Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 768 (JHR)

Santosh Kumar Singh v. State of Jharkhand

2015-07-06

RONGON MUKHOPADHYAY

body2015
ORDER : 1. In this writ application, the petitioner has prayed for quashing the order dated 20.4.2007 passed by the respondent no. 4 by reason of which the petitioner was removed from service with immediate effect under Rule 668 (a) of the Jharkhand Police Manual. Challenge has also been made to the order dated 22.2.2007 passed by the respondent no. 2 by reasons of which the order dated 11.7.2007 passed by the appellate authority for reinstatement of the petitioner has been set aside. 2. The petitioner was appointed in the police force and was sent for training in Police Training College, Hazaribagh. On account of allegation made against the petitioner of disobeying the order of Hawaldar-Major of talking in a mobile and on being asked to desist from such act the petitioner had levelled certain allegations which resulted in the petitioner being issued a show cause notice with a direction to submit his show cause within twenty four hours. The show cause notice issued to the petitioner was based on a preliminary enquiry. Subsequently by virtue of order as contained in Memo No. 146 dated 26th April, 2007 the respondent No. 4 in terms of the Rule 668 (a) of the Jharkhand Police Manual terminated the service of the petitioner. Aggrieved by the order dated 26th April, 2007, the petitioner had preferred an appeal under Rule 851 of the Police Manual which was allowed vide order dated 11.7.2007 and the respondents were directed to reinstate the petitioner. However, by the impugned order dated 22.10.2007 the respondent no. 2 set aside the order of reinstatement on the grounds that the appellate authority does not have any jurisdiction to sit in appeal against the order of termination. 3. Heard Mr. Siddhartha Roy, learned counsel appearing for the petitioner and Mrs. Rakhi Rani, learned JC to Senior SC-II. 4. It has been submitted by the learned counsel for the petitioner that in the entire exercise starting from issuance of show cause notice to the petitioner and culminating in the order of termination neither any departmental proceeding was initiated nor the petitioner was afforded an opportunity of hearing. It has further been submitted that the entire acts on the part of the concerned respondents is violative of the principle of natural justice. It has further been submitted that the entire acts on the part of the concerned respondents is violative of the principle of natural justice. The learned counsel for the petitioner has further submitted that in the preliminary enquiry which forms the basis of termination of the petitioner, the petitioner had never participated and any decision taken on the basis of the preliminary enquiry held behind the back of the petitioner is arbitrary and nonest in the eye of law. 5. Mrs. Rakhi Rani, learned JC to Senior SC-II, on the other hand, has submitted that since the allegations levelled against the petitioner were found to be true and since the petitioner was a police trainee in such circumstance the disciplinary authority had acted within the precincts of the Police Manual as Rule 668 (a) clearly stipulates that during the probationary period a probationer can be removed or reverted without taking recourse to Rule 828 of the Police Manual. She further adds that a show cause was submitted to the petitioner but since no reply was forthcoming the order of termination was passed by the disciplinary authority taking recourse to 668 (a) of the Police Manual. 6. The impugned order as contained in Memo No. 146 dated 26th April, 2007 speaks of a preliminary enquiry conducted on the allegations levelled against the petitioner. The preliminary enquiry report is the basis for infliction of punishment of discharge from service and nowhere it has been stated that in the preliminary enquiry conducted by the department the petitioner was either given a copy of the said report or the petitioner was given a chance to participate in the said preliminary enquiry. The preliminary enquiry in which the delinquent employee was not associated and in which no opportunity was given to cross-examine the persons examined in the enquiry cannot be used as a evidence to discharge the petitioner. The impugned order dated 26.4.2007 as has been discussed above has dealt with the preliminary enquiry report while discharging the petitioner from service. Since the petitioner has been discharged from service by taking recourse to Rule 668 (a) of the Police Manual it would be necessary to consider the said provision and its implication. Rule 668 (a) of the Police Manual is quoted herein-under:- “(a) All officers shall in the first instance be appointed or promoted on probation. Since the petitioner has been discharged from service by taking recourse to Rule 668 (a) of the Police Manual it would be necessary to consider the said provision and its implication. Rule 668 (a) of the Police Manual is quoted herein-under:- “(a) All officers shall in the first instance be appointed or promoted on probation. Where the period of probation is not otherwise provided for in the rules it shall be for a period of two years in the case of executive officers and one year in the case of ministerial officers. The authority authorised to make such appointment or promotion, may at any time during such probationary period and without the formalities laid down in rule 828, remove an executive officer directly appointed or revert such an officer promoted who has not fulfilled the conditions of his appointment or who has shown himself unfit for such appointment or promotion. Similarly probationary period may also be extended without any show cause. No appeal shall lie in such cases.” 7. The impugned order dated 26th April, 2007 cannot be said to be simplicitor in nature. The order of discharge as would be evident from the said order itself has taken into consideration the preliminary enquiry and is stigmatic and punitive in nature. Reference in this connection may be made to the judgment of the Hon'ble Supreme Court in the case of Union of India and Others vs. Mahaveer C. Singhvi, (2010) 8 SCC 220 wherein it was held as follows:- “10. It was held by this Court in Dipti Prakash Banerjee case that whether an order of termination of a probationer can be said to be punitive or not depends on whether the allegations which are the cause of the termination are the motive or foundation. It was observed that if findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, a simple order of termination is to be treated as founded on the allegations and would be bad, but if the enquiry was not held, and no findings were arrived at and the employer was not inclined to conduct an enquiry, but, at the same time, he did not want to continue the employee's services, it would only be a case of motive and the order of termination of the employee would not be bad. 46. 46. As has also been held in some of the cases cited before us, if a finding against a probationer is arrived at behind his back on the basis of the enquiry conduced into the allegations made against him/her and if the same formed the foundation of the order of discharge, the same would be bad and liable to be set aside. On the other hand, if no enquiry was held or contemplated and the allegations were merely a motive for the passing of an order of discharge of a probationer without giving him a hearing, the same would be valid. However, the latter view is not attracted to the facts of this case.” 8. Neither the disciplinary authority nor the respondent No. 2 had considered this aspect of the matter while discharging the petitioner from service. Admittedly, when the preliminary enquiry itself was conducted behind the back of the petitioner and which formed the basis of the order of discharge in view of the judicial pronouncement noted above the order of discharge in such circumstances gets vitiated. 9. As a cumulative result of the discussions made above it is to be held that the order as contained in Memo No. 147 dated 26.4.2007 passed by the respondent No. 4 and the order as contained in Memo No. 1380 dated 22.10.2007 passed by the respondent no. 2 is not in consonance with law and accordingly, both the orders are quashed and set aside and consequently the petitioner is directed to be reinstated in service and will be entitled to all the consequential benefits arising thereto. 10. This application is allowed.