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2016 DIGILAW 882 (JHR)

Yogendra Rai v. State of Jharkhand

2016-05-19

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. With the consent of the parties, all the writ petitions are heard analogously and are being disposed of by this common order. 2. Being aggrieved by the impugned order of punishment of dismissal from services dated 13.6.2012 passed by the respondent No. 4, Superintendent of Police, Garhwa in Departmental Proceeding No. 34 of 2011, the order of the Appellate Authority vide memo dated 19.10.2012 and the order dated 29.7.2013 containing the rejection of memorial, the petitioners having no other alternative find efficacious remedy have prayed for quashing of the said orders and also for reinstatement in services with consequential benefits. 3. Sans details, the facts, as disclosed in the writ applications, in nutshell, is that petitioners namely Yogendra Rai is Havildar (in W.P.S. No. 6070/2013), Shankar Munda is Assistant Sub-Inspector of Police (in W.P.S. No. 5588/2013), Dhananjay Kumar Dubey is Police Driver (in W.P.S. No. 6188/2013) whereas other writ petitioners are Constables. On 4.9.2011 a command was issued to the Assistant Sub-Inspector of Police, Garhwa namely Shankar Munda along with Havildar and other Constables and all the petitioners were asked to report police line. In compliance of the said direction issued by the Superintendent of Police, Garhwa, respondent No. 4 on 5.9.2011, petitioners along with escort party proceeded for shifting the said prisoners, namely Kumar Kishore Singh and Sujit Kumar Sinha from Garhwa District Jail to Ranchi and Dumka respectively. While petitioners were on their way, at about 11.45 p.m. hue and cry was made that the prisoner has fled away. On hearing the petitioner namely Shankar Munda-the Assistant Sub Inspector of Police asked the driver to stop the vehicle and directed to see the vehicle from back side and thereafter, he came to know that the prisoner has fled away and one of the petitioner, namely Mahadev Singh was also absent. On seeing the situation, the Assistant Sub-Inspector of Police asked the armed guard to make fire because in torch light the petitioners could see that somebody was fleeing. On seeing the situation, the Assistant Sub-Inspector of Police asked the armed guard to make fire because in torch light the petitioners could see that somebody was fleeing. When the incident took place, the ASI of Police immediately talked to the Superintendent of Police, Garhwa on mobile phone, upon which he was directed to report the same to the nearest police station and as per the direction the Assistant Sub-Inspector of Police reported the matter to the Salanpur Police Station, district Burdwan (West Bengal) at 4.00 a.m. and thereafter, the officer of the said police station reached to the place of occurrence at 5.50 a.m. and inquiry was made. After some time. Constable Mahads Singh, who was absent from last night along with the said prisoner came and on search key of hathkari was found from his pocket. Thereafter, an FIR was lodged on 6.9.2011 being Salanpur P.S. case No. 89 of 2011 under Section 224 of the Indian Penal Code. In the said FIR, the name of the Constable Mahadev Singh was named as the main accused, who helped the prisoner in fleeing away taking advantage of darkness. Thereafter, the petitioners along with escort party were put under suspension for the said incident and were served with memo of charge issued vide memo dated 26.9.2011 and departmental proceeding was initiated being Departmental Proceeding No. 34/2011 and conducting officer was appointed. The conducting officer issued letter to the petitioners asking them to furnish their show-cause in the Departmental Proceeding No. 34/2011 and the petitioners submitted their show-cause reply denting the allegations levelled against them. Thereafter, the Conducting Officer submitted inquiry report without serving copy of the inquiry report. The petitioners were asked to file show-cause against the proposed punishment of removal from service and the petitioners filed their reply. Thereafter, the disciplinary authority-respondent No. 4 without considering, basing on the inquiry report passed the order dated 13.6.2012, dismissing the petitioners from services and along with impugned order of punishment copy of the inquiry report was enclosed. Thereafter, being aggrieved by the impugned order of punishment, the petitioners filed appeal before the DIG of Police, Palamau Range (respondent No. 3) giving detailed reply for due consideration but the appellate authority dismissed the said appeal. Thereafter, being aggrieved by the impugned order of punishment, the petitioners filed appeal before the DIG of Police, Palamau Range (respondent No. 3) giving detailed reply for due consideration but the appellate authority dismissed the said appeal. Thereafter, the petitioners submitted memorial under the provisions of Police Manual before the Director General of Police, Jharkhand (respondent No. 2) and the memorial filed by the petitioners have been dismissed vide order dated 29.7.2013. Being aggrieved by the said orders, the instant writ applications have been filed by the petitioners. 4. Heard Dr. S.N. Pathak, learned senior counsel for the petitioners and Mr. Vikash Kumar, JC to AAG. appearing for the respondents. 5. Dr. S.N. Pathak, learned senior counsel for the petitioners has submitted with vehemence that in the departmental proceeding, inquiry report has not been served upon the petitioners, on the basis of which second show-cause was issued vide memo dated 2.3.2012, thereby, gross prejudice has been caused to the petitioners, which has materially affected the outcome of the proceeding. Learned senior counsel for the petitioners further submits that the action of the respondents in issuing the impugned order of punishment of dismissal of the petitioners from services without delving into the points raised before the Conducting Officer, the same suffers from breach of principal of natural justice as enshrined under Articles 14 and 16 of the Constitution of India. On that score, the impugned order of punishment of dismissal of services of the petitioners are not sustainable. Learned senior counsel appearing for the petitioners further submits that the fault of the disciplinary authority could not have been cured by the appellate authority and the reply of the petitioners have not been considered by the disciplinary authority and the reasons as stated cannot supplement the lacuna. In this respect, learned senior counsel for the petitioners has referred to the decision of the Hon'ble Apex Court reported in (1978) 1 SCC 405 (Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi and others). 6. In this respect, learned senior counsel for the petitioners has referred to the decision of the Hon'ble Apex Court reported in (1978) 1 SCC 405 (Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi and others). 6. Learned senior counsel appearing for the petitioners further submits that the respondent authorities in passing the impugned order of dismissal dated 13.6.2012 have not considered that the petitioners have not been provided opportunity of cross-examination during conduction of the departmental proceeding, and without examining the relevant witness such as waiter and owner of the hotel to ascertain the veracity of allegations, have come to the faulty finding and, therefore, the whole proceeding is vitiated on that ground learned senior counsel for the petitioners further submits that in dismissing the memorial filed by the petitioners, the respondent authority have not considered the points raised in the memorial. Learned senior counsel for the petitioners further submits that the impugned order of extreme punishment of dismissal from services is shockingly disproportionate to the gravity of charges and the respondent authority ought to have considered the quantum of punishment taking into consideration the charges vis-a-vis the finding of the Inquiry Officer. In this respect, learned senior counsel for the petitioners during course of argument has referred to Rule 826 of the Jharkhand Police Manual, which inter alia envisages : "Rule 826. Discrimination necessary in awarding punishments. - The punishment awarded should be in conformity with the gravity of offence with which the officer is charged and offences involving moral turpitude shall be carefully discriminated from smaller wrongdoings. It should also be borne in mind that the previous record of service of the officer concerned, if it is not already included in the charge of the proceeding shall not be taken into account for deter-mining the quantum of punishment. The objective of awarding punishment is firstly to keep a record of the wrongdoings of the officer and secondly as a measure of correction to alert him to improve his work and conduct. Several punishments awarded in one lot such as during inspections which do not provide an opportunity to the delinquent officer to improve himself are not likely to be helpful. In any case, the punishment cannot be awarded without carefully considering the defence of the delinquent officer. Several punishments awarded in one lot such as during inspections which do not provide an opportunity to the delinquent officer to improve himself are not likely to be helpful. In any case, the punishment cannot be awarded without carefully considering the defence of the delinquent officer. Before issuing orders of minor punishment, it is necessary to apprise the delinquent of the substance of the charges against him and he should be given adequate opportunity for defence. After this has been ensured, the punishment can be awarded. However, in the case of major punishments (see Rule 828) formal proceedings in P.M. Form No. 178 will have to be drawn up." 7. Mr. Vikash Kumar, JC to AAG, appearing for the respondents has reiterated the submissions made in the counter-affidavit. In the counter-affidavit, it has been inter alia submitted the violation of principles of natural justice has not been made because the petitioners were not condemned unheard. The petitioners while resuming escort ought to have taken extra care and caution when the pursuit any security hazard, when ASI along with the Havildar and nine armed constables under his command were deputed to escort the two handcuffed prisoners. The petitioners started for the destination early in the morning without having breakfast so they stopped to have proceeded to Birsa Mund Central Jail, Hotwar at Ranchi and after handing over one prisoner, namely Kunal Kishore Singh, they proceeded for Dumka at 3.25 p.m. to shift the other prisoner namely Sujit Kumar Sinha. On the way they had lunched but it was evident from the statement of the proprietor of the R.K. Hotel, Ormanjhee namely Rakesh Kumar Saliu, the waiter-Prakash Sao, Bar Man-Chandan Kumar that the prisoner Sujeet Sinha paid the bill of the food and drinks including wine and bear of the petitioners which was recorded by the witness No. 2 Shrawan Kumar and mentioned in the opinion of the Conducting Office-cum-Dy. S.P., Awadhesh Kumar Singh dated 24.2.2012. It is quite suspicious and unbelievable that a handcuffed man under the security of so many police personnel can escape without any help and it is clear sign of negligence and conspiracy. S.P., Awadhesh Kumar Singh dated 24.2.2012. It is quite suspicious and unbelievable that a handcuffed man under the security of so many police personnel can escape without any help and it is clear sign of negligence and conspiracy. After escape of the prisoner, one Mahadev Singh who also escaped for which an FIR was lodged and the said Mahadev Singh named as the main accused, on the basis of the information given by the ASI shifting the prisoner and the recovery of the empty cartridges, but, it is clearly created evidence by the petitioners and is not sufficient to prove their innocence. It is also submitted in the counter-affidavit that the show-cause was not found satisfactory because being a member of the police party they violated Rule 240(1) of the Police Manual. It has further been submitted that in pursuance to order dated 5.3.2013 passed by the Hon'ble Court an order of dismissal of the memorial was passed vide memo dated 29.7.2013 by the respondent No. 2 considering all the points raised therein. 8. Learned counsel for the respondents in order to buttress his submissions has submitted that the judicial interference under Article 226 of the Constitution of India is limited to the extent that if there is a procedural irregularity or the findings of the Inquiry Officer is based on no evidence, the judicial interference may be justified. In this respect, learned counsel for the respondents has referred to the decisions reported in (2012) 2 SCC 641 (paras 19 to 22). On the quantum of punishment, learned counsel for the respondent has referred to the decision reported in (2013) 4 SCC 301 (paras 14, 11 to 17 and 41 to 52). 9. Learned counsel appearing for the respondents has also referred to the decisions reported in : (i) (1993) 4 SCC 727 , (para 31) (ii) (2007) 4 SCC 627 , (paras 6 & 7) (iii) (2011) 4 SCC 584 . 10. After hearing learned counsel for the respective parties at length and having bestowed my anxious consideration to the materials on record. 10. After hearing learned counsel for the respective parties at length and having bestowed my anxious consideration to the materials on record. I am of the considered view that the case of the petitioners cannot fall under the scope of power of judicial review under Article 226 of the Constitution of India, due to the following facts and reasons: (I) In the case in hand, in view of the seriousness of allegations committed by the petitioners, the power of judicial review cannot be applied. Moreover, the fact finding given by the three consecutive authorities based upon the materials on record, cannot be interfered with, as has been held by the Hon'ble Apex Court in the case of State of Uttar Pradesh and another v. Man Mohan Nath Sinha and another as reported in (2009) 8 SCC 310 , specially at paragraph 15, which is quoted herein below : "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 considerations....... (II) So far as procedural irregularity is concerned, admittedly no inquiry report was supplied to the petitioners to submit their defences, but, the petitioners have failed to demonstrate as to what prejudice have been caused to them for non-supply of the inquiry report. Although, the supply of the inquiry report is a sine qua non of compliance of principle of natural justice, but, non-supply of the inquiry report without showing any prejudice being caused would not ipso facto vitiate the whole proceeding. But, considering the gravity of charges, even if, the inquiry report would have been supplied to the petitioners that would not improved the outcome of the proceeding because the petitioners have been found guilty for utter negligence, which has resulted in the escape of the handcuffed prisoner. Therefore, the impugned orders of punishment of dismissal from services do not appear to be grossly disproportionate to the alleged charges. Therefore, the impugned orders of punishment of dismissal from services do not appear to be grossly disproportionate to the alleged charges. (III) The view of this Court gets ample support and being fortified by the decision of the Hon'ble Apex Court reported in (2010) 3 SCC 556 (Sarva U.P. Gramin Bank v. Manoj Kumar Sinha) in a very illuminative way, wherein at paragraph 37, it has been pleased to inter alia hold : "37. Thereafter, this Court notices the development of the principle that prejudice must be proved and not presumed even in cases where procedural requirements have not been complied with. The Court notices a number of judgments in which the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had pre-judicially affected the applicant. Ultimately, It is concluded as follows : (Haryana Financial Corpn. case, SCC p. 44, para 44) "44. From the aforesaid decisions, it is clear that though supply of report of the Inquiry Officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show ‘prejudice'. Unless he is able to show that non-supply of report of the Inquiry Officer has resulted in prejudice or miscarriage of justice, as order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down." 11. Viewed thus, the impugned order of punishment of dismissal from services dated 13.6.2012 passed by respondent No. 4 the order of the appellate authority vide memo dated 19.10.2012 and the order of the revisional authority dated 29.7.2013 containing the rejection of memorial, do not warrant any interference by this Court. 12. Accordingly, the writ petition sans merit is dismissed. Petition dismissed.