Gopal Prasad Thakur vs State Of Jharkhand & Ors.

[In the matter of an application under Article 226 of the Constitution of India] ............

Gopal Prasad Thakur ... Petitioner. Versus 1. The State of Jharkhand 2. The Director General of Police, Jharkhand. 3. The Deputy Inspector General of Police, Santhal Pargana Range, Dumka. 4. The Deputy Inspector General of Police (Personnel), Jharkhand, Ranchi. 5. The Superintendent of Police, Pakur. ... Respondents. ............. For the Petitioner : M/s Rajendra Krishna, Rahul Kumar, Prabhat Singh, Advocates For the State : Mr. Saket Upadhyay, J.C. to A.A.G. Mr. Vikas Kumar, Advocate ............ PRESENT HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR ------------

By Court Assailing the order dated 21.04.2001 whereby penalty of

dismissal from service has been imposed upon the petitioner, the

appellate order dated 16.05.2003 and the order dated 07.08.2004

passed in the appeal Memorial preferred by the petitioner, the

petitioner has moved this Court by filing the present Writ Petition.

2. The petitioner was appointed in the year 1985 as

Constable. A charge-memo dated 16.01.2000 was issued to the

petitioner with the following allegations :

(1) That on 05.11.1999, the petitioner came to Police Centre Pakur from Dharampur Guard, P.S. Littipara by saying to the Incharge Guard, Hawaldar Girdhar Paswan that he has to meet the Superintendent of Police. 2

(2) That the petitioner did not remain present in the Guard till 09.11.1999, in relation to which as per the report of Incharge Guard, Hawaldar Giridhar Paswan his salary was withheld which relates to District order no. 807/99 dated 17.11.1999. (3) That on previous occasions also, the petitioner remained absent in the Night count at Pakur Guard, Magazine Guard Police Line, Pakur and Police Line which relates to District order no. 316/99 dated 07/05/99

, District order no. 483/99 dated 22.06.99 and District order no. 577/99 dated 27.07.99 respectively. (4) That he also misbehaved with higher officials in drunk state for which on the basis of report of Sergeant Major, he was dismissed which relates to District order no. 11 / 2000 dated 05.01.2000.

3. The petitioner submitted his written reply. A defence has

been taken that one departmental inquiry could not have been

contemplated with respect to different incidents which took place on

different dates. Moreover, he was already punished for charge

No. (4) and therefore, it could not have been included in the charge-

memo. An inquiry was conducted and report dated 29.03.2001 was

submitted in which mainly the charge levelled against the petitioner

for unauthorised absence from 05.11.1999 to 09.11.1999 was found

proved. The second show-cause notice was issued to the petitioner

on 05.04.2001. The petitioner reiterated his stand and submitted his

reply on 11.04.2001. The Disciplinary Authority passed an order of

penalty of removal from service on 21.04.2001. The petitioner 3

preferred an elaborate appeal before the Appellate Authority,

however, the Appellate Authority dismissed the appeal of the

petitioner on 16.05.2003. Thereafter, the appeal Memorial preferred

by the petitioner was also dismissed on 07.08.2004.

4. For resisting the claim of the petitioner, a counter-

affidavit has been filed stating that the inquiry was conducted in a

fair manner and the petitioner was afforded reasonable opportunity

to defend his case. The petitioner has been found negligent and

absent from duty on three other occasions also. In view of the past

misconduct of the petitioner, the order of penalty has been passed by

the Disciplinary Authority and the Appellate Authorities have rightly

rejected the appeal and appeal Memorial of the petitioner.

5. Heard learned counsel for both the parties at length and

perused the documents on record.

6. Mr. Rajendra Krishna, learned counsel appearing for the

petitioner has raised two contentions namely, (i) there is no evidence

of willful absence from duty with respect to charge against the

petitioner for unauthorised absence and, (ii) the penalty imposed

upon the petitioner is excessive and grossly disproportionate to the

misconduct alleged and proved against the petitioner. He has

submitted that the specific defence of the petitioner has not been

considered by the inquiry officer or the Disciplinary Authority while

imposing the penalty of dismissal from service. 4

7. On the other hand, Mr. Saket Upadhayay, learned

counsel appearing for the respondents has submitted that the

respondents have considered the materials on record and the defence

of the petitioner before imposing the order of penalty. In view of the

repeated lapses on the part of the petitioner, it was thought fit to pass

order of dismissal from service.

8. A perusal of the documents on record discloses that in

the charge-memo four different charges have been framed against

the petitioner. The charge nos. (1) and (2) related to each other.

Charge no. (2) itself makes it clear that for unauthorised absence

from service from 05.11.1999 to 09.11.1999, the salary of the

petitioner was withheld by District Order No. 807/99 dated

17.11.1999. With respect to Charge Nos. (3) and (4), I find that the

petitioner has already been punished. It appears that Charge Nos. (3)

and (4) have been included in the charge-memo dated 16.01.2000

only for the purpose of looking into the past misconduct of the

petitioner. In the net result, only Charge No. (1) which relates to

unauthorised absence from 05.11.1999 to 09.11.1999 was left for

consideration by the inquiry officer. The inquiry officer has

submitted the report holding that charge no. (1) is found true against

the petitioner. However, nowhere the inquiry officer has dealt with

the specific defence taken by the petitioner. There is no finding

recorded by the inquiry officer that the petitioner left the place of

posting without any just excuse. The Disciplinary Authority has not 5

examined this aspect of the matter properly. There is no finding

recorded by any Authority that the absence from duty was willful.

The Appellate order dated 16.05.2003 simply records that the

petitioner has not brought on record any new ground for revoking

the order of penalty, which is definitely an error committed by the

Authority. The petitioner has preferred a detailed appeal for

reconsideration of the order of penalty. The appeal Memorial of the

petitioner was also dismissed, without taking into account the

specific defence of the petitioner and the documents and materials

brought on record by the petitioner.

9. In "Narinder Mohan Arya Vs. United India Insurance

Co. Ltd. & Ors.", reported in (2006) 4 SCC 713, the Hon'ble

Supreme Court has held that the Appellate Authority while disposing

of the appeal, is required to apply his mind. It has been observed that

if an appellate order is in agreement with that of the order passed by

the Disciplinary Authority it may not be a speaking order but the

Authority passing the same must show that there had been proper

application of mind on his part.

10. In "Apparel Export Promotion Council Vs. A.K.

Chopra", reported in (1999) 1 SCC 759, the Hon'ble Supreme Court

has held that the Appellate Authority has also the power / jurisdiction

to re-appreciate the evidence and come to its own conclusion on

facts, being the sole fact - finding authorities. In the present case it is

clear that the appellate authorities have not applied their mind and 6

the impugned orders dated 16.05.2003 and 07.08.2004 have been

passed in a mechanical manner.

11. The power of the High Court under Article 226 of the

Constitution of India to interfere with the findings recorded in the

departmental inquiry, has been settled by a catena of judgment by the

Hon'ble Supreme Court and it has been held that if an inquiry report

or order of penalty is based on "no evidence" or where the findings

have been recorded by ignoring some relevant materials or after

considering some irrelevant materials, such findings / order would

not be immune from judicial review. It has also been held by the

Hon'ble Supreme Court that if the punishment imposed is excessive

or disproportionate to the misconduct alleged and proved or where it

shocks the conscience of the Court or if it is an outrageous defiance

of logic, the High Court would be justified to interfere with such

order of penalty.

12. In "Ranjit Thakur Vs. Union of India & Ors." reported

in (1987) 4 SCC 611, the Hon'ble Supreme Court has held,

"Judicial review generally speaking, is not directed against a decision, but is directed against the "decision-making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that 7

even an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."

13. In "B.C. Chaturvedi Vs. Union of India", reported in

(1995) 6 SCC 749, the Hon'ble Supreme Court has held that the

Court will not interfere with the order of punishment unless the

punishment awarded is one which shocks the conscience of the

Court. A similar view has been expressed by the Hon'ble Supreme

Court in "M.P. Electricity Board Vs. Jagdish Chandra Sharma",

reported in (2005) 3 SCC 401 and several other cases.

14. I further find that before imposing punishment of

dismissal from service for misconduct which does not include an act

of moral turpitude or corruption, the Authorities are required to

record a finding that the misconduct is of such grave nature that it

warrants the order of dismissal from service.

15. In view of the materials on record, I am of the opinion

that the penalty imposed upon the petitioner is definitely excessive

and disproportionate to the misconduct alleged and proved against

the petitioner. The orders impugned in the Writ Petition cannot be

sustained in law.

16. In "Harjit Singh & Anr. Vs. State of Punjab & Anr.",

reported in (2007) 9 SCC 582, the Hon'ble Supreme Court interfered

with the order of dismissal from service and imposed the punishment 8

of compulsory retirement observing as under,

15. "In the aforementioned situation, ordinarily, we would have asked the disciplinary authority to consider the matter afresh, but the occurrence had taken place in the year 1984. The appellants and the said Parminder Singh had worked only for a few years, one of them is dead. In the aforementioned situation, we are of the opinion that we would be justified to fix the quantum of punishment. We are of the opinion that in the facts and circumstances of this case and in particular having regard to the passage of time, punishment of compulsory retirement will meet the ends of justice. If otherwise eligible, the delinquents would be entitled to retiral benefits. The appeal is allowed to the aforementioned extent."

17. In "Surendra Prasad Shukla Vs. State of Jharkhand &

Ors.", reported in (2011) 8 SCC 536, it was found that the

delinquent, a Head Constable in State Police, who had served for 34

years, was dismissed from service as a stolen car was recovered from

the government quarters occupied by the delinquent employee.

However, no charge of abetting or aiding the offence under Section

392 I.P.C., for which his son was charged, was framed against him,

the Hon'ble Supreme Court held that the punishment of dismissal

from service, which would deprive the employee of his pension also,

was shockingly disproportionate to negligence proved against him.

The Hon'ble Supreme Court partly allowed the appeal and modified

the punishment of dismissal from service to compulsory retirement.

18. In "State Bank of Bikaner & Jaipur Vs. Nemi Chand

Nalwaya", reported in AIR 2011 SC 1931, a case in which the 9

delinquent employee without verification, instructed his colleague to

transfer a dormant account into operative category at the request of

an unknown person visiting the bank and claiming to be account

holder, which turned out to be false, the Hon'ble Supreme Court has

held as under :

11. "However having regard to the fact that the proven charge did not involve either misappropriation or fraudulent conduct and the other circumstances of the case, we are of the view that the punishment of dismissal should be substituted by compulsory retirement, which does not involve reinstatement.

12. We, accordingly, allow the appeal and set aside the judgment of the High Court. We uphold the finding of guilt recorded by the disciplinary authority, but modify the punishment from 'dismissal' to 'compulsory retirement'. There is therefore no question of grant of any back-wages."

19. In "Hussaini Vs. Hon. Chief Justice of High Court of

Judicature at Allahabad & Ors.", reported in (1985) 1 SCC 120, the

Hon'ble Supreme Court has converted the order of punishment of

dismissal into order of compulsory retirement on compassionate

ground.

20. Mr. Rahul Kumar, advocate assisting Mr. Rajendra

Krishna, the learned counsel appearing on behalf of the petitioner

makes a statement at bar that the date of birth of the petitioner is

14.07.1961. The petitioner who was appointed in the year 1985, was

dismissed from service on 21.04.2001, and thus he has worked for 10

about 16 years. About 28 years have passed since the petitioner

was appointed as Constable and he is on the verge of retirement and

therefore, no purpose would be served by remanding the matter to

the Authority for considering the quantum of punishment. I am of

the view that it would serve the ends of justice if the order of

dismissal from service is converted into an order of compulsory

retirement. Needless to say petitioner would be entitled for all retiral

benefits, if permissible under the law.

21. The impugned orders dated 21.04.2001, 16.05.2003,

07.08.2004 are quashed. The Writ Petition is allowed in the aforesaid

terms.

(Shree Chandrashekhar, J.)

JHARKHAND HIGH COURT, RANCHI Dated - 18.04.2013 Tanuj / .A.F.R.