Jharkhand High Court
Tufan Chandra Baski vs The State Of Jhakrhand And Ors on 4 July, 2016
Author: Virender Singh
Bench: Virender Singh, Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 136 OF 2016
Tufan Chandra Baski ... Appellant
-versus-
1. The State of Jharkhand
2. The Director General of Police-cum-I.G., Jharkhand at Ranchi, Project
Building, Dhurwa, P.O.-Dhurwa, P.S.-Jagannathpur, District-Ranchi,
Jharkhand.
3. The D.I.G. Ranchi Range, P.O., P.S. and District-Ranchi, Jharkhand.
4. The Superintendent of Police, Dhanbad, P.O., P.S. and District-
Dhanbad, Jharkhand.
5. The Deputy Superintendent of Police, Dhanbad, P.O., P.S. & District-
Dhanbad, Jharkhand.
... Respondents
----
CORAM : HON'BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE
HON'BLE MR. JUSTICE ANANDA SEN
----
For the Appellants : Mr. Ranjan Kumar Singh, Advocate
For the Respondents: Mr. Rajesh Kumar
----
02/04.07.2016
Per Virender Singh, C.J.
Aggrieved by the judgment dated 19.02.2016 rendered in W.P.(S) No. 4947 of 2016, the writ petitioner-appellant (hereinafter to be referred to as 'appellant') has preferred this letters patent appeal.
2. The appellant was appointed on 05.09.2006 as a Constable. While posted at Ramgarh Police Station within the district of Palamau, he went on leave for 10 days from 02.07.2013 to 12.07.2013. The appellant did not join on 13.07.2013 and remained on leave unauthorisedly. Since the appellant was unauthorisedly absent, he was suspended and a 2 departmental proceeding was initiated. Chargesheet was issued on 25.09.2013. After framing of charge, a departmental proceeding was initiated by appointing an Enquiry Officer. The Enquiry Officer conducted the inquiry and found the appellant guilty of the charges vide memo dated 13.12.2013. Second show-cause notice was issued to the appellant and ultimately vide order dated 21.04.2014, the appellant was dismissed from service.
3. The dismissal order of the appellant was challenged in the writ petition bearing W.P.(S) No.4947 of 2016, which was dismissed, resulting in filing of this appeal.
4. The counsel for the appellant submitted before this Court that in the departmental proceeding he was not given proper opportunity to defend himself and thus, there being violation of principles of natural justice, impugned order of dismissal is liable to be set aside. He further submits that the order of dismissal is absolutely harsh keeping in view of the alleged misconduct.
5. The counsel for the respondent submitted that the appellant is a member of a disciplined force and unauthorized absence must be viewed seriously. He further submitted that the appellant was supposed to join his duty on 13.07.2013, but, he failed to do so. He was reminded to join his duty vide letter dated 31.07.2013 and 20.08.2013, yet he did not join. A chargesheet was issued and an Enquiry Officer was appointed. The appellant was given information, but he remained absent. The Officer, conducting inquiry, found the appellant guilty of the charge. A second show-cause notice was issued to the appellant and ultimately, the appellant was dismissed from service on 24.01.2014. The State lastly submitted that there is no illegality or irregularity committed in the 3 proceedings, and that being so, there is little scope of interference by the High Court in its jurisdiction under Article 226 of the Constitution of India in respect of the dismissal order.
6. Having heard the counsel for the parties, we find that the appellant was in the police force. He was on leave with effect from 02.07.2013 till 12.07.2013. The appellant was supposed to join on 13.07.2013, but, he failed to do so. Notices were issued to him, directing to resume his duties, which were also not adhered to by the appellant. Having no other alternative, department issued chargesheet against the appellant as unauthorized absence is a misconduct. The Enquiry Officer gave sufficient opportunity to the appellant, but the appellant failed to avail the said opportunity. The dates fixed by the Enquiry Officer were duly informed to the appellant vide several letters, but the appellant abstained. Having no other alternative, departmental proceedings continued exparte and final report was submitted by the Enquiry Officer. Consequently, after following all the procedures, the appellant was dismissed from service.
7. Scope of interfering in an order of punishment, which was passed after proper departmental enquiry is very limited. The High Court in its jurisdiction under Article 226 of the Constitution of India, cannot sit in appeal as if an appellate authority. As held in State of Uttar Pradesh & Another versus Man Mohan Nath Sinha & Another reported in (2009) 8 SCC 310, judicial review is not directed against the decision, but is confined to the decision making process. The High Court cannot reappreciate or reappraise the evidence led before the Enquiry Officer, as if sitting in appeal. In the instant case, we find that there is no procedural lapse or irregularity in conducting the departmental enquiry. The plea of the appellant that the impugned order is in violation of the principles of the 4 natural justice cannot be accepted because the record shows that opportunity was given to the appellant to appear before the Enquiry Officer, but, he failed to do so. The Enquiry Officer had no other option but to proceed exparte for which no fault can be found.
8. So far as the quantum of punishment is concerned, we find that the same is absolutely proper, which needs no interference also. The chargesheet dated 25.09.2013 reflects the previous conduct of the appellant. It appears from the said chargesheet that the appellant was appointed only on 05.09.2006 and within a very short span of time he was awarded one major punishment and four minor punishments. He was also declared "a deserter" once. There are instances that the appellant was a habitual unauthorized absentee without any leave. All these clearly establish the conduct of the appellant. The Hon'ble Supreme Court in Om Prakash versus State of Punjab & Others reported in (2011) 14 SCC 682 has held that an employee who is a habitual absentee without leave, does not deserve any sympathy from the Court.
9. In the case The Govt. of A.P. & Ors. Versus Mohd. Taher Ali reported in 2007 (8) SCC 656, the Hon'ble Supreme Court has held that consideration of earlier misconduct is often only to reinforce the opinion of the authority. The police force is a disciplined force and if the delinquent employee is an habitual absentee then there is no reason to ignore the fact of earlier habitual absenteeism at the time of imposing punishment. Thus, the disciplinary authority has rightly taken into consideration the earlier misconduct at the time of imposing punishment.
10. Since there is no illegality or irregularity in the departmental proceedings and since the order of dismissal commensurate with the proved charge, especially in view of the previous misconduct of similar 5 nature, the punishment of dismissal from service is justified. The learned Single Judge has committed no error in dismissing the writ application.
11. In view of the above findings, this letters patent appeal lacks merit and is dismissed.
(Virender Singh, C.J.) (Ananda Sen, J.) LAK