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2015 DIGILAW 528 (JHR)

Md. Wase Khan v. State of Jharkhand

2015-04-24

APARESH KUMAR SINGH

body2015
ORDER By Court Heard learned counsel for the parties. 2. The petitioner is aggrieved by part of order no. 322/2004 bearing Memo no. 571 dated 25th February, 2004, Annexure5, by which though he was reinstated in service, but the respondent no. 5, Superintendent of Police, Palamau has held that his services could be counted w.e.f. 21st February, 2004 only and he would not be entitled to back wages. The petitioner has consequently made a prayer for directing the respondent to count the entire period of service from the initial date of appointment as Constable on 2nd May, 1988 and to pay full salary and allowances for the said period. 3. The chain of facts leading to the issuance of the order impugned are as follows: (i) Petitioner was appointed as a Constable on 2nd May, 1988. He was placed under suspension on 11th November, 1989 and also departmentally proceeded for the charges on the ground that the petitioner faced criminal prosecution in Panki P.S. Case No. 12/84 and Panki P.S. Case No. 14/85 at the time of his appointment. The disciplinary inquiry led to his dismissal from service by an order dated 11th February, 1993. (ii) Petitioner preferred an appeal and thereafter also approached the Patna High Court in C.W.J.C NO. 3966 of 1993(R). Vide judgment dated 4th April, 1994, Annexure1, the Appellate Authority was directed to decide the petitioner's appeal within the stipulated period. Petitioner's appeal was rejected on 3rd January, 1994. He challenged the order of dismissal and appellate order in C.W.J.C no. 1429 of 1994(R), which was quashed by Patna High Court vide judgment dated 10th January, 1995, Annexure2 on the grounds that the inquiry report had not been furnished to him which amounted to denial of reasonable opportunity to the petitioner to prove his innocence. Liberty was granted to take a fresh decision in accordance with law after serving the copy of inquiry report upon the petitioner and also giving him opportunity to represent. It was also observed that the petitioner would be reinstated and put under suspension. The Superintendent of Police was directed to conduct the inquiry from the stage of furnishing of the inquiry report and only upon any decision in his favour, the Superintendent of Police would decide the entitlement of the petitioner to service benefits from the date of dismissal till reinstatement. The Superintendent of Police was directed to conduct the inquiry from the stage of furnishing of the inquiry report and only upon any decision in his favour, the Superintendent of Police would decide the entitlement of the petitioner to service benefits from the date of dismissal till reinstatement. It was also observed that the petitioner's reinstatement after quashing of the order of dismissal on the grounds on non-supply of the inquiry report should be treated as reinstatement for the purpose of holding fresh inquiry and no more. The petitioner was reinstated on 7th April, 1995 and kept under suspension and after service of inquiry report and his explanation he was again dismissed from service vide order dated 27th April, 1996. (iii) He once again preferred an appeal which was also rejected on 11th October, 1996 and his memorial was also rejected by Revisional Authority on 20th January, 1998. The petitioner again approached the Patna High Court in C.W.J.C no. 2346 of 1998(R) challenging the aforesaid orders passed in second round after earlier dismissal was quashed in C.W.J.C no. 1429 of 1994(R) The writ petition was decided by learned Singe Judge of this Court vide judgment dated 14th July, 2003 quashing the order of dismissal and remanding the matter for passing fresh order, Annexure3. The opinion of learned Single Judge for quashing the order of dismissal as highly disproportionate recorded at pars 6 and 7 of the said judgment is quoted hereunder : Paras 6: The aforesaid contentions of the State Respondents must be rejected. Firstly, these reasonings have not been mentioned in the chargesheet. All that the chargesheet speaks of are reference to two cases, namely, Panki P.S. Case No. 12/84 and Panki P.S. Case No. 14/85 and goes on to state that in these two cases since chargesheets had been filed, therefore, the same established that the petitioner was a man of criminal nature. So far as the allegation of non filling up the columns 7 and 8 is concerned, it appears that this allegation came for the first time through Annexure14 i.e. at the time when the appeal was rejected. This charge was not included in the chargesheet nor was it taken note at the time of passing of the first order of dismissal i.e. Annexure12. Moreover, the petitioner in his memo of appeal had given detailed explanation as to why these columns could not be filled up. This charge was not included in the chargesheet nor was it taken note at the time of passing of the first order of dismissal i.e. Annexure12. Moreover, the petitioner in his memo of appeal had given detailed explanation as to why these columns could not be filled up. These explanations are to be found at paragraph5 of the memo of appeal but this has not been taken note of by the appellate authority. In short, therefore, The Respondents appear to have proceeded to punish the petitioner on charges which have been added through orders passed by the disciplinary authority and the appellate authority. While the chargesheet on the one hand merely says that for submission of chargesheet in two criminal cases, the petitioner was proved to be a person of criminal nature, the appellate order (Annexure14), on the other, includes a fresh charge to the effect that by not filling up columns 7 and 8 and leaving them blank, the petitioner suppressed informations. Moreover, the explanation given by the petitioner as stated above, has not been adequately dealt with by any of the respondents. 7. For the reasons stated, therefore, this Court is of the opinion that the punishment of dismissal from service is highly disproportionate. Consequently, the order of dismissal is hereby set aside and the mater is remanded to the respondent no. 2 to pass a fresh order in accordance with law.” 4. The respondents were once again asked to pass a fresh order in accordance with law. Thereafter, the petitioner has been reinstated w.e.f. 21st February, 2004 by passing a fresh order vide Annexure5, part of which is impugned. By the order at Annexure5, the respondent no. 5 has imposed a punishment of withholding of two increments for a period of 2 years which would amount to three black marks and could not have effect in future. 5. In the aforesaid chronology of facts, learned counsel for the petitioner submits that the respondent no. 5 has erroneously held that the services are to be counted from 21st January, 2004 only when on each occasions the order of dismissal stood quashed by learned Single Judge of the High Court. 5. In the aforesaid chronology of facts, learned counsel for the petitioner submits that the respondent no. 5 has erroneously held that the services are to be counted from 21st January, 2004 only when on each occasions the order of dismissal stood quashed by learned Single Judge of the High Court. According to the petitioner, learned Single Judge in the judgment dated 14th July, 2003, Annexure 3 has clearly held that allegation of non filling up the columns 7 and 8 of the form at the time of appointment was not even a charge in the departmental proceeding which appears to have been superadded by the appellate authority when only allegation was that two criminal cases were pending against the petitioner at the time of his appointment. He has been exonerated on the basis of compromise in one case and on the basis of acquittal in the other one. It is submitted that the Inquiry Officer did not find the charges proved and was of the opinion that the petitioner is not a person of criminal nature. In such circumstances, when the petitioner has been prevented from discharging the duties by a proceeding which was held to be unsustainable in the law, he should be entitled to full back wages in view of the ratio laid down by Hon'ble Supreme Court in the case of Ranchhodji Chaturji Thakore Vs. Superintendent of Engineer, Gujrat Electricity Board, Himmatnagar (Gujrat) and another reported in (1996) 11 S.C.C 603 . Learned counsel for the petitioner has also relied upon a judgment in the case Union of India & Ors. Vs. Jaipal Singh reported in (2003) 4 J C R 222 (S.C). 6. Counsel for the Respondent-State who has also filed their counter affidavit resisted the prayer of the petitioner so far as it relates to challenge to the part of the order of his reinstatement on the aforesaid two counts. According to the respondents, inquiry proceeded in a proper manner and the orders of dismissal were passed on merit which was also upheld in appeal and revision. The impugned order of dismissal was set aside only on the ground that it was highly disproportionate and was remanded for passing fresh order in accordance with law. In such circumstances, a lesser punishment of withholding of two only increments for a period of 2 years was imposed which shall not have effect in future. The impugned order of dismissal was set aside only on the ground that it was highly disproportionate and was remanded for passing fresh order in accordance with law. In such circumstances, a lesser punishment of withholding of two only increments for a period of 2 years was imposed which shall not have effect in future. It is submitted that the impugned order is neither unreasonable nor suffers from non-application of mind and the petitioner has also been reinstated in service. If the employer has not availed of the service of the petitioner no back wages should be granted to the petitioner as he has also not stated that he was not gainfully employed elsewhere. 7. I have heard learned counsel for the parties and gone through the relevant materials on recored including the impugned order. Upon consideration of the material on record and giving anxious thought to the submission of the parties, in the first place, it appears that the respondent no. 5 while reinstating the petitioner w.e.f. 21st February, 2004 is not justified in holding that his service should be reckoned from that date itself and not from his original date of appointment. As a matter of fact, the petitioner faced the departmental inquiry only for the reasons that he was alleged to have obtained appointment on 2nd May 1988 when he was facing two criminal cases. The sequence of facts disclose that the petitioner was kept under suspension for the period of inquiry and then dismissed. Thereafter on interference by Patna High Court in CWJC No. 1429 of 1994(R) he was again reinstated in service, kept in suspension and thereafter again dismissed after serving copy of the inquiry report and coming to a finding of guilt. The aforesaid facts disclose that the order of lesser punishment imposed by the respondent no. 5 (Annexure5) was only for the reason that the petitioner was treated to be appointed in service from 1988 and thereafter had remained in suspension. If the order of dismissal was set aide as being disproportionate, then while imposing a lesser punishment, the respondent no. 5 was not justified in holding that his employment should be reckoned from 21st February, 2004 itself and not from the date of initial appointment. The learned Single Judge also had found that the allegation relating to non filling of column nos. 5 was not justified in holding that his employment should be reckoned from 21st February, 2004 itself and not from the date of initial appointment. The learned Single Judge also had found that the allegation relating to non filling of column nos. 7 & 8 at the time of his appointment was not even a charge and was superadded in the appellate order to impose a harsh order of dismissal from service when admittedly two criminal cases which were pending against the petitioner ended his exoneration on account of compromise and his acquittal. 8. However, while looking to the judgment passed in the earlier writ petition i.e., CWJC no 1429 of 1994(R) it appears that the learned Single Judge on the said occasion had made clear observation that reinstatement of the petitioner is only for the purpose of conduct of the inquiry and he should be paid subsistence allowance and that the question of his salary for the period of dismissal up to his reinstatement would only be decided if the disciplinary authority holds in his favour, at the time of final decision. The petitioner again faced the order of dismissal in 1996 and his appeal and memorial were also rejected. The Respondent-employer therefore did not avail of the service of the petitioner. The dismissal of the petitioner was set aside on 14th July, 2003 by learned Single Judge of this Court in CWJC No. 2346 of 1998 (R). The petitioner does not appear to have stated anywhere that he was not gainfully employed elsewhere during the period he remained out of service. In such circumstance, the claim for entire back wages for the period of dismissal of the petitioner, does not seem to be justified. Interest of justice would be served, if the service of the petitioner is reckoned from his initial date of appointment i.e., 2nd May, 1988 for the purposes of his continuity in service, and other benefits of pay revision and post retirement benefits. 9. Accordingly, the writ petition is allowed to the extent indicated hereinabove and the order impugned is set aside to the extent that it holds that the service of the petitioner could be reckoned from 21st February, 2004 itself. 10. 9. Accordingly, the writ petition is allowed to the extent indicated hereinabove and the order impugned is set aside to the extent that it holds that the service of the petitioner could be reckoned from 21st February, 2004 itself. 10. In view of the aforesaid findings and observation recorded hereinabove, the reliance of the learned counsel for the petitioner upon the judgments rendered by Supreme Court, do not come to his aid in the facts and circumstances of the case.