Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 884 (JHR)

Bidhu Bhushan Dvivedi v. State of Jharkhand

2016-05-19

PRAMATH PATNAIK

body2016
JUDGMENT : Pramath Patnaik, J. Being aggrieved by the impugned order dated 26.10.2010 passed by the Director General and Inspector General of Police, Government of Jharkhand, imposing the order of punishment of compulsory retirement vide Annexure-12 and the order of the appellate authority dated 21.5.2011 vide Annexure-15, the accompanied writ application has been filed for quashing of the said orders. 2. The brief facts, as disclosed in the writ application, in a nutshell are that initially the petitioner was appointed to the post of Sub-Inspector of Police on 1.7.1976 and subsequently promoted as Inspector of Police on 11.12.1987 and continued as such till the imposition of compulsory retirement from the services i.e. 26.10.2010. While the petitioner was working as Inspector of Police at Giridih, a draft charge was issued by the Deputy Inspector General of Police, North Chotanagpur Range, Hazaribagh (respondent No. 4) on 19.2.2007 levelling various allegations. Out of the said charges, one charge was relating to remarriage by the petitioner in the year 1989 with Rajshree Dvivedi without getting permission from the Department, during subsistence of first marriage in violation of Section 18 of the Service Conduct Rules, 1956. Apart from this, other allegation against the petitioner has been levelled that he manhandled Jayshree Dvivedi due to which, P.S. case No. 24/2007 for the offence under Sections 341, 323, 427, 504 and 34 of the IPC, was lodged against him and that paper publication of such incidences, related matters tarnished the image of police and on the basis of the aforesaid alleged charges, petitioner was suspended with immediate effect. The petitioner submitted his preliminary explanation with regard to aforesaid charges denying the allegations. In the said explanation, the petitioner asked for certain relevant documents such as proof for the alleged second marriage in the year 1989 etc. The petitioner also asked for certain essential exhibits relating to draft charge from respondent No. 4, but the request of the petitioner was never acceded to. On the basis of the letter received from the petitioner, wherein the respondent No. 4 vide letter dated 20.4.2007 clearly mention that there is no proof of alleged second marriage as evident from Annexure-4 to the writ application. On the basis of the letter received from the petitioner, wherein the respondent No. 4 vide letter dated 20.4.2007 clearly mention that there is no proof of alleged second marriage as evident from Annexure-4 to the writ application. The petitioner has filed W.P. (S) No. 1219 of 2007 before this Hon'ble Court for quashing the charge-sheet and order of suspension and the said writ petition was disposed of on 15.6.2007 directing the respondent to expedite the departmental proceeding of the petitioner and conclude the same within a period of two months from the receipt/production of a copy of the order. Again, the petitioner filed W.P. (S) No. 4002 of 2007 challenging the order dated 14.5.2007 passed by the Jharkhand State Women's Commission, Ranchi and in the said case interim order was passed by this Hon'ble Court on 19.8.2008, but the same is subjudice till filing of this writ application. The petitioner made representation on 15.9.2007 to respondent No. 4 requesting therein to conclude the proceeding. Again on 8.12.2007 representation was filed by the petitioner to allow him to produce the witnesses. Ultimately, respondent No. 5 issued memo dated 20.12.2007 rejecting the representation of the petitioner and was directed to place the final defence and the petitioner submitted his final defence before the respondent No. 5. The respondent No. 4 recommended for punishment of compulsory retirement, busing on the opinion of the conducting officer and the respondent No. 3 issued a letter dated 11.5.2008 asking for show-cause on the proposed punishment to which the petitioner submitted his reply requesting therein to cancel the requesting therein to cancel the proposed punishment, and if necessary, for de novo proceeding, but the respondent No. 3 passed order dated 26.10.2010 imposing punishment of compulsory retirement vide Annexure-12 to the writ application. Being aggrieved by the impugned order of punishment of compulsory retirement, the petitioner preferred appeal but the appellate authority rejected the appeal vide order dated 21.5.2011 as evident from Annexure-15 to the writ application. 3. Heard Mr. Sohail Answer, learned senior counsel for the petitioner assisted by Mr. Afaque Ahmad and Mr. Prem Pujari (JC to GA) appearing for the respondents. 4. Mr. 3. Heard Mr. Sohail Answer, learned senior counsel for the petitioner assisted by Mr. Afaque Ahmad and Mr. Prem Pujari (JC to GA) appearing for the respondents. 4. Mr. Sohail Answer, learned senior counsel appearing for the petitioner has submitted with vehemence that the allegations levelled against the petitioner that he has performed second marriage in violation of Section 18 of the Service Conduct Rules, 1956, is completely false, as the said allegation has not been proved during the inquiry, which is evident from the letter of DIG, Hazaribag and the cross-examination of Jayshree Dvivedi and her statement on oath of MTS No. 156/2006 nor there has been any proof regarding any witness of the alleged remarriage in the year 1989. Therefore, the allegation of second marriage appears to be concocted. Learned senior counsel for the petitioner further submitted that the allegation regarding the alleged manhandling of Jayshree Dvivedi by the petitioner has not been proved by any cogent evidence, but the conducting officers found him partially guilty. So far as alleged charges of paper publication is concerned, the petitioner has not been held guilty of the said charges, therefore, in the departmental proceeding so far as all charges, charge No. 1 has been partially proved. Charge No. 2 has not been proved, whereas charge Nos. 3, 4 and 5 have been proved against the petitioner. 5. Learned senior counsel for the petitioner further submits that the impugned order of compulsory retirement is non-speaking and non-reasoned order. In this regard, learned senior counsel for the petitioner has referred to the decision reported in : (i) (2010) 7 SCC 678 (para 23) (ii) (2010) 2 SCC 497 (para 19) 6. Learned senior counsel further submits that there has been breach of principles of natural justice as the disciplinary authority has not considered the show-cause filed by the petitioner in right prospective. Moreover, finding of the disciplinary authority is perverse, because disciplinary authority has not given the cogent reasons for agreeing with the finding of respondent No. 4. Learned senior counsel further submits that the appellate authority has summarily rejected the appeal without delving with the points raised in the appeal. In this regard, learned senior counsel for the petitioner has referred to the decision of the Hon'ble Court reported in : (i) (1986) 3 SCC 103 (ii) 2007 (4) JSR 58 (DB) (para 2) 7. Mr. Learned senior counsel further submits that the appellate authority has summarily rejected the appeal without delving with the points raised in the appeal. In this regard, learned senior counsel for the petitioner has referred to the decision of the Hon'ble Court reported in : (i) (1986) 3 SCC 103 (ii) 2007 (4) JSR 58 (DB) (para 2) 7. Mr. Prem Pujari, learned JC to GA, has reiterated the submissions made in the counter-affidavit of respondent No. 6. Learned counsel for the State referring to paragraph 10 to the counter-affidavit submitted that the documents leave no room for any doubt or debate that the petitioner married Jaishree Dvivedi on 18.11.1980 and during subsistence of first marriage, he performed second marriage with Rajshree Dvivedi, elder sister of Jaishree Dvivedi. On 31.1.2007 Jaishree Dvivedi lodged First Information Report against the petitioner vide Giridih (T) P.S. Case No. 24/2007, wherein charge-sheet has been submitted under Sections 341. 323. 427 and 504 of the IPC. Jaishree Dvivedi also lodged First Information Report vide Giridih (T) P.S. Case No. 215/2007 under Sections 498-A, 494, 468, 471 of the IPC against the petitioner in which charge-sheet has been submitted against the petitioner under Sections 498-A, 494 of the IPC. It has further been submitted by the learned counsel for the State that all the documents were supplied to the petitioner and proper opportunity has been given, causing no prejudice to the petitioner. 8. After hearing learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the detailed grounds raised in the appeal dated 29.10.2010 have not been considered by the appellate authority and thereafter, the petitioner submitted supplementary ground of appeal dated 19.1.2011, though duly received in the office by the appellate authority, but, one page appellate order has been passed by the appellate authority, which is a non-speaking and cryptic order. 9. In this respect, it would be apposite to refer to the decision of the Hon'ble Apex Court reported in 2013 (1) JCR 188 (SC) : (2013) 6 SCC 530 , Chairman, Life Insurance Corporation of India and others v. A. Masilamani. wherein at paragraph 19, it has been held as under: "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". wherein at paragraph 19, it has been held as under: "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 (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar and Bhikhubhai Vithalabhai Patel v. State of Gujarat)." 10. Viewed thus, as a logical sequitur to the aforesaid factual and legal aspects, the impugned order of punishment dated 26.10.2010 passed by the Director General and Inspector General of Police and the order of the Appellate Authority dated 21.5.2011 being not legally sustainable are quashed and set aside and the matter is remitted to the Appellate Authority Principal Secretary, Department of Home, Government of Jharkhand (respondent No. 2) to consider the grounds taken in the appeal and pass appropriate order in accordance with law within a period of two months from the date of receipt/communication of the order. 11. With the aforesaid observations and directions, this writ petition stands disposed of. Petition disposed of.