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2016 DIGILAW 853 (JHR)

Vishok Kumar Singh v. State of Jharkhand

2016-05-17

PRAMATH PATNAIK

body2016
ORDER : 1. In the accompanied writ application, the petitioner has prayed for quashing the order of the disciplinary authority dated 01.03.2012 and order dated 13.10.2012 passed by the appellate authority pertaining to dismissal from services and for direction to respondents for reinstatement in services. 2. Bereft of unnecessary details, the facts as disclosed in the writ application is that the petitioner was initially appointed in the year 1982 and while continuing as Hawaldar, a departmental proceeding no.23/11 was initiated in the year 2011 for long unauthorized absence from duty since 2006. The charge was levelled against the petitioner and remained unauthorized absence from various different period since 2006 to 2008. The petitioner submitted his defence before the inquiry officer intimating the mental illness and submitted the medial reports of mental diseased from the specialist of RINPAS. Without giving opportunity of being heard, the petitioner services have been terminated by the respondents vide memo dated 01.03.2012 passed by Superintendent of Police, Godda and being aggrieved by the order of the disciplinary authority, the petitioner preferred appeal which was also dismissed by the appellate authority vide memo dated 13.10.2012 vide Annexures 1 and 2 to the writ application. 3. Mr. Ravi Kerketta, learned counsel for the petitioner has vehemently submitted that without show cause notice the petitioner services has been dispensed therefore there has been violation of principle of natural justice. Learned counsel for the petitioner further submits that the petitioner has been inflicted with punishment of dismissal from services but the same has been passed without adhering with the audi alteram partem therefore the actions of the respondent tantamounts to denial which is utter violation of Article 14 and 21 of the Constitution of India. During course of hearing learned counsel for the petitioner has referred to decisions as reported in 2005 (13) SCC 709 in the case of Union of India & Ors. Vs. Datta Linga Toshatwad at paragraph no.5, which is quoted herein below:- 5. Even if the High Court came to the conclusion that the punishment inflicted was grossly disproportionate to the misconduct alleged, it ought to have remitted the matter to the disciplinary authority to reconsider the matter as regards the punishment to be inflicted, but the High Court did not choose to do so. Even if the High Court came to the conclusion that the punishment inflicted was grossly disproportionate to the misconduct alleged, it ought to have remitted the matter to the disciplinary authority to reconsider the matter as regards the punishment to be inflicted, but the High Court did not choose to do so. However, it is not necessary for us to do so since we are of the view that the punishment inflicted on the respondent is not grossly disproportionate to the misconduct alleged. Learned counsel for the petitioner has also referred to decisions as reported in 2016 (1) JLJR 509 at paragraph nos. 16 to 20, 2012 (2) JLJR 129 at paragraph nos. 11, 15, 19 and 2012 (4) JLJR 591 at paragraph nos. 6 and 7. 4. Mr. Chanchal Jain, J.C. to A.A.G has reiterated the submissions made in the counter-affidavit. Learned counsel for the respondents has submitted that the petitioner has been terminated from services of Hawaldar on the ground of dereliction of duty, misconduct, unauthorized long absence from duties, indiscipline and reckless. Before terminating the petitioner, departmental proceeding no.23/11 was initiated against the petitioner conducting officer held the inquiry, examined the witnesses in accordance with law and show cause was issued to the petitioner and the petitioner has been heard and since defence was found unsatisfactory, it was rejected. The conducting officer after completion of the departmental proceeding submitted his report with finding dated 11.08.2011 to the Superintendent of Police, Godda holding the petitioner guilty to the charges levelled against him vide Annexure-A to the Counter-affidavit and the Superintendent of Police, Godda (respondent no.4) considered the finding of departmental proceeding, the evidence on defence report etc. and pass the order dated 01.03.2012 terminating the petitioner from services. Thereafter, the appellate authority also dismissed the appeal of the petitioner vide order dated 13.10.2012. Learned counsel for the State during course of argument has also referred to supplementary counter-affidavit on behalf of the respondent no.4 wherein it has been submitted that the services of the petitioner as Hawaldar has been terminated on the ground of misconduct, unauthorized long absence from duties, indiscipline, recklessness and in competency. 5. Learned counsel for the State during course of argument has also referred to supplementary counter-affidavit on behalf of the respondent no.4 wherein it has been submitted that the services of the petitioner as Hawaldar has been terminated on the ground of misconduct, unauthorized long absence from duties, indiscipline, recklessness and in competency. 5. After hearing learned counsel for the respective parties and on perusal of the documents on records, I am of the considered view that the petitioner has been able to make out a case for interference due to reasons stated herein-below:- (i) In the departmental proceeding no. 23/11 which was initiated for unauthorized absent from duty during the period of 2006 to 2008 but the contention of the petitioner that neither copy of the inquiry report has been supplied to him nor second show cause notice issued to him before passing the order of termination thereby the whole proceeding has been vitiated. (ii) In pursuance to the order of this Court dated 11.05.2015 the supplementary counter-affidavit has been filed wherein in paragraph-8 it has been submitted as per the record available in the office copy of the termination order of the then SP supplied to the petitioner but in the record there is no document available which may show the evidence of providing the copy of the enquiry report of conducting officer to the petitioner and asked second show cause before termination order. Therefore, from the aforesaid averment it is crystal clear before infliction of major punishment, neither copy of the inquiry report has been supplied to him nor second show cause notice issued to him before passing the order of termination and there has been breach of Principle of natural justice rendering the impugned order of punishment vide Annexure-1 dated 01.03.2012 passed by the respondent no.4 and the order of the appellate authority dated 13.10.2012 by the respondent no.3 legally unsustainable. Therefore non-supply of the inquiry report coupled with non-issuance of the second show cause notice have caused prejudice to the petitioner to put forth his defence before the authorities. Therefore, on that scope the impugned orders are liable to be interfered with. Therefore non-supply of the inquiry report coupled with non-issuance of the second show cause notice have caused prejudice to the petitioner to put forth his defence before the authorities. Therefore, on that scope the impugned orders are liable to be interfered with. (iii) In view of the reasons stated in the foregoing paragraphs the impugned order of punishment dated 01.03.2012 passed by the respondent no.4 being confirmed by the order of the appellate authority dated 13.10.2012 being unsustainable is hereby quashed and set aside and the matter is remitted to the respondents to start the de novo proceeding and supply the copy of the inquiry report and conclude the proceeding expeditiously, preferably within a period of four months from the date of receipt or communication of order and after conclusion of the proceeding, pass appropriate orders in accordance with law. 6. With the aforesaid observations and directions, the writ petition stands disposed of.