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2017 DIGILAW 1734 (JHR)

Md. Sarifuddin v. State of Jharkhand

2017-10-05

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has, inter alia, prayed for issuance of an appropriate writ in the nature of certiorari for quashing the impugned order dated 31.01.2008, passed by the Superintendent of Police, West Singhbhum, Chaibasa as well as the order dated 30.05.2009, passed by the Deputy Inspector General of Police, Kolhan Range, Chaibasa, pertaining to dismissal from services and the petitioner has further prayed for a direction upon the respondents to reinstate the petitioner from the date of dismissal with all consequential benefits. 2. The brief facts, as disclosed in the instant writ petition, is that the petitioner was appointed as a Constable in the year 1990 in the district of Chaibasa. While posted in the district of Chaibasa, there was allegation of involvement of the petitioner in making forged Home Guard Certificate as well as interpolation in the master chart of the candidates selected in pursuance to the Advertisement No. 01/08. Thereafter, an F.I.R. was lodged against the petitioner under Sections 419, 420, 467, 468, 471, 472, 473 and 120 (B) of the I.P.C. Thereafter, charges were framed against the petitioner and the show cause notice was issued to the petitioner and the departmental proceeding was initiated vide letter dated 06.02.2008 (Annexure-1 to the writ petition). The matter was enquired into and the enquiry officer submitted his report on 31.10.2006 vide Annexure-2 to the writ petition. Thereafter, petitioner submitted his reply to the enquiry report and the impugned order of dismissal from services dated 31.01.2008 was passed vide Annexure-4 to the writ petition. Being aggrieved by the impugned order of dismissal, the petitioner preferred an appeal before the Deputy Inspector General of Police, Kolhan range, Chaibasa and vide order dated 30.05.2009, the appellate authority disposed of the appeal affirming the petitioner guilty of charges. Being aggrieved by the impugned order, passed by the Disciplinary as well as the appellate authority, the petitioner left with no other efficacious and alternative remedy, has knocked the door of this Court under Article 226 of the Constitution of India for redressal of his grievances. 3. Mr. Being aggrieved by the impugned order, passed by the Disciplinary as well as the appellate authority, the petitioner left with no other efficacious and alternative remedy, has knocked the door of this Court under Article 226 of the Constitution of India for redressal of his grievances. 3. Mr. Diwakar Upadhyay, learned counsel for the petitioner submits that the similarly placed senior employee, namely, Major Rama Kant Prasad, who was proceeded departmentally on the same set of charges has been inflicted with lesser punishment of stoppage of annual increments for two years, which is equivalent to 3 black marks but the petitioner has been inflicted with punishment of dismissal from services, which is higher and capital punishment and the petitioner ought to have been inflicted with lesser punishment at par with Major Rama Kant Prasad on the ground of parity. Learned counsel for the petitioner during course of hearing by referring to the supplementary affidavit has also submitted that he has been acquitted of all charges in the criminal case vide judgment dated 30th May, 2016, passed by the learned Judicial Magistrate, 1st Class, West Singhbhum at Chaibasa in TR No. 02 of 2016 arising out of G.R. Case No. 211 of 2001. Thus, the petitioner along with co-delinquent Major Rama Kant Prasad has been acquitted. Learned counsel for the petitioner also submits that although the F.I.R. was lodged in the year 2001 but the charges against the petitioner was framed in the year 2004 and there was inordinate delay in the initiation of the departmental proceeding, which is hit by section 42 of the Police Act. Apart from that, learned counsel for the petitioner submits that the entire proceeding is vitiated due to the fact that the enquiry report is based on suspicion and on surmises and conjectures, therefore, the enquiry is liable to the quashed. 4. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondent No. 4, wherein, it has been submitted that in the departmental proceeding, the Enquiry Officer found the petitioner guilty of charges levelled against him of tampering with records to favour the appearing candidates and the petitioner has been entrusted with duty to make entries in Master Chart and the candidate register. In the Registers, the petitioner was required to enter the date of birth, educational qualification, where Home Guard or not etc, and by scoring through the entries, corrections were made in the merit. During course of enquiry, the charges levelled against the petitioner has been found to be proved. Placing reliance on the report of the enquiry officer, the disciplinary authority has passed the impugned order of punishment, which has been confirmed by the appellate authority. 5. During pendency of the writ application, a supplementary counter affidavit dated 23.03.2017 has been filed on behalf of the Respondent No. 4, wherein, it has been submitted that a departmental proceeding was initiated against Major Rama Kant Prasad vide order dated 22.03.2009 and in the said proceeding, the disciplinary authority agreed with the finding of the Enquiry Officer and passed the impugned order of punishment vide memo dated 18.09.2012, whereby the delinquent's annual increment was stopped for two years i.e. equivalent to three black marks and the order of punishment of Major Rama Kant Prasad has been annexed as Annexure-A to the supplementary counter affidavit. 6. Mr. Shahid Khan, learned Standing Counsel (Mines) has reiterated the submissions made in the counter affidavit and has assiduously submitted that there is absolutely no infirmity in the departmental proceeding from the initiation of the proceedings till its culmination and the principles of natural justice has been followed since the petitioner was afforded full opportunity to defend himself. Learned counsel for the respondent-State further submits that since there has been no procedural irregularity in the conduction of the departmental enquiry, no interference is warranted in the instant writ petition. Learned counsel for the respondent-State has further submitted that under Article 227 of the Constitution of India, the scope of interference by this Court is very limited, unless there is infirmity in the departmental proceeding or the entire proceeding is based on no evidence. Learned counsel for the respondent-State further submits that the concurrent findings of two statutory authorities deserve to be accepted and the punishment awarded to the petitioner is just, proper and legal and therefore, the writ petition ought to be dismissed in limine. 7. Learned counsel for the respondent-State further submits that the concurrent findings of two statutory authorities deserve to be accepted and the punishment awarded to the petitioner is just, proper and legal and therefore, the writ petition ought to be dismissed in limine. 7. After hearing the learned counsel for the respective parties and on perusal of the records, I am of the considered view that of course, there is no procedural irregularity in the conduction of the departmental proceedings from the date of its initiation till its culmination but the case of the petitioner needs interference on the ground that the petitioner has been inflicted with punishment of dismissal from service, whereas, the co-delinquent, Major Rama Kant Prasad has been inflicted with lesser punishment i.e. stoppage of increments for two years, which is equivalent to three black marks, therefore, the case of the petitioner needs reconsideration on the ground of doctrine of parity. In this aspect of the matter, it would be apposite to refer to a decision rendered by the Hon'ble Apex Court in the case of Rajendra Yadav v. State of Madhya Pradesh and Others as reported in (2013) 3 SCC 73 , in particular paragraph 9, which is quoted herein below: "9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences." 8. From perusal of the findings of the Enquiry officer, I find that there is absolutely no difference in the charges levelled against the co-delinquent, Major Rama Kant Prasad, so far as the imputation of proved misconduct is concerned. Therefore, in the fitness of things, similar treatment ought to have been extended to the petitioner, so far as infliction of punishment is concerned. Therefore, in the fitness of things, similar treatment ought to have been extended to the petitioner, so far as infliction of punishment is concerned. In that view of the matter, the impugned order dated 31.01.2008 (Annexure-4), passed by the Superintendent of Police, West Singhbhum, Chaibasa (disciplinary authority) as well as the order dated 30.05.2009 (Annexure-7), passed by the Deputy Inspector General of Police, Kolhan Range, Chaibasa (appellate authority), pertaining to dismissal from service are hereby quashed and set aside and the matter is remitted to the respondents to consider the case of the petitioner on the quantum of punishment in accordance with law and pass appropriate order on the ground of doctrine of parity as that of his co-delinquent, Major Rama Kant Prasad within a period of 12 weeks from the date of receipt/production of a copy of the order. 9. With the aforesaid direction, the writ petition stands allowed. Petition allowed.