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2017 DIGILAW 155 (JHR)

Shashi Kant Mishra v. State of Jharkhand

2017-01-20

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. 1. In the instant writ application, the petitioner has inter alia prayed for quashing the order dated 30.04.2011 contained in Memo No.31/GO passed by Commandant (respondent no.3) and also the order dated 05.09.2011 passed by the Deputy Inspector General of Police, JAP, Ranchi, whereby the order passed by the Commandant (respondent no.3) to dismiss the petitioner from services with effect from 30.04.2011 and the order of the disciplinary authority to the effect that nothing would be paid to the petitioner for the period under suspension except the payment already made, has been upheld by the appellate authority. 2. The factual matrix, as averred in the writ application, in a nutshell is that on the basis of the complaints, charge sheet contained in Memo no.851 dated 20.05.2010 was issued by the respondent no.3 vide Annexure-1 to the writ petition. The gist of the charge pertains to exchange of hot words after the end of the duty, which took place between the petitioner and the Police 141 namely Gopal Yadav, which resulted injury sustained by Gopal Yadav being assaulted by the petitioner by a lathi. In pursuance to the charge sheet, the petitioner submitted his reply denying the said charges. The matter was enquired into and the enquiry report disclosed that it was a case of exchange of hot words but the petitioner was held liable for indiscipline. The disciplinary authority (respondent no.3) basing on the enquiry report without issuing second show cause notice dismissed the petitioner from services with effect from 30.04.2011 and passed the order that nothing would be paid to the petitioner for the period remaining under suspension except the amount which has already been paid to the petitioner, vide Annexure-4 to the writ application. Being aggrieved by the disciplinary authority, the petitioner preferred appeal before the respondent no.2, who also upheld the order passed by the Commandant, respondent no.3 vide Annexure-5 to the writ application, which are impugned in this writ application. 3. Learned counsel for the petitioner submitted with vehemence that the disciplinary as well as the appellate authority have travelled beyond the jurisdiction in imposing major punishment of dismissal from services which is excessive, harsh and disproportionate to the charges levelled against him. Learned counsel for the petitioner further submits that the past acts have been taken into consideration by the disciplinary authority, therefore, he has travelled beyond his jurisdiction. Learned counsel for the petitioner further submits that the past acts have been taken into consideration by the disciplinary authority, therefore, he has travelled beyond his jurisdiction. Since disciplinary authority is forbidden to take note of past conduct, learned counsel for the petitioner further submits that there is violation of Rule 824 of Police Manual, since there has been no dereliction or negligence of duty or violation of service conditions. Since when there was scuffle/quarrel, the petitioner was not in duty, hence there was no violation of service condition. Learned counsel for the petitioner further submits that the petitioner has been singled out for being inflicted with major punishment, where as the other delinquent Mr. Gopal Yadav has been exonerated from the charges. Moreover, the non-examination of the complainant has vitiated the whole proceeding, therefore the entire proceeding is based on no enquiry, since the enquiry report is perverse and based on no evidence. 4. In order to buttress his argument, learned counsel for the petitioner has referred to the decision of the Hon’ble Apex Court reported in (2009) 2 SCC 570 (para-15) (Roop Singh Negi vs. Punjab National Bank and Ors.). On the question of disproportionate punishment, learned counsel for the petitioner has referred to the decision of the Hon’ble Apex Court reported in (1995) 6 SCC 157 (Para-11 and 12). 5. Controverting the averments made in the writ application, a counter affidavit has been filed on behalf of the respondents. In the counter affidavit, it has been inter alia submitted that second show cause notice to the petitioner has been issued vide memo dated 12.03.2011 before passing the order and the petitioner received the same on 27.03.2011 himself. Since the petitioner belongs to a disciplined force, therefore, because of high handed and improper action by abusing his co-worker Constable 141, Gopal Yadav with filthy languages, the petitioner also assaulted him with lathi and snatched his golden chain costing around Rs.16,000/-, therefore, departmental proceeding was initiated against him and after conduction of proper departmental proceeding, the petitioner has been dismissed from services. It has further been submitted in the counter affidavit that the petitioner had quarreled with his senior officer S.I., Sri Nand Kishore Pathak for which he was put under suspension vide order no.17/2009 and departmental proceeding no.04/2009 was initiated against him. It has further been submitted in the counter affidavit that the petitioner had quarreled with his senior officer S.I., Sri Nand Kishore Pathak for which he was put under suspension vide order no.17/2009 and departmental proceeding no.04/2009 was initiated against him. After proper conduction of departmental proceeding, he was awarded major punishment of one black mark and one increment was withheld for six months. It has further been submitted that there is no any improper action taken against the petitioner nor had any mala fide intention. It has further been submitted that it is totally wrong and false statement that some Yadavs working in JAP-8 had harassed and hatched a plan against him. 6. Learned counsel for the State has reiterated the submissions made in the counter affidavit. Learned counsel for the State has assiduously submitted that the allegations of assault to Gopal Yadav has been proved by the enquiry officer and basing on the findings of the enquiry officer, the disciplinary authority as well as the appellate authority have passed the impugned orders of punishment. 7. After giving my anxious consideration to the submissions at the Bar and on perusal of the records, I am of the considered view that there has been no procedural irregularity from the date of initiation of proceeding till its culmination. But, considering the allegations made in the charge sheet and the findings of the enquiry report, it appears that out of four witnesses, three witnesses have deposed regarding quarrel between the petitioner and the Gopal Yadav, but the factum of using abusive language have not been proved by the witnesses. Moreover, the disciplinary authority has taken into account the past conduct in imposing the punishment, which ought not to have been made without issuing notice on the proposed punishment. Another point which leans in favour of the petitioner that the co-delinquent, Mr. Gopal Yadav though charges sheeted, has been exonerated and the petitioner has been inflicted with major punishment, which appears to be grossly disproportionate to the proved charges. On this score, the prayer of the petitioner can be acceded to only for the reconsideration on the quantum of punishment, therefore, I am of the considered view that the matter needs reconsideration by the respondents on the quantum of punishment. 8. On this score, the prayer of the petitioner can be acceded to only for the reconsideration on the quantum of punishment, therefore, I am of the considered view that the matter needs reconsideration by the respondents on the quantum of punishment. 8. On perusal of the impugned order, it appears that neither the disciplinary authority nor the appellate authority have applied their mind or accorded reasons in support of their conclusion. The view of this Court gets fortified by the decisions of the Hon’ble Apex Court reported in: (i). (2009) 2 SCC 570 (Roop Singh Negi vs. Punjab National Bank and Ors.) (ii). (1999) 2 SCC 10 (Kuldeep Singh vs. Commissioner of Police and Ors.) (iii). (1978) 3 SCC 366 (Nand Kishore Prasad vs. State of Bihar & Ors.) (iv). (2003) 9 SCC 480 (Kailash Nath Gupta vs. Enquiry Officer, (R.K. Rai), Allahabad Bank and Ors.) (v). (2010) 10 SCC 539 (Mohd. Yunus Khan vs. State of Uttar Pradesh and Ors.) Therefore, the findings recorded by the disciplinary authority affirmed by the appellate authority in imposing major punishment were not based on the findings of the enquiry report. 9. Viewed thus, the impugned order of punishment vide Annexures-4 and 5 are quashed and set aside and the matter is remitted to the respondents to consider the matter afresh, on the quantum of punishment and pass appropriate orders in accordance with law within a period of 8 weeks from the date of receipt of the copy of the order. 10. With the aforesaid direction, the writ petition stands allowed. Petition allowed.