Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 1389 (JHR)

Khurshid Alam v. State of Jharkhand

2019-08-05

SANJAY KUMAR DWIVEDI

body2019
JUDGMENT : Sanjay Kumar Dwivedi, J. 1. Heard Mr. D. K. Dubey, learned counsel for the petitioner and Mrs. Chandra Prabha, learned S.C. I for the respondents. 2. The petitioner has preferred this writ petition for quashing the punishment order dated 14.01.2013, order dated 20.01.2013 and appellate order dated 29.01.2013 and further prayer made for payment of subsistence allowance from the date he has put under suspension. 3. Mr. Dubey, learned counsel appearing for the petitioner submits that the petitioner was initially appointed as Literate Constable in the year 1971 and he was promoted to the rank of Assistant Sub Inspector of Police in the year 1973 and in the year 1982 he was promoted to Sub Inspector of Police. While petitioner was posted as Officer In Charge of Pathargama Police Station on 18.11.2010, the petitioner came to know one Godda District Order No. 1125 of 2010 under Memo No. 3903 dated 14.11.2010 has been issued and whereby the petitioner put under suspension. Mr. Dubey, appears for the petitioner submits that after knowing this, the petitioner inquired about the fact. Later on, the petitioner was served with the charge wherein it is alleged that on 12.11.2010 in the night Sub Divisional Police Officer made raid, 10 gamblers were arrested while they are gambling and Rs. 65,000/- was also recovered. This raiding officer informed the Superintendent of Police, Godda that while he reached police station no guard was present which amounts to negligence of the duty and for the said reason the petitioner and one Ajay Kumar Singh have been put under suspension. On the basis of this charge, the petitioner was called upon to file his reply. The petitioner has filed his reply to the charge sheet, which was served upon the petitioner. Mr. Dubey, further submits that he came to know about the disciplinary proceeding when he served by Annexure-5 the first charge sheet. The petitioner was also served with the another charge dated 05.04.2011 wherein it is alleged that after suspension the petitioner was asked to report Godda Police Line, but, he has not reported there. Accordingly, the departmental proceeding was initiated against the petitioner. The petitioner appeared in the departmental proceeding and participated in the inquiry. After completion of the inquiry, the inquiry officer submitted the report wherein the inquiry officer exonerated the petitioner from the charges. Accordingly, the departmental proceeding was initiated against the petitioner. The petitioner appeared in the departmental proceeding and participated in the inquiry. After completion of the inquiry, the inquiry officer submitted the report wherein the inquiry officer exonerated the petitioner from the charges. Thereafter, the disciplinary authority by order dated 14.01.2013 passed the punishment order against the petitioner after retirement whereby the disciplinary authority has passed the punishment order and inflicted the punishment withheld one increment for six months. It was also stated that it will not affect the increment in the salary. After that the petitioner approached the appellate authority, the appellate authority by order dated 29.01.2013 affirmed the punishment order to the effect of one black mark. The appellate authority passed the order for subsistence allowance for the petitioner. During the pendency of this writ petition, these two orders have been passed. Thereafter, the petitioner filed amendment petition for challenging these two orders. Now, the petitioner is mainly aggrieved with these two orders. Mr. Dubey submits that the petitioner has retired on 31.01.2013 whereas the impugned order has been passed just before the retirement of the petitioner. He further submits that the impugned order of punishment is not sustainable in the eyes of law as it is well settled that the disciplinary authority has different finding from Inquiry Officer. Inquiry officer has to provide opportunity of hearing to the petitioner which has not been done in this case. To substantiate his argument he relied in the case of Punjab National Bank and Other vs. Kunj Behari Misra reported in (1998) 7 SCC 84 paragraph 19 which reads as under “19. The result of the aforesaid discussion would be that the principles of natural justice have t0o be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity of persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity of persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” He further relied in the case of Harinandan Rajak Vs. State of Jharkhand & Ors. reported in (2008) 3 JLJR 440 (HC) and further relied in the case of Arun Kumar vs. The State of Jharkhand & Ors. reported in (2007) 1 JLJR 433 (HC) and he submits that the case of Punjab National Bank has been taken into consideration by this Court while deciding the case of Harinandan Rajak (Supra) and Arun Kumar (Supra). He further submits that the petitioner is entitled for subsistence allowance in view of the fact that the subsistence allowance is right of suspended employee. He further submits that the subsistence allowance cannot be withheld when the order of the appellate authority already in favour of the petitioner and in spite of that the subsistence allowance has not been paid to the petitioner. 4. Per contra, learned counsel for the respondent-State, Mrs. Chandra Prabha S.C.-I submits that the charge against the petitioner is very grave in nature. That he was unauthorisedly absent for 250 days without permission. She further submits that the department has taken a lenient view with a personnel of the disciplinary force who has expected to strictly follow the command of its superior officer. Referring to punishment order dated 14.01.2013, she submits that the punishment authority has dealt in detail about the conduct of the petitioner and after considering all the aspects, has passed the reasoned order as such there is no illegality in the impugned order. She relied on various judgments, first judgment she relied on is the case of Central Industrial Security Force & Others Vs. She relied on various judgments, first judgment she relied on is the case of Central Industrial Security Force & Others Vs. Abrar Ali reported in (2017) 4 SCC 507 and she submits that in view of this judgment the Hon’ble Supreme Court held that the High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, cannot re-appreciate the evidence, which allowed before the disciplinary authority. She further relied in the case of Deputy Commissioner, Kendriya Vidyalaya Sangthan and Others vs. J. Hussain reported in (2013) 10 SCC 106 and submits that the penalty and punishment is within the jurisdiction of the competent authority and the disciplinary authority not before the Court until the Court finds that the punishment is not just and reasonable. In this case also the scope of Court is very restricted and judicial review is not permissible. The third case she relied, is the case of Rajinder Kumar Vs. State of Haryana & Another reported in (2016) 15 SCC 693 which is on the point of quantum of punishment of unauthorized absence of a police constable. The fourth judgment she relied is the case of the Union of India & Ors. vs. P. Gunasekaran reported in (2015) 2 SCC 610 , this judgment is on the scope of interference under article 226 and 227. 5. So far as the judgment relied by learned counsel for the respondents on the point of interference under Article 226 of the Constitution of India is concerned, it is not disputed that there is no doubt that the High Court under article 226 of the Constitution of India restrained itself in appreciating evidence which has been led before the disciplinary authority and conducting officer. The settled proposition of law about the penalty and punishment is also not in doubt. 6. Having heard learned counsel for the parties, this Court finds that the Inquiry Officer has exonerated the petitioner from the charges. The Disciplinary Authority differed with the findings of the Inquiry Officer and for that he was supposed to follow the law laid down in the case of Punjab National Bank (supra) which has been followed by a coordinate Bench of this Court in the case of Harinandan Rajak (supra) and Arun Kumar (Supra). The Disciplinary Authority differed with the findings of the Inquiry Officer and for that he was supposed to follow the law laid down in the case of Punjab National Bank (supra) which has been followed by a coordinate Bench of this Court in the case of Harinandan Rajak (supra) and Arun Kumar (Supra). The disciplinary authority has discussed so many evidence in the impugned order for that no charge has been framed against the petitioner and as such the material which has been discussed before the disciplinary authority cannot be taken into cognizance by this Court as it was not the charge. 7. In the light of these discussions, the impugned order dated 14.01.2013, order dated 20.01.2013 and appellate order dated 29.01.2013 cannot sustain in the eyes of law. According to the judgment of Hon’ble Apex Court in the case of Punjab National Bank (supra) the impugned order is fit to be quashed, the writ petition is allowed. The petitioner shall be entitled for all consequential benefits in view of the order of the appellate authority and in view of the well settled principle of law that the subsistence allowance is allowed to a delinquent employee. Therefore, the petitioner is entitled for subsistence allowance and accordingly, the concerned authority shall release the subsistence allowance in favour of the petitioner. 8. In view of the above observations and directions, the writ petition stands allowed and disposed of.