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2013 DIGILAW 756 (JHR)

Digvijay Narayan Singh v. State of Jharkhand

2013-06-28

SHREE CHANDRASHEKHAR

body2013
Judgment The petitioner has challenged the penalty order dated 04.06.2003, the appellate order dated 24.11.2003 and Memorial order dated 15.07.2004 in this writ petition. 2. The brief facts of the case are that, the petitioner was appointed as Constable in the district police on 12.11.1986. On 03.12.2002, he was issued a charge-memo wherein three charges were framed against him, namely, (i) absence from the duty without informing the department, (ii) he committed indiscipline and showed negligence in performing the duty when without depositing the pistol he left the duty with the pistol and the ammunition, (iii) he proceeded on leave with his service revolver and cartridge. 3. A show cause notice was issued to the petitioner and the reply was submitted by him however, it was not found satisfactory and therefore, an inquiry was initiated against him. On conclusion of the inquiry, an inquiry report dated 16.04.2003 was submitted wherein the charges against the petitioner were found proved. The petitioner was issued second show cause notice and after considering the reply to the second show cause notice, the disciplinary authority passed order dated 04.06.2003 dismissing the petitioner from the service. The petitioner preferred an appeal which was dismissed by the Appellate Authority by order dated 24.11.2003 and the Memorial preferred by the petitioner was also dismissed on 15.07.2004. 4. A counter affidavit has been filed in which it has been stated that during the inquiry, the petitioner was accorded sufficient opportunity to defend himself and on conclusion of the inquiry, the charges levelled against the petitioner were found proved and considering the materials on record, the order of dismissal from service was passed which was confirmed by the Appellate Authorities. 5. Heard learned counsel appearing for the parties and perused the documents. 6. Dr. S.N. Pathak, the learned senior counsel appearing for the petitioner submitted that the evidence brought on record by the department in support of the charges framed against the petitioner are not sufficient to hold the petitioner guilty and this is, in fact, a case of 'no evidence' in which the inquiry officer has mechanically recorded a finding that the charges levelled against the petitioner have been found proved. He has further submitted that in view of the specific provision under Rule 826 of the Jharkhand Police Manual, the departmental authorities were required to pass an order keeping in view the gravity of the misconduct found proved against the petitioner which has not been done in the present case. The petitioner at best can be attributed with negligence which resulted in loss of the official arm and ammunition and there is specific provision under the Jharkhand Police Manual i.e. Rule 1108 providing that for loss of arms and ammunition, adequate cost would be realised from the delinquent officer. In view of the aforesaid, the learned senior counsel for the petitioner has submitted that on admitted facts and even if it is assumed that the charges levelled against the petitioner are proved, the order of penalty dismissing the petitioner from service is excessive and disproportionate to the charges found proved in the departmental inquiry. The learned senior counsel appearing for the petitioner relied on the judgment in “B.C. Chaturvedi Vs. Union of India” reported in (1995) 6 SCC 749 , and “Man Singh Vs. State of Haryana & Ors.” reported in (2008) 4 JLJR 06 (SC). Relying on several orders passed by the department for similar misconduct wherein lesser punishment has been awarded to the delinquent employee, the learned senior counsel for the petitioner has submitted that the department has not followed its own precedent. 7. Per contra, Mr. Saket Upadhyay, learned J.C. to A.G. appearing for the respondents reiterated the stand taken in the counter affidavit and submitted that this is a settled law that only the departmental authorities are the best judges who can decide the quantum of punishment and it is not for the High Court to substitute its opinion in so far as the quantum of punishment is concerned. Relying on the judgment of the Hon'ble Supreme Court reported in (1971) 1 SCC 662 , the learned counsel appearing for the respondents submitted that the departmental authorities are the fact finding authority and once a fact has been found proved the Court would not interfere with such finding of fact. He has further relied on the judgment reported in (1982) 1 SCC 645 and (2011) 4 SCC 584 . 8. He has further relied on the judgment reported in (1982) 1 SCC 645 and (2011) 4 SCC 584 . 8. A perusal of the documents on record clearly indicates that the petitioner took oral leave from the Additional District and Sessions Judge before leaving the station and he submitted an application seeking casual leave for two days i.e. 24.11.2002 and 25.11.2002. It is also not disputed in course of inquiry that the petitioner lost his official pistol and cartridges for which he lodged a report. This is on record that in the incident of the loss of pistol and the cartridges, the petitioner lodged a report at the railway police. In the counter affidavit the respondents have taken the stand which is extracted below: 4. “That it is stated that in the instant writ petition, the petitioner has made prayer for quashing of the order of dismissal which was passed against him by the respondent no. 4, Superintendent of Police, Dhanbad vide order dated 4.6.2003 and also for quashing of the order of the Deputy Inspector General of Police whereby the appeal preferred by the petitioner has been rejected. The petitioner has also prayed for quashing of the order passed by the Inspector General of Police, Ranchi whereby his memorial has been rejected. In this connection, it is stated that the petitioner was deputed to work as a Bodyguard to the Additional District & Sessions Judge XIII, Dhanbad. It is further stated that on 23.11.2002, by ignoring all rules and procedures, the petitioner took one day casual leave and one day permission for leaving the Headquarter from the learned Additional District & Sessions Judge XIII, Dhanbad and without depositing the service pistol and ammunition in the safe custody of the police, he proceeded outside the state in his village home.” :8. That it is stated and submitted that the witnesses were examined and the explanation of the petitioner was also received and after thoroughly examining the matter, the conducting officer reported that the charges are fully proved against the petitioner mainly because the petitioner could not safeguard even his own arms and thus, he could not safe guard the government armory.” 9. The inquiry officer has recorded a finding that the act/omission on the part of the petitioner in not taking prior permission of the department and also not taking permission from the department for keeping the official arms with himself and taking the pistol with himself appear to be suspicious. He has further recorded a finding that it appears that the government pistol has been used wrongfully. I find that no such charge was framed against the petitioner and the conclusion arrived at by the inquiry officer is definitely by taking into consideration extraneous materials which are not on record and such findings is based on presumptions only. Such a finding has been arrived at by the inquiry officer behind the back of the petitioner as no material in support of such finding has been brought on record during the departmental proceeding and the disciplinary authority and Appellate Authority have also erroneously confirmed and agreed with the finding recorded by the inquiry officer. It is a case in which the authorities have showed a definite non-application of mind. 10. Adverting to the contentions raised on behalf of the senior counsel appearing for the petitioner, I find merit in his submission, in so far as the quantum of punishment awarded to the petitioner is concerned. In view of the specific provision, the authorities were required to take into consideration the gravity of misconduct which definitely has not been taken into consideration by the authorities. Rule 826 and Rule 1108 of the Jharkhand Police Manual which has statutory force are extracted below: “Rule 826: Discrimination necessary in awarding punishments. The punishment awarded should be in confirmity with the gravity of offence with which the officer is charged and offences involving moral turpitude shall be carefully discriminated from smaller wrong doings. It should also be borne in mind that the previous record of service of the officer concerned, if it is not already included in the charge of the proceeding shall not be taken into account for determining the quantum of punishment. The objective of awarding punishment is firstly to keep a record of the wrong doings of the officer and secondly as a measure of correction to alert him to improve his work and conduct. The objective of awarding punishment is firstly to keep a record of the wrong doings of the officer and secondly as a measure of correction to alert him to improve his work and conduct. Several punishments awarded in one lot such as during inspections which do not provide an opportunity to the delinquent officer to improve himself are not likely to be helpful. In any case, the punishment cannot be awarded without carefully considering the defence of the delinquent officer. Before issuing orders of minor punishment, it is necessary to apprise the delinquent of the substance of the charges against him and he should be given adequate opportunity for defence. After this has been ensured, the punishment can be awarded. However in the case of major punishments (see Rule 828) formal proceedings in P.M. Form no. 178 will have to be drawn up.” “Rule 1108: Cost to be recovered in cases of carelessness. The cost of arms, ammunition, etc. lost or damaged through carelessness shall be recovered from the person to blame and paid into the treasury to the credit of the Police Department, and the fact that this has been done shall be noted in the indents, the treasury receipt being filed in the Superintendent's office.” 11. Further, in view of Rule 1108 of the Jharkhand Police Manual, the department itself contemplated a situation in which due to carelessness on the part of an employee the official arm has been lost or damaged. Such aspect of the matter has not been considered by the authorities. 12. In “Ranjit Thakur Vs. Union of India & Ors.” reported in (1987) 4 SCC 611 , the Hon'ble Supreme Court has held, “Judicial review generally speaking, is not directed against a decision, but is directed against the “decision making process”. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.” 13. In “Apparel Export Promotion Council Vs. A.K. Chopra”, reported in (1999) 1 SCC 759 , the Hon'ble Supreme Court has held, “16............Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normallyinterfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable.............. . Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty............” 14. In “B.C. Chaturvedi Vs. Union of India”, reported in (1995) 6 SCC 749 , the Hon'ble Supreme Court has held that the Court will not interfere with the order of punishment unless the punishment awarded is one which shocks the conscience of the Court. A similar view has been expressed by the Hon'ble Supreme Court in “M.P. Electricity Board Vs. Jagdish Chandra Sharma”, reported in (2005) 3 SCC 401 and several other cases. 15. In “Bhagat Ram Vs. State of Himachal Pradesh and Others”, reported in (1983) 2 SCC 442 , one 'K', whose private land fell within the area covered by the beat of the delinquent employee, who was forest guard, cut and felled 21 trees and after an enquiry, it was found that out of 21 trees, 17 were in forest land. In “Bhagat Ram Vs. State of Himachal Pradesh and Others”, reported in (1983) 2 SCC 442 , one 'K', whose private land fell within the area covered by the beat of the delinquent employee, who was forest guard, cut and felled 21 trees and after an enquiry, it was found that out of 21 trees, 17 were in forest land. Although 'K' paid compensation for the illegal felling of trees stating that he felled the trees, bonafide believing that the trees were standing on his private land, the appellant was proceeded against departmentally and penalty of removal from service was imposed upon the delinquent employee. The Hon'ble Supreme Court held that dismissal from service on a trivial charge of negligence which resulted in no loss to the department was disproportionate and excessive. 16. In “S.K. Giri Vs. Home Secretary, Ministry of Home Affairs and Others”, reported in 1995 Supp (3) SCC 519, when the delinquent employee was supposed to be on duty, a large number of persons entered inside the Steel Plant and removed coal from the area which was the duty point of the delinquent employee. It was alleged that at that point of time the delinquent employee was found absent from duty and therefore, he was charge-sheet for misconduct and gross-negligence on duty and an enquiry against him was held. The Hon'ble Supreme Court held the punishment of removal from service severe and disproportionate. 17. In “Dev Singh Vs. Punjab Tourism Development Corporation Ltd. and Another”, reported in (2003) 8 SCC 9 , in the disciplinary enquiry, the delinquent employee was held responsible for the misplacement of the file which was entrusted to him, however, no motive was attached for such misplacement of file. Taking note of the fact that the employee had served the respondent corporation for nearly 20 years with unblemished service, the Hon'ble Supreme Court has held : “7. Applying the said principles laid down by this Court in the cases noted hereinabove, we see that in this case the appellant has been serving the respondent Corporation for nearly 20 years with unblemished service, before the present charge of misconduct was levelled against him. The charge itself shows that what was alleged against the appellant was misplacement of a file and there is no allegation whatsoever that this file was either misplaced by the appellant deliberately or for any collateral consideration. The charge itself shows that what was alleged against the appellant was misplacement of a file and there is no allegation whatsoever that this file was either misplaced by the appellant deliberately or for any collateral consideration. A reading of the charge-sheet shows that the misplacement alleged was not motivated by any ulterior consideration and at the most could be an act of negligence, consequent to which the appellant was unable to trace the file again. The disciplinary authority while considering the quantum of punishment came to the conclusion that the misconduct of the nature alleged against the appellant should be viewed very seriously to prevent such actions in future, whereby important and sensitive records could be lost or removed or destroyed by the employee under whose custody the records are kept. Therefore, he was of the opinion that a deterrent punishment was called for, forgetting for a moment that no such allegation of misplacing of important or sensitive record was made in the instant case against the appellant and what he was charged of was misplacement of a file, importance or sensitiveness of which was not mentioned in the charge-sheet. Therefore, in our opinion, the disciplinary authority was guided by certain facts which were not on record, even otherwise, we are of the opinion that when the Service Bye-laws applicable to the Corporation under Service Bye-law 17 provide various minor punishments, we fail to appreciate why only maximum punishment available under the said Bye-laws should be awarded on the facts of the present case. We think the punishment of dismissal for mere misplacement of a file without any ulterior motive is too harsh a punishment which is totally disproportionate to the misconduct alleged and the same certainly shocks our judicial conscience............” 18. On consideration of materials on record and in view of the aforesaid discussion, since it is more than 27 years since the petitioner was appointed on the post of Constable and more than10 years have been passed since the order of removal from service was passed against the petitioner, it would not be just and proper to remand the matter to the authorities to decide the quantum of punishment. I am of the opinion that it will serve ends of justice if a punishment of forfeiture of two increments with cumulative effect is passed, as has been done in the other cases relied upon by the petitioner (Annexure 4 series), however, in view of the peculiar facts of the case, the petitioner would not be entitled for any backwages. The cost of lost pistol and cartridges would be recovered from the petitioner in accordance with Rule 1108 of the Jharkhand Police Manual. 19. Accordingly, this writ petition is allowed and disposed of in the aforesaid terms.