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2016 DIGILAW 1267 (JHR)

Jamuna Ram, son of Lal Bihari Das v. State of Jharkhand

2016-08-16

ANANDA SEN, D.N.PATEL

body2016
JUDGMENT : D.N. Patel, J. 1. This Letters Patel Appeal has been preferred against the judgment and order delivered by learned Single Judge in W.P. (S) No. 498 of 2007 dated 5th July, 2011, whereby the petition preferred by this appellant has been dismissed and the orders passed by the disciplinary authority as well as the departmental appellate authority dated 20th August, 2005 and 26th May, 2006 respectively for the dismissal of this appellant have been confirmed and, therefore, the original petitioner has preferred this Letters Patent Appeal. 2. Counsel for the appellant (original petitioner) submitted that the enquiry report has not been supplied to this delinquent-appellant. The alleged misconduct is of bigamy, charge-sheet was issued, enquiry was conducted and the charges were proved, Enquiry Officer has given a report, but, the copy whereof was never supplied to this appellant. It is further submitted by the counsel for the appellant that non-seeking of permission of the higher officers in police department under Rule 23 of the Bihar Government Servants' Conduct Rules, 1976 as well as under Rule 707(a) of the Jharkhand Police Manual does not mean that the services of this appellant can be terminated by the respondents. 3. The appellant has served for 21 long years and hence, the punishment of dismissal is too harsh and the same may be converted into compulsory retirement. This is an alternative argument canvassed by the counsel for the appellant. Counsel for the appellant has also relied upon the decisions reported in (1985) 1 SCC 120 , (2011) 8 SCC 536 and (2003) 8 SCC 9 . On the basis of the aforesaid decisions, it is submitted that looking to the length of services rendered by this appellant, even if this Court comes to a conclusion that the charges levelled against him are proved, then also, instead of dismissal from the service, the punishment imposed upon this appellant may be reduced to compulsory retirement, so that this appellant can get retiral dues. 4. Counsel for the respondents-State submitted that the charges levelled against the delinquent-appellant is of bigamy during the subsistence of his first wife, namely Manturna Devi. This appellant has gone to Deoghar Temple and second marriage has been entered into by this appellant with one Smt. Ramdulari Devi. 4. Counsel for the respondents-State submitted that the charges levelled against the delinquent-appellant is of bigamy during the subsistence of his first wife, namely Manturna Devi. This appellant has gone to Deoghar Temple and second marriage has been entered into by this appellant with one Smt. Ramdulari Devi. The first wife has also a son from this appellant and the second marriage has been entered into and that is in violation of Rule 23 of the Bihar Government Servants' Conduct Rules, 1976 as well as the same was in violation of Rule 707(a) of the Jharkhand Police Manual. Permission was never sought for by this appellant from the higher administrative officers. The enquiry was conducted. Enquiry Officer's report suggests that the charges levelled against him are proved. Disciplinary Authority has also passed an order dated 20th August, 2005 for dismissal of this appellant, which was confirmed by the departmental appellate authority vide order dated 26th May, 2006. Hence, no error has been committed by the respondents in conducting the enquiry, because, adequate opportunity of being heard was given to this appellant. So far as question of quantum of punishment is concerned, it is submitted by the counsel for the respondents that the appellant was working in a disciplined force. He was a police constable and has entered into a second marriage during the existence of the first wife who is having a son from this appellant. Neither any permission is sought for from the higher officers of the respondents-State, nor, even any application has been preferred for that. Thus, the punishment of dismissal has been imposed, which is absolutely in consonance with the nature of misconduct. The punishment imposed upon this delinquent-appellant against the charges levelled is neither shockingly disproportionate, nor unreasonably excessive. This aspect of the matter has been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant and, hence, this Letters Patent Appeal may not be entertained by this Court. REASONS 5. Having heard learned counsels for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal, mainly for the following facts and reasons: - (i) This appellant, who is Hindu, had initially married to one Smt. Manturna Devi. She is the first wife of this appellant. REASONS 5. Having heard learned counsels for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal, mainly for the following facts and reasons: - (i) This appellant, who is Hindu, had initially married to one Smt. Manturna Devi. She is the first wife of this appellant. Arising out of this wedlock, birth of one son has also taken place. This marriage has taken place in the year 1972 as submitted by the counsel for the appellant. (ii) After 29 long years of marriage life, the appellant entered into second marriage with one Smt. Ramdulari Devi at Deoghar Temple. This second marriage has taken place during existence of the first wife, as, there is no record to substantiate any judicial separation or divorce from the first wife. (iii) Thereafter, this fact was brought to the light and ultimately, charge-sheet was issued upon this appellant on 30th December, 2003. Adequate opportunity of being heard was given to this delinquent-appellant during the enquiry and ultimately, the Enquiry Officer has given a report dated 31st August, 2004 in which it has been held that the charges levelled against this appellant are proved especially of bigamy. Second wife Ramdulari Devi has given evidence that she is living peacefully with this appellant. The report of the Enquiry Officer cannot be said to be baseless. There is evidence on record on the basis of which a conclusion has been arrived at by the Enquiry Officer. The charge of bigamy levelled against this appellant has been proved. (iv) Thereafter, the disciplinary authority has passed an order on 20th August, 2005, which is annexed as Annexure 1 to the memo of this Letters Patent Appeal. Disciplinary Authority is Superintendent of Police of District Dhanbad, who, on the basis of the enquiry report and on the basis of the evidence on record, ultimately passed an order of dismissal of this appellant as there was violation of Rule 23 of the Bihar Government Servants' Conduct Rules, 1976 as well as for the violation of 707(a) of Jharkhand Police Manual. (v) Thereafter, this appellant has preferred a departmental appeal and the appellate authority has passed an order on 26th May, 2006 (Annexure 6), who is Deputy Inspector General of Police, Coal Range, Bokaro, confirming the order passed by the disciplinary authority. (v) Thereafter, this appellant has preferred a departmental appeal and the appellate authority has passed an order on 26th May, 2006 (Annexure 6), who is Deputy Inspector General of Police, Coal Range, Bokaro, confirming the order passed by the disciplinary authority. (vi) Counsel for the appellant has submitted that the Enquiry Officer's report was never supplied to this delinquent-appellant. (vii) It ought to be kept in mind that even if the Enquiry Officer's report has not been supplied to this appellant, the action of the respondents is a valid one, because there is no prejudice caused to this appellant. The appellant has failed to prove any prejudice caused to him for non-supply of the enquiry report. It has been held by the Hon'ble Supreme Court in the case of Burdwan Central Coop. Bank Ltd. v. Asim Chatterjee, reported in (2012) 2 SCC 641 , as under: - "19. However, there is one aspect of the matter which cannot be ignored. In B. Karunakar case despite holding that non-supply of a copy of the report of the enquiry officer to the employee facing a disciplinary proceeding, amounts to denial of natural justice, in the later part of the judgment it was observed that whether in fact, prejudice has been caused to the employee on account of non-furnishing of a copy of the enquiry report has to be considered in the facts of each case. It was observed that where the furnishing of the enquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the employee concerned to resume his duties and to get all consequential benefits. 20. It was also observed in B. Karunakar case that in the event the enquiry officer’s report had not been furnished to the employee in the disciplinary proceedings, a copy of the same should be made available to him to enable him to explain as to what prejudice had been caused to him on account of non-supply of the report. It was held that the order of punishment should not be set aside mechanically on the ground that the copy of the enquiry report had not been supplied to the employee. 21. This is, in fact, a case where the order of punishment had been passed against Respondent 1 on allegations of financial irregularity. It was held that the order of punishment should not be set aside mechanically on the ground that the copy of the enquiry report had not been supplied to the employee. 21. This is, in fact, a case where the order of punishment had been passed against Respondent 1 on allegations of financial irregularity. Such an allegation would require serious consideration as to whether the services of an employee against whom such allegations have been raised should be retained in the service of the Bank. Since a bank acts in a fiduciary capacity in regard to people’s investments, the very legitimacy of the banking system depends on the complete integrity of its employees. As indicated hereinbefore, there is a live link between Respondent 1’s performance as an employee of the Samity, which was affiliated to the Bank, and if the Bank was of the view that his services could not be retained on account of his previous misdemeanour, it is then that the second part of B. Karunakar case becomes attracted and it becomes necessary for the court to examine whether any prejudice has been caused to the employee or not before punishment is awarded to him. 22. It is not as if the Bank with an ulterior motive or a hidden agenda dismissed Respondent 1 from service, in fact, he was selected and appointed in the appellant Bank on account of his merit and performance at the time of interview. It cannot be said that the Bank harboured any ill feeling towards Respondent 1 which ultimately resulted in the order of dismissal passed on 8-5-2010. We, therefore, repeat that since no prejudice has been caused to Respondent 1 by the non-supply of the enquiry officer’s report, the said respondent had little scope to contend that the disciplinary proceedings had been vitiated on account of such non-supply.” (Emphasis supplied) (viii) Moreover, the appellant has also preferred departmental appeal against the order passed by the disciplinary authority. In the appeal, never this ground has been raised that Enquiry Officer has not given a report to this appellant. On the contrary, looking to the order passed by the disciplinary appellate authority, it appears that the ground of consent given by the first wife has been raised, which has got no value in the eyes of law. In the appeal, never this ground has been raised that Enquiry Officer has not given a report to this appellant. On the contrary, looking to the order passed by the disciplinary appellate authority, it appears that the ground of consent given by the first wife has been raised, which has got no value in the eyes of law. Consent of the first wife never cures the misconduct under Rule 23 of the Bihar Government Servants' Conduct Rules, 1976 as well as under Rule 707(a) of the Jharkhand Police Manual and hence, non-supply of enquiry report cannot be a ground for quashing the order passed by the disciplinary appellate authority in this case. (ix) Thus, it appears that there is no defect in holding the departmental enquiry against this appellant. Adequate opportunity of being heard has been given during the course of enquiry and even thereafter, appeal has also been preferred by this appellant. (x) Now, the question left out for this Court is to see whether the punishment imposed upon this delinquent-appellant is adequate or not. It appears that this appellant is working in a disciplined force, viz., in police as police constable. This appellant has already married first wife viz., Manturna Devi, in the year 1972, as submitted by the counsel for the appellant. He is blessed with a Birth of a son out of his first wedlock. Thereafter, approximately 29 years, it appears that he developed interest in another lady and he has entered into second marriage with Ramdulari Devi in the year 2001 and without informing higher administrative officers and without permission of the high ranking administrative officers which is in violation of Rule 23 and Rule 707(a) of the Bihar Government Servants' Conduct Rules, 1976 and the Jharkhand Police Manual respectively, the second marriage has been entered into. It also appears from the documents on record that this appellant has started beating the first wife and stopped the maintenance, etc, as per the affidavit of the first wife Manturna Devi and the evidence of Ramdulari Devi (second wife) suggests that she is very happy with this appellant. Thus, there is a gross violation of Rule 23 and Rule 707(a) of the Bihar Government Servants' Conduct Rules, 1976 and the Jharkhand Police Manual, respectively. Thus, there is a gross violation of Rule 23 and Rule 707(a) of the Bihar Government Servants' Conduct Rules, 1976 and the Jharkhand Police Manual, respectively. Thus, looking to the fact that this appellant is working in a police force as a Constable and there is a gross violation of the aforesaid Rules, the punishment inflicted upon him by the respondents-State can neither be labelled as 'unreasonably excessive' nor as 'shockingly disproportionate'. On the contrary, the same is absolutely in consonance with the nature of misconduct. These types of Rules been enacted by the State keeping in mind the provisions of the Hindu Marriage Act as well as the Indian Penal Code and to avoid subsequent chaos for the distribution of retiral dues, etc and to avoid further multifariousness of the litigations. (xi) It has been held by Hon'ble Supreme Court in the case of Khursheed Ahmad Khan v. State of U.P., reported in (2015) 8 SCC 439 , especially in paragraphs 8 and 11 as under: - “8. As regards the charge of misconduct in question, it is patent that there is no material on record to show that the appellant divorced his first wife before the second marriage or he informed the Government about contracting the second marriage. In absence thereof the second marriage is a misconduct under the Conduct Rules. The defence of the appellant that his first marriage had come to an end has been disbelieved by the disciplinary authority and the High Court. The learned counsel for the State has pointed out that not only the appellant admitted that his first marriage was continuing when he performed the second marriage, the first wife of the appellant herself appeared as a witness during the enquiry proceedings and stated that the first marriage was never dissolved. On that basis, the high Court was justified in holding that the finding of provided misconduct did not call for any interference. 11. As already mentioned above, there is adequate material on record in support of the charge against the appellant that he performed the second marriage during the currency of the first marriage. Admittedly, there is no intimation in any form on record that the appellant had divorced his first wife. In service record she continued to be mentioned as the wife of the appellant. Admittedly, there is no intimation in any form on record that the appellant had divorced his first wife. In service record she continued to be mentioned as the wife of the appellant. Moreover, she has given a statement in enquiry proceedings that she continued to be the wife of the appellant. The appellant also admitted in inquiry conducted on directions of the Human Rights Commission that his first marriage had continued. In these circumstances, the finding of violation of the Conduct Rules cannot be held to be perverse or unreasonable so as to call for interference by this Court. In these circumstances, the High Court was justified in holding that the penalty of removal cannot be held to be shockingly disproportionate to the charge on established judicial parameters.” (Emphasis supplied) (xii) Counsel for the appellant has relied upon the decisions, but, looking to the peculiar facts of the present case that, (a) this appellant is working in a disciplined force as a Constable; (b) during the subsistence of the first wife, namely, Manturna Devi, this appellant has re-married after approximately 29 years with another lady namely Ramdulari Devi; (c) never any application has been preferred seeking permission of the higher administrative officers; (d) without any permission under Rule 23 of the Bihar Government Servants' Conduct Rules, 1976 and in breach of Rule 707(a) of the Jharkhand Police Manual, second marriage has been entered into. The aforesaid peculiar facts of the case make the case of the appellant different from the cases upon which reliance is placed by this appellant and hence, ratio decidendi of those cases do not apply in the present case. 6. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, no error has been committed by the learned Single Judge in dismissing the writ petition preferred by this appellant and we see no reason to take any other view than what is taken by the learned Single Judge. Hence, there is no substance in this Letters Patent Appeal and the same is, hereby, dismissed.