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2017 DIGILAW 2124 (JHR)

Bandhu Oraon v. State Of Jharkhand

2017-12-08

ANIL KUMAR CHOUDHARY

body2017
JUDGMENT Anil Kumar Choudhary, J. - Heard learned counsel for the parties. 2. This writ application has been filed by the petitioner inter alia with prayers for (i) quashing the order contained in Memo No. 4015 dated 24.09.2007, issued by the respondent no. 4, by which the petitioner has been dismissed from service with immediate effect; (ii) quashing the order contained Memo No. 531 dated 13.06.2009, issued by the respondent no. 3, in the appeal preferred by the petitioner against the aforementioned order of his dismissal from the service issued by the respondent no. 4; (iii) reinstatement of the petitioner in service with effect from 24.09.2007 with all consequential benefits and other reliefs. 3. The brief facts involved in the writ application are that the petitioner was appointed and joined on the post of constable in the year 1997. While the petitioner was posted at Bara Jamda Out Post as Reserve Guard on 31.03.2004 at about 1:40 P.M., the M.C.C. militants attacked the said out post and took away nine rifles, one revolver and cartridges from there injuring several police personnel. The duty of the petitioner on that date was from 2:00 P.M. to 4:00 P.M. The petitioner was issued a charge-sheet with the allegation that the duty time of the petitioner was to start from 2:00 P.M. but instead of getting ready to join his duty 10 minutes before the schedule time of reporting to duty, he was watching T.V. leisurely and did not put forth any resistance as a result of which, fire arms and ammunition''s were looted by the M.C.C. extremists and as such, he committed indiscipline, dereliction of duties and for being negligent and is a coward, hence the petitioner is not fit to be a police personnel and as such, he was directed to file his show-cause within seven days. 4. The petitioner submitted his show-cause reply, which was rejected and a departmental enquiry was initiated against him by charge-sheet contained in Memo No. 1316 dated 30.05.2004. Subsequently, another departmental proceeding for the same allegation was initiated against the petitioner vide Memo No. 603 dated 15.02.2006 issued by the respondent no. 4. In enquiry report submitted by Police Inspector, Sadar Circle, Chaibasa-cum-Enquiry Officer, the petitioner was held guilty of the charges. Accepting the findings of enquiry report second show-cause notice was issued to the petitioner. Subsequently, another departmental proceeding for the same allegation was initiated against the petitioner vide Memo No. 603 dated 15.02.2006 issued by the respondent no. 4. In enquiry report submitted by Police Inspector, Sadar Circle, Chaibasa-cum-Enquiry Officer, the petitioner was held guilty of the charges. Accepting the findings of enquiry report second show-cause notice was issued to the petitioner. The petitioner filed his second show-cause reply but vide order contained in Memo No. 4015 dated 24.09.2007 issued by the respondent no. 4, the petitioner was dismissed form his service with immediate effect. Thereafter, the petitioner being not aware about the rules filed a representation and he also filed departmental appeal later on before respondent no. 3 but the same was rejected being time barred. 5. In the counter affidavit, it has been averred by the respondent no. 4 that on the date of occurrence on 31.03.2004, the extremists were armed with knife, lathi (danda) and chain and used such arms to control police personnel. It is the specific stand of the respondent that at the time of the occurrence, the petitioner was watching T.V. along with other police personnel though the petitioner should have been ready to join his duty at least 10 minutes before the schedule time. It is also averred by the respondent that the petitioner did not raise any resistance, resulting in plundering of various arms by the extremists. It was further averred by respondent no. 4 that in the departmental proceeding, the charges levelled against the petitioner were well proved and he has rightly been dismissed from the service. It is also contended in the counter affidavit that the petitioner was given sufficient opportunity to examine his own witness and to cross examine the witnesses in the departmental enquiry. 6. Mrs. Ritu Kumar, learned counsel for the petitioner submitted that at the relevant time, the petitioner was not on duty and the punishment awarded to him is disproportionate to his alleged misconduct. His services were terminated arbitrarily and in an illegal manner. Overlooking the lack of knowledge of the petitioner to file the departmental appeal within the specified time, in a mechanical manner, the departmental appeal was rejected on the ground that the same was barred by limitation. It was also submitted by the learned counsel for the petitioner that the actions of the respondents were mala fide and without jurisdiction. Overlooking the lack of knowledge of the petitioner to file the departmental appeal within the specified time, in a mechanical manner, the departmental appeal was rejected on the ground that the same was barred by limitation. It was also submitted by the learned counsel for the petitioner that the actions of the respondents were mala fide and without jurisdiction. Hence, the order of dismissal be set aside. It was further submitted that sufficient opportunity to examine and cross-examine the witnesses on whose evidence, the Enquiry Officer relied upon, while holding the petitioner guilty in the departmental proceeding, was not given to the petitioner and the departmental proceeding was not conducted as per law. Hence, it was submitted that the order of punishment be quashed. 7. Ms. Neelam Tiwary the learned counsel for the respondent, on the other hand, submitted that the due process of law was followed by respondent authorities in all the proceedings relating to the petitioner which ultimately resulted in his dismissal from his service. The charge against him was well proved. The allegation that due opportunity was not given to the petitioner to examine and cross-examine the witness are false and the same is contrary to the materials on record which shows that the petitioner was given adequate opportunity to cross examine the witness in the departmental enquiry to his full satisfaction. It was also submitted that there was neither any mala fide order nor any order has been passed in mechanical manner or for extraneous consideration. It was further submitted that the enquiry was held by a competent authority and there is no violation of the principles of natural justice in conducting the proceedings. Hence, it was submitted by the respondents that this writ application being without any merit, be dismissed. 8. It is pertinent to mention here that the scope of interference in service matters is no more res integra. In the case of Charanjit Lamba vs. Army Southern Command, (2010) 11 SCC 314 in paragraph 19 and 20 the Hon''ble Supreme Court of India held as under :- "19. 8. It is pertinent to mention here that the scope of interference in service matters is no more res integra. In the case of Charanjit Lamba vs. Army Southern Command, (2010) 11 SCC 314 in paragraph 19 and 20 the Hon''ble Supreme Court of India held as under :- "19. That the punishment imposed upon a delinquent should be commensurate to the nature and generally of the misconduct, is not only a requirement of fairness, objectivity, and non-discriminatory treatment which even those form quality (sic) of a misdemeanour are entitled to claim but the same is recognised as being a part of Article 14 of the Constitution. It is also evident from the long line of decisions referred to above that the courts in India have recognised the doctrine of proportionality as one of the ground for judicial review. Having said that we need to remember that the quantum of punishment in disciplinary matters is something that rests primarily with the disciplinary authority. The jurisdiction of a writ court or the Administrative Tribunal for that matter is limited to finding out whether the punishment is so outrageously disproportionate as to be suggestive of lack of good faith. 20. What is clear is that while judicially reviewing an order of punishment imposed upon a delinquent employee the writ court would not assume the role of an appellate authority. It would not impose a lesser punishment merely because it considers the same to be more reasonable than what the disciplinary authority has imposed. It is only in cases where the punishment is so disproportionate to the gravity of charge that no reasonable person placed in the position of the disciplinary authority could have imposed such a punishment that a writ court may step in to interfere with the same." (Emphasis given by me) 9. In respect of the doctrine of proportionality on which a writ court can interfere with the order of punishment imposed upon an employee the Hon''ble Supreme Court in paragraph -12 of the case of Charanjit Lamba vs. Army Southern Command (supra) held as under : "12. In respect of the doctrine of proportionality on which a writ court can interfere with the order of punishment imposed upon an employee the Hon''ble Supreme Court in paragraph -12 of the case of Charanjit Lamba vs. Army Southern Command (supra) held as under : "12. The doctrine of proportionality which Lord Diplock saw as a future possibility is now a well-recognised ground on which a writ court can interfere with the order of punishment imposed upon an employee if the same is so outrageously disproportionate to the nature of misconduct that it shocks the conscience of the court. We may at this stage briefly refer to the decisions of this Court which have over the years applied the doctrine of proportionality to specific fact situations." (Emphasis given by me) 10. In the case of Union of India vs. P. Gunasekaran, (2015) 2 SCC 610 , in paragraph 12 and 13 the Hon''ble Supreme Court of India has laid down the principles as to what a writ court exercising power under Article 226/227 of the Constitution of India can see and what it shall not in respect of a disciplinary proceeding by holding as under: "12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience." 10. So far as the scope for interference with the punishment of dismissal from service by a court is concerned it will be profitable to refer to the case of Union of India vs. Diler Singh, (2016) 13 SCC 71 , wherein in the facts and circumstances of that case where a constable of CRPF left the campus without the permission of the competent authority and went to the bazaar and consumed liquor and quarrelled with some civilians the Hon''ble Supreme Court of India in paragraph- 25 held as under : "25. In Dwarka Prasad, it has been held that unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court/tribunal, there is no scope for interference. When a member of the disciplined force deviates to such an extent from the discipline and behaves in an untoward manner which is not conceived of, it is difficult to hold that the punishment of dismissal as has been imposed is disproportionate and shocking to the judicial conscience." (Emphasis given by me) 11. Considering the facts of the case in the light of the principles of law as discussed above, it is crystal clear that the petitioner was present at the time of occurrence within the premises of the Bara Jamda police out post and the extremists were not armed with any fire arm. They were armed with simple arms like knife, lathi (danda) and chain. There is no assertion on the part of the petitioner that he did anything to resist any of the extremists. The allegations that the petitioner did not put in any resistance is not disputed. The petitioner furnished explanation for his failing to put in resistance by shifting the responsibility to others but did not owe any responsibility of himself in the matter. The fact remains that once it is established that he was present in the premises of the Bara Jamda police out post as a Reserve Guard at the time the M.C.C. extremists trespassed in to the premises of the outpost and proceeded towards the place where the arms were kept the petitioner who was expected to be well aware that arms and ammunition''s were kept there, had a duty to protect the arms and ammunition''s of the police irrespective of the fact whether his duty hour as a sentry started or not. In the enquiry report it has been mentioned that in the connected FIR lodged for the occurrence the time of occurrence has been mentioned as 2.00 P.M. It is also relevant to mention that though several police personnel sustained injuries in the said occurrence yet no injury is said to have been sustained by the petitioner. There is no dispute of the fact that under the relevant rules the respondent no. 4 was entitled to issue an order of dismissal for the charges which were proved against the petitioner. There is no dispute of the fact that under the relevant rules the respondent no. 4 was entitled to issue an order of dismissal for the charges which were proved against the petitioner. It is not a case that the findings of the enquiry are based on "no evidence". Certainly a police personnel who meekly surrenders fire arms of police to miscreants armed with simple weapons like knife, lathi (danda) and chain without any resistance is a liability to any police force and such a person is a burden which no efficient police can shoulder. Though the grounds of inadequate opportunity in examining witnesses and for cross-examining witnesses relied upon by the enquiry officer and that the enquiry being not conducted as per law were also agitated but the same is not specific and vague. The documents in the record do not support these contentions of the petitioner. 12. So taking into consideration the aforesaid facts and circumstances of the case, this court is of the considered opinion that there is no apparent illegality either in the procedure of the enquiry or the process resulting in the dismissal of the petitioner nor his punishment is shocking warranting interference of this court in exercise of its powers under Article 226 of the Constitution of India. 13. Accordingly, this writ application, being without any merit, is dismissed. No cost.