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2015 DIGILAW 1424 (JHR)

Awadesh Kumar Ram v. State of Jharkhand

2015-11-08

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter-alia prayed for quashing the order passed by the Disciplinary Authority in Departmental Proceeding no.45/2004 as contained in D.O. Dated 31.12.2005 pertaining to dismissal from services and for quashing the order passed by the Appellate Authority dated 26.03.2008 confirming the order of disciplinary authority and for direction to the respondents to reinstate petitioner in services with all consequential benefits. 2. The factual matrix as disclosed in the writ application, in a nutshell is that the petitioner initially was appointed as Constable in the year 1989 and thereafter the petitioner continued to discharge his duties to the best of his ability and to the utmost satisfaction of his authorities. During his posting at Chaibasa the petitioner suffered from illness and was treated by the Doctor from 07.11.2002 till 16.02.2003, thereafter, after recovery from illness, he joined the duty on 17.02.2003. Again the petitioner underwent treatment of the doctor from 20.04.2003 to 22.06.2003 after recovery from the said illness, he joined his duty on 23.06.2003. In view of aforesaid absence, the departmental proceeding was initiated against the petitioner. The Inquiry Officer conducted ex-parte inquiry and submitted inquiry report holding the petitioner guilty of charges. The copy of the inquiry report was not supplied to the petitioner. The disciplinary authority (respondent no.5) without considering the inquiry report, awarded the punishment of dismissal from service vide order dated 31.12.2005. Being aggrieved by the order of dismissal preferred before the Appellate Authority and the Appellate Authority rejected the appeal vide memo dated 26.03.2008. 3. Being aggrieved by the order of the disciplinary authority as well as appellate authority, the petitioner left with no other alternative, efficacious and speedy remedy, has approached this Court invoking extra-ordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances. 4. Per-contra a counter-affidavit has been filed on behalf of respondent no. 5 inter-alia stating therein that the departmental proceeding was commenced against the petitioner for serious indiscipline on duty, gross negligence in duty, running away from duty on his own and for suspicious character. 4. Per-contra a counter-affidavit has been filed on behalf of respondent no. 5 inter-alia stating therein that the departmental proceeding was commenced against the petitioner for serious indiscipline on duty, gross negligence in duty, running away from duty on his own and for suspicious character. The petitioner was served with copy of charge along with the documents and the petitioner was reported absent from duty without any leave from 06.11.2002 to 17.02.2003 i.e. 102 days continuously, again from 19.04.2003 to 23.06.2003 for 65 days for which earlier departmental proceedings were commenced against him and was deprived from salary increment for one year and for two years, respectively. Another departmental proceeding no.56/2002 is still pending against the petitioner. Vide order dated 31.12.2005, punishment was awarded from dismissing the petitioner which has been confirmed by the Appellate Authority. It has further been submitted that the punishment awarded is neither disproportionate not excessive vis-a-vis the misconduct of the petitioner. 5. Heard Dr. S.N. Pathak, learned senior counsel appearing for the petitioner and Ms. Shruti Shrestha, J.C. to A.G., learned counsel appearing for the respondents and perused the documents on records. 6. Learned senior counsel for the petitioner has strenuously urged that the departmental proceeding against the petitioner is wholly illegal and arbitrary in view of the fact that absence from duty for sufficient reason is not a misconduct as per Rule 843 of the Police Manual and as such there was no occasion for the respondent no.5 to initiate departmental proceeding against the petitioner. The departmental proceeding has been conducted in the perfunctory manner and the petitioner was not given opportunity of hearing and adduced evidence and to cross examine the witness and the relevant documents submitted by the petitioner in his defence was not considered. Learned senior counsel for the petitioner submitted that the impugned order passed simply on the basis of the earlier charge for which punishment has been awarded and as such the impugned order by the disciplinary authority as well as appellate authority amounts to double jeopardy. Learned senior counsel further submits that the entire departmental proceeding has been vitiated on the ground non-supply of copy of the enquiry report which has resulted in denial of right of the petitioner to file representation against finding of the enquiry officer. Learned senior counsel further submits that the entire departmental proceeding has been vitiated on the ground non-supply of copy of the enquiry report which has resulted in denial of right of the petitioner to file representation against finding of the enquiry officer. Learned senior counsel further submits that the impugned order is excessive, harsh and do not commensurate to the charges levelled against the petitioner. 7. On the other hand, learned counsel for the respondents by referring to supplementary counter-affidavit on behalf of the respondent no.5 filed on 24.11.2015 has assiduously submitted that the petitioner was reported absent from duty without any leave/or order from 06.11.2002 to 17.02.2003 i.e. 102 days continuously again from 19.04.2003 to 23.06.2003 for 65 days for which earlier departmental proceeding no.26/2002 and 3A/2003 were commenced against him and was deprived from salary increment for one year and for two years, respectively. Another departmental proceeding no. 56/2002 is since pending against the delinquent employee. Learned counsel for the respondents further submit that the petitioner was required to submit his cause but he did not comply with the same. Accordingly, the disciplinary authority proceeded with enquiry and recorded evidence and on consideration of oral and documentary evidence the disciplinary authority found that charges against the delinquent well proved and accordingly the order dated 31.12.2005 has been passed by the disciplinary authority awarding punishment of dismissal from the services which has been confirmed by the appellate authority. It has further been submitted that the medical reports as submitted by the petitioner are all manoeuvered and an after thought. In the long absence from duty the petitioner never even intimated or apprised the authorities with any information or reason for his absence from duty. Subsequent procurement and production of medical certificate could not exonerate from his acts of serious misconduct. The petitioner has invented a device/pretext of illness. The punishment awarded is neither disproportionate not excessive vis-a-vis the misconduct of the petitioner. 8. Subsequent procurement and production of medical certificate could not exonerate from his acts of serious misconduct. The petitioner has invented a device/pretext of illness. The punishment awarded is neither disproportionate not excessive vis-a-vis the misconduct of the petitioner. 8. Having heard learned counsel for the respective parties at length and on perusal of the relevant documents on records, I find that the petitioner has been able to make out a case for interference due to the following facts and reasons:- (i) In the instant case, on two occasions the petitioner for remaining absent on unauthorizedly, two departmental proceedings were initiated and the petitioner was inflicted with the punishment of withholding one increment for one year and two years respectively. Subsequently, for the same charges of remaining absent from duty on two occasions, again departmental proceeding no.45/04 was initiated against the petitioner. The inquiry officer conducted ex-parte enquiry and the copy of the inquiry report has not been supplied to the petitioner. However, the disciplinary authority has awarded punishment of dismissal from the services which has been confirmed by the appellate authority. Though, the copy of the inquiry report has not been supplied as averred by the petitioner but the petitioner has not been able to submit what prejudice has been caused to him but the departmental proceeding has been vitiated on that ground but so far as the charge of unauthorized absence is concerned earlier on two occasions the petitioner has been punished and for the unauthorized absence by the petitioner has been inflicted from punishment of dismissal from services which the facts and circumstances of the case appears to be quite disproportionate. (ii) The Hon'ble Apex Court in the case of Coimbatore District Central Cooperation Bank Vs. Coimbatore District Central Cooperative Bank Employees Association And Another as reported in (2007) 4 SCC 669 considered the doctrine of proportionality and it has been held in paragraph nos. 17 and 18 which are quoted herein below:- “17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the “doctrine of proportionality”. 18. “Proportionality” is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise— the elaboration of a rule of permissible priorities.” (iii) The Hon'ble Apex Court in the case of Chairman-cum-Managing Director, Coal India Limited And Another Vs. Mukul Kumar Choudhuri And Others as reported in (2009) 15 SCC 620 has been pleased to hold in paragraph nos. 19 and 20 which are quoted herein below:- “19. The doctrine of proportionality is, thus, well-recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 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? Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 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 exclude irrelevant matters before imposing punishment.” (iv) The misconduct of the petitioner was unauthorized absence from duty but upon being charged with misconduct where the petitioner has earlier been punished on two occasions for stoppage of increment without cumulative effect and the petitioner has already 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 Government rules, but the reason was purely personal and beyond his control. The order of punishment of dismissal from services is not justified since no reasonable employer would have imposed extreme punishment of dismissal from services like circumstances, therefore, the punishment is not only unduly harsh but grossly in excess to the proved misconduct. 9. On the cumulative effect of facts and reasons as well as logical sequitur to the reasons stated in the foregoing paragraphs, the impugned order dated 31.12.2005 passed by the disciplinary authority and the order dated 26.03.2008 passed by the appellate authority are quashed and the matter is remitted back to the respondent authorities to decide the matter afresh on the question of quantum of punishment and pass the appropriate orders strictly in accordance with law preferably within a period of four months from the date of receipt/production of copy of this order. 10. With the aforesaid observations and directions, the writ petition stands disposed of.