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2017 DIGILAW 57 (JHR)

Ram Bahadur Singh v. State of Jharkhand

2017-01-10

PRAMATH PATNAIK

body2017
JUDGMENT : Pramath Patnaik, J. In the instant writ application, the petitioner has inter alia prayed for quashing the order dated 1.2.2010, passed by the respondent no. 3, whereby the order of punishment of withholding one increment for a period of three years has been passed and for quashing the order, as contained in order no. 378/10, dated 21.5.2010, whereby the promotion of the petitioner has been denied and further for a direction upon the respondents to consider the case of the petitioner for promotion to the post of Assistant Sub Inspector of Police with effect from the month of May, 2010 alongwith all consequential benefits. 2. Sans details, the facts as disclosed in the writ application is that the petitioner was appointed as a Constable in the State Police with effect from 25.11.1983 and after bifurcation of the State, he has been allocated the cadre of the State of Jharkhand and his services have been placed to the Crime Investigation Department, in which the petitioner is at present posted as Constable. It has been further averred in the writ application that while the petitioner was posted as a member of Crime Investigation Department team in the district of Gumla, one memorandum of charge was issued as contained in memo no. 830 dated 29.5.2009, whereby charges have been leveled regarding unauthorized absence and 2nd charge is with respect of dereliction in duty, while he was deputed to discharge his duties on 9.7.2009. It has been further averred that by virtue of the order dated 29.05.2009, the petitioner was directed to give reply within a period of fifteen days and in pursuance of the same, he has given his reply, denying the entire allegation with specific averment that so far as second charge is concerned, the petitioner has already been inflicted punishment. The respondents authorities without taking into consideration the reply to the show cause, have passed an order on 1.2.2010, inflicting punishment of withholding one increment for a period of three years, clarifying that it will not affect his future increment. The respondents authorities without taking into consideration the reply to the show cause, have passed an order on 1.2.2010, inflicting punishment of withholding one increment for a period of three years, clarifying that it will not affect his future increment. It has been further averred that the order dated 1.2.2010 is absolutely incorrect and illegal, in view of the fact that although two charges have been leveled against the petitioner one with respect to unauthorized absence while another is with respect to incidence of 9.7.2009 and in the memorandum of charge itself, it has been stated that with respect to incidence occurred on 9.7.2009 a departmental proceeding was already initiated against the petitioner being Departmental Proceeding No.33/05, wherein the punishment of withholding increment for a period of six months has been inflicted upon the petitioner and, thus, with respect to the 2nd charge, he has already been inflicted with a punishment, but, to the utter consternation of the petitioner, the respondent authorities while framing charge against him, the second charge for which the petitioner has already been punished, has also been made a charge against him and hence on this ground alone the entire departmental proceeding is vitiated in law and, as such, the order dated 1.2.2010 is also not sustainable in the eyes of law as because an employee/person once punished or convicted cannot be re-punished or reconvicted in view of the express provision, as contained in Article 20 (2) of the Constitution of India. It has been further averred that the respondent authorities have further acted in a highly arbitrary manner in view of the fact that although the petitioner is entitled to be considered for promotion to the next higher post i.e. to the post of Assistant Sub Inspector of Police with effect from the month of May, 2010 but his case has not been considered, rather it has been rejected on the ground of order of punishment dated 1.2.2010 vide order dated 21.5.2010. Left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for redressal of his grievances. 3. Per contra Counter-affidavit has been filed on behalf of the respondents, repelling the contentions made in the writ application. Left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for redressal of his grievances. 3. Per contra Counter-affidavit has been filed on behalf of the respondents, repelling the contentions made in the writ application. It has been inter alia, submitted in the counter-affidavit, that one Constable C/140, Ram Bahadur Singh, who was posted in the office of the Deputy Superintendent of Police, CID, Gumla, was traceless from 3.2.2009 to 4.2.2009 without any information to his superiors and C/22 Kaushal Kumar Mishra was deputed to search him giving command certificate. C/22 Kaushal Kumar Mishra submitted his report in writing that C/140, Ram Bahadur Singh is not available at Gumla area. Thereafter, the Deputy Superintendent of Police, CID, Gumla sent a report to CID, H.Qr., regarding his absence vide his Memo No. 12/09 dated 4.2.2009. Thereafter, a departmental proceeding being D.P. No. 11/09 was initiated against the petitioner, Constable-140, Ram Bahadur Singh and Sri Dinesh Kumar, Police Inspector, CID, was made the conducting Officer. The said departmental proceeding was conducted accordingly and C/140, Ram Bahadur Singh was granted adequate opportunity for his defence. Thereafter, the Conducting Officer submitted his inquiry report on 13.10.2009 and found the petitioner guilty of the charges levelled against him. After considering the inquiry report and perusing the materials on record and application of judicial mind, the disciplinary authority passed order on 21.5.2010 and imposed punishment of withholding one increment for a period of three years. Unauthorized absence for the period 3.2.2009 and 4.2.2009 was adjusted as extra-ordinary leave without payment. The promotion of the petitioner was denied vide C.I.D. Order No. 378/10, Memo No. 53/R dated 21.5.2010 and D.G.P. and I.G. of Police Office Memo No. 966/P dated 26.4.2010. Punishment of withholding increment for a period of three years has been inflicted upon the petitioner of which time of occurrence is 3.2.2009 and the punishment affected his promotion for three years from the date of occurrence i.e. w.e.f. 3.2.09 to 3.2.12 and hence his promotion was denied. 4. Punishment of withholding increment for a period of three years has been inflicted upon the petitioner of which time of occurrence is 3.2.2009 and the punishment affected his promotion for three years from the date of occurrence i.e. w.e.f. 3.2.09 to 3.2.12 and hence his promotion was denied. 4. A rejoinder to the counter-affidavit has been filed by the petitioner, wherein, it has been, inter alia, submitted that the main ground on which the petitioner has assailed this writ petition is that the petitioner has not been given ample opportunity of being heard to defend his case and, hence, summary proceeding that has been concluded is in gross violation of the principles of natural justice as well as in violation of the provisions of Police Manual. The charges have been framed without giving any opportunity of being heard and order of punishment has been inflicted by the respondents and the same is against the settled principle of law. The impugned order dated 21.05.2010 is vitiated in law on the ground that under the provision of Rule 832 (b) of the Police Manual, no order for stopping promotion can be given in a departmental proceedings, rightly order of reduction in rank be given, meaning thereby that is also a prohibition on restraining the employee from getting promotion in a departmental proceedings as the same came to be denied on the basis of order of punishment as has been done vide order dated 21.05.2010. The impugned order dated 21.05.2010 is invalid, because the same leads to a situation, wherein, the petitioner is being punished twice for the same offence, as because the petitioner has already been punished vide order dated 01.02.2010 and therefore, in the garb of the said order of punishment, another order of punishment, wherein, his promotion is being stopped, is unsustainable in the eyes of law. In the order dated 21.05.2010, it has been stated that the promotion can only be given, if there is no pendency of criminal proceedings or departmental proceedings or no order of punishment has been passed by inflicting major punishment. However, since the order dated 01.02.2010 has been passed for withholding of one increment for three years and that too without any future effect, the same cannot be said to be a major punishment and, therefore, in view of this, the stopping of promotion is unwarranted. However, since the order dated 01.02.2010 has been passed for withholding of one increment for three years and that too without any future effect, the same cannot be said to be a major punishment and, therefore, in view of this, the stopping of promotion is unwarranted. The departmental proceeding has been initiated and the petitioner was given chance to reply as will be apparent from the documents that is being advanced by the respondents, but, one chance was given and that too only in the absence of the petitioner and, hence the petitioner could not know about the proceeding and the whereabouts of the same. The petitioner was not given opportunity to file reply to second show cause notice which is mandatory as far as the settled principle of departmental proceedings is concerned and in the absence of the same, the respondents authorities have passed the order of punishment against him and the procedures prescribed under the law, have been violated and therefore, it cannot be a due process of law. Although the petitioner is saying that the second impugned order has been passed for two different incidents, but there is no reference of the second incident in which the second impugned order dated 21.05.2010 has been passed, and there is no disciplinary proceeding that has been initiated against the petitioner for the same. Moreover, there can be no case on the part of the respondents-authorities that on the basis of second incident, the punishment order in the nature of stoppage of promotion, can be passed as because beyond the statutory provision, such a punishment cannot be imposed against any employee. The promotion is an incident of service and the same cannot be stopped by passing any order on the part of the employer. The action on the part of the respondents is highly illegal and as such, the petitioner is entitled to the reliefs as sought for in the main writ application. 5. A supplementary counter-affidavit has been filed on behalf of the respondents, wherein, it has been inter alia, submitted that a departmental proceeding vide Departmental Proceeding No. 11/2009 has been initiated against the petitioner and in this proceeding, three years increments of the petitioner was withheld. The date of occurrence was 03.02.2009. 5. A supplementary counter-affidavit has been filed on behalf of the respondents, wherein, it has been inter alia, submitted that a departmental proceeding vide Departmental Proceeding No. 11/2009 has been initiated against the petitioner and in this proceeding, three years increments of the petitioner was withheld. The date of occurrence was 03.02.2009. Since 03.02.2009 to 03.02.2012 i.e. within three years, promotion of the petitioner has been denied, even when the name of the petitioner was there in the list dated 26.04.2010 at Serial No. 592. Therefore, vide Crime Branch Order No. 378/2010 dated 21.05.2010, the promotion of the petitioner has been denied. 6. A supplementary counter-affidavit has been filed on behalf of the respondent no. 4, wherein, it has been, inter alia, submitted that in the meeting of the Regional Promotion Committee held on 27.04.2009, the petitioner was found to be fit for promotion and the said minutes of meeting dated 27.04.2009 was sent to the D.I.G. (Personnel), Jharkhand, Ranchi vide memo no. 759 dated 12.05.2009 for being considered for promotion by the Central Promotion Committee. It has been further averred that the Central Promotion Committee relying upon the recommendation sent by the Regional Promotion Committee found the petitioner fit to be promoted vide meeting dated 17.09.2009. It has been further stated that when the case of the petitioner was considered by the Regional Promotion Committee on 27.04.2009, neither there was any criminal/departmental proceeding pending against the petitioner nor any major or minor punishment has been inflicted against him and subsequently, charge memo was issued vide memo no. 830 dated 29.05.2009 for which departmental proceeding no. 11 of 2009 was initiated against the petitioner. It has been further averred that the charge memo was issued and departmental proceeding was initiated in between the meetings of the Regional Promotion Committee and the Central Promotion Committee and that is why the petitioner was found fit for promotion. It has been further submitted that in the next two meetings for promotion, the petitioner was not found to be fit for promotion as because there was departmental proceeding pending against him. It has been further averred that Departmental proceeding No. 11 of 2009 has been initiated against him and in this proceeding, three years increments of the petitioner was withheld. It has been further averred that Departmental proceeding No. 11 of 2009 has been initiated against him and in this proceeding, three years increments of the petitioner was withheld. In Crime Branch Order No. 378/2010 dated 21.05.2010, the promotion of the petitioner has been denied as there was a condition that there should not be any criminal proceeding/departmental proceeding pending or any major punishment awarded before 17.09.2009. From the facts stated hereinabove, it is crystal clear that the petitioner is not entitled to any relief and, as such, writ application filed by him is fit to be dismissed in limine. 7. Heard Mr. Saurabh Shekhar, learned counsel for the petitioner and Mr. Chanchal Jain, learned J.C. to A.A.G. appearing for the respondent-State. 8. Learned counsel for the petitioner has vehemently submitted that the order dated 21.5.2010 is unsustainable in law in view of the fact that Clause 832 (b) of the Jharkhand Police Manual clearly stipulates that in a departmental proceeding, the authorities have been restrained from passing an order denying promotion of a delinquent employee and hence by virtue of the impugned order dated 21.5.2010 his promotion has only been rejected, on the ground of the order dated 1.2.2010, which is unsustainable, in view of the provisions, as contained in Rule 832 (b) of the Jharkhand Police Manual, on the ground that an adverse order cannot be passed restraining an employee from getting his promotion and in the garb of the order of punishment the promotion cannot be denied to an employee. Learned counsel for the petitioner further submits that the order dated 21.5.2010 is vitiated in the eyes of law, because of the reason that the petitioner has been punished twice; first by issuance of the order dated 1.2.2010 and second in pursuance of the order dated 21.5.2010, which amounts to imposition of major punishment against him and it is settled principle that while imposing major punishment, regular departmental proceeding has to be followed and admittedly, in the present case, no regular departmental proceeding has been initiated, which is necessary in view of the fact that the order dated 21.5.2010 will be deemed to be in continuation of the order dated 1.2.2010. Learned counsel for the petitioner further submits that the petitioner is otherwise entitled to get promotion to the higher post of the Assistant Sub Inspector of Police but his case was not taken into consideration. Learned counsel for the petitioner further submits that the petitioner is otherwise entitled to get promotion to the higher post of the Assistant Sub Inspector of Police but his case was not taken into consideration. Learned counsel for the petitioner further submits that in the facts and circumstances of the case, the petitioner’s fundamental right, as guaranteed under Article 14 of the Constitution of India has been violated at the hands of the respondents. Learned counsel for the petitioner further submits that the act of the respondent authorities is highly illegal and arbitrary, which the respondents authorities cannot be permitted to do. 9. On the other hand, learned counsel for the respondent-State apart from justifying the impugned order of punishment, has assiduously submitted that the promotion of the petitioner was denied as there was a condition that there should not be any criminal proceeding/departmental proceeding or any major punishment awarded before 17.09.2009. Learned counsel for the respondent further submits that in relation to C.I.D. Departmental Proceeding No. 19/2010, punishment of withholding of one year’s increment for six months have been inflicted upon the petitioner vide Crime Branch Order No. 521/2011. Learned counsel for the respondent further submits that on 11.09.2009, the petitioner has abused and misbehaved with one another police personnel, namely, Shyam Nandan Singh and in this proceeding, the charge against the petitioner was proved beyond all reasonable doubts and aforesaid order of withholding of one year’s increment for six months has been passed against him. Learned counsel for the respondent further submits that in another Departmental Proceeding No. 03 of 2011, charge against the petitioner was proved. Learned counsel for the respondent further submits that the charge against the petitioner was that he has cheated and defalcated Rs. 70,000/- in the name of providing job of a primary teacher and when, he was asked to return the money, the petitioner threatened to assault and did not return money and in this proceeding, the disciplinary authority has withheld one year’s increment of the petitioner, which was equivalent to two black marks clarifying that it will not affect his future increment vide Crime Branch Order No. 195/2012 and the date of occurrence was 2005. Learned counsel for the respondent further submits that in another proceeding, which was initiated due to unauthorized absence of the petitioner since 22.06.2013 to 27.06.2013, the petitioner was declared absconder and in this proceeding under Rule 828 (C) of the Police Manual, punishment of one Black Mark was inflicted upon the petitioner vide Crime Branch Order No. 569 of 2013 contained in Memo No. 562/ra ka dated 10.08.2013. Learned counsel for the respondent further submits that the date of occurrence is 22.06.2013 and as such, the petitioner was not fit to be promoted within the period of three years i.e. till 21.06.2016 and these are the reasons, the Departmental Promotion Committee (D.P.C.) could not consider the case of the petitioner for promotion to the post of Assistant Sub-Inspector of Police. Learned counsel for the respondent further submits that so far the period since 03.02.2012 (end of period of three years of the Departmental Proceeding No. 11/2009) to 11.09.2012 (start of the three years of Departmental Proceeding No. 19/10) is concerned, in this period guidelines were sought for, from the Inspector General of Police (Personnel), Jharkhand vide Memo No. 1206/ra ka dated 06.11.2012; Memo No. 136/ra ka dated 23.02.2013 & Memo No. 292/ra ka dated 06.04.2013 with regard to grant of promotion to the petitioner, but, in the meanwhile, another proceeding has been initiated against him on 22.06.2013, under Rule 828 (C) of the Police Manual, in this proceeding, major punishment of “Black Mark” has been imposed upon him and effect of the same remained till 21.06.2016 and during this period in the meeting dated 21.12.2011 and 11.02.2013 before the Departmental Promotion Committee (D.P.C.), the name of the petitioner was placed but due to pendency of the departmental proceedings, the case of the petitioner could not be considered. Learned counsel for the respondent further submits that after expiry of the period of punishment i.e. 21.06.2016, the answering respondent vide Memo No. 810/ra ka dated 04.07.2016 has written to the Superintendent of Police, Sahibganj for consideration of the case of the petitioner for promotion to the post of Assistant Sub-Inspector of Police and at present, the petitioner is posted in the district force, Sahibganj, after his transfer. Learned counsel for the respondent further submits that so far as 02nd prayer is concerned, punishment order has no bearing for denying of promotion and from the facts stated hereinabove, it is crystal clear that the petitioner is not entitled to any relief and, as such, writ application filed by the petitioner is fit to be dismissed in limine. 10. After hearing the learned counsel for the respective parties at length and having given my anxious consideration to the issues involved in the instant writ application, I am of the considered view that the petitioner has not been able to demonstrate any legally tenable ground to warrant any interference in the impugned order of punishment due to the following factual and legal aspects : - (i) On 9.7.2009 the petitioner (C/140, Ram Bahadur Singh) was deputed to escort two boxes to Bokaro from Ranchi by a Tata 407 truck. While returning, he left the vehicle in Chutupalu forest and fled away. For this allegation departmental proceeding No. 33/05 was conducted and six months increment was withheld. The aforesaid activities on the part of the petitioner show the desperate and in-disciplined nature of the constable and in the facts and circumstances stated herein above, the petitioner is not entitled to the reliefs claimed and the writ petition is fit to be dismissed. (ii) The petitioner was informed seven times by the conducting officer to appear before the departmental proceeding as contained in Annexure B series. Moreover, the petitioner has submitted an application to the Superintendent of Police, CID, Ranchi in Departmental Proceeding No. 11/09 on 12.10.2009 regarding his explanation, hence allegation of violation of principle of natural justice does not arise. (iii) In the departmental proceeding, reply of the petitioner was found unsatisfactory and departmental proceeding No.33/05 was conducted against the petitioner and he was found guilty vide order dated 6.3.2006 and punishment was imposed. (iv) Two separate charges were leveled against the petitioner and he was found guilty for both the charges in the Departmental proceeding No. 33/05 and 11/09 and the petitioner’s promotion was denied due to the effect of punishment in departmental proceeding against him, in the light of order contained in Annexure-F and F/1. (v) In view of the aforesaid facts, it is crystal clear that the respondents have not violated any laws. (v) In view of the aforesaid facts, it is crystal clear that the respondents have not violated any laws. (vi) The law laid down by the Hon’ble Supreme Court in the case of K.V. Jankiraman on the issue of “sealed cover procedure” will not be applicable in the case of the present petitioner as because the Central Promotion Committee found the petitioner fit to be promoted relying solely upon the recommendation sent by the Regional Promotion Committee and when the recommendation was sent by the Regional Promotion Committee, there was no charge memo pending against the petitioner. 11. In view of the reasons stated in the foregoing paragraphs, the impugned order of punishment dated 1.2.2010 (Annexure-2) passed by the respondent no.3 as well as the order as contained in order no. 378/10 dated 21.5.2010 (Annexure-3), passed by the Respondent No. 4, do not warrant any interference by this Court. Accordingly, this writ petition, sans merit, is hereby dismissed. Petition dismissed.