Hem Bahadur Limbu son of Late U. D. Limbu v. State of Jharkhand
2017-01-09
ANANDA SEN, PRADIP KUMAR MOHANTY
body2017
DigiLaw.ai
ORDER : Heard Mr. Saurav Arun, learned counsel for the appellant and Mr. D.K. Dubey, learned Sr. S.C. I, appearing for the respondents. 2. The present Letters Patent Appeal has been preferred against the judgment dated 12.12.2014 passed in W.P.(S.) No. 1184 of 2011 whereby and where under the writ petition filed by the present appellant, challenging the order of dismissal from service being memo no. 56 dated 24.01.2009 and also appellate order dated 03.07.2010 by which the order of dismissal has been confirmed holding that since there is concurrent finding of misconduct against the petitioner, this Court sitting under Article 226 of the Constitution of India cannot reappraise the evidence. 3. The facts of the case is that the present appellant has been appointed as Constable bearing constable no. 1032 under the Jharkhand Armed Police (JAP-1) and at the time of issuance of impugned order the appellant was posted and working at Jhumra Hill, Bokaro JAP-1. He proceeded on sanctioned leave from 17.06.2008 to 07.07.2008, but even after lapse of sanctioned leave he did not join duty inspite of several letters issued to him for his joining, hence, he was put under suspension on 13.08.2008 in contemplation of departmental proceeding. However, he could not participate in the departmental proceeding and ultimately he has been dismissed from service vide order dated 24.01.2009 against which the appellant preferred an appeal before the appellate authority on 29.06.2009, but, the same has also been rejected by order dated 03.07.2010. 4. Mr. Saurav Arun, learned counsel appearing for the appellant, submits that the present appellant was neither been served with the suspension order nor he has received a single letter on behalf of the respondents for joining after lapse of his sanctioned leave period and only intimation letter, through registered post, has been sent to him for attending the departmental proceeding. Learned counsel further submits that charge sheet has not been served upon the appellant and the departmental proceeding proceeded ex-parte and dismissal order was passed. He also submits that a medical certificate was given by the Senior Medical Officer of Govt.
Learned counsel further submits that charge sheet has not been served upon the appellant and the departmental proceeding proceeded ex-parte and dismissal order was passed. He also submits that a medical certificate was given by the Senior Medical Officer of Govt. of Arunachal Pradesh that the appellant was suffering from infective hepatitis and he was under treatment w.e.f. 08.07.2007 to 20.09.2008 and therefore, he was not fit to resume the service during the said period, but, the disciplinary authority has not considered the same and neither sufficient opportunity was given to the appellant nor any relevant documents were supplied to him. In the aforesaid backdrop, learned counsel for the appellant submits that the order of termination is very harsh and liable to be set aside. 5. Mr. D.K. Dubey, learned Sr. S.C. I appearing for the respondents vehemently opposed the submissions made by the learned counsel for the appellant on the ground that there is no illegality committed by the learned Single Judge in passing the impugned judgment and principle of natural justice has been followed. Learned Sr. S.C. I submits that second show-cause notice has been issued to the appellant and the same was also published in the newspaper by the respondents, for submitting his explanation, but, the appellant has failed to comply the same and considering the unauthorized absence of the appellant, he was dismissed from the service by the disciplinary authority and the same was confirmed by the appellate authority, which was uphold by the learned Single Judge. There is no infirmity and illegality in issuing the termination order against the appellant, hence, the Letters Patent Appeal lacks any merit and deserve to be dismissed. 6. Perused the records of W.P.(S.) No. 1184 of 2011 and the Police Manual. On perusal of the order dated 12.12.2014 passed in W.P.(S.) No. 1184 of 2011, it appears that no infirmity has been committed by the learned Single Judge. The question of interference on the quantum of punishment has been considered by this Court in a catena of judgments and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary and thus would violate the mandate of Article 14 of the Constitution. It has been held in the case of S.R. Tewari Vs.
It has been held in the case of S.R. Tewari Vs. Union of India and another reported in 2013 (6) SCC 602 , that the Court must keep in mind that judicial review is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the Competent Authority. In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the Court itself can impose appropriate punishment by recording cogent reasons in support thereof. 7. In the present case, inquiry officer on appreciating the evidence held that the appellant was unauthorizedly absent but the disciplinary authority as also the appellate authority failed to appreciate the same that the punishment with regard to the termination/dismissal from the services is disproportionate to the gravity of misconduct. This Court after considering all the aspects thinks it fit to modify the order of dismissal from service and substituting the same to seven black marks. 8. Accordingly, this Court modify the order of dismissal by substituting the same to seven black marks. Since, the appellant was terminated from 24.01.2009 to till today i.e. nearly about 8 years, this Court directs the respondents to pay a consolidated amount in lieu of the back wages to the tune of Rs. 2,50,000/-and reinstate him in service within a month. This court also directs the appellant to join the service on or before 15.02.2017 and submit his joining before the Commandant-respondent no. 3 (Jharkhand Armed Police-I). However, the period from 24.01.2009 till today would be calculated only for the purpose of pension and not for any other purposes. 9. The Letters Patent Appeal is, accordingly, disposed of with the above modification.