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2019 DIGILAW 1461 (JHR)

Rinki Devi v. State Of Jharkhand

2019-08-22

ANANDA SEN

body2019
JUDGMENT Ananda Sen, J. - Petitioner, in this writ application, has prayed for quashing the order contained in Memo No.2844 dated 05.09.2013 issued by the Superintendent of Police Chatra, by which the husband of petitioner has been dismissed from service. She has further prayed to quash the order contained in Memo No.309/D dated 23.07.2015 by which the appeal of the husband of the petitioner was rejected. Petitioner has also prayed for quashing the order No.7121 dated 03.12.2015 issued by the Deputy Secretary, Home Department, by which the mercy appeal preferred by the petitioner''s husband has been rejected. 2. Facts, in brief, which gave rise to filing of this writ application are that the husband of the petitioner, who was appointed as constable in the State of Jharkhand was proceeded against for charges of negligence and indiscipline and a chargesheet was issued to him vide memo No.4441 dated 25.12.2012 in departmental proceeding No.07/13. He was put under suspension vide order No.2041/12 dated 18.12.2012 with immediate effect. As per the chargesheet issued to the petitioner''s husband, it was alleged that he, while posted at Kunda, Chatra, on 11.12.2012, had consumed alcohol with two persons of Kunda Village in Guard Room. Thereafter, he took his rifle and a loaded rifle of Constable Sanjay Kumar and went towards Kunda Village in drunken state. When other police personnel objected to such act, he threatened to assault them. He abused the senior police officers and threatened to file case against them in the Court after resigning from service. The Officer-in-Charge, Kunda along with a team of police personnel went to search out the petitioner''s husband and in course of their search, they saw that petitioner''s husband in the dark night coming from Kunda Village in a drunken state with two rifles. Rifle and cartridges were seized and he was sent to police line, Chatra. Inspector of Police, Semaria Circle, Chatra was appointed as conducting officer to conduct the departmental proceeding. After receipt of chargesheet, petitioner''s husband had submitted his show cause before the enquiry officer denying the charges. Departmental proceeding was conducted wherein statement of witnesses were recorded and on completion of the same, enquiry report was submitted on 15.07.2013, wherein the enquiry officer has recorded that the charges against the petitioner''s husband are proved. After receipt of chargesheet, petitioner''s husband had submitted his show cause before the enquiry officer denying the charges. Departmental proceeding was conducted wherein statement of witnesses were recorded and on completion of the same, enquiry report was submitted on 15.07.2013, wherein the enquiry officer has recorded that the charges against the petitioner''s husband are proved. Upon submission of the enquiry report, a second show cause notice was issued to the petitioner''s husband vide memo No.2551 dated 12.08.2013 by the Superintendent of Police, Chatra. Petitioner''s husband had submitted his reply to the second show cause notice. Thereafter the Superintendent of Police, Chatra vide order contained in Memo No.2844 dated 05.09.2013 has imposed a punishment of dismissal from service with immediate effect. Petitioner''s husband filed an appeal memorial before the Director General of Police and Inspector General of Police, Jharkhand, which also stood rejected vide order contained in Memo No.309/D dated 23.07.2015 passed by the Director General of Police, Jharkhand, Ranchi. Before rejection of the appeal memorial, petitioner''s husband had died due to cancer on 17.06.2015. The petitioner thus had preferred a mercy appeal before the State of Jharkhand, but, the Deputy Secretary of the Department of Home, vide communication dated 03.12.2015 as contained in letter No.7121 has rejected the said mercy appeal on the ground that since the employee has died, his appeal cannot be entertained. 3. The State has filed counter affidavit stating that the husband of the petitioner has committed grave act of indiscipline for which, a departmental proceeding was initiated and finding him guilty of misconduct, proper punishment was awarded. It was mentioned that in the departmental proceeding there is no flaw and considering the enquiry report, the punishment order has been passed. It is also mentioned that the appeal was also dismissed after proper consideration. 4. I have heard the learned counsel for the appellant and learned counsel for the State. 5. Counsel for the petitioner submits that the enquiry was conducted in a most perfunctory manner, which would be evident from the enquiry report. He further submits that the Inquiry Officer did not evaluate the materials which were before him at the time of concluding about the guilt of the petitioner''s husband. He further submits that vital witnesses were not examined during the enquiry proceeding. He further submits that the Inquiry Officer did not evaluate the materials which were before him at the time of concluding about the guilt of the petitioner''s husband. He further submits that vital witnesses were not examined during the enquiry proceeding. He also submits that there was allegation that the petitioner''s husband took liquor but surprisingly, no medical test was conducted to conclude as to whether he was under the influence of liquor or not? He also submits that there is violation of principle of natural justice, as during the enquiry no opportunity of cross-examining the witnesses were given to the petitioner''s husband. He also submits that non-discussion of the evidence in the enquiry report will also amount to non-application of mind, which vitiates the enquiry. 6. Counsel for the State submits that the Enquiry Officer deals with the evidence collected during the enquiry, which will be evident from the enquiry report itself. He further submits that there is no necessity to examine the witnesses as per the choice of the delinquent employee. As per the counsel for the State, if delinquent employee was so necessity in cross-examining any particular witness, he had opportunity to produce the same as defence witness. In this case the delinquentemployee has not produced any defence witness. Thus the husband of the petitioner cannot take the aforesaid plea. He further submits that this Court, sitting in jurisdiction under Article 226 of the Constitution of India, is not the appellate authority and thus this Court cannot re-appreciate the evidence and substitution the view taken by the discipline authority. He lastly submits that in view of the aforesaid findings, the writ petition is liable to be dismissed. 7. After hearing the parties and after going through the record, I find that the husband of the petitioner was a constable. There is allegation that he consumed alcohol with two persons of Kunda Village in Guard-room and had taken the rifles of his colleague at the dead night and went to the village with said rifles in drunken state. A Police team went for searching him and in course of search, the petitioner was seen coming from the village with two rifles in drunken state, when the police took him in custody. For the aforesaid act, the husband of the petitioner was departmentally proceeded. Chargesheet was issued, which is dated 25.12.2012. A Police team went for searching him and in course of search, the petitioner was seen coming from the village with two rifles in drunken state, when the police took him in custody. For the aforesaid act, the husband of the petitioner was departmentally proceeded. Chargesheet was issued, which is dated 25.12.2012. The said chargesheet has been brought on record as Annexure-1. The enquiry was conducted. Thereafter, the enquiry report was submitted by the Inquiry Officer. A second show cause notice was also served to the husband of the petitioner, which is dated 12.8.2013 and the same has been brought on record. The discipline authority thereafter by the impugned order dismissed the husband of the petitioner from service. The appellate authority concurred with the said finding also dismissed the appeal. 8. This Court sitting in jurisdiction under Article 226 of the Constitution of India, in judicial review, cannot re-appreciate the evidence and cannot substitute its own view. This Court is not a court of appeal and thus cannot re-apprise the evidences. Keeping in view of limited jurisdiction this Court has to see whether there is any illegality committed by the authorities while conducting the discipline proceeding and whether the proceeding is fair and proper and the same has been conducted by giving full opportunity to the delinquent employee or not, without there being any violation of principle of natural justice. 9. When I go through the entire record, I find that the chargesheet is at Annexure-1. As per the charge, there are two chargesheet witnesses in this case; (i) Officer-in-Charge, Kunda, Chatra and (ii) the Police Inspector-I. The Enquiry report has also been annexed as Annexure-3, which also suggests that there were two witnesses in this case. These two witnesses were duly examined by the Inquiry Officer. From the enquiry report, I also find that full opportunity was given to the delinquent to lead his evidence and to place his case. From the enquiry report, it is also evident that the delinquent employee did not produce any evidence. Thus, I find that in the departmental proceeding, the Enquiry Officer before conclusion of the enquiry had given opportunity to the delinquent employee to defend his case and thereafter concluded that the charge against the delinquent employee stands proved. From the enquiry report, it is also evident that the delinquent employee did not produce any evidence. Thus, I find that in the departmental proceeding, the Enquiry Officer before conclusion of the enquiry had given opportunity to the delinquent employee to defend his case and thereafter concluded that the charge against the delinquent employee stands proved. Thereafter, second show cause notice was issued to the husband of the petitioner, to which he replied and considering the aforesaid reply/document, the order of punishment was passed. 10. The claim of the petitioner is that no opportunity to defend the case was given to the delinquent employee is cannot be accepted as it would be evident from the enquiry report. I find that adequate opportunity was given to the husband of this petitioner to defend his case. If the defence wanted to examine any witness, even official witness, the defence should have produced them in his support, but in this case, none was produced by the defence. The allegation against the husband of the petitioner is that he was in drunken state took two fire arms of his colleague and went towards the village and returned late at night under the influence of alcohol. The counsel for the petitioner gives much stress in his argument that no medical examination was conducted to conclude whether the delinquent was in drunken state or not. Whether a constable was drunken or not is not of much reliance in view of another allegation levelled against him. 11. Be it noted that another allegation against the husband of the petitioner is that he had taken two rifles of his colleague and went to village and returned with rifles at night. This conduct of the husband of the petitioner independently is sufficient to initiate a departmental proceeding and if the same stands proved, the same would attract major penalty. I find that the witnesses have supported the case of the prosecution. Thus not examining the delinquent medically has no relevance in this case. 12. Another ground taken by the petitioner is that the enquiry report was not served with the second show cause notice. Though I find that there was no enclosure in the second show cause notice, but it is admitted that second show cause notice was issued. Thus not examining the delinquent medically has no relevance in this case. 12. Another ground taken by the petitioner is that the enquiry report was not served with the second show cause notice. Though I find that there was no enclosure in the second show cause notice, but it is admitted that second show cause notice was issued. What prejudice has been caused, if at all any by non-furnishing of the enquiry report along with second show cause notice, has not been either pleaded or argued. Thus, I find that this objection is ornamental objection. The Hon''ble Supreme Court in the case of State of U.P. Vs. Harendra Arora and Another, (2001) 6 SCC 392 and Union of India and Others Vs. Bishamber Das Dogra, (2009) 13 SCC 102 has held that the delinquent has to show as to what prejudice has been caused to him by non-furnishing of enquiry report. In this case, the delinquent employee has failed to show as to what the prejudice has been caused. Thus, this Court is not inclined to accept the arguments of the counsel for the petitioner. So far as the plea that the witnesses were examined during enquiry behind the back of the petitioner''s husband, I find that there is no sufficient material to accept the same as the Enquiry Officer conducted the enquiry after giving opportunity to the delinquent employee to defend his case. After the proper enquiry, the impugned order has been passed inflicting the punishment to the husband of the petitioner. 12. The punishment which has been imposed cannot be said to be disproportionate with the charges, as in disciplined Force utmost discipline has to be maintained. In this case, I find that the department has proved that the husband of the petitioner has acted in most indiscipline manner and charge levelled against the petitioner stood proved. I find that there is no procedural lapses in the entire process of the proceeding, as the departmental proceeding was fair and proper and full opportunity was given to the delinquent employee to defend his case and the punishment is not shockingly disproportionate. 13. In view of the aforesaid facts, I am not inclined to interfere with the order impugned. Accordingly, this writ petition is dismissed.