Jharkhand High Court
Sanjay Kumar vs The State Of Jharkhand on 28 March, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 2450 of 2011
Sanjay Kumar, son of late Tarkeshwar Sharma, resident of Village-
Kespa, Post Office-Kespa, Police Station-Alipur, District- Gaya,
Bihar. ... ... Petitioner
Versus
1. The State of Jharkhand
2. The Director General of Police, Jharkhand, Ranchi
3. The Inspector General of Police, South Chhotanagpur Region,
Ranchi
4. The Senior Superintendent of Police, Ranchi
5. The Superintendent of Police, Hazaribagh
6. The Superintended of Police, Chatra
7. The State of Bihar through Director General of Police, Bihar, Patna
... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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10/28.03.2022
1. Heard Mr. Alok Anand, learned counsel appearing on behalf of the petitioner.
2. Heard Mr. Rahul Saboo, learned counsel appearing on behalf of the State of Jharkhand.
3. Learned counsel for the State of Bihar is also present.
4. It is not in dispute that at the time of filing the present writ petition on 06.05.2011, the petitioner had prayed for quashing the entire departmental proceeding including the draft charge as contained in Memo No. 1365 dated 25.03.2011 issued under the signature of Respondent No.-4, whereby charge was levelled against the petitioner that on the basis of forged documents and by preparing forged orders the petitioner had obtained employment and by showing humanitarian ground, the petitioner has managed to get appointment to the post of constable and hence it was alleged that the appointment of the petitioner as constable was obtained illegally.
Arguments of the petitioner
5. Learned counsel for the petitioner submits that immediately after receiving the draft charge, the petitioner, by letter dated 29.04.2011, had requested for supply of the exhibits which was 2 mentioned in the charge memo and had also issued various letters in connection with the supply of the exhibits of the charge memo and some other documents, which were required by the petitioner in order to file his show-cause reply. He has further submitted that during the pendency of this writ petition, the said documents were not provided to the petitioner and ultimately, the departmental proceeding was concluded and the enquiry report was submitted and the petitioner was held guilty in the enquiry proceedings. The learned counsel has also submitted that no second show cause was issued to the petitioner and the disciplinary authority passed the order of dismissal against the petitioner by holding that the appointment of the petitioner itself was illegal. The learned counsel submits that thereafter the petitioner filed appeal before the appellate authority raising the points of violation of principles of natural justice and also non-issuance of second show cause, but the appeal was also dismissed.
6. The learned counsel submits that under such circumstances, the petitioner challenged the order of the disciplinary authority as well as the appellate authority by filing I.A. No. 221/2018 in the present case, which was allowed on 05.11.2018 and consequently, the entire disciplinary proceedings including the order of the disciplinary authority as well as the appellate authority are under challenge. The learned counsel submits that primarily the petitioner is challenging the entire departmental proceedings on account of violation of principles of natural justice and perversity. The learned counsel has also submitted that the disciplinary authority has referred to Article 311 (2)
(b) of the Constitution of India to punish the petitioner, although the said provision is not at all applicable, as the petitioner was subjected to regular departmental enquiry and it cannot be said that the petitioner was required to be dismissed without holding any enquiry. He submits that this aspect of the matter has not been taken care of by the appellate authority, although specific plea in this regard was taken before the appellate authority. The learned counsel submits that on account of non-supply of the required documents to the petitioner, for which specific request was made by the petitioner, the entire departmental proceedings culminating in punishment of the petitioner 3 is fit to be set-aside. The learned counsel submits that the entire proceedings has taken place by a pre-determined mind, when seen in the light of the letter issued by higher authority, which indicated that the petitioner is to be dismissed after holding an enquiry.
7. While referring to the foundational facts of this case, the learned counsel submits that it is not in dispute that the petitioner had participated in the selection process pursuant to advertisement published in the year 1988 and the petitioner was directed to appear for the physical test vide Roll No. 755 issued by the duly constituted Selection Board and after becoming successful in the physical test, the petitioner was directed to appear in the written test, in which also he was declared successful. The further undisputed fact as stated in para- 6 of the writ petition that the petitioner was appointed vide order dated 19.05.1995 as contained in Memo No. 1877 by the order of the Superintendent of Police, Hazaribagh vide order No. 563/95 mentioning that the petitioner was appointed to the post of constable in special circumstances on humanitarian ground.
8. The learned counsel has referred to the letter of appointment as contained in Annexure-1 to the writ petition, which admittedly does not refer to any advertisement or recruitment through advertisement, but it refers to appointment on humanitarian ground under special circumstances and on purely temporary basis. The learned counsel further submits that thereafter, the petitioner was transferred from one place to another and suddenly, he was subjected to the aforesaid charge contained in Memo No. 1365 dated 25.03.2011.
9. During the course of hearing, it is not in dispute from the side of the petitioner that the petitioner had participated in the departmental proceeding though it is the specific case of the petitioner that the required documents having not been supplied to the petitioner, no written statement as such was filed by the petitioner and by repeated letters demanded the documents. It is the further not in dispute from the side of the petitioner that the petitioner did not cross-examine any of the witnesses.
10. During the course of hearing of this case, the learned counsel for the petitioner has also placed the report of the enquiry officer, 4 wherein it has been recorded that the petitioner had participated in the selection process, which was held on 20.08.1989 and thereafter, a master chart was prepared, but the petitioner was declared unsuccessful on account of his inappropriate educational qualification and that his height was not as per the candidate last selected. However, a letter contained in Memo No. 1877 dated 19.05.1995 was issued under the signature of Shree Ajay Bhatnagar, Superintendent of Police the petitioner was appointed under special circumstances on humanitarian ground on purely temporary basis. It further appears that the aforesaid documents which has already been referred to in the enquiry reports has also been referred to in Annexure-1, which is the appointment letter of the petitioner. He has also referred to the enquiry report, wherein it has been ultimately recorded that there is no provision for appointment of a person on humanitarian ground and therefore, the enquiry officer was of the view that the appointment of the petitioner on humanitarian ground was illegal.
11. Learned counsel has also submitted that the conclusions arrived at in the enquiry report is perverse, in as much as, the enquiry report itself records that Exhibit-3 and 9 are the only documents which relates to the petitioner and rest of the exhibits are not relating to him. He submits that Exhibit-9 is the preliminary enquiry report and exhibit-3 is the forwarding letter.
12. The learned counsel submits that in view of the aforesaid limited material against the petitioner, the petitioner could not be held to be an illegal appointee and therefore, the enquiry report itself is perverse. The learned counsel has also submitted that the enquiry officer himself has been writing letters for supply of exhibit-11 and he submits that other documents were also required which goes to show that the essential documents for the purposes of the departmental enquiry was not available on record of the enquiry officer and therefore also, the findings of the enquiry officer is perverse.
13. It is important to note that during the course of hearing, the learned counsel for the petitioner has nowhere disputed and no material or pleading has been pointed out to dispute that the petitioner had participated in the selection process and was declared 5 unsuccessful. It is not in dispute that subsequently, the petitioner was appointed on humanitarian ground, which is the finding recorded by the enquiry officer. Rather, in order to justify his appointment on humanitarian ground, the learned counsel for the petitioner has referred to Rule 663 of Jharkhand Police Manual to submit that the Selection Committee has got the power to relax the required para- meters for good grounds and accordingly, the petitioner has been appointed by exercising such ground as humanitarian ground itself is a good ground. Further during the course of argument, it is not in dispute that the petitioner was not declared successful by the Selection Committee, rather he was appointed after having been declared unsuccessful in the selection process. The learned counsel has submitted that even post selection process, such exercise of granting appointment on humanitarian ground, could have been exercised.
Arguments of the respondents
14. Learned counsel for the respondents, on the other hand, has vehemently opposed the prayer and submitted that the appointment of the petitioner on humanitarian ground cannot be sustained by referring to any provision of law including Rules 663 of the Police Manual. He also submits that finding arrived at by the enquiry officer on the basis of materials on record, that the petitioner was never declared successful by the Selection Committee and his appointment letter was subsequently issued on humanitarian ground, is not under challenge and accordingly, on account of the aforesaid undisputed facts on record, the petitioner is not entitled to grant any relief by this Court. The learned counsel has also submitted that even if it is assumed that the required documents asked for by the petitioner were not supplied, then also there is no perversity as the enquiry officer did not record any conclusive finding with regard to any forgery or fraud, rather the enquiry officer simply recorded a finding that the appointment of the petitioner on the basis of humanitarian ground is not sustainable under any provision of law.
615. In response, learned counsel for the petitioner has submitted that the following judgments passed by the Hon'ble Supreme Court be also considered while passing the final order in the present case: -
(i) State of U.P. vs. Saroj Kumar Sinha, para 27, 29, 32, 33 to 36 as reported in MANU/SC/0082/2010: (2010) 2 SCC 772, Para-29, 32, 34, 36 to 39
(ii) Jaswant Singh vs. State of Punjab Others, para 6 as reported in MANU/SC/0093/1991: (1991) 1 SCC 362, Para 4
(iii) Kuldeep Singh vs. The Commissioner of Police & Others, para 6, 8, 32, 426 as reported in MANU/SC/0793/1998: (1999) 2 SCC 10, Para 6, 8, 32 and 42
(iv) Nirmala J. Jhala vs. State of Gujarat & Others, para 19, 20, 21,22 6 as reported in MANU/SC/0257/2013:
(2013) 4 SCC 301 para 41, 42, 43 and 44
(v) Gian Chand and Brothers & Ors. vs. Rattan Lal, para 22, 23, 24 6 as reported in MANU/SC/0015/2013: (2013) 2 SCC 606 Para 23, 24 and 25
16. Argument concluded.
17. Post this case for judgment on 09.05.2022.
(Anubha Rawat Choudhary, J.) Mukul