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2021 DIGILAW 850 (JHR)

Ramanuj Kumar Verma v. State of Jharkhand

2021-10-05

DEEPAK ROSHAN

body2021
JUDGMENT : Since common issue is involved in all these writ petitions filed by sole writ petitioner; as such all are being heard together and decided by this common order. 2. These writ applications have been preferred by the sole petitioner against three punishment orders by which major punishment of stoppage of six months increments have been imposed and also against the respective appellate orders by which the appeals preferred by the petitioner were rejected. The details of respective punishment orders are as follows:- (a) Punishment order dated 27.07.2010 & appellate order dated 23.02.2011 which are challenged in W.P.(S) No.3908/12. (b) Punishment order dated 29.07.2012 which is challenged in W.P.(S) No.6397/12. (c) Punishment order dated 21.02.2011 & appellate order dated 9.11.2011 which are challenged in W.P.(S) No.6408/12. 3. The grievance of the petitioner in all these writ applications is that there are procedural irregularities committed by the respondents while passing the respective punishment orders, inasmuch as, though all the punishment was major punishment but the respondents have not issued the second show cause notice and no any witness has been examined in these cases and the Enquiry Officer has acted as representative of the department which is admittedly against the settled principle of service jurisprudence. 4. Mr. D.K. Dubey, learned counsel for the petitioner submits that in all these cases during departmental proceeding neither any witness was examined nor the petitioner was given any opportunity to crossexamine any of the witness and the Enquiry Officer has submitted its report with the finding that the petitioner was guilty for the alleged misconduct. He further submits that the punishment of stoppage of six months increments has been imposed upon this petitioner in all these cases which is admittedly a major punishment in terms of Rule 835 of Jharkhand Police Manual. As such on the ground of procedural irregularities, the impugned orders suffer from infirmity and deserve to be quashed. 5. Mr. He further submits that the punishment of stoppage of six months increments has been imposed upon this petitioner in all these cases which is admittedly a major punishment in terms of Rule 835 of Jharkhand Police Manual. As such on the ground of procedural irregularities, the impugned orders suffer from infirmity and deserve to be quashed. 5. Mr. Satyam Parmar, learned counsel for the respondent-State opposed the stand of the petitioner and draws attention of this Court towards Rule 828(c) of Jharkhand Police Manual and submits that under this rule it is not necessary that a formal enquiry in the form of any proceeding shall be initiated and in such cases Superintendent need not hold the enquiry himself, nor shall the delinquent have the right to appear before him, but he has the right to appear before officer deputed to record the evidence and to take his defence. In nut shell, in all cases wherein increments proposed to be adequate punishment; this may be inflicted without any formal enquiry. He concluded his argument by submitting that since lowering down the increments can be imposed without any formal enquiry in view of the Rule 828(c); no formal enquiry is required even it is deemed to be a major punishment. 6. Having heard learned counsel for the parties and after perusing the relevant documents annexed with the respective affidavits and the averments made therein it appears that to decide the issue involved in these applications few rules of Jharkhand Police Manual is necessary to be discussed. For brevity Rule 824, 828(a) & (c) and 835 are quoted as under:- 824. Description of departmental punishments.—The following punishments which are sanctioned under Section 7 of Act V of 1861 may be inflicted departmentally on a police officer of and below the rank of Inspector :— (a) Dismissal, (b) removal. (c) compulsory retirement. (d) reduction in rank. (e) forfeiture of last increment(s) or future increment(s), (f) black mark or marks, (g) censure, (h) confinement to quarters for a period not exceeding 15 days, (i) punishment drill, (j) extra guard or fatigue duty. Provided that the punishments mentioned in clauses (h) and (j) shall be imposed only on members of rank of constables/Havildars and that in clause (i) shall be imposed only on constables. Notes. Provided that the punishments mentioned in clauses (h) and (j) shall be imposed only on members of rank of constables/Havildars and that in clause (i) shall be imposed only on constables. Notes. — (1) Superintendents shall use the ‘Orderly Boom Register’ in P. M. Form No. 114, when dealing with cases of misconduct and breaches of discipline. In this register only matters concerning constables and Havildars can be disposed of. (2) Forfeiture of pay for overstaying leave (Bihar Service Code, Rule 165) and deductions from pay on account of loss or damage to Government property shall not be treated as punishment. (3) The withholding of previous or the next increment due should be done carefully, specially with regard to those who are going to retire because this shall effect their pension. (4) Fatigue duty shall not be awarded at a time for more than two hours, in the same way, punishment drill shall never exceed two hours a day nor one hour at a time in addition to ordinary parades. The fatigue duty shall not be for a period more than two weeks and punishment drill for a period more than one week. (5) For purposes of punishment, an officer, while officiating in a higher rank, shall be treated as belonging, to that rank irrespective of the rank in which the cause of action arose. (6) In exercise of the powers conferred by the proviso to Article 309 of Constitution of India and Section 7 of the Police Act (V of 1861) the Governor of Bihar has notified vide Memo. No. II. P.C. 1017/70-P. P.-7275, dated the 18th August, 1970 that the order of compulsory retirement should also be included in the list of punishments at clause (c) of Rule 824. This can be awarded as punishment in departmental proceedings but such a retirement is different from that effected in accordance with Rule 74 of Bihar Service Code which is not considered a punishment (see Rule 854-A). 828. Infliction of major punishments.—(a) Of the punishments permitted by Rule 824, the items in serials (a) to (f) of that Rule shall be regarded as major punishments, and shall be inflicted by an officer not below the rank of Superintendent. 828. Infliction of major punishments.—(a) Of the punishments permitted by Rule 824, the items in serials (a) to (f) of that Rule shall be regarded as major punishments, and shall be inflicted by an officer not below the rank of Superintendent. (c) In case in which, forfeiture of increment is proposed to be an adequate punishment, this may be inflicted without formal enquiry in the form of a proceeding but every such matter shall state clearly: first, the charges against the defaulter; then his answers to each charge, one by one; and lastly, the finding upon each charge of the officer inflicting the punishment. In such cases, the Superintendent need not hold the enquiry himself, nor shall the delinquent have the—right to appear before him, but he has the right to appear before the officer deputed to record the evidence and to take his defence; and such officer, who shall not be below the rank of inspector, shall come to a clear finding on each charge and shall submit the record with his recommendations to the Superintendent for orders. 835. Effect of black marks.—A reduction or forfeiture or withholding of increment for a specific offence shall carry the following black mark value:- A reduction, etc., up to six months ... 1 black mark. A reduction, etc.. up to twelve months ... 2 black marks. A reduction, etc. for longer than twelve months ... 3 black marks. Whatever be the number of black marks in any one act of delinquency, it shall still count as one major punishment. 7. After examining the aforesaid rules, it appears that Rule-824(f) denotes black mark. Simultaneously Rule6 828(a) says that all punishments permitted by Rule 824 the item in serial No. (a) to (f) of that rule shall be regarded as a major punishment. Further Rule 835 deals with the effect of black mark. By conjoint reading of the aforesaid rules it is clear that all punishment mentioned in Rule 824(a) to (f) are major punishment; however in view of the Rule 828(c), the department is at liberty to impose punishment with regard to reduction of increments without any formal enquiry. Further Rule 835 deals with the effect of black mark. By conjoint reading of the aforesaid rules it is clear that all punishment mentioned in Rule 824(a) to (f) are major punishment; however in view of the Rule 828(c), the department is at liberty to impose punishment with regard to reduction of increments without any formal enquiry. At the same time, after examining Rule 835 it is clear that a reduction of increments up to six months is one black mark and Rule 835 further stipulates that whatever be the number of black marks in any one act of delinquency, it shall still count as one major punishment. Thus, by going through the above rules of Jharkhand Police Manual; this Court holds that Rule 828(c) will apply in all those cases where the lowering down the increments is less than six months and the moment lowering down of increments will touch six months; Rule-835 will be attracted; which categorically stipulates that reduction up to six months is one black mark, black mark is admittedly a major punishment in view of the Rule 828(a). 8. Now coming to the facts of each case, admittedly; no formal enquiry was conducted as no second show cause notices were issued before imposing major punishment nor any witness was examined in either of the cases; as such the respective punishment orders i.e. punishment order dated 27.07.2010, dated 29.07.2012 & dated 21.02.2011 as well as the appellate orders dated 23.02.2011 & dated 9.11.2011, are hereby, quashed and set aside. However, the respondents would be at liberty to initiate fresh enquiry pursuant to the respective charges strictly in accordance with the Rules of Jharkhand Police Manual which has been discussed herein above by holding a full-fledged departmental proceeding. It goes without saying that since the matter is very old, as such if the department chooses to proceed with fresh enquiry; the same shall be completed within a period of four months from the date of receipt/production of copy of this order, failing which the petitioner shall be entitled for all consequential benefits. 9. With the aforesaid observations, these writ applications stand allowed.