Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 2503 (JHR)

Mohiur Rahman Khan v. State Of Jharkhand

2018-11-19

APARESH KUMAR SINGH

body2018
JUDGMENT Aparesh Kumar Singh, J. - Heard learned counsel for the petitioner and the state. 2. Petitioner faced a departmental proceeding No.45/08 for the charges at Annexure 3 bearing memo no. 2610 dated 26.08.2008 for having remained in unauthorized absence beyond 45 days of earned leave (between 28.04.2008 forenoon to 12.06.2008 forenoon) for 37 days and presented himself before the Battalion on 20.07.2008. In between he was involved in criminal case being Darbhanga P.S. Case No. 134/08 dated 07.06.2008 for the offences under Section 341,323,307,504 read with Section 34 of the I.P.C and Section 20/30 of the Arms Act in which he was taken into custody on 07.06.2008. Pursuant thereto, he was placed under suspension vide Force order no.1364/08. Petitioner had made an application for extension of his leave with supporting medical prescriptions to the office of Commandant, JAP-5 but the information provided by the Superintendent of Police, Darbhanga showed difference in the date of custody and treatment undertaken by the petitioner which showed his character suspicious. As such departmental inquiry was conducted in which petitioner and prosecution witnesses, both were examined and cross examined before the Conducting Officer cum Inspector of Police, JAP-5, Deoghar. Charges in the Departmental Inquiry No. 45/08 were found to be established as per the inquiry report at Annexure-5. Commandant JAP-5 vide impugned order at Annexure-6 dated 17.01.209 had been pleased to impose punishment of withholding of annual increment for 1 year which would have effect upon his future increments. Petitioner would also not be entitled for salary beyond the subsistence allowance for the period of his suspension. Appeal preferred during pendency of this application was also dismissed vide order dated 13.02.2010. The same has been challenged through I.A. No. 3767 of 2013. The proposed amendments were allowed vide order dated 26.06.2013. Petitioner has superannuated from service by now. 3. Learned counsel for the petitioner submits that the findings recorded in the inquiry vary from the charges imposed upon him. The Disciplinary authority has also given finding, which were not specifically against the petitioner. It is the contention of the petitioner that charges though related to unauthorized absence but it also alleged suspicion over the character in view of the difference of the date of his custody and the medical treatment undergone by him. The Disciplinary authority has also given finding, which were not specifically against the petitioner. It is the contention of the petitioner that charges though related to unauthorized absence but it also alleged suspicion over the character in view of the difference of the date of his custody and the medical treatment undergone by him. According to the petitioner, he was taken in custody on 09.06.2008 after being released from Darbhanga Medical College and Hospital where he had been admitted on 07.06.2008 after having sustained injuries in connection with same incidence by the informant party. Respondents during the inquiry have erroneously treated him to be in custody since 07.06.2008 itself. He had made an application for extension of leave on 09.06.2008 after being discharged from hospital and before being taken into custody. The impugned punishment imposed with cumulative effect has also entailed cascading effect on his future increment and total salary till his superannuation. As such, it is also excessive and disproportionate. The Appellate Authority has failed to consider the ground in appeal in proper manner and rejected it. Therefore, the impugned decisions deserve to be set aside. 4. Learned counsel for the respondent State has argued in support of the impugned decision. He submits that the charges were specific and have been duly inquired into in a full-fledged departmental proceeding conducted by the Inspector of Police, JAP-5. Two witnesses i.e., Leave Section In-charge and Sub Inspector of Police supported the prosecution story. Petitioner''s defence has also been incorporated in the inquiry report where he admitted having been taken into custody on 07.06.2008 and that on 09.06.2008 he made an application for extension of leave. The charges were established during inquiry and based on same, the order of punishment has been imposed which is neither excessive nor disproportionate calling for interference. The appellate authority has also found no ground to interfere in the order of punishment which were based on proper consideration of the entire material adduced during inquiry and the defence as well as the grounds urged by the petitioner during appeal. 5. Considered the submission of learned counsel for the petitioner and the State in the light of the relevant material facts borne from record and taken note above. Unauthorized absence of the petitioner beyond 45 days of the earned leave has been found to be established during the departmental inquiry which were the main charges against him. 5. Considered the submission of learned counsel for the petitioner and the State in the light of the relevant material facts borne from record and taken note above. Unauthorized absence of the petitioner beyond 45 days of the earned leave has been found to be established during the departmental inquiry which were the main charges against him. The other charge relating to discrepancy in the medical treatment papers furnished by him and the date on which he was taken into custody. For being taken in custody since 07.06.2008, petitioner was placed under suspension by Force Order dated 1364/08 on the specific report of Superintendent of Police, Darbhanga. Petitioner has claimed that he was discharged on treatment from Darbhanga Medical College on 09.06.2008 when he made application for extension of leave and was thereafter taken into custody. This question of fact have been adequately dealt with on the basis of evidences on record, both adduced by the prosecution as well as the petitioner. Evidences on that point do not suffer from such perversity which can be gone into in exercise of writ jurisdiction of this Court. The fact that petitioner was placed under suspension w.e.f. 07.06.2008 only on the ground of being taken into custody in connection with the said criminal case is not a matter of dispute. 6. On consideration of totality of facts and circumstances, which have come on record during course of departmental inquiry, the charges of unauthorized absence have been found to be proved against him. This forms the basis for imposition of punishment of withholding of annual increment for one year with future effect which does not appear to be excessive or shocking to the conscience of the Court. As such no grounds are made out to interfere in the order of punishment or the appellate order. Accordingly, the writ petition is dismissed.