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Jharkhand High Court · body

2013 DIGILAW 1189 (JHR)

Gangeshwar Dubey v. State of Jharkhand

2013-10-29

SHREE CHANDRASHEKHAR

body2013
ORDER 1. The petitioner has approached this Court challenging the penalty order dated 30.6.2012 and the appellate order dated 8.9.2012. 2. The brief facts of the case are that, on 27.1.2012, a charge-memo was served upon the petitioner on the allegation that on 1.11.2012, when he was posted at R.P. Post No.1, some newly recruited constables sneaked out of the campus and the petitioner failed to register the name of those three persons. The petitioner submitted his reply on 2.2.2012 however, an enquiry was ordered to be conducted into the matter and on 27.6.2012, the enquiry report was submitted holding the charge of not entering the name of the three newly recruited constables in the register, proved. The disciplinary authority inflicted the punishment of withholding annual increment which would be equivalent to two Black Marks. The appeal of the petitioner has been rejected by order dated 8.9.2012 and therefore, the petitioner has approached this Court by filing the present writ petition. 3. A counter-affidavit has been filed stating as under:- "6. That with regard to the statement made by the petitioner in paragraph-1, in the instant writ petition under reply, it is humbly stated and submitted that it is not maintainable and the petitioner does not deserve any reliefs as claimed by him. The fact in brief is that the petitioner was on duty during 14:00 hrs. to 17:00 hrs. on 1.1.2012 at R.P. Post No.1. In the meantime 50 to 60 I.R.B.-4 Latehar trainees forcibly and illegally exited from that Gate and started misbehaving and assaulting with the local shopkeepers and created uproar scene there which amounted to riots. The petitioner did not maintain the register which, kept there for exit and depart on that date i.e. 1.1.2012. The register itself shows that on 31.12.2001 and 2.1.2012 was found maintained where as on 1.1.2012 it was kept blank or plane. It was found neither maintained nor any description of the occurrences or forcibly and illegally exit of those I.R.B.-4, recruits. This is the sheer faults on his part which amounted to concealment of facts. A Constable guard is supposed to be vigilant and ought to have a keen eyes on the in and out of the gate, and if there occurs any indiscipline or odd situation, he must record or maintain it on the register. This is the sheer faults on his part which amounted to concealment of facts. A Constable guard is supposed to be vigilant and ought to have a keen eyes on the in and out of the gate, and if there occurs any indiscipline or odd situation, he must record or maintain it on the register. In the departmental enquiry, the conducting officer found him guilty of the offence of not maintaining the register of the date in question which amounted to gross negligence on his part and this answering respondent accorded the findings of the conduction officer and passed the order of punishment against the petitioner. To maintain the strict discipline in the police, negligence of duty cannot be ignored or pardoned.” 4. Heard the learned counsel appearing for the parties and perused the documents on record. 5. The learned counsel appearing for the petitioner submitted that in view of the provisions as contained in Rules 824 and 828 of the Jharkhand Police Manual, Punishment of two Black Marks would amount to major penalty and since the enquiry officer has not found the first charge proved against the petitioner, imposition of major penalty’ is excessive and disproportionate to the charges leveled and proved against the petitioner. 6. As against the above, the learned counsel appearing for the respondents has submitted that the petitioner has himself admitted that he had seen three newly recruited constables going out of the campus, still he failed to enter the name of those persons in the register and thus, the charge stood proved against him. She has further submitted that the domestic enquiry was conducted in accordance with the rules and by following the principles of natural justice and therefore, no interference is required in this matter by this Court. 7. Rule 824 and Rule 828 of the Jharkhand Police Manual are extracted below:- 824. She has further submitted that the domestic enquiry was conducted in accordance with the rules and by following the principles of natural justice and therefore, no interference is required in this matter by this Court. 7. Rule 824 and Rule 828 of the Jharkhand Police Manual are extracted below:- 824. Description of departmental punishment.- The following punishments which are sanctioned under Section 7 of Act V of 1861 may be inflicted departmentally on a police officer of and below the rank of Inspector:- (a) dismissal, (b) removal, (c) compulsory retirement, (d) reduction in rank, (e) forfeiture of last increment(s) or future increment(s), (f) black mark or marks, (g) censure, (h) confinement to quarters for a period not exceeding 15 days, (i) punishment drill, (j) extra guard or fatigue duty: Provided that the punishments mentioned in clauses (h) and (j) shall be imposed only on members of rank of constables/Havildars and that in Clause (i) shall be imposed only on constables. 828. Infliction of major punishments.- (a) Of the punishments permitted by Rule 824, the items in serials (a) to (f) of that rule shall be regarded as major punishments, and shall be inflicted by an officer not below the rank of Superintendent. (b) Without prejudice to the provision of the Public Servants Enquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction shall be passed on any police officer (other than an order based on facts which have led to his conviction in a criminal court) unless he has been informed in writing of the grounds on which it is proposed to take action, •and has been afforded an adequate opportunity of defending himself. 8. On a perusal of the documents on record, I find that two specific charges were levelled against the petitioner namely, (i) failure to prevent the newly recruited constables going out of the campus, and (ii) failure to enter the name of the persons in the register who had gone out of the campus. The enquiry officer found the first charge not proved. In view of the provisions under Rules 824 and 828 of the Jharkhand Police Manual, I find that imposition of penalty of two Black Marks would amount to major punishment. The enquiry officer found the first charge not proved. In view of the provisions under Rules 824 and 828 of the Jharkhand Police Manual, I find that imposition of penalty of two Black Marks would amount to major punishment. When the first charge of failure to prevent the newly recruited constables going out of the campus has not been found proved, the second charge of failure in not entering the name of such persons in the register would not warrant imposition of major penalty and therefore, I am of the view that the procedure adopted by the disciplinary authority in arriving at a conclusion that for the second charge a major penalty should be imposed upon the petitioner, is not justified and cannot sustain the scrutiny of law. 9. In "Coal India Ltd. Vs. Mukul Kumar Choudhuri", reported in (2009) 15 SCC 620 , the Hon'ble Supreme Court has held as under:- "19. The doctrine of proportionality is, thus, well-recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decisionmaker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is, out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review." 10. I further find that the appellate authority has also not considered the above aspect of the matter. Resultantly, the impugned orders dated 30.6.2012 and 8.9.2012 are quashed and the matter is remanded back to the disciplinary authority for imposition of a suitable minor punishment on the petitioner. 11. The writ petition is allowed in the aforesaid terms.