Research › Search › Judgment

Jharkhand High Court · body

2024 DIGILAW 156 (JHR)

Vikash Kumar v. State of Jharkhand

2024-02-15

SANJAY PRASAD

body2024
JUDGMENT : Sanjay Prasad, J. The present writ petition has been filed on behalf of the petitioner for quashing the Memo No. 273 dated 30.9.2015 (Annexure-6) communicated vide Memo No. 2766 dated 06.11.2015, issued by the Commandant of JAP-5, passed in Departmental Enquiry No. 26 of 2015, wherein the Commandant have ordered for forfeiture of an increment for the period of six months, which is equivalent to one Black mark. Further Prayer has also been made for quashing the Memo No. 1407 dated 09.6.2015 (Annexure 8), passed by the Deputy Inspector General, JAP in Appeal preferred by the petitioner against order of Commandant, which was communicated vide memo no. 1508 dated 18.6.2015 through the office of the Commandant JAP-5 It is further prayed that Memo No. 397 dated 24.10.2016, issued by the Inspector General of Police (Training) in the appeal preferred by the present petitioner, which was rejected on the ground that there is no provision for further appeal before the Director General of Police-cum-Inspector General of Police (Training) Government of Jharkhand, which was communicated by the office of Commandant JAP-5 vide Memo No. 2643 dated 04/11/2016 (Annexure10). 2. Heard Mr. Mohan Kumar Dubey, learned counsel for the petitioner and Mr. Abhinay Kumar, learned A.C. to G.A.-I for the respondents. 3. Learned counsel for the petitioner has submitted that the impugned punishment order dated 30.09.2015, i.e. Annexure-6, passed by the Commandant JAP-5, Deoghar, by which his increment for six months have been forfeited, which is equivalent to one ‘Black’ Mark, is a major punishment. In support of his contention, learned counsel for the petitioner has placed reliance on Rule 824 and 828 of the Police Manual and submitted that the as per Rule 828 of the Police Manual, the punishment inflicted upon the petitioner is a Major Punishment. Learned counsel for the petitioner further submitted that the order of punishment was upheld by the appellate authority without issuance of second show cause notice, which is not sustainable in the eye of law. Learned counsel for the petitioner, in support of his contention, placed reliance upon the judgment passed by the Hon’ble Supreme Court in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. reported in (1993) 4 SCC 727 and also on order dated 21.09.2022, passed in W.P.(S) No. 1953 of 2019 by a Co-ordinate Bench of this Court. Vs. B. Karunakar & Ors. reported in (1993) 4 SCC 727 and also on order dated 21.09.2022, passed in W.P.(S) No. 1953 of 2019 by a Co-ordinate Bench of this Court. It is submitted that in view of the above, the prayer of the petitioner requires reconsideration by the authority concerned. 4. On the other hand, learned counsel for the State has opposed the prayers made by the petitioner and has submitted that the order of punishment awarded to the petitioner is a minor punishment and will not come in the definition of major punishment and therefore, this writ petition may be dismissed. 5. Perused the record of this case and considered the submission of both the sides. 6. Relevant part of 828 of the Police Manual is as follows:- “Rule 828:-Infliction of major punishments.- (a) Of the punishments permitted by rule 824, the items in serial (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. (b) Without prejudice to the provision of the public Servants Enquiries Act, 1850, no order of dismissal, removal, compulsory retirement of reduction shall be passed on any police officer (other than an order based on facts which have led to his conviction in a criminal court) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself.” 7. At this stage, it is pertinent to mention here that Rule 824 of the Police Manual provides for different punishments in Departmental Proceeding, whereas Rule 828 describes that items in Serial No.s (a) to (f) of the Rule 824 shall be regarded as Major punishment and shall be inflicted by an officer not below the rank of the Superintendent. Description of departmental punishments in Rule 824 read as follows: “Rule 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. (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.” 8. The case of the petitioner appears to fall under the Rule 824 (e) and (f), which appears to be a major punishment in terms of Rule 828. 9. It has been held by the Hon’ble Supreme Court in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors., reported in (1993) 4 SCC 727 , at Para 61, 62 and 63 as follows: “Para 61:-It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well-settled law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that the Evidence Act has no application to the inquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by ‘evidence’ in the proviso to Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by ‘evidence’ in the proviso to Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both. Para 62:-Shri P.P. Rao obviously realising this effect, contended that the enquiry officer being a delegate of the disciplinary authority is not bound by the delegatee's recommendations and it is not a material unless it is used by the disciplinary authority. Therefore, the need for its supply does not arise and the principles of natural justice need not be extended to that stage as the officer/workman had opportunity at the inquiry. In support thereof he placed strong reliance on Suresh Koshy George v. University of Kerala [ (1969) 1 SCR 317 : AIR 1969 SC 198 ] ; Shadi Lal Gupta v. State of Punjab [ (1973) 1 SCC 680 : 1973 SCC (L&S) 293 : (1973) 3 SCR 637 ] ; Hira Nath Misra v. Principal, Rajendra Medical College, Ranchi [ (1973) 1 SCC 805 : AIR 1973 SC 1260 ] ; Satyavir Singh v. Union of India [ (1985) 4 SCC 252 : 1986 SCC (L&S) 1 : AIR 1986 SC 555 ] ; Secretary, Central Board of Excise & Customs v. K.S. Mahalingam [ (1986) 3 SCC 35 : 1986 SCC (L&S) 374] and Union of India v. Tulsiram Patel [ (1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] . I am unable to agree with his contentions. I am unable to agree with his contentions. Doubtless that the enquiry officer is a delegate of the disciplinary authority, he conducts the inquiry into the misconduct and submits his report, but his findings or conclusions on the proof of charges and his recommendations on the penalty would create formidable impressions almost to be believed and acceptable unless they are controverted vehemently by the delinquent officer. At this stage non-supply of the copy of the report to the delinquent would cause him grave prejudice. S.K. George case [ (1969) 1 SCR 317 : AIR 1969 SC 198 ] renders no assistance. It is only an inquiry against malpractice at an examination conducted by the University under executive instruction. Therein the students were given an opportunity of hearing and they were supplied with all the material, the foundation for the report. The observations of the Bench of two Judges with regard to the theory of two stages in the Inquiry under Article 311 also bears little importance for the foregoing consideration in this case. It is already seen that this Court held that the inquiry from the stage of charge-sheet till the stage of punishment is a continuous one and cannot be split into two. The reliance in Keshav Mills Co. Ltd. v. Union of India [ (1973) 1 SCC 380 : (1973) 3 SCR 22 ] is also of no avail. Therein it was pointed out that under Section 18-A of the I.D.R. Act there was no scope of enquiry at two stages and the omission to supply enquiry report, before taking the action, did not vitiate the ultimate decision taken. In Shadi Lal case [ (1973) 1 SCC 680 : 1973 SCC (L&S) 293 : (1973) 3 SCR 637 ] Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules did not provide for the supply of copy of the report of an inquiry conducted by the fact finding authority before inquiry. It was held that the delinquent officer was supplied with all the materials and was given opportunity to make representation and the same was considered. The report did not indicate anything in addition to what was already supplied to him. Under those circumstances it was held that the principles of natural justice cannot be put into an iron cast or a strait-jacket formula. The report did not indicate anything in addition to what was already supplied to him. Under those circumstances it was held that the principles of natural justice cannot be put into an iron cast or a strait-jacket formula. Each case has to be considered and the principles applied in the light of the facts in each case. The effect of the violation of the principles of natural justice on the facts of the case on hand needs to be considered and visualised. The effect of Tulsiram Patel [ (1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio was considered by my brother Sawant, J. and it needs no reiteration. The reliance on S.K. George case [ (1969) 1 SCR 317 : AIR 1969 SC 198 ] in Tulsiram Patel [ (1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio renders no assistance in the light of the above discussion. Since Mahalingam case [ (1986) 3 SCC 35 : 1986 SCC (L&S) 374] which was after the Forty-second Amendment Act, the need to supply second show-cause notice was dispensed with, regarding punishment and therefore, that ratio renders no assistance to the case. Hira Nath Misra case [ (1973) 1 SCC 805 : AIR 1973 SC 1260 ] also is of no avail since the inquiry was conducted relating to misbehaviour with the girl students by the erring boys. The security of the girls was of paramount consideration and therefore, the disclosure of the names of the girl students given in the report or their evidence would jeopardise their safety and so was withheld. Accordingly this Court on the fact situation upheld the action of the Medical College. Satyavir Singh [ (1985) 4 SCC 252 : 1986 SCC (L&S) 1 : AIR 1986 SC 555 ] ratio also is of no assistance as the action was taken under proviso to Article 311(2) and Rule 199 of the CCA Rules. The inquiry into insubordination by police force was dispensed with as the offending acts of the police force would generate deleterious effect on the discipline of the service. Asthana case [ (1988) 3 SCC 600 : 1988 SCC (L&S) 869] was considered by my brother Sawant, J. in which the report was not supplied and it was upheld. The inquiry into insubordination by police force was dispensed with as the offending acts of the police force would generate deleterious effect on the discipline of the service. Asthana case [ (1988) 3 SCC 600 : 1988 SCC (L&S) 869] was considered by my brother Sawant, J. in which the report was not supplied and it was upheld. It should, thus be concluded that the supply of the copy of the enquiry report is an integral part of the penultimate stage of the inquiry before the disciplinary authority considers the material and the report on the proof of the charge and the nature of the punishment to be imposed. Non-compliance is denial of reasonable opportunity, violating Article 311(2) and unfair, unjust and illegal procedure offending Articles 14 and 21 of the Constitution and the principles of natural justice. Para 63: The emerging effect of our holding that the delinquent is entitled to the supply of the copy of the report would generate yearning for hearing before deciding on proof of charge or penalty which Forty-second Amendment Act had advisedly avoided. So while interpreting Article 311(2) or relevant rule the court/tribunal should make no attempt to bring on the rail by back track the opportunity of hearing as was portended by the Gujarat High Court. The attempt must be nailed squarely. Prior to the Forty-second Amendment Act the delinquent had no right of hearing before disciplinary authority either on proof of charge or penalty. So after Forty-second Amendment Act it would not be put on higher pedestal. The Gujarat High Court's decision is, therefore, not good law. However, the disciplinary authority has an objective duty and adjudicatory responsibility to consider and impose proper penalty consistent with the magnitude or the gravity of the misconduct. The statute or statutory rules gave graded power and authority to the disciplinary authority to impose either of the penalties enumerated in the relevant provisions. It is not necessarily the maximum or the minimum. Based on the facts, circumstances, the nature of imputation, the gravity of misconduct, the indelible effect or impact on the discipline or morale of the employees, the previous record or conduct of the delinquent and the severity to which the delinquent will be subjected to, may be some of the factors to be considered. They cannot be eulogised but could be visualised. They cannot be eulogised but could be visualised. Each case must be considered in the light of its own scenario. Therefore, a duty and responsibility has been cast on the disciplinary authority to weigh the pros and cons, consider the case and impose appropriate punishment. In a given case if the penalty was proved to be disproportionate or there is no case even to find the charges proved or the charges are based on no evidence, that would be for the court/the tribunal to consider on merits, not as court of appeal, but within its parameters of supervisory jurisdiction and to give appropriate relief. But this would not be a ground to extend hearing at the stage of consideration by the disciplinary authority either on proof of the charge or on imposition of the penalty. I respectfully agree with my brother Sawant, J. in other respects in the draft judgment proposed by him.” 10. Thus, it is well settled that order of major punishment cannot be passed in absence of second show-cause notice in view of the judgment passed in Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. reported in (1993) 4 SCC 727 . 11. It further appears that a Co-ordinate Bench of this Court, vide order dated 21.09.2022, passed in W.P.(S) No. 1953 of 2019 has also set aside the order of punishment and the matter was remitted back to the Disciplinary Authority for a fresh decision. 12. Paragraph 5, 6 & 7 of the Order dated 21.09.2022 passed in W.P.(S) No. 1953 of 2019 by the Co-ordinate Bench of this Court read as follows: “Para 5:-It is admitted fact that the second show cause was not issued to the petitioner before inflicted the major punishment. The requirement of issuance of second show cause notice enclosing the copy of the enquiry report is a sine quo non, which has to be followed. The law has been well settled by the Hon’ble Supreme Court in the case of Union of India Vs. Mohd. Ramzan Khan reported in (1991) 1 SCC 588 and in the case of Managing Director, ECIL Hyderabad & Ors. Vs. B. Karunakar and Ors. reported in (1993) 4 SCC 727 as well as in several other judgments of the Hon’ble Supreme Court. The punishment order in this case, has been passed in contravention of the aforesaid proposition of law. Mohd. Ramzan Khan reported in (1991) 1 SCC 588 and in the case of Managing Director, ECIL Hyderabad & Ors. Vs. B. Karunakar and Ors. reported in (1993) 4 SCC 727 as well as in several other judgments of the Hon’ble Supreme Court. The punishment order in this case, has been passed in contravention of the aforesaid proposition of law. Para 6:-The appellate authority has also not considered the aforesaid legal issues. Thus, in the circumstances, where the provision of law has not been followed, the order of punishment dated 1.7.2013 as contained in Memo No. 1395 and the appellate order dated 16.12.2013 as contained in Memo No. 1993 are hereby set aside. Para 7:-The matter is remitted back to the Disciplinary Authority to take a fresh decision and pass an order after complying the aforesaid provision of law from the stage of issuance of second show cause notice to the delinquent.” 13. In view of the discussion made above and the law laid down by the Hon’ble Supreme Court and also followed by the High Court of Jharkhand and the relevant rules, Memo No. 273 dated 30.9.2015 (Annexure-6) communicated vide Memo No. 2766 dated 06.11.2015, issued by the Commandant of JAP5, passed in Departmental Enquiry No. 26 of 2015, and Memo No. 1407 dated 09.6.2015 (Annexure 8), passed by the Deputy Inspector General, JAP in appeal preferred by the petitioner, which was communicated vide memo no. 1508 dated 18.6.2015 through the office of the Commandant JAP-5, are set aside in the interest of justice and the matter is remitted back to the Disciplinary Authority for passing a fresh order, in accordance with law after complying with the principles of natural justice and issuing second show cause notice, if any order is required to be passed. 14. Thus, the writ petition is allowed with the aforesaid observation and direction.