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2023 DIGILAW 1142 (JHR)

Nath Rai v. State of Jharkhand

2023-09-12

S.N.PATHAK

body2023
JUDGMENT : The petitioner has approached this Court with prayer for quashing of the Office Order dated 26.09.2012 whereby petitioner has been dismissed from service with effect from a retrospective date. Further, prayer has been made for quashing of order dated 20.12.2013, whereby the respondents have modified the order of dismissal to compulsory retirement. Petitioner has further prayed for direction upon the respondents to reinstate him in service of Jharkhand Police Force from the date of dismissal from service i.e. w.e.f. 08.04.2006 and respondents be directed to grant promotion to the petitioner to the rank of ASI and SI of Police for which he had been entitled to during his service period. The respondents may further be directed to pay the entire outstanding dues of salary as per entitlement with all consequential benefits as may be found to be payable upon his reinstatement in the service. 2. The case of the petitioner lies in a narrow compass. The petitioner while posted as constable in the office of the Sr. S.P. Ranchi, the Confidential Reader of the office of the Sr. S.P. has informed that on 29.04.2006 at 18:55 hours the petitioner refused to receive the order and thereafter, on 30.04.2006, he again refused to receive the command which was sent to him through Special Messenger, Arjun Prasad Yadav. For the aforesaid act of the petitioner, the Sr. S.P. Ranchi vide District Order No. 1804/2006 dated 13.05.2006 held up the salary of the petitioner and further directed him to appear in the office. When the petitioner did not join his duty for a long time, the Sr. S.P. Ranchi vide memo No. 3913 dated 17.08.2006 directed the petitioner to join his duty otherwise strict action shall be taken against him. The said order was sent to the home address of the petitioner through Registered Post but the same was returned back undelivered. Inspite of the aforesaid information to the petitioner he did not join his duty and therefore, the Sr. S.P. Ranchi vide memo No. 4651 dated 08.10.2006 issued charge memo against the petitioner for gross indiscipline, dereliction of duty, negligence and absconding from duty but the petitioner did not submit any explanation. 3. Inspite of the aforesaid information to the petitioner he did not join his duty and therefore, the Sr. S.P. Ranchi vide memo No. 4651 dated 08.10.2006 issued charge memo against the petitioner for gross indiscipline, dereliction of duty, negligence and absconding from duty but the petitioner did not submit any explanation. 3. Thereafter, a departmental proceeding was initiated against the petitioner and the Conducting Officer vide memo No. 552 dated 11.06.2017, memo dated 27.06.2007, memo No. 665 dated 18.07.2007 and memo No. 792 dated 25.08.2007 directed the petitioner to participate in the departmental proceeding and submit his defence statement. In spite of several communication, the petitioner neither submitted his defence nor participated in the departmental proceeding. Therefore, the Conducting Officer recorded the statement of witnesses in his absence and directed the petitioner to submit his final defence otherwise the proceeding will be concluded ex-parte but he did not turn-up and submit any defence statement. Hence, the Conducting Officer upon and conclusion of the departmental proceeding found the charges levelled against the petitioner true and hence, submitted his enquiry report to that effect. 4. The Disciplinary Authority agreeing with findings of the Conducting Officer, issued 2nd show-cause notice to the petitioner to submit his explanation against the proposed punishment but the petitioner failed to submit his reply. Thereafter, the Sr. S.P. Ranchi again vide memo dated 29.08.2012 directed the petitioner to submit his explanation within 30 days failing which he will be dismissed from service. Upon receipt of the same, the petitioner submitted his explanation before the Sr. S.P. Ranchi which has been received in the office of the Sr. S.P. Ranchi on 11.09.2012. The Disciplinary Authority after going through the findings of the Conducting Officer, records of the case and the explanation submitted by the petitioner, found him guilty of the charges levelled against him and passed order of dismissal vide memo dated 26.09.2012 and the said order was personally served to the petitioner which has been received by his wife on 24.11.2012. 5. Aggrieved by the said order of dismissal the petitioner preferred Appeal which stood rejected. Thereafter, the petitioner preferred memorial before the Director General of Police, Ranchi and the order of dismissal has been modified to compulsory retirement from the date of dismissal by exercising the powers under Rule 824 (Ga) and 854 (Aa-1) of the Police Manual vide order dated 20.12.2013. Thereafter, the petitioner preferred memorial before the Director General of Police, Ranchi and the order of dismissal has been modified to compulsory retirement from the date of dismissal by exercising the powers under Rule 824 (Ga) and 854 (Aa-1) of the Police Manual vide order dated 20.12.2013. Hence, the petitioner has been constrained to knock the door of this Court. 6. Learned counsel for the petitioner argues that the order of dismissal is highly prejudice, unsustainable and non est in the eyes of law and if not set aside by the order of this Court, the petitioner would suffer irreparable loss and injury. The respondent No. 2 has not applied judicial mind while deciding a Memorial against the order of respondent No. 3. Learned counsel further argues during his service in Jharkhand Cadre, the petitioner was recommended for promotion to the post of Assistant Sub-Inspector of Police, however, despite such recommendation and approval, the petitioner was neither promoted nor posted on the said post. Learned counsel further argues that such anguish and depravation laid to the petitioner’s mental illness for which he was treated at RINPAS, Ranchi and a valid certificate was issued to this effect on 28.12.2017. However, the petitioner was dismissed from his services by the respondent No. 3 in most whimsical manner vide letter dated 28.09.2012. Learned counsel further argues that order of dismissal was passed without affording any opportunity of hearing to the petitioner. 7. Per Contra, the Respondent have filed Counter Affidavit. Learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that the Departmental Proceeding was conducted as per the Rules and Procedures and there is no folly in the departmental proceeding and there is no violation of principles of natural justice. The Conducting Officer found the charges levelled against the petitioner to be fully proved, then the Disciplinary Authority issued the order of dismissal. There is no illegality or infirmity in the impugned orders. The order of Disciplinary Authority was affirmed up to Appellate Authority. Thereafter, the Director General of Police, Ranchi, which is the highest authority of the Department modified the order of dismissal to order of compulsory authority. 8. There is no illegality or infirmity in the impugned orders. The order of Disciplinary Authority was affirmed up to Appellate Authority. Thereafter, the Director General of Police, Ranchi, which is the highest authority of the Department modified the order of dismissal to order of compulsory authority. 8. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no interference is warranted in the instant writ petition for the following facts and reasons : (I) The departmental proceeding was conducted as per the Rules and Procedures and no folly has been pointed-out in the entire departmental proceeding at any point of time which attained finality. The order of dismissal has been affirmed by the Appellate Authority. Thereafter, the Director General of Police, Ranchi, which is the highest authority of the Department modified the order of dismissal to order of compulsory authority and as such, it requires no interference. (II) While conducting the departmental proceeding and passing the final order, the principles of natural justice has been fully taken care of by the respondents. (III) It is not a case that without adhering to the cardinal principle of natural justice, the petitioner has been dismissed from services, rather, ample opportunity of hearing has been given by the respondent-authorities while passing the impugned order which is reflected from the order-sheets itself. (IV) It is not in dispute that while conducting the departmental proceeding, several reminders were given to the petitioner to submit his defence but he failed to do so and hence, the Conducting Officer concluded the departmental proceeding ex-parte and found the petitioner guilty of the charges. Based on the same, the Disciplinary Authority after issuance of 2nd show-cause notice, passed the order of dismissal, which has been affirmed by the Appellate Authority. However, the Director General of Police in memorial modified the same to the order of compulsory retirement. (V) The petitioner belongs to a disciplined force and any indiscipline cannot be accepted in a disciplined force. 9. Admittedly, in the departmental proceeding, the High Court has very limited power and can interfere in the matter only if there was any folly in the proceeding and also can examine whether fundamental rights have been infringed and ample opportunity of hearing has been given to the employee and cardinal principle of natural justice has been adhered to or not. Admittedly, in the departmental proceeding, the High Court has very limited power and can interfere in the matter only if there was any folly in the proceeding and also can examine whether fundamental rights have been infringed and ample opportunity of hearing has been given to the employee and cardinal principle of natural justice has been adhered to or not. However, nothing has been whispered by the petitioner that he was deprived of opportunity of being heard and the order has been passed in complete violation of cardinal principle of natural justice. 10. The Hon’ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India & Ors., reported in (1995) 6 SCC 749 has held thus : “The High Court does not act as appellant authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to the decision of a case on merit as an appellate authority.” (ii) Insufficiency of materials cannot be a ground to annul the findings of the Enquiry Officer neither can a substituted view be taken in place of Enquiry officer/disciplinary authority in cases of departmental proceeding.” Further in case of Union of India & Ors. vs. P. Gunasekaran, reported in (2015) 2 SCC 610 , the Hon’ble Apex Court has clearly observed that, “High Court in exercise of its powers under Articles 226 and 227 cannot venture into appreciation of evidence or interfere with conclusions in enquiry proceedings if the same are conducted in accordance with law, or go into reliability/ adequacy of evidence, or interfere if there is some legal evidence on findings are based, or correct error of fact however grave it may be, or go into proportionality of punishment unless it shocks conscience of court”. In case of Union of India v. P. Gunasekaran (supra) the Hon’ble Apex Court has laid down certain ingredients to be looked into by the High Courts for interfering in the departmental proceeding, which reads as under : “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence.” Further, the Hon’ble Apex Court in case of State of Bihar & Ors. vs. Phulpari Kumari, reported in (2020) 2 SCC 130 has held as under : “6. The criminal trial against the respondent is still pending consideration by a competent criminal court. The order of dismissal from service of the respondent was pursuant to a departmental inquiry held against her. The inquiry officer examined the evidence and concluded that the charge of demand and acceptance of illegal gratification by the respondent was proved. The learned Single Judge and the Division Bench of the High Court committed an error in reappreciating the evidence and coming to a conclusion that the evidence on record was not sufficient to point to the guilt of the respondent: 6.1. It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of “no evidence”. Sufficiency of evidence is not within the realm of judicial review. It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of “no evidence”. Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge. 6.2. The High Court ought not to have interfered with the order of dismissal of the respondent by re-examining the evidence and taking a view different from that of the disciplinary authority which was based on the findings of the inquiry officer.” 11. The same view has been reiterated by the Hon’ble Apex Court in case of State of Karnataka v. N. Gangaraj, reported in (2020) 3 SCC 423 wherein the Hon’ble Court has held as under : “8. We find that the interference in the order of punishment by the Tribunal as affirmed by the High Court suffers from patent error. The power of judicial review is confined to the decision-making process. The power of judicial review conferred on the constitutional court or on the Tribunal is not that of an appellate authority.” Further, in case of Mukesh Kumar Raigar v. Union of India, reported in 2023 SCC OnLine SC 27, the Hon’ble Apex Court has observed that : “9. …………… that there was deliberate suppression of facts which was an aggravating circumstance. ……………... Such a well-reasoned and well considered decision of the respondent-authorities should not have been interfered by the Single Bench in exercise of its powers under Article 226 of the Constitution, more particularly when there were no allegations of malafides or of non-observance of rules of natural justice or of breach of statutory rules were attributed against the respondent authorities.” 12. As the petitioner has been found guilty of the charges, the order of dismissal has rightly been passed after following due process of law and without actuated with malafide. The petitioner challenged the order of dismissal before the Appellate Authority who has affirmed the order of punishment. As the petitioner has been found guilty of the charges, the order of dismissal has rightly been passed after following due process of law and without actuated with malafide. The petitioner challenged the order of dismissal before the Appellate Authority who has affirmed the order of punishment. Thereafter, the petitioner preferred Memorial before the Director General of Police, who after considering every aspects of the matter, taken a linient view and modified the order of punishment to order of compulsory retirement. This Court is in total agreement with the findings of the Disciplinary Authority as well as of the Appellate Authority and the Revisional Authority. 13. As a sequitur to the aforesaid observations, rules, guidelines, logical propositions and judicial pronouncements, no interference is warranted in the instant writ petition. The same merits dismissal and is hereby dismissed. 14. Pending I.As., if any, stand closed.