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2017 DIGILAW 1284 (JHR)

Girijesh Kumar v. State of Jharkhand

2017-07-27

D.N.PATEL, RATNAKER BHENGRA

body2017
JUDGMENT : D.N. PATEL, J. 1. This Letters Patent Appeal has been preferred by the original petitioner who had preferred W.P. (S) No. 4588 of 2011, which was dismissed by the learned Single Judge vide judgment and order dated 8.3.2017, whereby, the order of punishment passed by the Deputy Director General of Police, Bokaro was upheld and hence, the original petitioner has preferred this Letters Patent Appeal. 2. Factual Matrix: (i) On 18.3.2008 at Dhanbad Police Station, the appellant-delinquent abused the Superintendent of Police Mr. Sinha in a loud voice and he was also giving threat to him in presence of several other persons. His behaviour was not befitting that of a police officer and hence, he was suspended and later on charge-sheet was given on 26.3.2008. Said document is at Annexure-1 to the memo of this Letters Patent Appeal. There is also charge against this appellant, who was a Sub-Inspector of Police, that he had gone to the Print and Electronic Media and false and wrong information was given to the said media, which was also published in the newspaper. Due to this act of the appellant, the image of the police department has been ruined in the eye of public at large and for these misconducts. charge-sheet was issued upon this appellant. (ii) Enquiry Officer was appointed and on the basis of the statement given during the course of departmental enquiry by all 10 witnesses and other documentary evidences on the record. Enquiry Officer has given a report dated 25.1.2009 and he has held that charges levelled against this appellant-delinquent were proved. (iii) Thereafter, a copy of the enquiry report along with the statement were supplied to this appellant (in total 27 pages) and the Disciplinary Authority Deputy Director General of Police passed a detailed order dated 18.9.2009 (Annexure-8 to the memo of the L.P.A.) and order of punishment of compulsory retirement of this appellant was passed. There is reference of earlier seven major punishments and 32 minor punishments inflicted upon this appellant in the past. Thus, there appears a consistency in the unbecoming behaviour of this appellant. (iv) Departmental appeal was preferred by this appellant-delinquent which was also dismissed by the Appellate Authority-Director General of Police vide order dated 28.6.2010 (Annexure-9 to the L.P.A). There is reference of earlier seven major punishments and 32 minor punishments inflicted upon this appellant in the past. Thus, there appears a consistency in the unbecoming behaviour of this appellant. (iv) Departmental appeal was preferred by this appellant-delinquent which was also dismissed by the Appellate Authority-Director General of Police vide order dated 28.6.2010 (Annexure-9 to the L.P.A). (v) Being aggrieved and feeling dissatisfied by the order of punishment, a writ petition bearing W.P. (S) No. 4588 of 2011 was preferred by this appellant, which was dismissed by the learned Single Judge vide judgment and order dated 8.3.2017 and hence, the present Letters Patent Appeal has been preferred by the original petitioner. 3. Arguments canvassed by the counsel appearing for the appellant: (i) Counsel appearing for the appellant submitted that charges levelled against this appellant have not been proved. Moreover, the enquiry report was not supplied to this appellant, except nine pages of it: (ii) It is further submitted by the counsel appearing for the appellant that there is a violation of the Rule 116 of the Jharkhand Police Manual. (iii) Counsel appearing for the appellant has relied upon the following decisions: (a) Moni Shankar vs. Union of India and Another, (2008) 3 PLJR 292 (SC) (b) Managing Director, ECIL, Hyderabad vs. Karunakar, (1993) 4 SCC 727 (c) State of Uttar Pradesh and Others vs. Saroj Kumar Sinha, (2010) 2 SCC 772 (d) Hardwari Lal vs. State of U.P. and Others, AIR 2000 SC 277 (iv) Counsel appearing for this appellant has taken this Court to the entries made in the station diary and submitted that this appellant could not remain present in two places at a time as is apparent from the entries made in the station diary. He has also submitted that Anticipatory Bail was moved before this Court, which was rejected vide order dated 25.9.2008 and later on the Hon'ble Supreme Court granted him Anticipatory Bail vide order dated 15.12.2008. (v) It is also submitted by the counsel for the appellant that this Court can exercise powers of judicial review. (vi) These aspects of the matter has not been considered by the learned Single Judge while dismissing the writ petition, hence this Letters Patent Appeal may kindly be allowed. 4. (v) It is also submitted by the counsel for the appellant that this Court can exercise powers of judicial review. (vi) These aspects of the matter has not been considered by the learned Single Judge while dismissing the writ petition, hence this Letters Patent Appeal may kindly be allowed. 4. Arguments canvassed by counsel appearing for the respondent State: (i) Counsel appearing for the respondent State submits that after the alleged misconduct, as stated in the charge-sheet, initially this appellant was suspended and the charge-sheet was given on 26.3.2008. Enquiry Officer was appointed and on the basis of the evidences on record, both oral as well as documentary, Enquiry Officer had given a report on 25.1.2009 and the charges levelled against the appellant-delinquent were found proved. Thereafter, a copy of the enquiry report was given along with all the statements of the witnesses as stated in the letter (Annexure-3 to the memo of this Letters Patent Appeal) and the Dy. Director General of Police, being the Disciplinary Authority, had passed the order of punishment of compulsory retirement on 18th September, 2009 (Annexure-8 to the memo of the L.P.A.). Again opportunity was given to this appellant and he preferred departmental appeal before the Director General of Police and after giving adequate opportunity of being heard to this appellant, the said appeal was dismissed vide order dated 28.6.2010. Thus, there is no procedural lacuna in holding the enquiry. (ii) It is also submitted by the counsel appearing for the respondent State that initially this appellant was not traceable. There are statements to this effect. Not only he was avoiding the service of Notice, but he has not remained present during the enquiry also. These actions on the part of this appellant are not befitting that of a post he was holding. Thus, though he was staying in the Government allotted quarters, he was not available at his official residence when charge-sheet was about to be served upon him. This appellant was never co-operating in the departmental enquiry. (iii) There is consistency in the behaviour of this appellant so far as misconduct is concerned. He has been awarded seven major and 32 minor punishments. He has served for 23 years and he has suffered 39 punishments. This is the track record of this appellant. This appellant was never co-operating in the departmental enquiry. (iii) There is consistency in the behaviour of this appellant so far as misconduct is concerned. He has been awarded seven major and 32 minor punishments. He has served for 23 years and he has suffered 39 punishments. This is the track record of this appellant. (iv) So far as quantum of punishment is concerned, it is alleged by the counsel appearing for the respondent State that as the appellant was serving in the police department, the misbehaviour and misconduct of this appellant, viz. abusing the Superintendent of Police in a police Station should have been adequately punished, but contrary to that, the State has taken a much lenient view of compulsory retirement, which could neither be said to be shockingly disproportionate nor unreasonably excessive. (v) These aspects of the matter has been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant. Hence, this Letters Patent Appeal may not be entertained. (vi) It is also submitted by the counsel appearing for the respondent State that there is no violation of any Rule of the Jharkhand Police Manual, much less Rule 116 etc. and no prejudice has been caused to this appellant. (vii) Counsel appearing for the respondent State has placed reliance on the following decisions rendered by the Hon'ble Supreme Court: (1) Union of India and Others vs. Bishamber Das Dogra, (2009) 13 SCC 102 (2) State of U.P. and Another vs. Man Mohan Nath Sinha and Another, (2009) 8 SCC 310 On the basis of the aforesaid decisions rendered by the Hon'ble Supreme Court, it has been submitted that no error has been committed by either the Enquiry Officer or by the Disciplinary Authority in holding the enquiry and in awarding the punishment to this appellant for the charges proved against him. These aspects of the matter has also been appreciated by the learned Single Judge while dismissing W.P. (S) No. 4588 of 2011 vide order dated 8.3.2017. REASONS: 5. These aspects of the matter has also been appreciated by the learned Single Judge while dismissing W.P. (S) No. 4588 of 2011 vide order dated 8.3.2017. REASONS: 5. Having heard counsel appearing for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and reasons: (i) The original petitioner-present appellant, who was working as a Sub-Inspector at Dhanbad Police Station on 18.3.2008, started abusing the Superintendent of Police in presence of other police personnel in a loud voice. This behaviour was not befitting that of his post. He had also approached print and electronic media, as per evidence given by the Print and Electronic Media during the course of enquiry and in print and electronic media news was also published, which has ruined the image of the police in the eye of public at large. For all these misconducts, he was suspended and later on charge-sheet was also given (Annexure-1 to the memo of the Letters Patent Appeal). (ii) Another police personnel was sent to the official residence allotted by the Government to this appellant, but evasive reply was given by his wife. This appellant was absconding. He was trying to get Anticipatory Bail under Section 438 of the Code of Criminal Procedure for a quite considerably long time. His Anticipatory Bail Application was rejected by this Court on 25.9.2008 and later on it was granted by the Hon'ble Supreme Court on 15.12.2008. (iii) Charge-sheet was pasted on the official residence of this appellant. Enquiry Officer was appointed. Enquiry was conducted and as many as 10 witnesses and several documents were presented during the course of the departmental enquiry. Looking to the report of the Enquiry Officer along with aforesaid evidences on record, it cannot be said that the report of the Enquiry Officer is based upon no evidence. On the contrary, looking to the evidences on record, it appears that no error has been committed by the Enquiry Officer in appreciating the evidences on record and holding that charges levelled against this appellant have been proved. On the contrary, looking to the evidences on record, it appears that no error has been committed by the Enquiry Officer in appreciating the evidences on record and holding that charges levelled against this appellant have been proved. (iv) It has been held by Hon'ble the Supreme Court in State of U.P. and Another vs. Man Mohan Nath Sinha and Another, (2009) 8 SCC 310 , Paragraph No. 15 that the Court is not sitting in appeal against the order passed by the Disciplinary Authority and the decision in question cannot be taken in review, but the decision-making process has to be verified by the Court. In the said judgment, it has been held in Paragraph 15 as under: "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. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a Court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court." (Emphasis supplied) In view of the aforesaid decision, looking to the decision-making process, it appears that in the facts of the present case all care has been taken by the State to give opportunity of being heard to this appellant. Witnesses have been examined and documentary evidences were also appreciated. There is no flaw in the decision-making process in the facts of the present case. Further, there is no violation of any Rule of Jharkhand Police Manual, much less Rule 116 as alleged by the appellant. (v) Much has been argued out by the counsel appearing for the appellant that enquiry report was never supplied. There is no flaw in the decision-making process in the facts of the present case. Further, there is no violation of any Rule of Jharkhand Police Manual, much less Rule 116 as alleged by the appellant. (v) Much has been argued out by the counsel appearing for the appellant that enquiry report was never supplied. We are not in agreement with this argument, mainly for the reason that looking to the Annexure-3 to the Letters Patent Appeal, dated 29.9.2009, it appears that this appellant was supplied the report of the Enquiry Officer along with statements of all the witnesses. There were 27 pages supplied to him. Before the Disciplinary Authority passes an order, report of the Enquiry Officer was supplied and later on the Disciplinary Authority i.e. the Deputy Director General of Police passed an order dated 18.9.2009 (Annexure-8 to the memo of the L.P.A.) and the punishment inflicted upon this appellant was for compulsory retirement. Earlier this appellant delinquent was punished for misconducts and several times punishments, major and minor, have been inflicted upon him: (a) Seven major punishments have been inflicted upon him in the past. (b) 32 minor punishments were also awarded. This appellant has served for 23 years and punishments have been inflicted upon him. This is the behaviour of this appellant and he has maintained consistency in this regard. Government should have dismissed him much earlier. Enough is enough. Tolerance level of the high ranking administrative officers seems to be also very high. In a disciplined force like the Police Administration, discipline should be the paramount consideration for the police personnel. (vi) So far as quantum of punishment is concerned, looking to the charges levelled against the appellant and the nature of misconduct, which has been proved and also looking to his past misconducts the punishments inflicted upon this appellant, it can neither be lebelled as shockingly disproportionate nor can it be stated that the punishment is unreasonably excessive. On the contrary, much lenient view has been taken by the respondent Government authorities, in awarding punishment of compulsory retirement. It has been held by Hon'ble the Supreme Court in Union of India and Others vs. Bishamber Das Dogra, (2009) 13 SCC 102 , paras 28 and 30 as under: "28. In Government of A.P. vs. Mohd. On the contrary, much lenient view has been taken by the respondent Government authorities, in awarding punishment of compulsory retirement. It has been held by Hon'ble the Supreme Court in Union of India and Others vs. Bishamber Das Dogra, (2009) 13 SCC 102 , paras 28 and 30 as under: "28. In Government of A.P. vs. Mohd. Taher Ali, this Court rejected the contention that unless the past conduct is part of charge-sheet, it cannot be taken into consideration while imposing the punishment observing that: "5..........there can be no hard-and fast rule that merely because the earlier misconduct has not been mentioned in the charge-sheet it cannot be taken into consideration by the punishing authority, Consideration of the earlier misconduct is often (necessary) only to reinforce the opinion of the said authority." (Emphasis supplied) In fact in Mohd. Taher Ali case the argument had been advanced that if the disciplinary authority wanted to consider the past service record of the employee, it should be a part of the charge-sheet. Though in K. Manche Gowda, this Court said that it should be so indicated in the second show-cause notice only for the purpose of imposing punishment. Thus it is not necessary that it should be a part of the charge-sheet. 30. In view of the above, it is evident that it is desirable that the delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in the case of misconduct of grave nature or indiscipline, even in the absence of statutory rules the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require." (Emphasis supplied) (vii) Much has been argued out by the counsel appearing for the appellant about the station diary and the entries made therein. We are not evaluating his possible defences at this stage as we are not sitting in appeal against the order passed by the Disciplinary Authority. Nor we are prejudging the criminal cases pending against him. The plea of alibi cannot be argued out at this stage. (viii) The peculiar facts of the present case: (a) That this appellant was working as a Sub-Inspector in a Disciplined Force, viz. Police Force. Nor we are prejudging the criminal cases pending against him. The plea of alibi cannot be argued out at this stage. (viii) The peculiar facts of the present case: (a) That this appellant was working as a Sub-Inspector in a Disciplined Force, viz. Police Force. (b) That he was not available when the charge-sheet was to be served upon him even at his official residence provided by the Government. (c) That he has never co-operated in the disciplinary proceeding before the enquiry officer. (d) That he was consistently trying to get anticipatory bail from March 2000 onwards. His application for anticipatory bail was rejected in September 2008 by the High Court and later on it was granted in the month of December 2008 by the Hon'ble Apex Court. Thus, consistently, he was hiding himself and evading the service of charge-sheet etc. (e) That in the past, this appellant was punished. Seven major and 32 minor punishment were awarded to him. (f) That as per the letter at Annexure-3 to the Letters Patent Appeal, report of the Enquiry Officer along with statement of the witnesses etc. 27 pages in all was given to him. Make the present case different, from the facts of the cases upon which reliance has been placed by the counsel for the appellant and hence the ratio decidendi of the said cases is not applicable in the facts of the present case. (ix) It has been held by Hon'ble the Supreme Court in New Shorrock Mills vs. Maheshbhai T. Rao, (1996) 6 SCC 590 , in para no. 9 as under: "9. It appears to us that the Labour Court completely misdirected itself in ordering the respondent's reinstatement with forty per cent back wages. The Labour Court was exercising jurisdiction under Section 78 of the Bombay Industrial Relations Act, 1946. It had the jurisdiction, inter-alia to decide the disputes regarding the propriety and legality of an order passed by an employer acting or purporting to act under the Standing Orders. The Labour Court, in the present case, having come to the conclusion that the finding of the departmental enquiry was legal and proper, the respondent's order of discharge was not by way of victimisation and that the respondent workman had seriously misbehaved and was thus guilty of misconduct, ought not to have interfered with the punishment which was awarded, in the manner it did. This is not a case where the Court could come to the conclusion that the punishment which was awarded was shockingly disproportionate to the employee's conduct and his past record. The Labour Court completely overlooked the fact that even prior to the incident in question the respondent had mis-conducted himself on several occasions and had been punished. According to the appellant there were at least three other instances where the respondent had mis-conducted himself and that he had failed to improve his conduct despite his assurances from time to time. Another aspect which was overlooked by the Labour Court was that on the finding of the Inquiry Officer that the respondent had misbehaved with his superior officer and was guilty of misconduct, the appellant could have dismissed the respondent from service. The appellant chose not to do so. Instead it passed an order of discharging the respondent from service. Lesser punishment having been given by the management itself there was in our opinion, no justifiable reason for the Labour Court to have set aside the punishment so awarded. We are unable to accept that the punishment imposed by the management was in any way disproportionate to warrant interference by the Labour Court. The direction of the Labour Court ordering reinstatement of the respondent with forty per cent back wages was clearly unwarranted." (Emphasis supplied) (x) It has been held by Hon'ble the Supreme Court in U.P.S.R.T.C. vs. Subhash Chandra Sharma, (2000) 3 SCC 324 , in paragraph no. 9 as under: "9. The Labour Court, while upholding the third charge against the respondent nevertheless interfered with the order of the appellant removing the respondent from the service. The charge against the respondent was that he in a drunken state, along with the Conductor went to the Assistant Cashier in the cash room of the appellant and demanded money from the Assistant Cashier. When the Assistant Cashier refused, the respondent abused him and threatened to assault him. It was certainly a serious charge of mis-conduct against the respondent. In such circumstances, the Labour Court was not justified in interfering with the order of removal of the respondent from the service when the charge against him stood proved. Rather we find that the discretion exercised by the Labour Court in the circumstances of the present case was capricious and arbitrary and certainly not justified. In such circumstances, the Labour Court was not justified in interfering with the order of removal of the respondent from the service when the charge against him stood proved. Rather we find that the discretion exercised by the Labour Court in the circumstances of the present case was capricious and arbitrary and certainly not justified. It could not be said that the punishment awarded to the respondent was in any way "shockingly disproportionate" to the nature of the charge found proved against him. In our opinion, the High Court failed to exercise its jurisdiction under Article 226 of the Constitution and did not correct the erroneous order of the Labour Court which, if allowed to stand, would certainly result in a miscarriage of justice." (Emphasis supplied) (xi) It has been held by Hon'ble the Supreme Court in Mahindra and Mahindra Ltd. vs. N.B. Narawade, 2005 (2) JCR 4 (SC) : (2005) 3 SCC 134 , in paragraph 20 and 22 as under: "20. It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of mis-conduct so as to disturb the conscience of the Court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd. and New Shorrock Mills this Court held: "Punishment of dismissal for using of abusive language cannot be held to be disproportionate." In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilised society. Use of such abusive language against a superior officer, that too not once but twice in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to hereinabove. 22. We may also note here that the learned counsel for the appellant has pointed out from the records that the workman was charge-sheeted more than once on earlier occasions and in spite of the gravity of the offence he was dealt with leniently. He pointed out that in one such earlier instance this workman had assaulted his coworker with a galvanised pipe causing grievous injury, even then he was punished with 4 days suspension only which according to the learned counsel clearly shows that the appellant management is not being vindictive." (Emphasis supplied) (xii) It has been held by Hon'ble the Supreme Court in L.K. Verma vs. HMT Ltd. (2006) 2 SCC 269 , in paragraph 22 as under: "22. So far as the contention as regards quantum of punishment is concerned, suffice it to say that verbal abuse has been held to be sufficient for inflicting a punishment of dismissal." (Emphasis supplied) 6. As a Cumulative effect of the aforesaid facts, reasons and judicial pronouncements, no error has been committed by the learned Single Judge in deciding W.P. (S) No. 4588 of 2011 vide judgment and order dated 8th March, 2017 and we see no reason to take any other view than what has been taken by the learned Single Judge. 7. There is no substance in this Letters Patent Appeal and the same is, hereby, dismissed with a cost of Rs. 7. There is no substance in this Letters Patent Appeal and the same is, hereby, dismissed with a cost of Rs. 25,000/- to be paid by the appellant to the respondent State, which will be deposited by the appellant before Superintendent of Police, Dhanbad and if the same is not deposited, it shall be deducted from the retirement dues of this appellant. Appeal dismissed.