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2016 DIGILAW 362 (JHR)

Tufan Chandra Baski v. State of Jharkhand

2016-02-19

PRAMATH PATNAIK

body2016
ORDER : In the accompanied writ application, the petitioner has, inter-alia, prayed for issuance of writ of certiorari for quashing the order dated 24.01.2014 vide memo no. 221 passed by the Commandant, Jharkhand Armed Police-3, Govindpur, Dhanbad pertaining to dismissal of services from the post of constable thereby confirming the order dated 13.12.2013 of the Deputy Superintendent of Police, Dhanbad respondent no. 5 and the petitioner has further prayed for reinstatement in services with all consequential benefits. 2. The facts as disclosed in the writ application is that the petitioner was initially appointed on 05.09.2006 as Constable. On joining the said post petitioner continued to discharge his duty to the utmost satisfaction to the authorities. While posted at Ramgarh, Police Station within Palamau District, it was alleged that he was on leave for 10 days i.e. from 02.07.2013 to 12.07.2013 without any information. Accordingly, the petitioner was suspended and the departmental proceeding was initiated and charges were framed by memo dated 25.09.2013 vide Annexure-1 to the writ application. After framing of charges the conducting officer called for second show-cause notice vide memo dated 20.12.2013. The Conducting Officer-cum-Deputy Superintendent of Police, Dhanbad vide order dated 13.12.2013 came with a concrete finding and found the petitioner guilty for the charges levelled against him. Thereafter, vide order dated 24.01.2014, the petitioner has been dismissed from services. 3. Being aggrieved by the order of the disciplinary authority dated 13.12.2013 and the order dated 24.01.2014 passed by the appellate authority, the petitioner left with no other efficacious, alternative remedy has invoked the extraordinary jurisdiction of this Court under article 226 of the Constitution of India. 4. A counter-affidavit has been filed on behalf of the respondent nos. 4 and 5 controverting the averments made in the writ application. It has been, inter-alia, stated in the counter-affidavit that the petitioner was on leave for 10 days (02.07.2013 to 12.07.2013) and was supposed to join his duty on 13.07.2013, but he did not join his duty. The department issued a suspension order against the petitioner vide order dated 21.09.2013 vide Annexure-A to the counter-affidavit. The respondents issued a letter vide memo dated 31.07.2013 as well as memo dated 20.08.2013 wherein specific direction was issued to petitioner to join on duty without any delay and both the letters were sent through registered post. The department issued a suspension order against the petitioner vide order dated 21.09.2013 vide Annexure-A to the counter-affidavit. The respondents issued a letter vide memo dated 31.07.2013 as well as memo dated 20.08.2013 wherein specific direction was issued to petitioner to join on duty without any delay and both the letters were sent through registered post. Since, the petitioner did not join the duty, the controlling officer issued charge sheet dated 25.09.2013 and asked explanation from the petitioner. The respondents authority thereafter appointed conducting officer and conducting officer initiated inquiry and also obtained evidence from witnesses. Thereafter, the conducting officer fixed a date for examination of the witnesses on 26.11.2013 and same information was given to the petitioner vide memo dated 29.10.2013 as evident from Annexure-C to the counter-affidavit. It was further stated that the petitioner was absent on 26.11.2013 before conducting officer but the conducting officer had examined the witnesses and same document was sent to the petitioner through Special messenger at his home address copy of examination vide memo dated 27.11.2013 and asked explanation from the petitioner vide Annexure-D to the counter-affidavit. Thereafter, the conducting officer came with a concrete finding and found the petitioner guilty in his report dated 13.12.2013. The Commandant, Jharkhand Armed Police-3, issued second show cause to the petitioner and asked explanation from the petitioner vide memo dated 20.12.2013 as evident form the Annexure-E to the counter-affidavit. The Commandant considered entire materials on record and passed the order dated 24.01.2014 which is just and proper and therefore does not warrant any interference by this Hon'ble Court. It has also been submitted that although there is provision of appeal under Police Manual but the petitioner has directly approached the Hon'ble Court by filing the writ petition, which is not maintainable. 5. Heard, Mr. Kasushal Kishore Mishra, learned counsel appearing for the petitioner and Ms. Nitika Agarwal, learned J.C. to A.G. appearing for the respondents. 6. Learned counsel for the petitioner vehemently submitted that the impugned order of dismissal has been passed without giving proper opportunity of being heard to the petitioner, which is not sustainable in the eye of law and he further submits that the impugned order of dismissal is improper and based on surmises and conjectures. 7. 6. Learned counsel for the petitioner vehemently submitted that the impugned order of dismissal has been passed without giving proper opportunity of being heard to the petitioner, which is not sustainable in the eye of law and he further submits that the impugned order of dismissal is improper and based on surmises and conjectures. 7. As against the submissions made by the learned counsel for the petitioner, learned counsel for the respondents assiduously advanced his arguments in support of the impugned order of dismissal of the petitioner from services. Learned counsel for the respondents submits that the impugned order has been passed after following the principles of natural justice and there has been no procedural irregularities. The departmental inquiry is based on material evidences and therefore, the order dated 24.01.2014 passed by the Commandant, Jharkhand Armed Police-3 does not warrant any interference by this Court. 8. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has not been able to demonstrate any fundamental facts for interference by this Court due to following facts and reasons:- I. In the instant case, on perusal of the impugned order, it appears that the petitioner being in disciplined service remained on leave unauthorizedly without any information and despite several intimation of the authorities to resume duties petitioner failed to resume duty and thereafter, the disciplinary authority has taken into consideration all the aspects and has found the petitioner guilty of charges. II. In the instant case, it appears that there has been no procedural infirmities, or irregularities and the entire proceedings is based on overwhelming material evidences, so as to warrant any interference by this Court. Hon'ble Apex Court in the case of Chennai Metropolitan Water Supply and Sewerage Board and Others Vs. T.T. Murali Babu reported in (2014) 4 SCC 108 has, inter-alia, held that : absence of determination by disciplinary authority that long unauthorised absence was wilful, is inconsequential and Hon'ble Apex Court has further held, unauthorised absence of employee as a misconduct cannot be put in straitjacket formula for imposition of punishment which depend on various factors. III. T.T. Murali Babu reported in (2014) 4 SCC 108 has, inter-alia, held that : absence of determination by disciplinary authority that long unauthorised absence was wilful, is inconsequential and Hon'ble Apex Court has further held, unauthorised absence of employee as a misconduct cannot be put in straitjacket formula for imposition of punishment which depend on various factors. III. In the instant case, in view of the seriousness of allegation and misconduct committed by the petitioner the power of judicial review cannot be remotely applied and moreover, the fact finding conclusion of the disciplinary authority based upon the matter of record cannot be re-appreciated or reappraised as held by the Hon’ble Apex Court in the case of State of Uttar Pradesh and Another Vs. Man Mohan Nath Sinha and Another reported in (2009) 8 SCC 310 held as under: “Para 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.....” 9. In view of the matter, I find no reason to interfere with the impugned order and applying the aforesaid principles of the Hon’ble Apex Court rendered herein above, the impugned order of punishment of dismissal dated 24.01.2014 passed by the Commandant, Jharkhand Armed Police-3 does not warrant any interference by this Court. 10. Accordingly, the writ petition stands disposed of being devoid of any merit. Petition disposed of.