissal from the service, at Annexure-6 and Annexure-5, is set aside and the matter is remitted back to the disciplinary authority with direction to reconsider the case of the petitioner relating to quantum of punishment with regard to dismissal of services and to pass a fresh order of punishment which must not be disproportionate to the charges leveled against the petitioner taking into consideration the observation made in this judgment. The respondents will consider the matter expeditiously preferably within four months from the date when a copy of this order of this court is presented before him. No order as to costs.