Research › Search › Judgment

Jharkhand High Court · body

2013 DIGILAW 878 (JHR)

Ramjee Paswan v. State of Jharkhand

2013-07-19

SHREE CHANDRASHEKHAR

body2013
Judgment The petitioner has approached this Court challenging the order of penalty dated 27.11.1998, the appellate order dated 24.07.2001, the order dated 16.02.2003 passed in the Memorial and the order dated 07.07.2004 passed on the representation preferred by this petitioner, pursuant to order passed by this Court in C.W.J.C. No. 11664 of 1999 (P). 2. The brief facts of the case as disclosed in the writ petition are that, the petitioner was suspended on 02.12.1996 and a charge memo dated 30.09.1997 was served on the allegations that on 24.11.1996, he assaulted one Rameshwar Pandit and caused grievous injuries to him and he remained absent for more than three months unauthorisedly. A departmental proceeding was initiated against the petitioner and on conclusion of the enquiry, a report was submitted holding the charges against the petitioner proved. Second show-cause notice was issued to the petitioner on 12.10.1998 and after considering the materials on record, the penalty order dated 27.11.1998 was passed, dismissing the petitioner from service. Petitioner preferred an appeal which was dismissed on 24.07.2001 and the Memorial preferred by the petitioner was also dismissed by order dated 16.02.2003. Pursuant to order passed by this Court in C.W.J.C. No. 11664 of 1999 (P), the petitioner preferred representation to the authorities, which was dismissed by order dated 07.07.2004. Aggrieved by the aforesaid decisions, the petitioner has approached this Court. 3. A counter-affidavit has been filed stating as under : 6. “That the grounds set forth in paragraph No. 2 of the writ application under reply are not tenable. It is submitted that the petitioner has been found guilty for such conduct which is unbecoming of a policemen. For such proved charges there is no bar in passing final order in departmental proceeding. It is submitted that the injury report is one of the exhibits but not only the injury report is the sole evidence to prove the charge, but the command certificate issued by the Guard Commander to Sepoy Rameshwar Pandit for the local Health Centre, for treatment of injuries to the person of the latter (Rameshwar Pandit), the discharge slip of Sadar Hospital, Pakur, the preliminary enquiry report of Deputy Superintendent of Police, Ajit Kumar etc. also are the parts of evidence which have collectively proved charge No. 1 against the petitioner in departmental proceeding No. 13/97 of J.A.P.-III. also are the parts of evidence which have collectively proved charge No. 1 against the petitioner in departmental proceeding No. 13/97 of J.A.P.-III. It is stated that the charge was framed for petitioner guilty of assaulting his colleague Sepoy 40, Rameshwar Pandit and inflicting injuries simple as well as grievous on him and also for the guilty of willful absence without any authority for more than three months. It is wrong that the charge was framed for petitioner's absence during his suspension. It is submitted that the conducting officer directed the petitioner twice to produce his defence witness vide orders dated 02.07.1998 and 05.07.1998 and therefore, the petitioner has been given ample opportunity to produce witness in his defence and therefore, the contention of the petitioner that Defence witnesses were not examined by the conducting officer is wrong. 9. That in reply to statement made in paragraph No. 5 of the writ application under reply, it is stated that it is fact that a criminal case against the petitioner was registered for the said first charge only. The case refers to Litipara Police Station (Pakur district) Case No. 50/96 dated 24.11.1996 under Section 323, 341, 337, 379 of Indian Penal Code. But in the departmental proceeding there is one charge more and that is petitioner's willful unauthorized absence for more than three months. The petitioner was found guilty of a conduct which is not appropriate for becoming of policeman. 10. That in reply to statement made in paragraph No. 6 of the writ petition under reply, it is stated that it is true that the Doctor issuing injury report was not produced for cross-examination. Injury report and hospital discharge slip were never disbelieved and it was never questioned by the petitioner during conduction of proceeding or at any stage. So the injury report is not the only basis for finding the petitioner's guilty. There is strong evidence to prove that the petitioner assaulted his colleague sepoy 40, Rameshwar Pandit and caused injuries to him for which the latter had been admitted to hospital for treatment. Reference of the Apex Court decision, as cited by the petitioner, is not applicable in the facts and circumstances of the present case.” 4. Heard learned counsel for both the parties and perused the documents on record. 5. Reference of the Apex Court decision, as cited by the petitioner, is not applicable in the facts and circumstances of the present case.” 4. Heard learned counsel for both the parties and perused the documents on record. 5. Learned counsel for the petitioner at the outset submitted that in view of charges levelled against the petitioner, and the findings recorded, the order of penalty of dismissal from service is definitely excessive and disproportionate to the charges framed and found proved against the petitioner. He further submits that the specific defence of the petitioner that the said Rameshwar Pandit had pointed his rifle at him and when he ran away Rameshwar Pandit chased him and fell down and thus got injured, has not been verified either by the enquiry officer or by the disciplinary authority and on that count alone ultimate conclusion arrived at by the enquiry officer as well as the disciplinary authority, is erroneous and requires interference by this Court. 6. Mr. Saket Upadhyay, learned counsel for the respondents submitted that during the enquiry, charges levelled against the petitioner has been found proved. The petitioner was granted ample opportunity to produce witness in his defence. The petitioner remained absent from duty unauthorisedly and no explanation has been offered by the petitioner for such unauthorised absent from duty. There is strong evidence that the petitioner assaulted his colleague, Rameshwar Pandit and caused injuries on him, due to which Rameshwar Pandit remained admitted in the hospital. In view of the aforesaid findings of fact recorded in the disciplinary proceeding, this Court may not interfere in this matter. He relied on the Hon'ble Supreme Court's judgment in “Maan Singh Vs. Union of India & Ors.”, reported in (2003) 3 SCC 464 , wherein it has been held : 11. “Relying on State of Punjab v. Ram Singh Ex-Constable one of the arguments advanced before us is that it is only in cases where the misconduct is of the gravest kind an order of dismissal shall be made. This case was decided in the context of Rule 16.2(1) of the Punjab Police Manual, 1934, Vol. II. The said Rule reads as follows: “Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. This case was decided in the context of Rule 16.2(1) of the Punjab Police Manual, 1934, Vol. II. The said Rule reads as follows: “Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension.” After analysing the said provision, this Court in Ram Singh case held that Rule 16.2(1) consists of two parts, firstly, dismissal shall be awarded for the gravest acts of misconduct and secondly, cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The second part is referable to a misconduct which, by itself, may not warrant an order of dismissal and may be a ground to take a lenient view of giving an opportunity to reform and even after giving such opportunities, if the delinquent officer is proved to be incorrigible and found completely unfit to remain in service then in order to maintain discipline in the service appropriate punishments can be given. Therefore, when the charge against the appellants in each of these cases is habitual absence for long periods on several occasions unauthorisedly, the view taken by the disciplinary authority is justified.” 7. On perusal of the materials on record, it is apparent that the petitioner specifically raised a defence that the unfortunate incident took place because he had a reasonable apprehension of being assaulted by the said Rameshwar Pandit, who was brandishing his rifle at him. He has further taken the defence that the said Rameshwar Pandit fell down and got himself injured and the injuries caused to the said Rameshwar Pandit was not due to any act on the part of the petitioner. Impugned order dated 27.11.1998 would clearly indicate that the disciplinary authority himself recorded that the enquiry officer has not recorded any independent finding to the defence of the petitioner that the said Rameshwar Pandit was brandishing his rifle. This aspect of the matter has not been properly appreciated by appellate authorities also. The specific charge against the petitioner as noticed above is, of assaulting the said Rameshwar Pandit and causing injury to him. This aspect of the matter has not been properly appreciated by appellate authorities also. The specific charge against the petitioner as noticed above is, of assaulting the said Rameshwar Pandit and causing injury to him. However, the department failed to read any evidence in support of such charge and the enquiry officer has also not recorded any finding on the defence raised by the petitioner. 8. In the case of “Ranjit Thakur Vs. Union of India & Ors.” reported in (1987) 4 SCC 611 , the Hon'ble Supreme Court has held as under, 25. “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. 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......” 9. In “Krushnakant B. Parmar Vs. Union of India & Anr.” reported in (2012) 3 SCC 178 , the Hon'ble Supreme Court has observed as under, 16. “In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct.” 10. In “Chairman-cum-Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others”, reported in (2009) 15 SCC 620 , the Hon'ble Supreme Court has held as under : 20. “One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and excluded irrelevant matters before imposing punishment. 21. In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.” 11. In view of the aforesaid, I find that specific defence taken by the petitioner has not been taken into consideration by the respondents. The punishment is not only unduly harsh but grossly in excess to the allegations.” 11. In view of the aforesaid, I find that specific defence taken by the petitioner has not been taken into consideration by the respondents. No effort was taken by the authorities to ascertain the veracity of the defence taken by the petitioner. Moreover, there is nothing on record to establish the genesis of the incident and in such view of the matter, it cannot be concluded conclusively that the petitioner was aggressor and he assaulted Rameshwar Pandit. The ultimate conclusion arrived at by the authorities in the departmental proceeding holding the petitioner guilty of the misconduct of assaulting Rameshwar Pandit is erroneous. In so far as, the charge of unauthorized absence for more than three months is concerned, it alone cannot warrant an order of dismissal from service. The penalty of dismissal from service imposed upon the petitioner is definitely excessive and disproportionate to the charge found proved during the departmental enquiry. The impugned orders are quashed. The matter is remanded back to the disciplinary authority for taking a decision on the question of quantum of punishment, in view of the findings recorded hereinabove. 12. The writ petition is disposed of with the aforesaid directions. Petition disposed of.