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2017 DIGILAW 937 (JHR)

Gurucharan Soy v. State Of Jharkhand

2017-06-15

RAJESH SHANKAR

body2017
JUDGMENT Rajesh Shankar, J. – Heard learned counsel for the parties. 2. In the present writ petition, the petitioner has prayed for issuance of appropriate writ for quashing the order dated 24.09.2007 contained in Memo No. 4016 passed by the respondent No.5 (Annexure-10 to the writ petition) by reasons of which the petitioner has been dismissed from service and also for quashing the order dated 04.04.2008 contained in Memo No. 573 (Ka) [Annexure-11 to the writ petition] passed by the respondent No.4 in terms of which the appeal preferred by the petitioner has been dismissed. The petitioner has further prayed for a direction upon the respondents to reinstate the petitioner in service along with all consequential benefits. 3. The factual matrix of the case is that on 28.11.2003 the petitioner joined service as a constable. On 31.03.2004 i.e. within a period of four months from joining of his service, Barajamda Police Outpost, Chaibasa (District-West Singhbum) was attacked by extremists at about 2 P.M and in the said incidence, the extremists looted rifles and cartridges from the said outpost. On 01.04.2004, an FIR was registered in relation to the said incidence being Barajamda P.S. Case No. 16/2004. On 05.04.2004, the Superintendent of Police, Chaibasa sent a detailed report to the Additional Director General of Police, Jharkhand about the said incidence. The Superintendent of Police, Chaibasa through the said report dated 05.04.2004 pointed out the fact that the place of incidence falls in Naxal infested area and there was no proper boundary at the said outpost. About 40-50 extremists attacked the outpost while another group of 10- 20 extremists stood in guard, sentry was present in the outpost, but was taking rest, reason for the said incidence was unsafe location and small size of the police outpost as well as less numbers of police personnels deputed in the outpost. The Superintendent of Police, Chaibasa vide his report dated 05.04.2004 also suggested to depute more police personnels on the said outpost. Further, as per the supervision report of the Sub-divisional Police Officer, Kiriburu dated 30.05.2004, it was concluded that the cause of incidence was negligence on the part of the sentry. In the meantime, on 18.05.2004, a proforma chargesheet was issued to the petitioner. Further, as per the supervision report of the Sub-divisional Police Officer, Kiriburu dated 30.05.2004, it was concluded that the cause of incidence was negligence on the part of the sentry. In the meantime, on 18.05.2004, a proforma chargesheet was issued to the petitioner. On 27.05.2004, the petitioner submitted his show cause reply to the proforma chargesheet and thereafter on 10.06.2004, a charge memo was issued to the petitioner with the following charges: (a) He was deputed as In-charge of Trained Home Guards. (b) He did not depute sentry for protecting five rifles / take any step to protect the rifles. (c) He did not fight against the Naxals. On 22.06.2004, the petitioner submitted his show cause reply before the enquiry officer primarily taking the following defence: (a) The attack was all of a sudden and the circumstance led to the said incidence. (b) The police outpost was situated in Naxal infested area. (c) The Naxals arrived in civil uniforms and thus their attack could not be anticipated. (d) One Kailash Paswan was already on sentry duty and due to small size and limited space of the police outpost, no separate security guard was posted, as all the weapons were placed in one room only, which were being guarded by Kailash Paswan. The petitioner also took a plea that he never ran away from the outpost and was present during the alleged incidence. After conclusion of the enquiry proceeding, the enquiry officer submitted the enquiry report on 06.02.2006 holding, inter alia, that the charges against the petitioner were found proved. During the enquiry proceeding, only two witnesses appeared i.e. PW.1 Anand Joseph Tigga and PW.2 Ashok Kumar, who only proved the documents. On 25.09.2006, a second show cause notice was issued to the petitioner by the disciplinary authority and vide order dated 24.09.2007, the respondent No.5 (disciplinary authority) passed the order of punishment against the petitioner dismissing him from service. The petitioner filed an appeal against the order of punishment dated 24.09.2007, however, the same was also dismissed by the appellate authority vide order dated 04.04.2008. 4. The petitioner has put challenge to the order of punishment contained in Memo No. 4016 dated 24.09.2007 and also the appellate order contained in Memo No. 573 (Ka) dated 04.04.2008. 5. The petitioner filed an appeal against the order of punishment dated 24.09.2007, however, the same was also dismissed by the appellate authority vide order dated 04.04.2008. 4. The petitioner has put challenge to the order of punishment contained in Memo No. 4016 dated 24.09.2007 and also the appellate order contained in Memo No. 573 (Ka) dated 04.04.2008. 5. The learned counsel for the petitioner submits that the very basis of finding the petitioner guilty in the departmental proceeding is non-deployment of sentry in the police outpost by the petitioner. However, there was no evidence on record in the enquiry proceeding so as to reach at the conclusion that the petitioner did not deploy any sentry in the police outpost. It is further submitted that neither any document was produced nor any statement of the witness was recorded in the enquiry proceeding so as to prove that the incidence occurred due to non deployment of sentry by the petitioner. Neither the evidence available on record was appreciated nor the grounds raised by the petitioner were dealt with in the enquiry report and therefore the same is perverse and suffers from non-application of mind. On perusal of the enquiry report, it would appear that no misconduct on the part of the petitioner is made out and at best it can be said to be a case of failure to maintain high standards of efficiency in duty. The learned counsel also submits that the enquiry officer instead of proving the charges against the petitioner with the evidences available on record, shifted the burden of proving the charge upon the petitioner, which is impermissible in law. The learned counsel while referring to the report submitted by the Superintendent of Police, Chaibasa dated 05.04.2004, submits that there was short-coming in the said police outpost itself, which was a major cause for the said incidence for which the authorities themselves were responsible and not the petitioner. The learned counsel while making out a case of discrimination against the petitioner vis-a-vis other police personnels deputed in the said outpost, submits that other police personnels including one Motoy Tiu were also present at the place of incidence, but they were not departmentally proceeded with. The learned counsel while making out a case of discrimination against the petitioner vis-a-vis other police personnels deputed in the said outpost, submits that other police personnels including one Motoy Tiu were also present at the place of incidence, but they were not departmentally proceeded with. The learned counsel also submits that there has been considerable delay in concluding the departmental proceeding, which was initiated on 10.06.2004 (issuance of memo of charge) and ended with the order of the disciplinary authority dismissing the petitioner from service on 24.09.2007 i.e. more than three years. The learned counsel lastly submits that the punishment of dismissal from service inflicted upon the petitioner is also disproportionate to the charges, as the entire incidence was the matter of circumstance. 6. The learned counsel for the petitioner further submits that one Rajesh Mani Singh, who was the In-charge of Reserved Guards in the said police outpost on the date of the alleged incidence, was also dismissed from service by the disciplinary authority. The said order of dismissal was challenged by him before this Court in W.P.(S) No. 1752/2008 and this Court vide order dated 29.07.2016 has set aside the order of punishment and also the order passed in appeal and the matter has been remanded to the respondents to consider the same afresh and pass appropriate order on the quantum of punishment. 7. In support of his arguments, the learned counsel for the petitioner has relied upon the following judgments: (i) Life Insurance Corporation of India & Ors. v. Triveni Sharan Mishra reported in (2014) 10 SCC 346 (ii) Nirmala J. Jhala v. State of Gujarat & anr. reported in (2013) 4 SCC 301 (iii) Union of India & Ors. v. J. Ahmed reported in (1979) 2 SCC 286 (iv) Roop Singh Negi v. Punjab National Bank & Ors. reported in (2009) 2 SCC 570 8. Per contra, the learned J.C to S.C (L&C) appearing on behalf of the respondent-State while relying on the counter affidavit filed on behalf of the respondent No.5, submits that the petitioner being the In-charge of Trained Home Guards in Barajamda police outpost, has been found guilty for committing misconduct and has rightly been inflicted with a punishment of dismissal from service by the respondent No.5. It is further submitted that the petitioner has been afforded sufficient opportunity of hearing in the departmental proceeding and on due consideration of the reply given by the petitioner to the second show cause notice issued by the disciplinary authority, the order of dismissal has been passed against him. The learned counsel also submits that the punishment of dismissal from service inflicted upon the petitioner is not disproportionate to the charges and therefore the present writ petition filed by the petitioner may be dismissed. 9. After hearing the learned counsel for the parties and on perusal of all the relevant documents available on record, it appears that the enquiry officer did not consider the relevant evidences placed on record during the enquiry proceeding. Though the enquiry officer in his enquiry report has held that the charges against the petitioner are found to be proved, yet he did not discuss any evidence in support of the same. 10. The Hon''ble Supreme Court in the case of Roop Singh Negi v. Punjab National Bank & Ors. reported in (2009) 2 SCC 570 has held as under: "23. .......... The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof." 11. The enquiry officer is not supposed to shift the burden of proving the charge on the delinquent, as the same is not permissible in law. However, in the present case, the enquiry officer instead of appreciating the evidence available on record, has shifted the burden of proving the charge on the petitioner. It appears from perusal of various documents placed in the present writ petition that the said outpost was situated in a Naxal infested area having no boundary wall. However, in the present case, the enquiry officer instead of appreciating the evidence available on record, has shifted the burden of proving the charge on the petitioner. It appears from perusal of various documents placed in the present writ petition that the said outpost was situated in a Naxal infested area having no boundary wall. The report of the Superintendent of Police, Chaibasa dated 05.04.2004 also suggests that the location of the said outpost was quite unsafe, as it was quite small in size and less number of police personnels were deployed in the said outpost. 12. The Hon''ble Apex Court in the case of Nirmala J. Jhala v. State of Gujarat & anr. reported in (2013) 4 SCC 301 has held as under: "39. More so, the High Court has reached the conclusion by shifting the burden of proof of negative circumstances upon the appellant. The High Court has erred by holding that in respect of the incident dated 17-8-1993 i.e. demand of amount, it was the duty of the appellant to explain the said circumstance, and that instead of giving any satisfactory explanation in respect of entry of Shri C.B. Gajjar, she had completely disowned and denied any such occurrence. The onus was always on the Department to prove the said circumstance. The Court should have also taken note of the fact, that the matter was adjourned for 28-8-1993, and being a 4th Saturday, it was a holiday. The Court further committed an error by holding, that the failure to challenge the most crucial element of the evidence, regarding the incident of 17-8-1993, in respect of a demand of bribe of Rs. 20,000 fully justified the findings of the enquiry officer. Again, the High Court shifted the onus to prove a negative circumstance on the appellant." "52.3. The High Court erred in shifting the onus of proving various negative circumstances as referred to hereinabove, upon the appellant who was the delinquent in the enquiry." "52.4. The onus lies on the department to prove the charge and it failed to examine any of the employees of the court i.e. stenographer, Bench Secretary or peon attached to the office of the appellant for proving the entry of Shri Gajjar, Advocate in her chamber on 17-8-1993." 13. The onus lies on the department to prove the charge and it failed to examine any of the employees of the court i.e. stenographer, Bench Secretary or peon attached to the office of the appellant for proving the entry of Shri Gajjar, Advocate in her chamber on 17-8-1993." 13. Considering the facts in totality, it can be said to be failure on the part of the petitioner to maintain high standards of efficiency in duty, which ipso facto does not constitute misconduct. 14. The Hon''ble Supreme Court in the case of Union of India & Ors. v. J. Ahmed reported in (1979) 2 SCC 286 while dealing with the meaning of misconduct has held as under: "11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster ). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers) ]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur , and Satubha K. Vaghela v. Moosa Raza . The High Court has noted the definition of misconduct in Stroud''s Judicial Dictionary which runs as under: "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct." .....There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence....." 15. The Hon''ble Apex Court in the case of Life Insurance Corporation of India & Ors. v. Triveni Sharan Mishra reported in (2014) 10 SCC 346 while dealing with the issue of parity with codelinquents has held as under: "9. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence....." 15. The Hon''ble Apex Court in the case of Life Insurance Corporation of India & Ors. v. Triveni Sharan Mishra reported in (2014) 10 SCC 346 while dealing with the issue of parity with codelinquents has held as under: "9. It is not disputed before us that the respondent was already graduate on the date he submitted his application for the post of Peon, and the declaration made by him in Annexure P-3 at the time of seeking employment that he possessed no other qualification was incorrect. The question before us is as to whether the qualification as mentioned above is violative of Article 14 of the Constitution of India or not, and as to whether awarding punishment of removal to the writ petitioner, is discriminatory in the light of the one awarded to similarly situated one Daluram Patidar i.e. only punishment of stoppage of increments for two years with cumulative effect?" 16. The petitioner has specifically stated that one police personnel, namely, Motoy Tiu was also present at the place of incidence (Barjamda police outpost), but he was not departmentally proceeded with. No action was taken against many other police personals who were deployed in the said police outpost at the time of incidence. 17. It further appears that though it was charged against the petitioner that he did not deploy any sentry in Barjamda police outpost, yet it was specifically stated by the petitioner during the enquiry proceeding that one sentry was deputed in the said outpost and due to lack of police personnels in the said outpost, he did not deploy any additional security. However, the said factual plea taken by the petitioner was neither verified nor considered by the enquiry officer while holding that the charges against the petitioner have been proved. Nevertheless, there has been no charge against the petitioner that he was the overall Incharge of the said outpost, rather he was the In-charge of only Trained Home Guards deployed in the said police outpost. Nevertheless, there has been no charge against the petitioner that he was the overall Incharge of the said outpost, rather he was the In-charge of only Trained Home Guards deployed in the said police outpost. One Rajesh Mani Singh, who was the In-charge of Reserved Guards in the said police outpost, filed a writ petition being W.P.(S) No. 1752/2008 before this Court and this Court vide order dated 29.07.2016, considering almost similar facts and circumstances, has set aside the order of punishment as well as the order passed in appeal and remitted the matter to the respondents to consider the same afresh and pass appropriate order on the quantum of punishment. On perusal of the judgment rendered in the case of Rajesh Mani Singh (Supra), I find similarity of the said case with the present case. 18. Considering the aforesaid facts and circumstances and also the judicial pronouncements discussed hereinabove, I find that the impugned order of punishment dated 24.09.2007 and also the impugned order passed in appeal dated 04.04.2008 cannot be legally sustained and therefore the same are, hereby, quashed and set aside. 19. With a view to maintain parity of the present case with the case of Rajesh Mani Singh (Supra), the matter is remitted to the respondent No.5 for fresh consideration and for passing appropriate order in accordance with law on the quantum of punishment, within a period of four months from the date of receipt/production of a copy of this order. 20. With the above observation and direction, this writ petition is, accordingly, disposed of.