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2012 DIGILAW 1651 (JHR)

Rabindra Kumar Trivedi v. State of Jharkhand

2012-11-26

APARESH KUMAR SINGH

body2012
Order Heard learned counsel for the petitioner as well as counsel for the State. 2. Petitioner has sought quashing of the order contained in Memo No. 1185 dated 01.07.2004 passed by the respondent no. 4, Commandant Jharkhand Armed Police-7, Hazaribag whereunder he has been inflicted with punishment of compulsory retirement. The petitioner has also sought quashing of the appellate order dated 08.01.2005 (Annexure-12) passed by the Appellate Authority i.e. respondent no. 3, D.I.G. of Police, Jharkhand Armed Police, Ranchi whereby his appeal has been rejected. The petitioner has further sought direction upon the respondents to reinstate him in service with all consequential benefits. 3. According to the petitioner, he was appointed as Cook as per advertisement and selection and was working in Jharkhand Armed Police-7, Hazaribag. On 23.12.2003, he was suffering from headache and fever and he proceeded to take advice from the doctors at Sadar Hospital, Hazaribag, who prescribed medicine and advised rest for two days, a copy of medical prescription is contained at Annexure-1 to the writ petition. The petitioner was, however, placed under suspension with effect from 23.12.2003 by the Force Order No. 1564/03 dated 25.12.2003 as being absent from duty. The petitioner, thereafter, joined on 25.12.2003. However, Memo No. 152 dated 21.01.2004, was served upon the petitioner under the orders of respondent no. 4 with two charges in which the first charge is that he remained unauthorizedly absent from duty from 23.12.2003 to 25.12.2003 and thereafter, reported his joining. The second charge which, according to the petitioner, is vague in nature, it was alleged that he had earlier been given warning that on failure to improve his conduct, he will be removed from service. It is submitted by learned counsel appearing on behalf of the petitioner that in the order of suspension the report of Sub-Inspector of Police was annexed, but the charge sheet did not reflect the instances of previous charges for which punishment was inflicted upon him. Thereafter, an enquiry was conducted by one Sub-Inspector (Armed), Jharkhand Armed Police-7 and no evidences were produced on behalf of the prosecution/presenting officer to substantiate any of the charges. It is submitted that enquiry report was submitted Vide-Annexure-7 dated 27.05.2004 whereunder in spite of the fact that no witnesses were examined or cross-examined, the finding of misconduct of the petitioner was rendered and his show cause was not accepted. It is submitted that enquiry report was submitted Vide-Annexure-7 dated 27.05.2004 whereunder in spite of the fact that no witnesses were examined or cross-examined, the finding of misconduct of the petitioner was rendered and his show cause was not accepted. It is submitted on behalf of the petitioner that he had categorically submitted in his show cause that he was not feeling well on 23.12.2003 and thereafter, he was examined by Medical Officer of the Sadar Hospital, Hazaribag and was advised rest, whereafter he resumed duty only after two days. It is also submitted that he was present in the campus of the JAP, but due to his illness, he could not perform his duty. 4. Thereafter, the second show cause, Annexure-8 dated 04.06.2008, was issued stating that petitioner should explain as to why he should not be removed from service. Petitioner submitted his show cause vide Annexure-9 refuting the finding recorded in the enquiry report and stating that he is sole bread earner of the family where small children and old father and mother are dependent upon him. He has also submitted that he had produced the relevant medical certificates in support of his illness before the enquiry officer. Thereafter, the impugned order of punishment has been passed on 01.07.2004 whereby the petitioner has been made to compulsory retire. The petitioner, thereafter, preferred an appeal before the Deputy Inspector General of Police, Jharkhand Armed Police vide Annexure-11, which has been rejected and the impugned order of punishment has also been confirmed vide order dated 08.01.2005 (Annexure-12). 5. Counsel for the petitioner has assailed the order of punishment and the appellate order on several grounds. It is submitted that in the first place, for the absent of three days from 23.12.2003 to 25.12.2003, the petitioner had furnished sufficient explanation and proof of having suffered from illness and was treated by Medical Officer in Sadar Hospital, Hazaribag, therefore, the charge of deliberate absent from duty amounting to misconduct is not made out. Learned counsel for the petitioner further submits that the petitioner has been awarded punishment treating him to be habitual offender, but charges of misconduct do not reflect his previous misconduct and no documents in support of such charges have been enclosed, which is requirement of law. Learned counsel for the petitioner further submits that the petitioner has been awarded punishment treating him to be habitual offender, but charges of misconduct do not reflect his previous misconduct and no documents in support of such charges have been enclosed, which is requirement of law. Learned counsel for the petitioner further assails the impugned order on the ground that even in cases where the delinquent does not examine or cross-examine himself, it is the responsibility of the enquiry officer/presenting officer to establish the guilt of misconduct of the delinquent by adducing cogent evidence and their examinations. The enquiry report clearly reflects that no witness has been examined to that effect. It is further submitted that the order of punishment has been passed in premeditated manner treating him as a habitual offender, but the said charges were not part of the order or reflected from the charge sheet and not supported by any documents. Lastly, learned counsel for the petitioner submits that the punishment of compulsory retirement for three days absence is wholly disproportionate and shocking to the conscience, which requires interference by this Court in extraordinary jurisdiction and powers of judicial review. Learned counsel for the petitioner has relied upon the judgment rendered by this Court in the case of Braj Kishor Singh Vs. The State of Jharkhand & Ors. reported in 2005(3) JLJR 526 in support of his aforesaid contention. 6. The respondents have appeared and filed their counter affidavit. They have supported the impugned order on the ground that the petitioner was habitual offender, who indulged in repeated misconduct and was given censure punishment and warning for absconding leave, which has also been brought on record. The statement made in the supplementary counter affidavit shows that previously 17 instances of punishment have been cited such as withholding of one future increment for six months, forfeiture of one future increment for one year, and also in the last misconduct, he was awarded forfeiture of one future increment for three years for absconding from duty for 18 days with a warning that he would be removed from service, if he did not improve or if he did any act of indiscipline. Learned counsel for the respondents have also refuted the contention of the petitioner relying upon annexure-6 to the writ petition, certificate of the mess in-charge that the petitioner was working even while under suspension. Learned counsel for the respondents have also refuted the contention of the petitioner relying upon annexure-6 to the writ petition, certificate of the mess in-charge that the petitioner was working even while under suspension. He could not claim to be on duty as has been shown therein. 7. I have heard learned counsel for the parties at length and gone through the relevant materials on record including the impugned order. It appears from perusal of the relevant documents on record that the petitioner had absented from 23.12.2003 to 25.12.2003 for a period of three days, therefore, he was put under suspension on 25.12.2003 with effect from 23.12.2003 itself. The charge sheet reflects the aforesaid charge of absent from duty for three days, but the second charge of previous misconduct does not appear to be substantiated by any documentary instances of previous misconduct or punishment to unable the delinquent to submit his reply. It further appears from the enquiry report that even though the petitioner participated in the enquiry, but no witness was examined on behalf of the presenting/enquiry officer in the enquiry and enquiry report was submitted by enquiry officer dealing only with show cause of the petitioner. It further appears that although the petitioner had adduced evidences in support of his contention that he was examined by the medical officer of the Sadar Hospital, Hazaribag for his illness for the said period of three days, certificate of prescription being annexed as Annexure-1, but the same was disbelieved without any plausible reason. Thereafter, the impugned order of punishment has been passed imposing the punishment of compulsory retirement upon the petitioner for absent of three days only. It appears from the supplementary counter affidavit that previous instances of punishment has been brought on record. However, earlier in spite of absence of 40 days leave and in one instance 18 days on the last occasion, the petitioner was not imposed any major punishment, but was inflicted with the punishment either of censure or withholding of one future increment for six months or for three years. In any case, in the present instance for which the petitioner was proceeded against for his absence for three days he has duly explained it; on account of his illness. In any case, in the present instance for which the petitioner was proceeded against for his absence for three days he has duly explained it; on account of his illness. Therefore, a finding of deliberate absence of duty amounting to misconduct does not appear to be warranted at least in the present instance of absence from duty for three days. The judgment relied upon by the petitioner in the case of Braj Kishor Singh (Supra) also supports the submission of the petitioner. In the said case the punishment of compulsory retirement was inflicted for absence of 38 days and in the said case also, charges did not show the previous record of services of the employee concerned, this Court, in the circumstances, found that even for 192 days for overstayal of leave only minor punishment of black mark was given earlier, but on the instant occasion, he had been inflicted for punishment of compulsory retirement, which appeared to be wholly disproportionate and shocking to the conscience of the Court in the wake of explanation rendered by the said petitioner. In the present case also, it appears that the punishment is grossly disproportionate to the charges of three days absence, which is shocking to the conscience of Court. 8. In the circumstances, the punishment of compulsory retirement imposed upon the petitioner and upheld in the appeal by the appellate order cannot be sustained in law and it is, accordingly, quashed. In the circumstances, the petitioner is directed to be reinstated in service. 9. However, since the petitioner has not worked for the aforesaid period, he will be entitled for only 50% of his salary from the date of compulsory retirement till the date of his reinstatement. 10. With the aforesaid observations and directions, this writ petition is allowed and the impugned orders i.e. Memo No. 1185 dated 01.07.2004 and Memo No. 21 dated 08.01.2005 are quashed.