Jharkhand High Court
Awadhesh Kumar Singh vs Union Of India & Ors on 18 April, 2013
Equivalent citations: 2013 (3) AJR 337
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
W. P. (S) No. 4064 of 2002
In the matter of an application under Article 226 of the Constitution of India
Awdhesh Kumar Singh ... ... Petitioner
Versus
1. Union of India through the Secretary, Ministry of
Home Affairs, New Delhi
2. The Deputy Inspector General, Central Industrial
Security Force Unit, Central Coalfields Limited,
Dhori Area, Bokaro, Jharkhand
3. The Commandant, Central Industrial Security Force
Unit, Central Coalfields Limited, Dhori Area, Bokaro
4. B.K. Yamuna, Inspector/Enquiry Officer, Central
Coalfields Limited, Dhori Area, C.I.S.F. Unit, Bokaro
... ... Respondents
For the Petitioner : Mr. Birendra Kumar, Advocate
For the Union of India : Mr. Faizur Rahman, CGC
P R E S E N T
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
By Court: Aggrieved by order dated 30.07.1996 passed by the
Commandant and order dated 27.11.1996 passed by the Deputy Inspector General of Police, the petitioner has approached this Court by filing the present writ petitioner.
2. Brief facts of the case are that, the petitioner was appointed as Constable on 01.10.1989. After completion of the training and probation period, the petitioner was serving at Central Industrial Security Academy, Hyderabad and he was transferred to the office of the Commandant, C.I.S.F. Unit at Bokaro Steel Plant, Bokaro on 12.01.1996. Thereafter, on 14.01.1996 the petitioner was deputed at Central Coalfield, Dhori Area, Bokaro and while posted there on 26.03.1996, the petitioner was put under suspension on the following charges;
2Article of Charge I :
Gross indiscipline and misconduct in that No. 893440631 Constable A.K. Singh, while functioning as Constable, absented himself from the unit lines at about 2230 hrs. on 24.03.1996, without permission from the competent authority vide GD No. 391 dated 24.03.1996. He returned to the unit lines at about 0010 hrs. on 25.03.1996.
Article of Charge II :
Gross indiscipline, misconduct and unbecoming of a member of the Force in that No. 893440631 Constable A.K. Singh, while functioning as Constable, manhandled HC/GD B.L. Choudhury (CHM), who fell down on the ground and got injury on knee and elbow at about 0010 hrs. on 25.03.1996.
3. The petitioner submitted his reply to the charges framed against him. The main defence of the petitioner was that in the night, he heard a sound of "Chor Chor" whereupon he along with another Constable M.C. Mishra went outside. While they were returning alongwith another constable R.P. Singh, one B.L. Choudhury, Head Constable, intervened and asked them from where they were returning at the late night to which Constable M.C. Mishra retorted, who he was to ask such question to them. A quarrel took place between them in which B.L. Choudhury, as alleged, fell down and sustained injuries. An enquiry was conducted and the enquiry report dated 9.06.1996 was submitted. During the enquiry, the department examined three witnesses. The witness namely, S.C. Majumdar who was examined by the department has categorically stated that he had not seen the petitioner assaulting B.L. Choudhury. He has further stated that the petitioner was few yards away from Mr. B.L. Choudhury. Other witnesses who were examined on behalf of the department have also not stated that the petitioner had assaulted Mr. B.L. Choudhury. The only charge against the petitioner which was found proved was that on 24.03.1996 he was found absent from 3 the barrack and he reported there at about 00:10 hrs. on 25.03.1996. A copy of the enquiry report was supplied to the petitioner. The petitioner replied to the showcause notice however, the disciplinary authority passed the impugned order of penalty of dismissal from service. The appeal preferred by the petitioner was also dismissed vide order order dated 27.11.1996.
4. A counteraffidavit has been filed on behalf of the respondents stating that the enquiry conducted against the petitioner was fair and all possible reasonable opportunity was given to the petitioner to defend himself. It has further been stated that during the course of enquiry, the said B.L. Choudhury has categorically stated that the petitioner along with M.C. Mishra had assaulted him.
5. Heard the learned counsel appearing for the parties and perused the documents on record.
6. Mr. Birendra Kumar, the learned counsel appearing for the petitioner has raised a plea that during the departmental enquiry the evidence brought on record on behalf of the department is not sufficient to record the finding that the charges against the petitioner are proved. The only evidence which has been brought on record is the evidence of B.L. Choudhury, who allegedly was the victim of assault by the one M.C. Mishra. The learned counsel has further argued that the disciplinary authority as well as the enquiry officer have not considered the specific defence taken by the petitioner. He has further argued that the test applied in a departmental enquiry must be preponderance of probabilities and not that of a criminal trial, that is, proof beyond reasonable doubt.
7. On the other hand, Mr. Faizur Rahman, learned counsel for the respondents has submitted that this Court has no power to interfere with the findings recorded in the disciplinary proceeding while exercising jurisdiction under Article 226 of the 4 Constitution of India. The enquiry was conducted fairly and disciplinary authority as well as the appellate authority have passed the impugned orders on a consideration of the materials on record.
8. From the record of the case, it appears that in so far as the allegation of assault by the petitioner to Mr. B.L. Choudhury is concerned, there is no evidence on record except the self serving statement of B.L. Choudhury. Even the chargememo does not reflect such a charge of assault. It has been stated by the witnesses of the department itself that the petitioner was not seen assaulting B.L. Choudhury rather, he was at a distance of few yards. One constable namely, R.P. Singh who was present at the time of incident has not been examined. In so far as the defence of the petitioner that they went out of the barrack on hearing the sound of "Chor - Chor" is concerned, the prosecution witnesses have not denied this fact. The prosecution witness namely, P. Venkatesan, who had stated that he did not hear the sound of "Chor - Chor"
however, at the same time, he stated that he was away from the place of incident and that is possibly the reason why he did not hear the sound of "Chor- Chor". It appears that the only charge for which the petitioner has been punished is that, he was found absent on 24.03.1996 about 22:30 hrs. and he reported at about 00:10 hrs. on 25.03.1996.
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 evidence adduced on behalf of the management must have nexus with the charges. The enquiry officer cannot base his findings on mere hypothesis. Mere ipse dixit on his part cannot be substitute of evidence.
10. In "Rajit 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 5 against the "decisionmaking process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the courtmartial. 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 even an aspect which is, otherwise, within the exclusive province of the courtmartial, 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."
11. 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.
12. From the materials on record, it is apparent that no effort was taken either by the enquiry officer or the disciplinary authority to ascertain the truthfulness of the specific defence of the petitioner. There is no finding recorded by them that the alleged unauthorised absence from duty was willful or without any reasonable excuse. The disciplinary authority as well as the appellate authority have overlooked this aspect of the matter. The finding recorded in the departmental enquiry cannot be sustained and the penalty imposed on the petitioner is definitely disproportionate to the charge against him. The penalty orders are liable to be quashed. Since more than 22 years have passed when the petitioner had joined the service and it is about 17 years since 6 he has been dismissed from service, no order for reinstatement of the petitioner would be appropriate in the peculiar facts and circumstances of the case. However, it is too late to remand the matter to the authorities for reconsideration of the quantum of punishment. I am of the opinion that if the order of dismissal from service is converted into an order of compulsory retirement of the petitioner, it would serve the ends of justice. Needless to say that the petitioner would be entitled for pensionary benefit, if admissible in law.
13. 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 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."
14. In "Surendra Prasad Shukla Vs. State of Jharkhand & Ors.", reported in (2011) 8 SCC 536, 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, as no charge of abetting or adding 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 7 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.
15. In "State Bank of Bikaner & Jaipur Vs. Nemi Chand Nalwaya", reported in AIR 2011 SC 1931, a case in which the 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 backwages."
15. 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.
16. In view of the aforesaid discussion, the impugned orders are quashed and the writ petition is partly allowed.
(Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated: 18/04/2013 Manish/N.A.F.R.