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2015 DIGILAW 1482 (JHR)

Mahesh Kumar v. State of Jharkhand

2015-11-27

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter-alia prayed for issuance of a writ of certiorari for quashing the impugned order dated 25.02.2009 passed by respondent no.4 pertaining to dismissal from services and for quashing the order of respondent no.3 issued vide memo dated 23.03.2010 dismissal of Appeal and also for direction to respondent no.4 to reinstate the petitioner with all consequential benefits. 2. Sans details, the facts as disclosed in the writ application, in a nutshell, is that the petitioner was appointed as a Constable in Jharkhand Armed Police 6th Battalion on 12.04.2006 and was allotted Police No.121. While posted in B’ company, in pursuance to an advertisement for the post of Agnik(Fireman) in Jharkhand Fire Services Ranchi, the petitioner, Sandeep Kumar and many other constables applied for the post of Agnik directly and not through proper channel. The Company Commander was upset as many Constables from his company have applied for the post of Agnik directly and not through proper channel. Due to serious ailments of pregnancy of his wife, the petitioner applied for 6 days leave which was not granted. The petitioner requested Company Commander to sanction leave in emergency. Hearing this, the Company Commander was infuriated and threatened for dire consequences. Thereupon, the Company Commander issued command certificate to the petitioner for 6th Battalion Headquarters, Jamshedpur. The petitioner and Sandeep Kumar became successful in the Agnik(Fireman) examination. A regular departmental proceeding no.58/2008 was initiated against the petitioner and in explanation the petitioner submitted in writing that he will serve in Jharkhand Armed Police only and he may be pardoned for applying directly but to the utter misfortune, the petitioner was dismissed by the Commandant(Respondent no.4) by Force order dated 25.02.2009. For the same and similar wrong/lapse, departmental proceeding was also initiated against Sandeep Kumar and he has been awarded punishment of forfeiture of increments for two years. Whereas, the petitioner has been awarded maximum punishment of dismissal from services. Being aggrieved by order of dismissal, the petitioner preferred an appeal before the Appellate Authority i.e. Deputy Inspector General of Police. Due to non-disposal of the appeal the petitioner approached this Court in W.P.(S) No.536 of 2010 and this Court vide order dated 15.02.2010 disposed of the writ application direct to respondent no. Being aggrieved by order of dismissal, the petitioner preferred an appeal before the Appellate Authority i.e. Deputy Inspector General of Police. Due to non-disposal of the appeal the petitioner approached this Court in W.P.(S) No.536 of 2010 and this Court vide order dated 15.02.2010 disposed of the writ application direct to respondent no. 2 to dispose of the said appeal on merits within 1 month and the DIG-Respondent no.3 rejected the appeal on the comments of Commandant-Respondent no.4 and not on merits by his order dated 23.03.2010. Thereafter, the petitioner preferred an appeal to DG & IGP, Jharkhand, which has been rejected vide order dated 09.09.2011 which has been impugned in I.A. No.6509 of 2014. Being aggrieved by order of the disciplinary authority i.e. Commandant, Jharkhand Armed Police, 6th Battalion, Jamshedpur dated 25.02.2009 and the Appellate order dated 09.09.2011 passed by DG-IGP, Jharkhand 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. 3. Per-contra a counter-affidavit has been filed by respondent no.1 to 4 repelling the contentions made in the writ application. It has been inter alia submitted in the counter-affidavit that the petitioner remained absent in his duty and left the Headquarters without sanction of leave and threatened the Superior Officer. He made false representation stating about the suffering of his wife and pressurized the Superior Officer for grant of leave. But on inquiry it has been come into light that the petitioner made application for appointment of State Fire Service at Ranchi and also appeared for interview before the Selection Board of the Department of State Fire Service at Ranchi as published in Hindi daily “Dainik Jagaran” news paper which goes to show that the petitioner has committed fraud and indiscipline. The petitioner made false representation with malafide intention to defraud the respondents and also he committed misconduct of Service Rules not disclosing about his application for appointment in State Fire Services. Thereafter, the matter was enquired and on the basis of enquiry report and the documentary evidence the charge levelled against the petitioner has been found correct and rightly been dismissed from services by the respondent nos. 2 and 4 being affirmed by the respondent no.3. 4. Heard Mr. Ram Kumar Kataria, learned counsel appearing for the petitioner and Ms. Thereafter, the matter was enquired and on the basis of enquiry report and the documentary evidence the charge levelled against the petitioner has been found correct and rightly been dismissed from services by the respondent nos. 2 and 4 being affirmed by the respondent no.3. 4. Heard Mr. Ram Kumar Kataria, learned counsel appearing for the petitioner and Ms. Shruti Shreshtha, learned counsel appearing for the respondents and perused the records. 5. Learned counsel for the petitioner has strenuously urged that the action on the part of the respondent no.4 is illegal, arbitrary, whimsical and in utter violation of Rule-826 of Jharkhand Police Manual. Which envisages that the punishment so awarded should be in conformity with gravity of offence. The objective is firstly, to keep a record of the wrong doings of the officer/policeman and secondly as a measure of correction to alert him to improve his work and conduct. This has not been followed in this case. Learned counsel for the petitioner has further submitted that the action on the part of respondent is violative of Articles 14 and 16 of the Constitution of India and the interest of the petitioner has been seriously jeopardized and his career has come to an end due to infliction of punishment which is grossly disproportionate to the alleged proved charges. Learned counsel for the petitioner submits that the action on respondent no.3 is against the letter and spirit of the order dated 15.02.2010 passed by the Hon’ble High Court in W.P. (S) No.536 of 2010. Learned counsel for the petitioner further submits that for the same and similar wrong/lapse, departmental proceeding was initiated against one Police Personnel Sandeep Kumar, respondent no.4 has awarded punishment of forfeiture of increments for two years. On the other hand, the petitioner has been subjected to extreme punishment of dismissal from services which is clearly hit by doctrine of proportionality and the petitioner has been subjected to hostile discrimination in the award of punishment for the same set of charges. 6. As against this submission of the learned counsel for the petitioner, the learned counsel for the respondents has assiduously repudiated the contention of counsel for petitioner by submitting that entire proceeding has been conducted in a just and fair manner, no procedural irregularity has been committed nor findings of Enquiry Officer is based on no evidence. 6. As against this submission of the learned counsel for the petitioner, the learned counsel for the respondents has assiduously repudiated the contention of counsel for petitioner by submitting that entire proceeding has been conducted in a just and fair manner, no procedural irregularity has been committed nor findings of Enquiry Officer is based on no evidence. Basing on the gravity of charges, inquiry report of the disciplinary authority has passed the order of dismissal from services which has been confirmed by the Appellate Authority. Learned counsel for the State further submits that in view of seriousness misconduct committed by the petitioner, the power of judicial review cannot be applied and moreover the fact finding given by three consecutive authorities based on material on record cannot be interfered with. 7. Having heard learned counsel for the respective parties at length and on perusal of the evidences on records. I am of the considered view that the petitioner has been able to make out a case for interference by this Court due to following facts, reasons and judicial pronouncements:- (i) In the instant case, admittedly, a departmental proceeding was initiated against the petitioner and in the explanation submitted by the petitioner in the departmental proceeding the petitioner gave in writing that he will serve in JAP-6 JSR only and he may be pardoned for applying for the post of Firemen directly but the said explanation was not taken into consideration and the petitioner was dismissed from services by respondent no.4 vide order dated 25.02.2009 which has been confirmed by the Appellate Authority. (ii) For the same and similar wrong/lapse, departmental proceeding has been initiated against one Police Personnel-Sandeep Kumar but he has been awarded punishment of forfeiture of increments for two years. Whereas the petitioner has been awarded maximum punishment of dismissal from services which apparently proves that the petitioner has been subjected to hostile discrimination. Rather the petitioner should have been extended the benefit of doctrine of parity of treatment in so far as the infliction of punishment with that of Sandeep Kumar. On perusal of the facts and circumstances it appears that the impugned order of punishment appears to be grossly disproportionate to be proved charges. (iii) In the case of chairman-cum-Managing Director, Coal India Limited and another Vs. On perusal of the facts and circumstances it appears that the impugned order of punishment appears to be grossly disproportionate to be proved charges. (iii) In the case of 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 unauthorized 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.” (iv) In view of the aforesaid, I find that the penalty of dismissal from services imposed upon the petitioner is definitely excessive and disproportionate to the alleged charges found proved during the departmental enquiry and the petitioner ought to be extended the benefit of proportionality of treatment in so far as infliction of punishment is concerned. From the impugned order dated 25.02.2009 it is quite apparent that no notice has ever been issued to the petitioner, before removing the petitioner from services which leads to civil consequence, since the order of termination is punitive in nature the same is not sustainable. 8. From the impugned order dated 25.02.2009 it is quite apparent that no notice has ever been issued to the petitioner, before removing the petitioner from services which leads to civil consequence, since the order of termination is punitive in nature the same is not sustainable. 8. On the cumulative effect of facts, reasons and judicial pronouncement and in view of the reasons stated in foregoing stated the impugned orders dated 25.02.2009 passed by respondent no.4 in dismissal from services of the petitioner being confirmed by the Appellate Authority order by DG & IG of Police, Jharkhand dated 09.09.2011, being not legally sustainable, are hereby quashed. The matter is remitted to the disciplinary authority for taking a fresh decision on the question of quantum of punishment strictly in accordance with rules within a reasonable time preferably period of three months from the date of receipt/production of the copy of this order. 9. The writ petition is disposed of with the aforesaid directions.