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2023 DIGILAW 660 (JHR)

Abhayanand Kumar v. State of Jharkhand

2023-05-09

RAJESH SHANKAR

body2023
JUDGMENT : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the order as contained in memo No. 1232/Ra.kaa. dated 11.04.2010 (Annexure-6 to the writ petition) passed by the respondent No. 5 whereby the petitioner has been inflicted major punishment of reversion to the basic scale of ‘Constable’ for a period of one year with immediate effect. Further prayer has been made for quashing the order as contained in memo No. 673/Sa.Sha. dated 09.09.2022 (Annexure-9 to the writ petition) passed by the respondent No. 4 whereby the appeal preferred by the petitioner has been rejected on technical ground of being time barred. 2. The main submission of learned counsel for the petitioner is that the departmental proceeding against the petitioner was not fairly conducted as he was not provided due opportunity to cross-examine the departmental witnesses and that the punishment of reversion to the basic scale for one year is disproportionate to the charges framed against him. 3. Learned counsel for the petitioner while substantiating the said aspect, contends that three departmental witnesses i.e. Sujan Paswan (Inspector), Naga Ram (Sub-Inspector) and Sabbir Ahmad (Hawaldar) were examined in the departmental proceeding initiated against the petitioner. However, the petitioner was not permitted to cross-examine them which was violative of the principles of natural justice while conducting the departmental proceeding. In fact, the charge against the petitioner was that he was found absent during attendance call on 14.05.2009 at 19 Hrs. in E-Company at Deori Police Station, District-Giridih without any information or permission for such absence and had gone to watch dance of a dancer somewhere near Gore Police Station under Jamua Block. Further charge against the petitioner was that after being searched by the Company Police Officials, he was brought to Deori Police Station on 15.05.2009 at 3 A.M. The said charges were found proved by the Company Commander of the E-Company. However, the charge that he was watching dance during the said period could not be proved in the departmental enquiry. Despite the said fact, the aforesaid punishment has been inflicted upon the petitioner. 4. Mr. However, the charge that he was watching dance during the said period could not be proved in the departmental enquiry. Despite the said fact, the aforesaid punishment has been inflicted upon the petitioner. 4. Mr. Ratnesh Kumar, learned S.C (L&C)-I appearing on behalf of the respondents, while countering the said submission of learned counsel for the petitioner, refers to the counter affidavit filed on behalf of the respondent No. 5 and submits that on 14.05.2009 at about 19 Hrs., the petitioner was found absent from duty without any prior information or permission. In fact, he had gone to watch dance somewhere near Gore Police Station under Jamua block. After search by the police officials, the petitioner was brought to Deori Police Station on 15.05.2009 at 3 A.M. Thereafter, a departmental proceeding was initiated against the petitioner and the enquiry officer submitted his report on 26.03.2010 in which the charge against him to the extent that he was found 15 K.M away from the place of his duty without any information or permission was found proved. On the basis of the said enquiry report, the respondent No. 5 vide the impugned order dated 11.04.2010, inflicted a major punishment of reversion to the basic scale of ‘Constable’ for a period of one year with immediate effect. It was also ordered that the petitioner would not get any amount except the subsistence allowance, during the period of his suspension. 5. It is further submitted that during the departmental enquiry, the petitioner remained present when two departmental witnesses i.e. Sujan Paswan (Inspector) and Naga Ram (Sub-Inspector) were getting their statements recorded. However, while the statement of the third departmental witness i.e. Sabbir Ahmad (Hawaldar) was being recorded on 12.02.2010, the petitioner chose to remain absent despite issuance of notice to him. Under the said circumstance, it cannot be said that the enquiry proceeding was not fairly conducted by the enquiry officer and the petitioner was not provided an opportunity of cross-examining the departmental witnesses. It is further submitted that considering the gravity of the charges framed against the petitioner, the aforesaid punishment inflicted upon him is indicative of lenient view taken by the disciplinary authority despite proving of the charges against him. 6. Heard learned counsel for the parties and perused the relevant materials available on record. It is further submitted that considering the gravity of the charges framed against the petitioner, the aforesaid punishment inflicted upon him is indicative of lenient view taken by the disciplinary authority despite proving of the charges against him. 6. Heard learned counsel for the parties and perused the relevant materials available on record. The specific stand taken by the respondent No. 5 in the counter affidavit is that the departmental proceeding conducted against the petitioner cannot be said to be an ex-parte one and he also cannot allege any biasness in the said proceeding as two witnesses i.e. Sujan Paswan (Inspector) and Naga Ram (Sub-Inspector) were examined by the enquiry officer in his presence but he voluntarily chose not to cross-examine them. When the third witness i.e. Sabbir Ahmad (Hawaldar) was being examined, the petitioner did not appear in the proceeding on the pretext that he was undergoing a training. 7. The main contention of learned counsel for the petitioner is that the charge regarding his absence from duty on 14.05.2009 at 7 P.M during attendance call and particularly that he had gone to watch dance near Gore Police Station under Jamua block could not be proved and hence the order of punishment is bad in law. 8. To appreciate the said contention of learned counsel for the petitioner, the petitioner’s reply to the second show cause notice (Annexure-3 to the writ petition) would be important in which he stated that he was assigned ‘Santri’ duty from 11 P.M to 01.00 A.M in the night of 14.05.2009/15.05.2009. He had gone to attend the marriage ceremony of one of his relatives and he had to join his duty at 11 P.M. However, the auto rickshaw by which he was returning from the marriage venue, broke down and due to the said reason, he could not join the assigned duty. By making such statement, the petitioner admitted that he was absent from duty without prior permission of the competent authority. The disciplinary authority in the impugned order dated 11.04.2010 has mentioned that Deori Police Station under Giridih district comes under Naxal infested area. Thus, it was a serious case of dereliction of duty on the part of the petitioner, who remained absent from the ‘Santry’ duty particularly during the night hours. 9. The disciplinary authority in the impugned order dated 11.04.2010 has mentioned that Deori Police Station under Giridih district comes under Naxal infested area. Thus, it was a serious case of dereliction of duty on the part of the petitioner, who remained absent from the ‘Santry’ duty particularly during the night hours. 9. Under the aforesaid circumstances, this Court neither finds any violation of the principles of natural justice while conducting the departmental proceeding against the petitioner nor sees any infirmity in the impugned order dated 11.04.2010 passed by the respondent No. 5. In fact, the punishment of reversion to the lowest scale for one year is the minimum punishment which could have been awarded to the petitioner for the aforesaid charges. 10. The present writ petition being devoid of merit is accordingly dismissed.