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2013 DIGILAW 525 (JHR)

Bijay Kant Pandey v. State of Jharkhand

2013-04-18

SHREE CHANDRASHEKHAR

body2013
ORDER 1. Challenging the order of dismissal dated 26.09.2003, the appellate order dated 12.01.2004 and order dated 09.06.2004 in the appeal memorial, the petitioner has preferred the present writ petition. 2. The brief facts, shorn of unnecessary details, are that the petitioner was appointed as Constable on 25.12.1981 and he joined at Dhanbad. The petitioner was granted first time bound promotion and in the year 1989, he was transferred to Ranchi and posted in the District Police Force. At the relevant time, he was posted in the Court Hazat. When he was posted there, the petitioner was served with Charge Memo dated 06.08.2002. The petitioner was charged with dereliction of duty, negligence, etc. for, on 16.04.2002, when he was deputed on Hazat security, 12 dreaded criminals escaped from Room No.12 of the Court Hazat. The petitioner submitted his showcause reply denying the charges levelled against him. The enquiry report was submitted by Sergeant Major on 24.10.2002 holding the charges levelled against the petitioner proved. The petitioner submitted reply to the second showcause notice reiterating his stand that at the time when the incident took place, he was not deputed in Hazat security, rather he was deputed for taking the prisoners to the Court and transporting them back to the Court Hazat from the Court. The petitioner produced the relevant entries in the register in which it is recorded that, “With 308 Bijay Kant Pandey 2 Prisoners namely, Sahabuddin and Vakil Ansari along with arms party, Court of M.D. Mohan” and “With 308 Bijay Kant Pandey Prisoner namely, Laila Uraon”. 3. On 26.09.2003, penalty order dismissing the petitioner from service, was passed. It was further ordered that during the period of suspension, the petitioner would not be entitled for anything, except the subsistence allowance and the period of suspension would be converted into Extraordinary Leave. The petitioner preferred an appeal to the Deputy Inspector General of Police, which was dismissed by a cryptic order dated 09.06.2004 and the Appeal Memorial was also rejected. 4. A counteraffidavit has been filed on behalf of the respondents stating that in the departmental proceeding, three witnesses were examined by the Department, who all deposed against the delinquent and therefore, on a consideration of the enquiry report and other relevant documents and evidences on record, the Respondent No.4 passed the final order of dismissal of the petitioner from service. A counteraffidavit has been filed on behalf of the respondents stating that in the departmental proceeding, three witnesses were examined by the Department, who all deposed against the delinquent and therefore, on a consideration of the enquiry report and other relevant documents and evidences on record, the Respondent No.4 passed the final order of dismissal of the petitioner from service. The impugned orders are just and valid and no interference is required by this Court in the matter. 5. Heard counsel appearing for both the parties at length and perused the documents on record. 6. Dr. S.N. Pathak, learned senior counsel appearing for the petitioner has raised twofold contentions namely, the penalty order has been passed ignoring the materials brought on record by the petitioner and, the appellate orders are cryptic and suffer from nonapplication of mind. He has further submitted that in view of the prejudice caused to the petitioner and long lapse of time, the order of dismissal of the petitioner from service may be converted into an order of compulsory retirement. In support of his contention, he has relied on a judgment of the Hon'ble Supreme Court in “Hussaini Vs. Hon. Chief Justice of High Court of Judicature at Allahabad & Ors.”, reported in (1985) 1 SCC 120 . 7. On the other hand, learned counsel appearing for the Respondents has supported the impugned orders. In support of his contention, counsel for the Respondents has relied on the decisions reported in (2010) 6 SCC 555 and (2012) 1 SCC 442 . 8. A perusal of the charge memo and the enquiry report discloses that no document, in support of the allegation that the petitioner was posted in Hazat security when the incident took place, has been brought on record. The enquiry officer as well as the disciplinary authority have not dealt with the documents furnished by the petitioner in support of his contention that at the time when the incident took place, he was not posted there. It has been simply recorded by the authorities that the delinquent has failed to produce anything on record in support of his contention. This is clearly an error committed by the enquiry officer as well as the disciplinary authority. No effort was taken either by the enquiry officer or by the disciplinary authority to verify the stand taken by the petitioner. 9. This is clearly an error committed by the enquiry officer as well as the disciplinary authority. No effort was taken either by the enquiry officer or by the disciplinary authority to verify the stand taken by the petitioner. 9. It further appears from the appellate orders that these orders have been passed in mechanical manner. In “Narinder Mohan Arya Vs. United India Insurance Co. Ltd. & Ors.”, reported in (2006) 4 SCC 713 , the Hon'ble Supreme Court has held that the evidence adduced on behalf of the management must have nexus with the charges. The enquiry officer cannot base his findings on mere hypothesis. Mere ipse dixit on his part cannot be substitute of evidence. It has further been observed by the Hon'ble Supreme Court that the appellate authority while disposing of the appeal is required to apply his mind. The appellate authority is required to show that he has applied his mind to the relevant facts and without expressing his mind, the appellate authority should not simply ignore the relevant materials on record. The Hon'ble Supreme Court has, further, observed as under, 33. “An appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regards the compliance with the requirements of law while exercising his jurisdiction under Rule 37 of the Rules.” 10. I find that the appellate orders are cryptic orders. These orders have been passed in mechanical manner. It is not reflected from these orders that the authorities have applied their mind. The appeal submitted by the petitioner is a detailed petition raising various contentions, which have not been dealt with by the appellate authorities. It is clearly an error committed by the appellate authorities while recording that, no new plea has been raised or material has been produced by the petitioner for reconsideration of the order of penalty. The appellate orders therefore, cannot be sustained in law. 11. The judgments relied upon by the learned counsel appearing for the respondents are not relevant in the facts of the present case. In “U.P. State Road Transport Corporation Vs. Suresh Chand Sharma”, reported in (2010) 6 SCC 555 , the Hon'ble Supreme Court has held that in the cases of corruption, appropriate punishment is dismissal from service. 11. The judgments relied upon by the learned counsel appearing for the respondents are not relevant in the facts of the present case. In “U.P. State Road Transport Corporation Vs. Suresh Chand Sharma”, reported in (2010) 6 SCC 555 , the Hon'ble Supreme Court has held that in the cases of corruption, appropriate punishment is dismissal from service. Similarly, in “Divisional Controller, Karnataka State Road Transport Corporation Vs. M.G. Vittal Rao”, reported in (2012) 1 SCC 442 , the Hon'ble Supreme Court has mainly dealt with the contention raised on acquittal in the criminal case. 12. In view of the aforesaid, I find that serious prejudice has been caused to the petitioner, as the appellate authorities have dealt with the appeal preferred by the petitioner in a casual manner. The authorities were required to record a finding that the misconduct proved in the case was considered by them to be the gravest act warranting dismissal of the petitioner from service. No such finding has been recorded in this case against the petitioner. The specific plea of the petitioner and the documentary evidence brought on record have not been considered by the Enquiry Officer or the Disciplinary Authority. 13. In “Harjit Singh & Anr. Versus State of Punjab & Anr.”, reported in (2007) 9 SCC 582, the Hon'ble Supreme Court interfered with the order of dismissal from service and imposed the punishment of compulsory retirement observing as under, 15. “In the aforementioned situation, ordinarily, we would have asked the disciplinary authority to consider the matter afresh, but the occurrence had taken place in the year 1984. The appellants and the said Parminder Singh had worked only for a few years, one of them is dead. In the aforementioned situation, we are of the opinion that we would be justified to fix the quantum of punishment. We are of the opinion that in the facts and circumstances of this case and in particular having regard to the passage of time, punishment of compulsory retirement will meet the ends of justice. If otherwise eligible, the delinquents would be entitled to retiral benefits. The appeal is allowed to the aforementioned extent.” 14. In “Surendra Prasad Shukla Vs. We are of the opinion that in the facts and circumstances of this case and in particular having regard to the passage of time, punishment of compulsory retirement will meet the ends of justice. If otherwise eligible, the delinquents would be entitled to retiral benefits. The appeal is allowed to the aforementioned extent.” 14. In “Surendra Prasad Shukla Vs. State of Jharkhand & Ors.”, reported in (2011) 8 SCC 536 , it was found that the delinquent, a Head Constable in State Police, who had served for 34 years, was dismissed from service as a stolen car was recovered from the government quarters occupied by the delinquent employee. However, no charge of abetting for adding the offence under Section 392 I.P.C., for which his son was charged, was framed against him, the Hon'ble Supreme Court held that the punishment of dismissal from service, which would deprive the employee of his pension also, was shockingly disproportionate to negligence proved against him. The Hon'ble Supreme Court partly allowed the appeal and modified the punishment of dismissal from service to compulsory retirement. 15. In “State Bank of Bikaner & Jaipur Vs. Nemi Chand Nalwaya”, reported in AIR 2011 SC 1931 , a case in which the delinquent employee without verification, instructed his colleague to transfer a dormant account into operative category at the request of an unknown person visiting the bank and claiming to be account holder, which turned out to be false, the Hon'ble Supreme Court has held as under, 11. “However having regard to the fact that the proven charge did not involve either misappropriation or fraudulent conduct and the other circumstances of the case, we are of the view that the punishment of dismissal should be substituted by compulsory retirement, which does not involve reinstatement. 12. We, accordingly, allow the appeal and set aside the judgment of the High Court. We uphold the finding of guilt recorded by the disciplinary authority, but modify the punishment from 'dismissal' to 'compulsory retirement'. There is therefore no question of grant of any backwages.” 16. In “Hussaini Vs. Hon. Chief Justice of High Court of Judicature at Allahabad & Ors.”, reported in (1985) 1 SCC 120 , the Hon'ble Supreme Court has converted the order of punishment of dismissal into order of compulsory retirement on compassionate ground. 17. There is therefore no question of grant of any backwages.” 16. In “Hussaini Vs. Hon. Chief Justice of High Court of Judicature at Allahabad & Ors.”, reported in (1985) 1 SCC 120 , the Hon'ble Supreme Court has converted the order of punishment of dismissal into order of compulsory retirement on compassionate ground. 17. Since, the petitioner would be at the verge of his retirement and more than 10 long years have passed since the enquiry against the petitioner was initiated, instead of remanding the matter back to the authorities for reconsidering the entire materials once again, I feel it would be appropriate and meet the ends of justice, if the order of dismissal of the petitioner from service is converted into the order of compulsory retirement. Needless to say, the petitioner would be entitled for all the retiral benefits, as admissible to him in law. 18. The present writ petition is allowed in the aforesaid terms and observations.