Jharkhand High Court
Yogendra Tiwari & Anr vs State Of Jharkhand & Ors on 16 September, 2016
Author: Pramath Patnaik
Bench: Pramath Patnaik
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IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (S) No. 3741 of 2011
...
1. Yogendra Tiwari, son of late Maninath Tiwari, resident of village-Birari, PO
and P.S. Imadpur, District - Bhojpur (Bihar).
2. Arbind Singh, son of Dinanath Singh, resident of village-Pipra, Salempur,
PO and P.S. Arrah (M), Distt. Bhojpur (Bihar). ... Petitioners
-V e r s u s-
1. The State of Jharkhand through the Secretary, Deptt. of Home, Govt. of
Jharkhand, Ranchi.
2. The Principal Secretary, Govt. of Jharkhand, Ranchi.
3. The Joint Secretary, Home Department, Govt. of Jharkhand, Ranchi.
4. The Superintendent of Jail, Central Jail, Dumka, Distt. Dumka
... Respondents
...
CORAM: - HON'BLE MR. JUSTICE PRAMATH PATNAIK.
...
For the Petitioner : - Mr. (Dr.) S. N. Pathak, Sr. Advocate
and Mr. Rakesh Kumar Roy, Advocate.
For the Respondents : - Mr. Chanchal Jain, J.C. to A.A.G.
...
C.A.V. On : - 24/06/2016 Delivered On : 16/09/2016
...
Per Pramath Patnaik, J.
In the instant writ application, the petitioners have inter alia
prayed for issuance of appropriate writ/direction for setting aside the order
of dismissal dated 16.09.2010 and the order/letter dated 23.09.2010,
whereby the respondents intimated that the petitioners were dismissed from
service and further for direction upon the respondents to re-instate the
petitioners in service with all consequential benefits.
2. Sans details, the facts as disclosed in the writ application, in a
nutshell is that, the petitioner no. 1 was posted as Uchcha Kachhapal-cum-
Incharge Superintendent and petitioner no. 2 was Kacchapal at Divisional
Jail Godda in the year 2006. It has been averred in the writ application that
one under trial prisoner Karunakar Choudhary purportedly made complaint
dtd. 26.2.06 allegedly stating therein that at about 11.15 PM on 26.2.06
petitioners alongwith 15 to 20 unknown persons came near the window and
started dancing. It has been submitted that the alleged Jamadar threatened
him for dire consequences, if any complaint is made by him regarding
supply of food. It has been stated that the respondent Jail authorities issued
show cause notice vide memo No. 143 and 144 dated 2.3.01 as to why
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departmental proceeding should not be initiated against the petitioners for
violation of provision of jail manual. It has been further stated that both the
petitioners filed their reply separately on 3.3.06 denying the charges. It has
been further averred that on 26.2.06, petitioner no. 1 was on the round of
jail, heard the sound of music and saw that musician were coming with
whom Kachhapal Arbind Singh was also accompanied and on being asked
Arbind Singh told that Kacchapal Bhanu Prasad Madav allow the musician
to come inside, details of which mentioned in reply dated 3.3.06 and
similarly the petitioner no. 2 also denied the charges and filed his reply as
contained in reply dated 3.3.06, It has been further averred that the Chief
Judicial Magistrate on receipt of complaint dated 27.2.06 about the
occurrence dated 26.2.06, conducted an enquiry in which purportedly found
that petitioners were responsible for entering Munna Tiwari, Chiku
Choudhary Ansari and 15 to 20 persons inducing some musician but during
enquiry thirteen persons have been examined and there are vital
contradictions between the statement of these persons which have not
supported the version of the informant. It has been further averred that
subsequently an F.I.R. was also lodged by the authority on the basis of
application dated 27.02.06 about the occurrence dated 26.2.06 made by
Karunakar Choudhary under trial prisoner. It has been further stated that
petitioners were suspended and departmental proceeding was initiated
against them vide letter dated 11.4.2006. It has been further stated that the
respondent served memo of charge upon the petitioner no. 1 to the following
effect : -
(i) On 26.2.06 at about 11 to 11.15 on direction of petitioner
no. 1 Shiv Barat came inside the jail as reported by Kachhapal
Bhanu Prasad Yadav.
(ii) Petitioner no. 1 reported about the round duty but the same
was not confirmed by gate register.
(iii) In violation of the provision of jail manual being In charge
Supdt. wrong instruction was given to the gate warder and
accompanied Shiv Barat with Munna Tiwari and others inside
the jail, due to this behavior any occurrence might have taken
place inside the jail.
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(iv) In relation to occurrence one application was filed by
Karunakar Choudhary which was enquired by the Chief Judicial
Magistrate, in which charges were proved.
It has been further stated that the respondent served memo of
charge upon the petitioner no. 2 with following effects : -
(i) On 26.2.06 at about 11.15 to 11.25 on direction of
Yogendra Tiwari, Shiv Barat came in side the jail and the
petitioner no. 2 also accompanied and reported by Kacchapal
Bhanu Prasad Yadav.
(ii) On 26.2.06 petitioner no. 1 and 2 with one Munna Tiwari
and others were accompanied inside the jail by the petitioners
due to which any occurrence might have taken place and the
same is against the jail manual.
(iii) In relation to occurrence one application was filed by
Karunakar Choudhary which was enquired by Chief Judicial
Magistrate, Godda in which charges were proved.
It has been further stated that the Enquiry report submitted by
Sri Abraham Minj in which Enquiry Officer held guilty to the petitioners for
the charge of allowing to enter the jail premises to Shiv Barat along with
15-20 unknown and criminal elements. It has been further averred that the
petitioners during departmental proceeding submitted their written defence
denying the charges. It has been further stated that vide memo no. 4441
dated 19.7.2010, the Joint Secretary, Govt. of Jharkhand directed the
petitioners to file their reply to second show cause as the enquiry officer
found them guilty for the charge for allowing the outsiders to enter the
premises of jail. It has been further stated that the petitioners submitted their
reply to second show cause again denying the charges. It has been further
averred that the Enquiry Officer neither discussed nor considered the reply
of the petitioners while submitting the enquiry report. It has been further
stated that the enquiry officer simply referred the statement of witnesses
(who has not been cross-examined by the petitioners) and in the enquiry
report of the Chief Judicial Magistrate, Godda, petitioners pointed out these
points in their reply. It has been further averred that vide order dated 16.9.10
both the petitioners have been dismissed from service by the Principal
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Secretary, Govt. of Jharkhand. It has been further averred that the
Superintendent of Jail, Dumka vide letter dated 23.9.10 intimated the
petitioners that both the petitioners were dismissed from services with effect
from 16.4.10 in the light of the aforesaid punishment issued vide memo no.
5778 dated 16.9.10. It has been further averred that petitioner filed appeal
before the Hon'ble Minister vide their application dated 4.10.10 and
thereafter reminder was again sent by the petitioner no. 1 vide letter dated
4.12.10and by the petitioner no. 2 vide letter dated 6.12.10.
Left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for redressal of their grievances.
3. Heard Mr. (Dr.) S. N. Pathak, learned senior counsel for the petitioner and Mr. Chanchal Jain, learned J.C. to A.A.G. for the respondent- State.
4. Counter affidavit has been filed on behalf of the respondents, repelling the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that the departmental proceeding was conducted by Shri Abrahham Minz, the then Superintendent of Central Jail, Ranchi and the Conducting Officer in his enquiry has also found the petitioners guilty of the alleged charges and hence, the disciplinary action of dismissal from service is commensurate to the offence committed by the petitioners.
5. Learned senior counsel for the petitioners has vehemently submitted that the statement on the basis of which the charges were presumed to be proved was not taken in presence of petitioner nor any opportunity to cross-examination was given to the petitioners, as such order of punishment is vitiated under the provisions of law and is liable to be set aside. Learned senior counsel for the petitioners has submitted that from the Enquiry report, it appears that the Enquiry Officer was influenced by the report of the Chief Judicial Magistrate, Godda but the enquiry officer did not bother to discuss about the material put forward by the petitioners. Learned senior counsel for the petitioners has submitted that it is also not appreciated that the gate warder was the in-charge of gate and responsible for entry of 5 any person in jail premises, but the said gate warder, Bhanu Prasad Yadav failed in his duty and made allegations against these petitioners due to personal grudge and vendetta. Learned senior counsel for the petitioners has submitted that the respondents imposed punishment by way of passing a non-speaking order as to why the plea of petitioners is not acceptable. Learned senior counsel for the petitioners submitted that the departmental proceeding conducted in violation of rules/regulations and statements were taken in absence of petitioners and further they have not been given opportunity to cross-examine the witnesses and further instead of disciplinary authority, the Appellate Authority passed the order depriving the petitioners from their substantive right to prefer appeal as per Jail Manual and even if it is assumed that charges were proved though not accepted, the punishment is disproportionate with alleged misconduct as such the order of punishment dated 16.9.10 and communication order/letter dated 23.9.10 may be set aside and the petitioners may be re-instated in service with all consequential benefits. Learned senior counsel for the petitioners has submitted that there is no charge to the effect that Karunakar Choudhary was threatened for dire consequences by the criminal elements and in fact said Karunakar Choudhary himself denied any such occurrence which is evident from application of Karunakar Choudhary dated 26.12.2007. Learned senior counsel for the petitioners has submitted that it is admitted fact that Shiv Barat party came inside the premises but what is under dispute is that as to on whose instance, they have been allowed to come inside the jail premises and according to the petitioner no.1, it is Bhanu Prasad Yadav, who allowed Shiv Barat Party to come inside the premises whereas, Bhanu Prasad denied the fact and made allegation against the petitioners but no show cause or proceeding was ever initiated against the said Bhanu Prasad Yadav and without any proceeding, he was treated as innocent. Learned senior counsel for the petitioners has submitted that in the light of above mentioned facts and circumstances of case, order of punishment dated 16.9.10 and communication letter dated 23.9.10 may be set aside and petitioners may be reinstated in their services with all consequential benefits.
6. Per contra, learned J.C. to A.A.G. for the respondent-State has 6 vociferously submitted that the offence committed by the petitioners are highly grave in nature and against all norms of the government servant. Learned counsel for the respondent-State has submitted that the provision of appeal is evident in Rule 4 of the Bihar & Orissa Sub-Ordinate Services (Discipline & Appeal) Rules and the appeal of the petitioners being processed accordingly. Learned counsel for the respondent-State has submitted that the departmental proceeding was conducted by the Conducting Officer as per procedure and rules and enough opportunity was provided to the petitioners, which is evident from the enquiry report. Learned counsel for the respondent-State has submitted that in view of the charges against the petitioners being grave and upon perusal of the enquiry report and reply of the second show cause notice, the petitioners have been dismissed from service and hence, the writ petition is not maintainable and is liable to be dismissed in limine.
7. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow : -
(i) The basis of departmental proceeding was a criminal case and the petitioners have been honourably acquitted in the said case, as case of 'no evidence'.
(ii) The Enquiry Report is perverse since the enquiry report is full of procedural illegalities as the provisions of Rule 184 and 185 of the Jail Manual has not been appreciated.
(iii) 36 years of unblemished service career of the petitioners was not taken into consideration and taking into consideration his past services, lesser punishment could have been imposed.
(iv) The impugned order of punishment is not commensurate with the proved misconduct or proved charges and the punishment is excessive and grossly disproportionate to the alleged charges.
The Hon'ble Apex Court in the case of Lucknow Kshetriya Gramin Bank & Anr. Vs. Rajendra Singh as reported in (2013) 12 SCC 372 in the placitum held as under:
7"However, the judicial review of the quantum of punishment is available with a very limited scope. The court would frown upon only when the penalty imposed appears to be so disproportionate to the nature of misconduct that it is shocking to the conscience of the court. Even in such a case when the punishment is set aside as shockingly disproportionate, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case."
(v) Petitioners' defence/show cause reply was not taken into consideration.
(vi) In respect of petitioners, Superintendent of Central Jail is the disciplinary authority, being the appointing authority which is evident from Rule 176 and 177 corresponding to Rule 62 and 268 of the Jail Manual and Inspector General (Prison) is the appellate authority as stated in Rule 191 of the Jail Manual but in case of petitioners, order of dismissal has not been passed by the Disciplinary Authority, rather it has been passed by the Appellate Authority, and thus, the petitioners were deprived from their substantive right to prefer an appeal as per Rule 192 of the Jail Manual.
The Hon'ble Apex Court in the case of Brij Bihari Singh-vs.-Bihar State Financial Corporation and Ors. reported in 2016 (1) PLJR (SC) 27 has been pleased to inter alia, hold as under : -
"The Disciplinary Authority, instead of exercising his power, referred his recommendations to the appellate authority for taking a decision, who exercising the power of Disciplinary Authority imposed punishment thus deprived the appellant from moving the appellate authority against the said order and such exercise of power is wholly arbitrary and discriminatory, when the case was placed before the appellate authority".
8. On cumulative effect of the facts, reasons and judicial pronouncements, the impugned order of punishment of dismissal dated 16.09.2010 and the order/letter dated 23.09.2010 passed by Appellate 8 Authority being not legally sustainable, are hereby quashed and set aside and the matter is remitted back to the concerned authority of the respondents to consider the matter afresh on the question of quantum of punishment, in accordance with law and the respondent authority shall do well to reconsider the case of the petitioner within a period of two months from the date of receipt/production of a copy of this order.
9. With the aforesaid direction, the writ petition stands allowed.
(Pramath Patnaik, J.) APK