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Jharkhand High Court · body

2016 DIGILAW 1622 (JHR)

Dwarika Prasad Singh v. State of Jharkhand

2016-11-30

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In W.P. (S) No. 6254 of 2010, the petitioner has inter alia prayed for quashing of impugned order of punishment dated 1.11.2010, whereby petitioner has been imposed with the impugned punishment in the following manner: (a) the Deputy Superintendent of Police was put to the original pay-scale. (b) no independent posting would be given to the Deputy Superintendent of Police. 2. In W.P. (S) No. 6203 of 2010, the petitioner has inter alia prayed for direction upon the respondents to consider the case of the petitioner for promotion to the post of Senior Deputy Superintendent of Police and Additional Superintendent of Police and further to recommend his name for the select list of the Indian Police Service and further direction upon the respondents to pay the benefits of the second A.C.P from the date his juniors have been considered and granted promotion. 3. The brief facts, as disclosed in the W.P. (S) No. 6254 of 2010 is that initially the petitioner was appointed on 10.10.1984 as direct Deputy Superintendent of Police. Thereafter, petitioner was posted in different places of Bihar and Jharkhand and by passage of time, while the petitioner was posted in Jharkhand Armed Police-4 in the year 2006, charges were framed against the petitioner of dereliction of duty and misconduct and accordingly departmental proceeding was initiated. It is alleged that though no show cause notice was called before initiation of departmental proceeding but after initiation of departmental proceeding petitioner was served with the show cause notice, to which, he replied. It has further been averred that enquiry officer conducted the enquiry and submitted enquiry report holding the petitioner guilty of the charges. Against the findings of the enquiry report, the petitioner was asked to submit second show cause notice to which he replied. It has further been averred that without considering the reply submitted by the petitioner, enquiry report was sent to disciplinary authority, who basing on the findings of the enquiry report imposed the impugned punishment. 4. The brief facts, as delineated in W.P. (S) No. 6203 of 2010, is that though the petitioner was appointed in the year 1984 as direct Deputy Superintendent of Police but in the entire service period, the petitioner has neither been considered nor granted any promotion or any financial up-gradation by way of A.C.P., for which the petitioner even represented the respondents-authorities. It has further been submitted that on 20.07.2007 even junior to the petitioner, namely, Praveen Kumar Srivastava was granted benefits of second A.C.P in the grade of Addl. Superintendent of Police but the petitioner’s case was not considered. It has further been submitted that the respondents have lost sight of the fact that no proceeding was ever pending at the time of consideration for payment of benefits of A.C.P. 5. Learned counsel for the petitioner submitted that before initiation of departmental proceeding no show cause notice was asked for from the petitioner rendering the proceeding bad in law. Learned senior counsel submitted that first part of impugned punishment i.e. lowering of pay-scale is not under Rule 49 of the CCA Rules, 1930 hence, the same is without jurisdiction and no reason has been assigned for imposition of punishment that no independent posting would be given, hence, it has no leg to stand. Learned counsel for the petitioner further submitted that the enquiry officer even did not consider the fact that petitioner was not medically fit for the period 2006-09. Learned senior counsel submitted with vehemence that impugned punishment is not in commensurate with Rule 55 (A) of CCA Rules, 1930 as from perusal of impugned order, it is manifest that there has no consideration of petitioner’s show cause at all nor reason has been assigned for rejecting the same. In this contest, learned senior counsel for the petitioner referred to a judgment rendered in the case of Dr. Rabindra Nath Singh Vs. The State of Bihar & Ors as reported in 1983 PLJR 92 . 6. Controverting the averments made in the writ application, learned counsel for the respondents-State submitted that various complaints were received against the petitioner from his subordinates as well as by his seniors and the complaints were of such nature that it necessitated the department to put the petitioner under suspension vide order dated 19.07.2006 in contemplation of departmental proceeding and thereafter charges were framed against the petitioner and the same was made available to the petitioner vide memo dated 26.12.2006, to which, he replied. It has further been submitted that all the charges levelled against the petitioner has been fully proved. It has further been submitted that all the charges levelled against the petitioner has been fully proved. It is also admitted case of the petitioner that before passing the impugned order second show cause notice was served upon the petitioner, to which petitioner replied and after consideration of the same the impugned order has been passed. Hence, there has been no procedural irregularity in conducting the departmental proceeding. It has further been submitted that so far as the contention of the petitioner that his juniors has been given the benefit of A.C.P in the year 2007 and the petitioner has been deprived of the same even no proceeding was pending on that date gets falsified from the discussions made herein above. 7. On perusal of record, it appears that due to various complaints against the petitioner, he was put under suspension vide order dated 19.07.2006 in contemplation of departmental proceeding and thereafter charges were framed against the petitioner and the same was made available to the petitioner vide memo dated 26.12.2006, to which, he replied. However, all the charges levelled against the petitioner has been proved to its hilt and accordingly, impugned order of punishment dated 01.11.2010 has been passed. From the submissions advanced by learned counsel appearing for the parties and the materials available on record, it appears that there is no procedural lacuna so as to prick the conscience of this Court to interfere with the impugned order of punishment and furthermore, petitioner has failed to show that what prejudice has been caused even if no show cause notice was asked for from the petitioner before initiation of departmental proceeding. 8. Much reliance has been placed by the parties on Rule 49 and 55-A of the Civil Services (Classification, Control & Appeal) Rules, hence, before going further, it would be apposite to refer Rule 49 and 55A of the CCA Rules, 1930 which is quoted herein below: Rule 49.The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in rule 14, namely:- (i) Censure. (ii) Withholding of increments or promotion including storage at an efficiency bar. (iii) Reduction to a lower post or time-scale, or to a lower stage in at time-scale. (ii) Withholding of increments or promotion including storage at an efficiency bar. (iii) Reduction to a lower post or time-scale, or to a lower stage in at time-scale. (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. (v) Suspension. (vi) Removal from the civil service of the Crown, which does not disqualify from future employment. (vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment; Rule 55A. Without prejudice to the provisions of rule 55, no order imposing the penalty specified in clauses (I), (ii) or (iv) of rule 49 (other than an order based on facts which led to his conviction in a Criminal Court or by a Court-Martial, or an order superseding him for promotion to a higher post on the ground of his unfitness for that post) on any Government servant to whom these rules are applicable shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed: 9. From the discussions made herein above, in particular Rule 55A read with Rule 49 of the Civil Services (C.C.A) Rules, the second part of punishment i.e. “no independent posting would be given to the Deputy Superintendent of Police” is hereby quashed and set aside and first part of punishment i.e. “the Deputy Superintendent of Police was put to the original pay-scale”, as the misconduct has been proved and it falls under Rule 49 (iii) of the Rules, hence, the same does not warrant interference by this Court. 10. So far as prayer in W.P. (S) No. 6254 of 2010 to consider the case of the petitioner for promotion to the post of Senior Deputy Superintendent of Police and Additional Superintendent of Police and further to recommend his name for the select list of the Indian Police Service and further direction upon the respondents to pay the benefits of the second A.C.P from the date his juniors have been considered and granted promotion, is concerned, the respondents are directed to consider the case of the petitioner in accordance with the Rules of Promotion/Departmental Rule/Regulations etc. 11. With the aforesaid observations and directions, the writ petitions stand disposed of.