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2024 DIGILAW 195 (JHR)

Ramay Samad v. State of Jharkhand

2024-02-21

RAJESH SHANKAR

body2024
JUDGMENT : RAJESH SHA NKAR , J. 1. The present writ petition has been filed for quashing the order as contained in memo No. 257 dated 02.02.2020 (Annexure-4 to the writ petition) passed by the respondent No.4 by which the petitioner’s appeal preferred against the order of dismissal from service has been rejected. Further prayer has been made for quashing the order as contained in memo No. 4623 dated 30.09.2019 (Annexure-2 to the writ petition) passed by the respondent No.5 in Seraikella-Kharsawan District Departmental Proceeding No. 20 of 2019 whereby the petitioner has been dismissed from service w.e.f. 30.09.2019 with further direction to forfeit his salary for the period from 06.02.2018 to 23.11.2018 i.e. 291 days and from 24.11.2018 to 07.01.2019 i.e. 45 days (total 336 days) on the principle of ‘No Work, No Pay’ as the petitioner was unauthorisedly absent from duty during the said period which has been ordered to be accommodated in extraordinary leave. It has also been mentioned in the punishment order that the petitioner will be entitled to get only the subsistence allowance for the period of suspension i.e. from 08.01.2019 to 02.04.2019. The petitioner has also prayed for directing the respondents to re-instate him in service with all consequential benefits. 2. Learned counsel for the petitioner submits that the petitioner was appointed as constable on 05.09.2010 at Chatra district on compassionate ground and he was transferred in December, 2012 to Seraikella-Kharsawan district where he served for a period of seven years. He was falsely implicated in connection with Seraikella P.S. Case No. 14 of 2018 registered under Section 376 of IPC in which he was granted bail. He was put under suspension on 10.09.2018 and thereafter Departmental Proceeding No. 20 of 2019 was initiated against him. In course of departmental proceeding, a show cause notice was issued to him by the respondent No.5 wherein two charges were levelled against him; one was with respect to unauthorized absence of 336 days (291 days + 45 days) from duty and another was with respect to the said criminal case i.e. Seraikella P.S. Case No. 14/2018 instituted against him under Section 376 of IPC alleging dereliction of duty, arbitrariness, moral turpitude and incompetence for the police force. He submitted his reply to the respondent No.5 denying the allegations levelled against him, however, the respondent No.5 vide the impugned order as contained in memo No. 4623 dated 30.09.2019, dismissed him from service with immediate effect. He thereafter preferred an appeal before the respondent No.4 against the said order of dismissal, however, the same was rejected vide the impugned order as contained in memo No. 257 dated 02.02.2020. 3. It is further submitted that on perusal of both the orders passed by the respondent No.5 as well as the respondent No.4, it would be evident that due procedure as mentioned in Rule-824 of the Jharkhand Police Manual has not been followed before inflicting punishment of dismissal from service upon the petitioner. Moreover, sufficient opportunity of hearing has also not been provided to the petitioner and the punishment inflicted upon him is disproportionate to the charges levelled against him. Since the said criminal case lodged against the petitioner is still pending before the Trial Court, the disciplinary proceeding ought to have been stayed till conclusion of the same. 4. Per-contra, learned counsel for the respondents submits that the petitioner was an accused in connection with Seraikella P.S. Case No. 14/18 registered under Section 376 of IPC. He surrendered before the Court of the Chief Judicial Magistrate, Seraikella-Kharsawan on 10.09.2018 and was sent to judicial custody. Thereafter, he was put under suspension w.e.f. 10.09.2018 vide memo No. 1657 dated 21.09.2018 and a departmental proceeding was initiated against him. A memorandum of charge vide memo No. 640 dated 05.04.2019 was served upon the petitioner alleging dereliction of duty, arbitrariness, wilfulness, moral turpitude and not being competent for the police force. He participated in the departmental proceeding and submitted his explanation before the enquiry officer. The witnesses were examined by the enquiry officer in presence of the petitioner and he was also given opportunity to cross-examine the witnesses. After conclusion of enquiry, the enquiry officer forwarded the enquiry report dated 31.07.2019 to the respondent No.5 i.e. the disciplinary authority who agreed with the finding of the enquiry officer and issued 2 nd show-cause notice to the petitioner with respect to the proposed punishment of dismissal vide memo No. 2494 dated 26.08.2019. The petitioner submitted his reply to the 2 nd show cause notice before the disciplinary authority and thereafter the impugned order of dismissal from service was passed. The petitioner submitted his reply to the 2 nd show cause notice before the disciplinary authority and thereafter the impugned order of dismissal from service was passed. Aggrieved thereby, the petitioner preferred an appeal before the respondent No.4, however, the same was also rejected vide the impugned order dated 02.02.2020. The petitioner again preferred re-appeal before the respondent No.4 which was again dismissed vide memo No. 3352 dated 02.12.2020 stating that the same was not maintainable. 5. Heard learned counsel for the parties and perused the relevant materials available on record. The petitioner has challenged the order dated 30.09.2019 passed by the respondent No.5 being the disciplinary authority as well as the order dated 02.02.2020 passed by the respondent No.4 being the appellate authority on two counts; firstly that the order of dismissal from service is shockingly disproportionate to the charges levelled against him and secondly that the disciplinary authority ought to have stayed the disciplinary proceeding during pendency of the criminal case instituted as Seraikella P.S. Case No. 14 of 2018. 6. To appreciate the said contention of learned counsel for the petitioner, I have perused the impugned order dated 30.09.2019 passed by the disciplinary authority, which suggests that 1 st charge against the petitioner was that while posted at Chandil Police Station, he had gone on compensatory leave for ten days on 26.01.2018 and he had to join his duty on 06.02.2018, however, he joined his duty on 24.11.2018 i.e. after 291 days from completion of his leave period. On the same day i.e. on 24.11.2018, the petitioner was asked to take command letter for getting weapons from the police centre, however, he absconded from the said police station without any information and again re- appeared on 08.01.2019. The 2 nd charge against the petitioner was that Seraikella P.S. Case No. 14/18 under Section 376 IPC was instituted against him and such heinous crime of rape committed by a member of a disciplined force reflected dereliction of duty, arbitrariness, wilfulness, moral turpitude and not being competent for the police force. 7. Three witnesses were examined by the respondent department before the enquiry officer, however, the petitioner refused to cross-examine them even after providing opportunity. The petitioner thus failed to explain the allegation of unauthorized absence before the enquiry officer. 7. Three witnesses were examined by the respondent department before the enquiry officer, however, the petitioner refused to cross-examine them even after providing opportunity. The petitioner thus failed to explain the allegation of unauthorized absence before the enquiry officer. So far as the 2 nd charge is concerned, the petitioner contended that the said criminal case was still pending. The enquiry officer submitted the enquiry report observing that the charges levelled against the petitioner were found proved. 8. The disciplinary authority, after receiving the enquiry report, issued second show cause notice to the petitioner and after considering his reply, the impugned order of dismissal from service was passed by the respondent No.5. While passing the said order, the disciplinary authority also looked into the previous service records of the petitioner and found that in total nine years of service since the date of appointment, he did not report on duty six times (i.e. for 522 days) by overstaying after completion of leave period and he unauthorizedly absconded from duty three times (i.e. for 132 days). It was further found that the petitioner was previously inflicted punishment of one black mark and one censure. 9. It is a well settled law that the High Court while exercising power of judicial review under Article 226 of the Constitution of India neither acts as a Court of appeal over the decision of the authorities holding departmental enquiry against a public servant and to reassess the evidence led in the domestic enquiry nor is supposed to interfere with the discretion exercised by the disciplinary authority on the ground that another view is possible on the material on record, unless there exists sufficient reasons therefor. 10. The High Court is primarily concerned with determining as to whether the enquiry was held by an authority competent in that behalf, and according to the procedure prescribed, as well as whether the rules of natural justice were violated. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of evidence or reliable nature of the evidence will not be the ground for interfering with the findings in departmental enquiries. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of evidence or reliable nature of the evidence will not be the ground for interfering with the findings in departmental enquiries. If the disciplinary authority records a finding which is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the writ Court can interfere with the finding of the disciplinary proceedings, however, the discrepancies in the evidence will not make it a case of no evidence. 11. In the case in hand, due procedures of law have been followed by the disciplinary authority and the petitioner has been given due opportunity of hearing before passing the impugned order of dismissal from service. Before this Court also, the petitioner has neither controverted his unauthorized absence from duty as alleged in the memorandum of charge nor has denied the factual observation made in the impugned order of dismissal from service with respect to his previous conduct. 12. So far as the claim of the petitioner that the impugned order of punishment of dismissal from service is disproportionate to the charges levelled against him, it would be appropriate to refer a judgment of the Hon’ble Supreme Court rendered in the case of State of Meghalaya Vs. Mecken Singh N. Marak reported in (2008) 7 SCC 580 wherein it has been held as under:- ‘’14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. 15. While considering the question of proportionality of sentence imposed on a delinquent at the conclusion of departmental enquiry, the court should also take into consideration, the mental set- up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision-making process. If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct, in such cases has to be dealt with iron hands. 16. The respondent belonged to a disciplined force. He was supposed to carry out instructions given to him by his superior. Not only did he flout the instructions, but conducted himself in such a manner that he caused loss of part of pay to be deposited with the exchequer and loss of service revolver with ammunition which could be misused. When a statute gives discretion to the administrator to take a decision, the scope of judicial review would remain limited. The proved charges clearly established that the respondent, who was a police officer failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the exchequer and society.’’ 13. In the case of UT of Dadra & Nagar Haveli Vs. Gulabhia M. Lad reported in (2010) 5 SCC 775 , the Hon’ble Supreme Court has held as under:- ‘’14. The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the court/tribunal. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the court or a tribunal would not substitute its opinion on reappraisal of facts.’’ 14. Thus, the High Courts, in exercise of power conferred under Article 226, are not supposed to interfere with the quantum of punishment, unless the order of punishment is shocking to the conscience of the Court and the same is disproportionate to the alleged charges. The exercise of discretion in imposition of punishment by the disciplinary authority or the appellate authority is dependant on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. A person of disciplined force is supposed to carry out instructions given to him by his superior authority. 15. In the present case, the charge against the petitioner is with respect to unauthorized absence of 336 days. Moreover, in the period of nine years of service, the petitioner did not report on duty after completion of leave period six times (total 522 days) and he unauthorizedly absconded from duty three times (132 days). It was further found that the petitioner was previously inflicted punishments of one black mark and one censure. The petitioner is serving in a disciplined force where the cases of indiscipline are treated strictly. Thus, the Court is of the view that the impugned order of punishment does not appear to be shockingly disproportionate to the charges so as to exercise the power of judicial review under Article 226 of the Constitution of India. 16. The next limb of the argument of learned counsel for the petitioner is that the disciplinary authority ought to have stayed the disciplinary proceeding during pendency of the criminal case instituted against the petitioner. It is well settled that the proceedings in a criminal case and the departmental proceedings can proceed simultaneously since both operate in distinct and different jurisdictional areas. It is well settled that the proceedings in a criminal case and the departmental proceedings can proceed simultaneously since both operate in distinct and different jurisdictional areas. In the departmental proceedings, a charge relating to misconduct is inquired and the standard of proof required in those proceedings is different as required in a criminal case. In the case of departmental proceeding, the standard of proof is based on preponderance of the probabilities, whereas in the criminal case, the charge has to be proved by the prosecution beyond the shadow of reasonable doubt. However, where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance, it is desirable to stay the departmental proceedings till conclusion of the criminal case. 17. In the case in hand, there were two charges levelled against the petitioner and even if it is assumed that the 2 nd charge relating to commission of offence under Section 376 IPC has not yet been proved against the petitioner, the 1 st charge with respect to his unauthorized absence has already been proved against him and the order of punishment is not found shockingly disproportionate to the 1 st charge. Thus, I find no substance in the said argument of learned counsel for the petitioner. 18. In view of the aforesaid discussions, I do not find any merit in the present writ petition and the same is accordingly dismissed.