Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 608 (JHR)

Sunil Kumar Singh v. State of Jharkhand

2016-04-18

PRAMATH PATNAIK

body2016
JUDGMENT : PRAMATH PATNAIK, J. 1. The captioned writ application has been filed praying, inter-alia, for quashing of the appellate order dated passed by respondent no. 3 dated 26.08.2003 and the order passed by the disciplinary authority-respondent no. 4 dated 25.07.2002 pertaining to dismissal of the petitioner from services. 2. Bereft of unnecessary details, the facts as delineated in the writ application, is that the petitioner initially joined on the post of constable in Bihar Police in the year 1988 and on transfer in the year 1998, the petitioner joined the Rail police at Jamshedpur. While continuing as such on 15.05.1999, the petitioner requested respondent no. 4 to hold an inquiry and take appropriate steps due to misbehavior with his brother-in-law by ASI-Kunni Sah. The said complaint was duly received in the office of respondent no. 4, who directed the Deputy Superintendent of Police to take necessary action and to submit a report. But, without taking any step upon the complaint petition of the petitioner, he was served with a charge-sheet alleging that he along with constable Md. Umar Khan were abusing unnecessarily and when ASI Kunni Sah was trying to pacify the matter, they misbehaved with Kunni Sah and threatened him. Thereafter, the petitioner was put under suspension and departmental enquiry was initiated, which culminated in his dismissal from services. Being aggrieved, the petitioner preferred appeal, which was rejected vide order dated 26.08.2003 affirming the order of punishment passed by the disciplinary authority. 3. Learned counsel for the petitioner submitted with vehemence that the entire departmental proceeding has been conducted in a very perfunctory manner as the petitioner was not served with the copy of enquiry report and non-supply of enquiry report vitiates the entire proceeding from its initiation till its culmination. Learned counsel for the petitioner further submitted that on perusal of the enquiry report, it is clear that witnesses have not supported the allegations levelled against the petitioner. Learned counsel for the petitioner further submitted that similar allegation was made against Md. Umar Khan and in the departmental proceeding he was also imposed the punishment of dismissal from services by the disciplinary authority. But, in the appeal preferred by the co-delinquent, Md. Learned counsel for the petitioner further submitted that similar allegation was made against Md. Umar Khan and in the departmental proceeding he was also imposed the punishment of dismissal from services by the disciplinary authority. But, in the appeal preferred by the co-delinquent, Md. Umar Khan, the punishment of dismissal from services was set aside and minor punishment of withholding of one increment was imposed and the case of the petitioner lies on a similar footing but he has been discriminated by the respondents-authorities. 4. Per contra, counter affidavit has been filed on behalf of respondents controverting the averments made in the writ application. It has been submitted that in the departmental proceeding no procedural irregularity has been committed and even at the instance of the petitioner the matter was re-enquired and evidences were recorded in presence of the petitioner and petitioner was given full opportunity to examine the witnesses and thereafter, the petitioner, on being found guilty of charges, was imposed the punishment of dismissal from services and further the proceeding was not violative of Appendix 49 of the Police Manual. 5. After hearing learned counsel for the parties at length and on perusal of the record, I am of the considered view that the petitioner succeeds in making out a case for interference for the following facts and reasons:- (i) In the case at hand, the assertion of the petitioner that in the departmental proceeding, copy of enquiry report has not been served upon the petitioner has not been controverted properly by the respondents thereby the impugned order is violative of principles of natural justice. (ii) The petitioner against the order passed by the disciplinary authority filed an exhaustive appeal, wherein it has been stated that the witnesses have not supported the allegations and the petitioner has not been served with copy of charge-sheet and further the enquiry report was not supplied to the petitioner but the appellate authority in a very cavalier fashion has rejected the appeal without considering the points raised in the appeal, which appears to be non-reasoned and non-speaking one. In this respect, it would be apposite to refer to a judgment rendered in the case of Chairman, Life Insurance Corporation of India & Ors. Vs. A. Masilamani as reported in (2013) 6 SCC 530 , in particular paragraph 19, which is quoted herein below: 19. The word “consider” is of great significance. In this respect, it would be apposite to refer to a judgment rendered in the case of Chairman, Life Insurance Corporation of India & Ors. Vs. A. Masilamani as reported in (2013) 6 SCC 530 , in particular paragraph 19, which is quoted herein below: 19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order.” (iii) Another important aspect, which cannot be lost sight of is that co-delinquent, Md. Umar Khan, who was also proceeded for the same and similar set of charges was inflicted with punishment with lesser punishment; thereby in the case at hand, the principles of doctrine of parity has been given a complete go by. So far as parity in quantum of punishment among the delinquents is concerned, it would be profitable to refer to a decision rendered by the Hon’ble Apex Court in the case of Rajendra Yadav Vs. State of Madhya Pradesh and Others as reported in (2013) 3 SCC 73 , in particular paragraph 9, which is quoted herein below: “9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.” Applying the same principle, as laid down by the Hon’ble Apex Court in the above-referred case, the petitioner deserves the same benefit as has been given to co-delinquent. 6. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.” Applying the same principle, as laid down by the Hon’ble Apex Court in the above-referred case, the petitioner deserves the same benefit as has been given to co-delinquent. 6. In view of the aforesaid facts and reasons, as discussed in the foregoing paragraphs, coupled with judicial pronouncements as enunciated by Hon’ble Apex Court, the impugned order dated 26.08.2003 as also order dated 25.07.2002 are hereby quashed and set aside and the matter is remitted back to the respondents-authorities to consider the case of the petitioner afresh mainly on the question of quantum of punishment taking into account the observations made by this Court, within a period of twelve weeks from the date of receipt/production of copy of this order. 7. With the aforesaid observations and directions, the writ petitions stand disposed of.