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2015 DIGILAW 529 (JHR)

Pancham Oraon v. State of Jharkhand

2015-04-24

PRAMATH PATNAIK

body2015
ORDER In the aforesaid writ application the petitioner has inter alia prayed for quashing the order dated 20th August 2007 (Annexure 5) passed by the appellate authority-Deputy Inspector General of Police, Singhbhum East Kolhan Chhetra, Chaibasa and the order dated 17th October 2006 (Annexure 3) passed in Departmental Proceeding no. 128 of 2005 by the Superintendent of Police, Singhbhum East, Jamshedpur whereby the petitioner has been dismissed from services, and the petitioner has further prayed for direction upon the respondents to reinstate the petitioner in services with all back wages. 2. The brief facts of the case is that the petitioner was appointed as constable in the year 2000 and was posted at Golmuri Police Station. The petitioner while deputed at prisoner's ward in Mahatma Gandhi Memorial Hospital (in short 'M.G.M. Hospital') on 26th October 2005 a charge-sheet was given to him making allegation therein that one accused Prakash Rao, who was detained in M.G.M. prisoners' ward, requested the petitioner that he intends to go to Latrine and the petitioner has taken him to bathroom where the petitioner left the accused without hand-cuff at about 3 a.m., as a result of which the said accused Prakash Rao fled away because of negligence and dereliction of duty of the petitioner. It has been submitted that on the above-referred charge, the petitioner was asked to submit show cause within 15 days. It has further been stated that enquiry officer was appointed, who submitted his report to the Superintendent of Police, Singhbhum East, Jamshedpur. After receiving the copy of the enquiry report, the Superintendent of Police, East Singhbhum had issued second show cause notice to the petitioner without giving a copy of the enquiry report. It has been submitted that since the copy of the inquiry report was not given to the petitioner, he had not filed show cause, however, the Superintendent of Police, Singhbhum East, Jamshedpur dismissed the petitioner from services on 17th October, 2006. Being aggrieved by the order of removal from the services, the petitioner preferred an appeal before the Deputy Inspector General of Police, Kolhan Range, Chaibasa enumerating all the facts, but, the D.I.G. police, East Singhbhum, Kolhan Range vide order dated 20th August, 2007 rejected the appeal preferred by the petitioner vide Annexure 4 to the writ application. 3. Being aggrieved by the order of removal from the services, the petitioner preferred an appeal before the Deputy Inspector General of Police, Kolhan Range, Chaibasa enumerating all the facts, but, the D.I.G. police, East Singhbhum, Kolhan Range vide order dated 20th August, 2007 rejected the appeal preferred by the petitioner vide Annexure 4 to the writ application. 3. Controverting the averments made in the writ application, a counter affidavit has been filed on behalf of the respondent no. 3. It has been stated in the counter-affidavit that the petitioner took the prisoner to toilet without handcuff around 3 to 4 am and when the prisoner was inside the toilet he did not prefer to confirm whether the prisoner is inside or not and taking advantage of negligence of petitioner the prisoner fled away from there. As such proper charge-sheet was served upon the petitioner for severe negligence, dereliction of duty. It has further been stated in the counter affidavit that it is not correct to state by the petitioner that he was not provided the inquiry report with the second show cause, but, as matter of fact the petitioner himself wrote a letter dated 29.06.2006 to the conducting officer wherein the petitioner had stated that the show cause is to be treated as his final show cause. Moreover, the petitioner in the letter dated 29.06.2006 did not make any complaint in respect of the supply of enquiry report and as such the plea taken by the petitioner is not sustainable in the eye of law. It has further been contended in the counter affidavit that the then Superintendent of Police vide Memo no. 5345 dated 21.08.2006 had asked the petitioner to file his last and final defence against the major punishment within 15 days otherwise it will be construed that the petitioner did not want to give any defence, as such the impugned order has been passed as per law and the materials available on record. 4. The learned counsel for the respondent has drawn my attention to the supplementary affidavit filed on behalf of the respondent no. 3 where in paragraph 6 it has been mentioned that the then Superintendent of Police, East Singhbhum, Jamshedpur issued final order vide Memo no. 4. The learned counsel for the respondent has drawn my attention to the supplementary affidavit filed on behalf of the respondent no. 3 where in paragraph 6 it has been mentioned that the then Superintendent of Police, East Singhbhum, Jamshedpur issued final order vide Memo no. 5345 dated 21.08.2006 to the petitioner and the said order along with the enquiry report dated 30.06.2006 submitted by the inquiry conducting officer were duly served to the petitioner on 7.09.2006. The photo copy of the order contained in Memo no. 5345/GO dated 21.08.2006 and enquiry report submitted by the inquiry conducting officer dated 30.06.2006 and receiving receipt dated 01.09.2006 has been annexed at Annexure-A series to the supplementary counter affidavit. 5. Heard Mr. P.P.N. Roy learned senior counsel appearing for the petitioner and Ms. Shivani Verma, counsel appearing for the respondents-State. 6. Learned senior counsel for the petitioner has vehemently contended that the entire departmental proceeding and the order thereon is vitiated and caused prejudice to the petitioner due to the reason that no enquiry report was given to the petitioner before passing the order of punishment to enable the petitioner to prepare his defence, which is in violation of principles of natural justice. Learned senior counsel for the petitioner has further submitted that the appellate authority has not considered the appeal filed by the petitioner in right prospective. Learned senior counsel has further submitted that the respondent no. 3 should have given adequate opportunity to the petitioner for filing show cause after the enquiry report was submitted by the conducting officer in view of Appendix-49 sub clause IV of clause 8 of Police Manual wherein rule for proceeding of departmental punishment has been prescribed which is mandatory to be followed before imposing punishment. The learned senior counsel has further submitted that the order of dismissal of the petitioner is grossly excessive and shockingly disproportionate to the gravity of charges. 7. To substantiate his argument, learned senior counsel has relied upon the judgment of the Hon’ble Apex Court rendered in the case of Director (Marketing), Indian Oil Corpn. Ltd. and Another Versus Santosh Kumar as reported in (2006) 11 SCC 147 ; Chairman, Life Insurance Corporation of India and Others Versus A. Masilamani as reported in (2013) 6 SCC 530 and Roop Singh Negi Vs. Punjab National Bank and Others as reported in (2009) 2 SCC 570 . 8. Ltd. and Another Versus Santosh Kumar as reported in (2006) 11 SCC 147 ; Chairman, Life Insurance Corporation of India and Others Versus A. Masilamani as reported in (2013) 6 SCC 530 and Roop Singh Negi Vs. Punjab National Bank and Others as reported in (2009) 2 SCC 570 . 8. Having heard the counsel for both the sides and after going through the records, I am of the view that there is no infirmity in impugned order of punishment and the order of the appellate authority due to following facts, reasons and judicial pronouncements:- (I) Admittedly the petitioner was serving in a disciplined police force and due to utter negligence of the petitioner, the prisoner fled from the clutches of the petitioner which shows dereliction of duty and the same has been opined by the investigation conducting officer. By the fact finding inquiry it appears that an adequate opportunity has been given to the petitioner to rebut the allegations and a second show cause notice was issued to the petitioner, but, he did not show any objection for non-supplying of the enquiry report nor raised any objection causing any prejudice due to non supply of enquiry report. Hence, there has been no procedural irregularity from the initiation of disciplinary proceeding till its culmination as the petitioner has been found guilty of the charges by the enquiry officer. (II) So far as the order passed by the appellate authority is concerned on perusal of same it appears that the appellate authority has dealt with the matter in right perspective and appeal has been dismissed by passing a speaking order. Hence, the decision cited by the learned senior counsel for the petitioner is not applicable in the case at hand. 9. Now the moot question which falls for determination by this Court is as to whether the impugned order of punishment can be interfered with by this Court on the ground of doctrine of proportionality or in other words on the question of quantum of punishment. 10. The Hon'ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India & Others as reported in (1995) 6 SCC 749 has held that the Court will not interfere with the order, unless the punishment order is one which shocks the conscience of the Court. 10. The Hon'ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India & Others as reported in (1995) 6 SCC 749 has held that the Court will not interfere with the order, unless the punishment order is one which shocks the conscience of the Court. Similar view has been expressed by the Hon'ble Apex Court in the case of M.P. Electricity Board Vs. Jagdish Chandra Sharma as reported in (2005) 3 SCC 401 . 11. The Hon'ble Apex Court in the case of Bhagat Ram Vs. State of Himachal Pradesh and Others as reported in (1983) 2 SCC 442 has held that it is equally true that the punishment imposed must be commensurate with the gravity of the misconduct and any penalty disproportionate to the gravity of the misconduct will be violative of Article 14. 12. In the case at hand, in view of the seriousness of allegation and misconduct committed by the petitioner, the power of judicial review cannot be applied and moreover the fact finding given by the enquiry officer based upon the materials on record cannot be interfered with, as has been held by Hon'ble Supreme Court in the case of State of Uttar Pradesh and Another Vs. Man Mohan Nath Sinha & Another as reported in (2009) 8 SCC 310 , specially at paragraph 15, which is quoted herein below: “15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to re-appreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. .............. ” Applying the aforesaid principles of Hon'ble Apex Court, as indicated herein above, I find no reason to interfere with the impugned order. 13. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, the writ application does not warrant any interference by this Court and the same is dismissed, being devoid of any merit.