Research › Search › Judgment

Jharkhand High Court · body

2013 DIGILAW 795 (JHR)

Sadanand Ray v. Union of India

2013-07-05

SHREE CHANDRASHEKHAR

body2013
ORDER By Court: The petitioner has approached this Court seeking quashing of order dated 17.10.2001 whereby an order of removal from service has been passed against the petitioner and order dated 19.12.2001 whereby the appeal preferred by the petitioner has been dismissed. 2. The brief facts of the case are that, the petitioner was appointed as constable in the year, 1971 and at the relevant time he was posted as Post Commander in Bokaro Steel Limited. On 02.8.2001, the memorandum of charge was served upon the petitioner on the allegation that (i) he failed to prevent the theft of 01.040 M.T. Brass Scrap (ii) he failed to inform the higher authorities about the incident of theft, and (iii) he is an indisciplined officer who has been punished on earlier occasions for misconduct. The petitioner submitted his reply however, that was not found satisfactory and therefore regular departmental proceeding was initiated. An enquiry report was submitted on 27.09.2001 holding the charges proved against the petitioner. On 28.9.2001 a copy of the enquiry report was served upon the petitioner and he was directed to file his reply to the second show-cause notice which he submitted on 12.10.2001. The Disciplinary Authority passed the order of removal from service on 17.10.2001 and the appeal preferred by the petitioner was dismissed on 19.12.2001. In these facts, the petitioner has approached this Court by filing the present writ petition. 3. A counter-affidavit has been filed on behalf of the respondents stating that during the departmental proceeding reasonable opportunity was afforded to the petitioner to defend himself. The charges against the petitioner are serious and he is a habitual defaulter who has been punished on several occasions for past misconduct. After considering the materials on record, the order of removal from service has been passed against the petitioner, which does not require interference by this Court exercising jurisdiction under Article 226 of the Constitution of India. 4. Heard learned counsel for the parties and perused the documents on record. 5. Learned counsel appearing for the petitioner has submitted that merely because the theft occurred, the petitioner has been held liable and the Enquiry Officer has recorded the finding that the charges against the petitioner have been found proved. 4. Heard learned counsel for the parties and perused the documents on record. 5. Learned counsel appearing for the petitioner has submitted that merely because the theft occurred, the petitioner has been held liable and the Enquiry Officer has recorded the finding that the charges against the petitioner have been found proved. He has further submitted that it is a matter of record that when the stolen articles were recovered by the police, the police visited the Camp II store and inspected the site and this was known to everyone within the plant and therefore, it cannot be said that the petitioner, with ulterior motive did not inform the superior officers. By order of removal from service the petitioner has been deprived of the benefit of his past service of 29 years which is not justified. 6. Learned counsel appearing for the respondents submits that the petitioner was holding the post of supervisory officer and it was his duty to inform the higher officer about the incident of theft which he failed to do. The incident of theft came to the knowledge of the superior officers only through the newspaper and on a consideration of materials on record including the incident of past misconduct of the petitioner, the order of removal from service has been passed by the Disciplinary Authority which does not require interference by this Court. 7. A perusal of the charge memorandum indicates that charges have been framed, as noticed above against the petitioner mainly for the reason that the theft took place at Camp II store. There is no allegation of any collusion with the actual culprits, levelled against the petitioner in charge memorandum. The Enquiry Officer, it appears, has concluded only on suspicion that the charges against the petitioner were found proved. None of the witnesses examined by the department has given actual date and time of occurrence and therefore, it was not established by the Department that the theft actually took place in the intervening night of 22/23.07.2001. It further appears that the petitioner has taken specific plea that he was in his rest room when local police came and informed him about the incident and therefore, no active collusion of the petitioner in the incident of theft can be presumed. It further appears that the petitioner has taken specific plea that he was in his rest room when local police came and informed him about the incident and therefore, no active collusion of the petitioner in the incident of theft can be presumed. A perusal of the memorandum of charges as framed against the petitioner also indicates that, the details of past incident of misconduct committed by the petitioner was not brought to the notice of the petitioner. It has appeared only during the enquiry when a witness gave details of past misconduct of the petitioner. It is settled law that the past misconduct of the delinquent employee can be taken into consideration for adding the weight to the decision, if the facts of the case require however, such incident must be brought to the notice of the delinquent employee which admittedly has not been done in this case when the charge-memo was served to the petitioner. 8. In case of “Mohd. Yunus Khan Vs. State of Uttar Pradesh and others” reported in (2010)10 SCC 539 , the Hon'ble Supreme Court has held as under; 34.”The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show-cause notice, before imposing the punishment.” 9. Moreover, I find that a criminal case was instituted against the two constables who were posted at Camp II store and the petitioner was also made accused to face trial. Charges against the accused have not been proved and vide order dated 16.8.2008 the petitioner has been acquitted of the charges levelled against him. On a consideration of materials on record, I am of the opinion that the punishment of removal from service passed against the petitioner dated 17.10.2001 is excessive and disproportionate. The Enquiry Officer has recorded the finding that charges against the petitioner are found proved by following a procedure which no reasonable person would have adopted. The ultimate conclusion of Enquiry Officer which has been accepted by the Disciplinary Authority, is irrational and can not be sustained in law, therefore, the order of removal from service is to be interfered with by this Court. 10. The ultimate conclusion of Enquiry Officer which has been accepted by the Disciplinary Authority, is irrational and can not be sustained in law, therefore, the order of removal from service is to be interfered with by this Court. 10. In “Ranjit Thakur Vs. Union of India & Ors.”, reported in (1987) 4 SCC 611 , the Hon'ble Supreme Court has observed. 25. “............The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on 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...........” 11. The learned counsel appearing for the petitioner has, at this stage, submitted that since the petitioner worked for about 29 years, it would not be in the interest of justice to remand the matter back to the authorities for a fresh decision. He has relied upon the judgment of the Hon'ble Supreme Court rendered in “Hussaini Vs. Hon. Chief Justice of High Court of Judicature At Allahabad & Ors.”, reported in (1985) 1 SCC 120 , wherein the Hon'ble Supreme Court converted the order of punishment of dismissal from service into an order of compulsory retirement on compassionate ground. He has further submitted that a sympathetic view may be taken in case of petitioner as the order of removal from service would deprive the petitioner the benefit of his past service. 12. In “Harjit Singh & Anr. Vs. 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. 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.” 13. In the result the impugned orders dated 17.10.2001 and 19.12.2001 are quashed. In view of charge no. 3, which has been framed against the petitioner, the incidents of past misconduct has been brought on record and therefore, I am of the opinion that in so far as the question of punishment is concerned, the matter should be remitted to the departmental authority. Accordingly, I direct the disciplinary authority to decide the question of punishment which should be imposed upon the petitioner by taking into account the findings recorded hereinabove. The writ petition is disposed of.