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2014 DIGILAW 963 (JHR)

Suresh Sharma v. State of Jharkhand

2014-09-12

APARESH KUMAR SINGH

body2014
Judgment : By Court Heard learned counsel for the parties. 2. The punishment of withholding/forfeiture of six months increment has been imposed in a Departmental Proceeding no. 133/2005 by the impugned order dated 10th January, 2006, Annexure2 passed by Superintendent of Police, Hazaribagh bearing Memo no. 216. 3. The petitioner is aggrieved by the same on the grounds that the provisions contained in Rule 828(c) of Jharkhand Police Manual has not been followed. The Superintendent of Police issued the chargesheet, Annexure1 on 1st February, 2005 and after show cause reply submitted by the petitioner, he himself chose to inflict the order of punishment without recording any evidence through any officer subordinate to him not below the rank of Inspector. As per Rule 828 (c), the petitioner has been denied opportunity to examine any witness and no material evidences were also produced as such. The procedure laid down under Rule 828(c) has therefore not been followed. As per the chargesheet, Annexure1 the petitioner was not taking enough interest at the place of posting at Bhadaninager. He was divulging secrets in the public in respect of his duty and he was found to have taken four days sick leave and eight days of leave within a period of 2 months. Thereafter, he had faultered to join after completion of his leave. When he submitted his joining on 9th November, 2005, his behaviour has been rather abnormal and indulging in loose talks. Therefore, for such instances of indiscipline, lack of diligence, negligence and disobedience of orders he was placed under suspension and asked to show cause. Upon consideration of the petitioner's show cause the respondent, Superintendent of police found his reply satisfactory in respect of two charges, but in respect of rest of the charges, his behaviour was not found to be proper reflecting indiscipline, negligence and lack of diligence and indifference. That is why he has been imposed with a punishment of forfeiture of 6 months increment which will not have effect upon future pay revision. Therefore, he would not be entitled to any full salary 4. For consideration of the grounds of challenge raised by the petitioner, it is better to refer to the relevant provisions of Rules 824 and 828 of the Jharkhand Police Manual. Rule 824 provides for different punishments in which forfeiture of increment is also a major punishment. Therefore, he would not be entitled to any full salary 4. For consideration of the grounds of challenge raised by the petitioner, it is better to refer to the relevant provisions of Rules 824 and 828 of the Jharkhand Police Manual. Rule 824 provides for different punishments in which forfeiture of increment is also a major punishment. Rule 828 provides for procedure for infliction of major punishment which is quoted hereunder: “Rule 828 : Infliction of major punishments: (a) Of the punishments permitted by rule 824, the items in serials (a) to (f) of that rule shall be regarded as major punishments, and shall be inflicted by an officer not below the rank of Superintendent. (b) Without prejudice to the provision of the Public Servants Enquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction shall be passed on any police officer (other than an order based on facts which have led to the conviction in a criminal court) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. (c) In case in which, forfeiture of increment is proposed to be an adequate punishment, this may be inflicted without formal enquiry in the form of a proceeding but every such matter shall state clearly : first, the charges against the defaulter; then his answers to each charge, one by one; and lastly, the finding upon each charge of the officer inflicting the punishment. In such cases, the Superintendent need not hold the enquiry himself, nor shall the delinquent have the right to appear before him, but he has the right to appear before the officer deputed to record the evidence and to take his defence; and such officer, who shall not be below the rank of inspector, shall come to a clear finding on each charge and shall submit the record with his recommendations to the Superintendent for orders. (d) These provisions shall not be followed when the Governor is assured that it is not possible to do this in the interest of the safety of the State according to Article 311 (2) of Indian Constitution or it is not possible to follow these provisions entirely and there is no suspension that in not following them the accused may not get justice. Whenever such a possibility arises, the officer who is competent to remove or reduce delinquent in the rank shall formally give orders as decided by the Governor which shall be considered final. “ 5. In the present case, the provisions of Rule 828 (c) are applicable as they provide for procedure for forfeiture of increment. Though under Rules 824 read with Rule 828, punishment contemplated under Serial (a) to (f) of Rule 824 are regarded as major punishment, but Rule 828(c) provides for a different procedure if forfeiture of increment is to be proposed to be an adequate punishment. For imposing a punishment for forfeiture of increment, no formal inquiry in the form of a proceeding is required, but every such charge should be stated clearly for which the defaulter is being asked to reply and upon consideration of each charge, finding in respect of each of the charges is to be recorded by an officer inflicting the punishment. The said sub-rule thereafter provides that in such cases, the Superintendent need not hold an inquiry himself nor shall the delinquent have the right to appear before him, but he has the right to appear before officer deputed to record the evidence and to take his defence, who thereafter shall come to a clear finding and submit the record with his recommendation to the Superintendent for orders. A subtle distinction has been drawn therefore in cases where the Superintendent may decide to hold an inquiry himself , where the delinquent will have no right to appear. In other cases where subordinate officer not below the rank of Inspector is appointed to conduct an inquiry the delinquent will have right to appear. The subtle distinction appears to have a definite legislative intent and purpose behind it. The Superintendent of Police being the Disciplinary Authority in cases of punishments for police personnel in the rank of constable, and being the Head of the District has been conferred with power to inflict such punishment by holding an inquiry himself, upon consideration of the reply of the delinquent on each of the charges and thereafter coming to a finding upon each of such charges. A definite sanctity has been attached to the office of Superintendent in such an inquiry wherein forfeiture of increment is proposed. A definite sanctity has been attached to the office of Superintendent in such an inquiry wherein forfeiture of increment is proposed. However, in cases where the Enquiry is to be conducted by an officer subordinate to him not below the rank of Inspector, to protect the sanctity of the inquiry, the delinquent has been given a right to appear and to take his defence. Such a provision has been incorporated to ensure further protection and to clothe the inquiry conducted by a subordinate officer with a guarantee of impartiality in the presence of the delinquent. 6. In the instant case, the Superintendent of Police himself chose to hold the inquiry and therefore the delinquent cannot be said to have a right to appear before him in an inquiry where forfeiture of increment is the only punishment which was proposed and inflicted. The Superintendent of Police did consider the show cause of the delinquent petitioner and found his explanation satisfactory for two charges but in the rest of the charges the delinquent failed to satisfy the Disciplinary Authority. The charges obviously on the face of it, do not appear to be serious enough for imposition of other major punishment such as dismissal, removal or compulsory retirement or reduction in rank. The charges are also not in the nature of any defalcation or financial irregularity, rather they were in the nature of indiscipline, negligence and failure for reporting to duty after leave. Therefore, the proceeding conducted by the Superintendent of Police for imposition of punishment of forfeiture increment of 6 months was inconsonance with the procedure prescribed under Rule 828 (c) and does not appear to suffer from any infirmity. 7. In such circumstance, the petitioner has failed to make out any case for interference in the order of punishment. Though the respondents have also brought on record the instances of other punishment imposed upon the petitioner earlier as also suspension imposed upon him during his career, but for the purpose of the present case they may not be relevant as no such charge was framed and required to be answered by the delinquent petitioner. 8. However, on consideration of the relevant materials in relation to proceedings and the impugned order passed thereunder, no ground for interference are made out. Accordingly, the writ petition is dismissed.