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2020 DIGILAW 929 (JHR)

Dilip Kumar v. State of Jharkhand

2020-09-24

DEEPAK ROSHAN

body2020
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant application has been preferred for following relief: “(i) For issuance of an appropriate writ(s)/order (s)/direction(s) or a writ in nature of certiorari for quashing of the impugned order dated 13.4.2015 contained in Memo No. 138/D (Annexure-7) issued under the signature of respondent no.2 whereby and whereunder the memorial appeal preferred by the petitioner in Departmental Proceeding No. 32/2008 against the order of the Deputy Inspector General of Police, Palamu Range, Palamu and in pursuance of the order passed in W.P.(S) No. 4601/2010; vide order dated 13/11/14; (ii) For issuance of an appropriate writ(s)/order (s)/direction(s) or a writ in nature of certiorari for quashing the order dated 6.4.2010 (Annexure-2) issued under the signature of Superintendent of Police Garhwa whereby and whereunder the petitioner has been dismissed from the service without considering the material available on the record; (iii) For issuance of an appropriate writ(s)/order (s)/direction(s) or a writ in nature of certiorari for quashing the impugned order contained in Memo No. 726 dated 6.7.2010 (Annexure-3) whereby and whereunder the appeal preferred by the petitioner, has been rejected by the Deputy Inspector General of Police without considering the material available on record. AND/OR (iv) For further issuance of an appropriate writ (s)/ order(s) /direction (s) as Your Lordships may deem fit and proper in the facts and circumstances of the case and in the interest of justice.” 3. The brief facts of the case as argued by the learned counsel for the petitioner is that the petitioner, while discharging his duty as a Constable, was served with a show cause notice issued on 05.8.2008 making reference to a criminal case instituted under Nagar Utari P.S. Case No. 136/2008, initially instituted under section 363, 366 A and 120 B of the Indian Penal Code, converting into Section 494 of the Indian Penal Code. Thereafter, a show-cause Notice has been issued to him framing a charge with respect to abducting a girl for the purpose of solemnizing second marriage in course of life of his first wife. The petitioner, thereafter, replied to the show cause Notice and subsequently the petitioner has been awarded punishment of removal from service. Thereafter, the petitioner preferred an appeal which was also dismissed. The petitioner, thereafter, replied to the show cause Notice and subsequently the petitioner has been awarded punishment of removal from service. Thereafter, the petitioner preferred an appeal which was also dismissed. The petitioner then preferred a writ application before this court, being W.P.(S) No. 4601 of 2010, which was disposed of with a direction to the petitioner to file alternative opportunity of filing memorial before the Director General of Police, Ranchi. The petitioner filed a memorial before the Director General of Police, Jharkhand, who rejected the memorial and upheld the order of removal from service. 4. Learned counsel for the petitioner submits that the charge is not specific. He further contended that he has solemnized second marriage with the consent of his first wife, as such it cannot be deemed to be misconduct. He further submits that before passing the impugned order of punishment, no second show-cause notice was served upon the petitioner and he was not given an opportunity to defend himself, which caused prejudice to the petitioner and on this ground the impugned order should be quashed and set aside. He further submits that though the order of punishment has been awarded on the basis of Rule 23 of the Bihar Government Servants Conduct Rules, however, there is no charge of second marriage in the charge sheet. Further, as per well settled principle that the quantum of the punishment awarded should not be disproportionate to the offence indicated in the charge sheet. He further contended that the basis of charge sheet was a criminal case and in the said criminal case the petitioner had been acquitted from the charge, as such, now the basis of charge itself does not survive. He further argued on the point of parity and submits that with respect to other persons, who has committed same and similar offence, the major punishment of two black marks has been imposed whereas the petitioner has been imposed a punishment of dismissal from service, which is disproportionate to the offence committed and was passed only to harass him. By concluding his argument he submits that the impugned orders may be quashed and set aside. 5. By concluding his argument he submits that the impugned orders may be quashed and set aside. 5. Learned counsel for the respondents reiterated its stand made in the counter affidavit and submits that the petitioner himself admits that he has solemnized second marriage, which is admittedly against Rule 23 of the Bihar Government Servants Conduct Rules; as such no leniency should be shown to the petitioner. However, on the question of parity he submits that the case can be verified on that issue. 6. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits, following are the admitted position: (a) Petitioner has solemnized second marriage; (b) There was no charge of second marriage in the chargesheet; rather the charge was with respect to elopement with a girl with an intention to marry her; (c) A criminal case has been instituted, being Nagar Utari P.S. Case No. 136/2008 which was subsequently dropped against the petitioner and he has been acquitted in the said criminal case. (d) In the same and similar nature of allegation, the other police personnel were awarded major punishment of two black marks and the petitioner has been imposed the punishment of removal from service. 7. In view of the aforesaid admitted facts, it cannot be said that the petitioner has not violated the rules as enshrined in Rule 23 of the Bihar Government Servants Conduct Rules, but at the same time it can also not be ignored that the petitioner has been acquitted from the said criminal charges. Further, the submission of the petitioner that with respect to same and similar nature of allegation, the other police personnel were awarded major punishment of two black marks and the petitioner has been imposed the punishment of removal from service, cannot be ignored. In this view of the matter, in my considered opinion, the punishment of removal from service for solemnizing second marriage, that too when the petitioner has been acquitted from in the criminal case which involves charges of the same offence, is too harsh and disproportionate to the offence committed. As such, this court holds that punishment awarded to the petitioner is harsh enough to shock the conscience of the Court and the matter needs interference. 8. As such, this court holds that punishment awarded to the petitioner is harsh enough to shock the conscience of the Court and the matter needs interference. 8. Therefore, in view of the aforesaid facts and circumstances of the case, the impugned Order dated 13.4.2015 contained in Memo No. 138/D (Annexure-7), Order dated 06.4.2010 (Annexure-2) issued under the signature of Superintendent of Police, Garhwa and the order contained in Memo No. 726 dated 06.7.2010 (Annexure-3) are quashed and set aside. The matter is remitted back to the Disciplinary Authority-Respondent No.4 only on the question of quantum of punishment. Respondent No. 4 is, hereby, directed to pass a fresh order of punishment in the light of the findings given herein above and also taking into consideration the submission of the petitioner, which has not been controverted by the respondents that with respect to the same and similar nature of offence, the other delinquent personnel have been awarded lesser punishment. The said order must be passed within a period of three months from the date of receipt/production of copy of this order, failing which the petitioner shall be reinstated in service on completion of three months. 9. With the aforesaid observation or direction, this writ petition is disposed of.