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2012 DIGILAW 285 (JHR)

Shiv Kumar Singh v. State of Bihar

2012-02-23

P.P.BHATT

body2012
By Court: Heard the learned counsel for the parties. With consent of the learned counsel for the parties, the matter is taken up for final hearing. 2. By way of filing this writ petition under article 226 of the Constitution of India, the petitioner has prayed for quashing and set aside the order of dismissal dated 15.6.98 passed by the Commandant BMP-17, the order of DIG, BMP Southern Zone dated 29.10.98 rejecting the appeal and order of D.G cum-I.G. Of Police whereby review filed by the petitioner has been rejected and also prayed for grant of all consequential benefits. 3. Learned counsel for the petitioner submitted that the petitioner was served with charges as follows; (i) on 18.6.98 at about 2:45 hours while he was out of duty, he was in drunken state and tried to assault S.I. Damodar Singh with stick and threatened him to shoot at him. He was sent to hospital, where the doctor found him in drunken state. (ii) on 5.3.1996 he was in drunken state and he tried to fire at Johan Oraon, but his rifle was snatched by other constable. In response to the said charges, the petitioner submitted his explanation i.e. Annexure-2 . The disciplinary authority on the basis of enquiry report passed an order of dismissal. Learned counsel for the petitioner further submitted that the order passed by the disciplinary authority is in clear contravention of the principle of natural justice as the copy of the inquiry report has not been served to the petitioner at any point of time. It is further submitted that the inquiry report is perverse as the various points raised/agitated before the disciplinary authority have not been considered in its true perspective. It is further submitted that the material witness has not been examined though his statement is relied upon. It is further submitted that the petitioner was suspended but the subsistence allowance was not paid to the petitioner. Learned counsel for the petitioner further submitted that the punishment imposed by the disciplinary authorities is disproportionate and very harass in nature. Learned counsel for the petitioner submitted that all points were raised before the appellate authority. It is further submitted that the petitioner was suspended but the subsistence allowance was not paid to the petitioner. Learned counsel for the petitioner further submitted that the punishment imposed by the disciplinary authorities is disproportionate and very harass in nature. Learned counsel for the petitioner submitted that all points were raised before the appellate authority. However, the same were not properly considered by the appellate authority though the order of dismissal has been passed in a mechanical manner without proper application of mind and the said order is very harass in nature is confirmed by the appellate authority. Learned counsel for the petitioner also cited the judgments reported in 1993(4) SCC 727 , 2010(2) SCC 772 , 1995(6) SCC 157 in support of his argument. 4. As against this, the learned counsel for the State while referring to the counter affidavit filed by respondent No. 4 submitted that the points raised before this Court by the learned counsel for the petitioner are contarary to the pleadings and more particularly, the point with regard to non supply of inquiry report is not mentioned anywhere in the pleadings. It is further submitted that the petitioner has canvassed this point in supplementary-cum-rejoinder to the counter affidavit. Learned counsel for the State has also invited attention to this Court about the order dated 18th February 2010 and submitted that the petitioner was asked to file amendment application so as to bring some important facts on record but no amendment application has been filed by the petitioner and therefore, it is not open for the petitioner to raise this contention at the time of final hearing and the contention raised by the petitioner may not be considered by this Court. Learned counsel for the State further submitted that the order passed by the disciplinary authority as well as appellate authority and revisional authority clearly indicates that the petitioner has already admitted his guilt and therefore there is no scope of interference of this Court in a writ jurisdiction. It is also submitted that the memorandum submitted by the petitioner has also been considered and the same has been rejected by the competent authority. Learned counsel for the State further submitted that non-supply of inquiry report or other contention with regard to principle of natural justice in no where has prejudiced the case of the petitioner. It is also submitted that the memorandum submitted by the petitioner has also been considered and the same has been rejected by the competent authority. Learned counsel for the State further submitted that non-supply of inquiry report or other contention with regard to principle of natural justice in no where has prejudiced the case of the petitioner. Learned counsel for the State in support of his contention has also referred to and relied upon the judgments reported in 2005(3) JCR 381 , 2005(3) SCC 134 , Judgment of Delhi High Court (Mahender Singh Vs. Govt. of Net of Delhi and Ors) and the judgment of Karnail Singh Ex-Constable Vs. the State of Punjab and Anr. 5. Learned counsel for the petitioner further submitted that the judgments cited by the learned counsel for the State are not applicable in the facts and circumstances of the this case. Learned counsel for the petitioner in support of his contention further submitted that the scope of judicial review has been discussed by the Hon'ble Apex Court in its judgment reported in 1995(6) SCC 749 and referred paras 18, 22, 23, 24 and 26 of the said judgment and submitted that this Court has ample power to interfere with the order of dismissal if there is lacuna and non-observance of the principle of natural justice in the said order of dismissal. It is further submitted that in the instant case, the inquiry report has never been served to the petitioner and therefore, it amounts to clear contravention of the principle of natural justice and only on this ground, the order of the disciplinary authority is required to be quashed and set aside. Learned counsel for the petitioner further submitted that even the appellate authority did not consider those points and confirmed the order passed by the disciplinary authority though specifically all these points were raised before the appellate authority by the petitioner. Learned counsel for the petitioner lastly submitted that the petitioner is ready and willing to forgo the back wages to the extent of 50% from the period of dismissal. 6. Considering the aforesaid submissions of the learned counsel for the parties and from perusal of materials on record, it appears that the present petition is filed being aggrieved and dissatisfied with the order of dismissal passed by the disciplinary authority, which was also confirmed by the appellate authority. 6. Considering the aforesaid submissions of the learned counsel for the parties and from perusal of materials on record, it appears that the present petition is filed being aggrieved and dissatisfied with the order of dismissal passed by the disciplinary authority, which was also confirmed by the appellate authority. The main contention raised by the petitioner is with regard to violation of principle of natural justice as the copy of the inquiry report of the inquiry proceeding as well as the disciplinary proceeding conducted by the respondent has not been supplied to the petitioner. Looking to the materials available on record, it also appears that the petitioner has annexed the orders of the disciplinary authority and the appellate authority , wherein the point with regard to non-supply of inquiry report has been specifically raised by the petitioner but the same has not been considered by the authorities. It also appears that this point has also been raised by the petitioner in his appeal but the findings given by the appellate authority was not disclosed or indicated anywhere that this point, raised by the petitioner, has been dealt with by the appellate authority. I have also perused the judgment referred to and relied upon by the learned counsel for the petitioner and more particular, in view of paras-18, 22, 23, 24 and 26 of judgment reported in 1995(6) SCC 749 , it appears that in a matter of disciplinary proceedings and the punishment such as dismissal from service, this Court while exercising its jurisdiction can interfere with the order in the event of non observance of the principles of natural justice or there is a violation of principles of natural justice. In light of facts and circumstances of the present case emerges from the materials on record, it appears that the report of inquiry has not been supplied/given to the petitioner. It also appears that despite this point raised before the appellate authority, it has not been considered and dealt with by the appellate authority and, therefore, this amounts to clear violation of principle of natural justice as the supply of inquiry report is very important factor of the disciplinary authority and it is necessary to furnish the same to the delinquent, since it is the right of the employee to have the findings recorded in the report to make effective representation before the disciplinary authority. It will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore the employee asks for the report or not, the report has to be furnished to him. Before issuance of second show cause notice and inflictment of punishment by the disciplinary authority, it is incumbent upon the authorities that the inquiry report be supplied to the delinquent. But it appears that this basic requirement of the disciplinary proceeding has not been complied with. I have also perused the judgments referred to and relied upon by the learned counsel for the State but they do not help to the respondent. I have also perused the judgment referred to and relied upon by the learned counsel for the petitioner more particularly, the judgment reported in 1993(4) SCC 727 in which it has been observed by the Hon'ble Apex Court that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is breach of the principles of natural justice. It is further observed by the Hon'ble Apex Court that since it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him. It will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore the employee asks for the report or not, the report has to be furnished to him. I have also perused the judgment reported 1995(6) SCC 749 , wherein, paras 18, 22, 23, 24 and 26 run as follows; “18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. I have also perused the judgment reported 1995(6) SCC 749 , wherein, paras 18, 22, 23, 24 and 26 run as follows; “18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. 22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience. 23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh case13 that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh case13 that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article 142. That, however, is a different matter. 24. What has been stated above may be buttressed by putting the matter a little differently. The same is that in a case of a dismissal, Article 21 gets attracted, and, in view of the interdependence of fundamental rights, which concept was first accepted in the case commonly known as Bank Nationalisation case14, which thinking was extended to cases attracting Article 21 in Maneka Gandhi v. Union of India15, the punishment/penalty awarded has to be reasonable; and if it be unreasonable, Article 14 would be violated. That Article 14 gets attracted in a case of disproportionate punishment was the view of this Court in Bhagat Ram v. State of H.P.11 also. Now if Article 14 were to be violated, it cannot be doubted that a High Court can take care of the same by substituting, in appropriate cases, a punishment deemed reasonable by it. 26. I had expressed my unhappiness qua the first facet of the case, as Chief Justice of the Orissa High Court in paras 20 and 21 of Krishna Chandra Pallai v. Union of India16, by asking why the power of doing complete justice has been denied to the High Courts. I feel happy that I have been able to state, as a Judge of the Apex Court, that the High Courts too are to do complete justice. This is also the result of what has been held in the leading judgment.” 7. I feel happy that I have been able to state, as a Judge of the Apex Court, that the High Courts too are to do complete justice. This is also the result of what has been held in the leading judgment.” 7. In view of the facts and circumstances of the present case and also in view of the principles enumerated in the aforesaid judgments, the order of dismissal dated 15.6.1998 passed by the disciplinary authority as well as the orders of the appellate authority and the Revisional Authority is quashed and set aside and the petitioner be reinstated in service without any back wages within four weeks from the date of production/receipt of a copy this order. The petitioner was dismissed from service in the year 1998 and from that period he has not worked and therefore considering the principle of “no work no pay”, the back wages of that period cannot be paid to the petitioner. The petitioner has faced sufficient penalty during the period of suspension, and therefore, the proceedings cannot be remitted back to the disciplinary authority for de novo proceeding. 8. With the above observations and directions, this writ petition is allowed with no order as to costs. Petition allowed.