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Jharkhand High Court · body

2013 DIGILAW 1307 (JHR)

Chandra Shekhar Jha v. State of Jharkhand

2013-12-02

SHREE CHANDRASHEKHAR

body2013
Judgment The petitioner has approached this Court seeking quashing of order dated 26.05.2011 whereby the penalty of three black marks has been inflicted upon the petitioner and recovery of 2/3rd amount of the value of the burnt tyres that is, Rs.4,45,643/- has been ordered. 2. Heard counsel for both the parties and perused the documents on record. 3. The petitioner was served a Charge Memo dated 31.10.2007 by the Superintendent of Police, Godda on the allegation of suspicious conduct, dereliction of duty and that, due to his negligence 26 new tyres which he was carrying, were burnt. An enquiry was conducted by the Dy. S.P. into the matter and the enquiry report dated 30.04.2010 was submitted finding the charge against the petitioner proved. The Superintendent of Police, Godda passed the final order on 26.05.2011 inflicting punishment of three black marks and recovery of Rs.4,45,643/as noticed hereinabove. 4. A counter-affidavit has been filed raising a preliminary objection that, since the petitioner has not availed the statutory remedy of appeal therefore, the writ petition is not maintainable. It has been stated in the counter affidavit, “12. That with regard to the statement made by the petitioner in paragraph6, in the instant writ petition under reply, it is humbly stated and submitted that the same are partially incorrect and the rest are correct. It is incorrect to allege that the show cause reply submitted by the petitioner was not considered. It is stated that his show cause reply was well considered by the respondent authority but the same was found not satisfactory. Hence the petitioner was proceeded departmentally and the Sub Divisional Police Officer was appointed as inquiry officer-cum-conducting officer who submitted his report dated 30.04.2010 to the Superintendent of Police, Godda. 13. That with regard to the statement made by the petitioner in paragraph-7 to 9, in the instant writ petition under reply, it is humbly stated and submitted that the same are admitted from the answering respondent. 14. That with regard to the statement made by the petitioner in paragraph-10, in the instant writ petition under reply, it is humbly stated and submitted that the appellate authority affirmed the order passed by the disciplinary authority and rejected the appeal filed by the petitioner. It is crystal clear on perusal of the memo no.1482 dated 26.05.2011 that the order in question was communicated to the petitioner.” 5. It is crystal clear on perusal of the memo no.1482 dated 26.05.2011 that the order in question was communicated to the petitioner.” 5. The learned counsel appearing for the petitioner has raised a contention that, since the order of penalty has been passed by the Superintendent of Police, Godda who was not the controlling authority of the petitioner at the relevant time, the order of penalty is without jurisdiction and therefore, it is liable to be quashed. He has further submitted that in terms of Rule 834 of the Jharkhand Police Manual punishment of three black marks can be imposed only in cases where the misconduct relates to moral turpitude and admittedly the misconduct alleged against the petitioner cannot be termed as moral turpitude and therefore, the impugned order is liable to be quashed. He has further submitted that the case against the petitioner is based on 'no evidence' and therefore, the penalty order dated 26.05.2011 could not have been passed. The learned counsel has relied on decisions reported in (2010)1 JLJR 361 , (2010)2 PLJR 918 and (1998)8 SCC 1 . 6. As against the above, the counsel appearing for the respondents has submitted that a detailed enquiry was conducted into the matter and charge against the petitioner was found proved and therefore, the matter does not require any interference by this Court. The learned counsel has submitted that with the charge-memo itself as many as 12 documents were enclosed and thus there was ample evidence against the petitioner. He has further submitted that the Superintendent of Police, Godda was competent to pass the penalty order. 7. A perusal of the Charge Memo dated 31.10.2007 would indicate that the Superintendent of Police, Godda has issued the Charge Memo in the occurrence dated 17.08.2007 and enquiry was conducted into the matter and thereafter, the order of penalty dated 26.05.2011 was passed against the petitioner. It does not appear from the materials brought on record that the petitioner had raised an objection when the enquiry report was submitted to the Superintendent of Police, Godda or when second show-cause notice was issued to the petitioner by the Superintendent of Police, Godda. It does not appear from the materials brought on record that the petitioner had raised an objection when the enquiry report was submitted to the Superintendent of Police, Godda or when second show-cause notice was issued to the petitioner by the Superintendent of Police, Godda. The plea of jurisdiction has to be raised at the first instance which in the present case the petitioner has failed to raise and therefore, I find no substance in the contention raised on behalf of the petitioner that the penalty order dated 26.05.2011 is without jurisdiction. 8. Adverting to the contention raised by the learned counsel appearing for the petitioner that punishment of three black marks can be imposed only in cases where it relates to moral turpitude, I find that the contention is without any substance. Rule 834 of the Jharkhand Police Manual would indicate that the expression 'moral turpitude' has been used in Rule 834 of the Jharkhand Police Manual in relation to an offence. Rule 834 of the Jharkhand Police Manual is extracted below:- “834. Imposition of black marks. – (a) As forfeiture affects pension, black marks may be awarded in appropriate cases to all officers of and below the rank of Inspector and to all ministerial officers of the department. Not more than one black mark shall be awarded for any one offence except when moral turpitude can reasonably be inferred. (b) Three black marks shall ordinarily entail forfeiture or withholding of an increment, the period of which shall be specified in the order and after the period is over, the officer will be restored to his former position. Such forfeiture or withholding of an increment shall not carry any black mark value. (c) It shall be left to the discretion of the officer awarding the third black mark to waive the penalty noted in clause (b). In exercising this option, he shall consider – (i) the offences for which the previous black marks were awarded; (ii) the length of time that has elapsed since they were awarded; (iii) any good service the defaulter may have to his credit.” 9. In the present case, the petitioner was not proceeded against, because he was involved in an offence which amounts to moral turpitude. In the present case, the petitioner was not proceeded against, because he was involved in an offence which amounts to moral turpitude. A departmental enquiry was instituted on the allegation of misconduct of dereliction of duty and negligence and therefore, Rule 834 of the Jharkhand Police Manual is not attracted in the case of the petitioner. 10. Adverting to contention raised by the counsel appearing for the petitioner that, during the departmental proceeding no evidence was produced by the department in support of the charge framed against the petitioner and thus the case against the petitioner is based on 'no evidence', I find that the incident in which 26 newly bought tyres were burnt which the petitioner was bringing from Dhanbad, has not been disputed by the petitioner. A preliminary enquiry was conducted by a Deputy Inspector General of Police and the incident was found true. The department has produced several documentary evidence in support of the charge and the case against the petitioner has been found proved by the enquiry officer. I find that there is abundance of evidence produced by the department in support of the charge and therefore, the contention of the counsel for the petitioner that the case against the petitioner is based on 'no evidence', is without substance. I am also of the view that since on merit the petitioner has miserably failed to establish a case, the impugned order dated 26.05.2011 cannot be interfered with on a technical ground. Therefore, even if it is assumed that the Superintendent of Police, Godda was not the controlling officer of the petitioner, the impugned order is not liable to be quashed. Moreover, in the writ petition the petitioner has not indicated the date of his transfer from Godda to Hazaribagh, if at all he was transferred from Godda. In view of the aforesaid finding, I do not consider it necessary to refer to the decisions rendered by the Hon'ble Patna High Court which have been relied upon by the counsel for the petitioner to substantiate his contention that, the impugned order is without jurisdiction. 11. The learned counsel for the petitioner contended that since the penalty order is without jurisdiction, even if the petitioner has not availed of the statutory remedy of appeal, the writ petition is maintainable. He relies on a judgment in “Whirlpool Corporation Vs. 11. The learned counsel for the petitioner contended that since the penalty order is without jurisdiction, even if the petitioner has not availed of the statutory remedy of appeal, the writ petition is maintainable. He relies on a judgment in “Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Others”, reported in (1998)8 SCC 1 , wherein the Hon'ble Supreme Court has held as under:- “14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”. 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.” 12. A bare reading of the aforesaid paragraph would clearly indicate that this judgment is of no help to the petitioner. Since on merits it has been held that the petitioner has not made out a case for exercise of jurisdiction by this Court, and it has been held that the impugned order is not liable to be interfered with on the ground of lack of jurisdiction, I find that the ratio in “Whirlpool Corporation” (supra), is not applicable in the present case. 13. 13. In view of the aforesaid, I find no merit in this writ petition. Accordingly, the same is dismissed.