Jharkhand High Court
Rajesh Mani Singh vs State Of Jharkhand & Ors. on 29 July, 2016
Author: Pramath Patnaik
Bench: Pramath Patnaik
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W.P. (S) No. 1752 of 2008
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In the matter of an application under Article 226 of the
Constitution of India.
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Rajesh Mani Singh, son of Sri Raghubans Mani Singh, Permanent resident of
Ratnatola, P.O. and P.S. Maner, District-Patna (Bihar) ... Petitioner
-V e r s u s-
1. The State of Jharkhand
2. The Secretary, Department of Home, Government of Jharkhand, Having Office
at Project Building, Dhurwa, P.O. & P.S. Dhurwa, District-Ranchi.
3. Director General-cum-Inspector General of Police, Jharkhand, Ranchi.
4. Inspector General of Police, Singhbhum Kolhan Range, Chaibasa
5. Deputy Inspector General of Police, Kolhan Range, Chaibasa
6. Superintendent of Police Singhbhum West at Chaibasa ... Respondents
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For the Petitioner : - M/s. Rohitashya Roy,
Nishant Kr. Roy and Rishab Kamal, Advocates.
For the Respondents : - Mr. Abhijeet Kumar Singh, J.C. to G.P. V.
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P R E S E N T: -
HON'BLE MR. JUSTICE PRAMATH PATNAIK.
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By Court In the instant writ application, the petitioner has inter alia prayed
for quashing the order dated 04.01.2008 contained in memo No. 7
(Annexure-18), passed by the Respondent No. 5 in terms of which the
appeal preferred by the petitioner has been dismissed and for quashing
the order dated 24.09.2007 contained in Memo no. 4014
(Annexure-16), passed by the Respondent No. 6, whereby major
punishment of dismissal from service has been imposed upon the
petitioner and further upon quashing the impugned orders, to direct the
concerned respondents to reinstate the petitioner alongwith all
consequential benefits.
2. Heard Mr. Rohitashya Roy, learned counsel for the petitioner and
Mr. Abhijeet Kumar Singh, learned J.C. to G.P. V. for the Respondent-
State.
3. Sans details, the facts as disclosed in the writ application, is that,
in the year 2004, the petitioner was working with the concerned
respondents as a Police constable No. 116 and was posted at Barajamda
O.P. On 31.03.2004, an incident has occurred, in which Bada Jamda
Police Outpost (District Chaibasa) was attacked by extremists at 2 pm
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and the extremists looted rifles and cartridges. The petitioner has also
sustained injuries and was under medical treatment. On 31.03.2004, at
the time of attack, petitioner was not on guard duty rather one Bandhan
Oraon was on duty. On 05.04.2004, the Superintendent of Police,
Chaibasa sent a detailed report to the Deputy Inspector General of
Police, Special Branch, Jharkhand, Ranchi about the incident,
mentioning : -
(a) place of occurrence falls in naxal vested area-without
proper boundary at outpost.
(b) around 40 to 50 extremists attached while another 10 to
20 stood in guard.
(c) Sentri was present in Outpost but was taking rest.
(d) Reasons for incident - unsafe location, small size of
police outpost, less no. of police personnels in outpost
(e) it was suggested to depute more police personnels.
On 30.05.2004, in the Supervision note of Dy. Superintendent of
Police, it was concluded that the cause of occurrence was negligence of
Sentri. On 27.06.2004, in the Supervision note of the Superintendent of
Police, role of out-post In-charge is found to be suspicious as he fled
away at the time of the incident., proforma charge sheet was issued to
the petitioner on 18.05.2004. Petitioner submitted a show cause on
31.05.2004to the proforma charge sheet stating therein, that it it undisputed that the petitioner got injured in the attack. When the O.P. Incharge and other police personnels fled away from the out post in order to save their life, petitioner confronted with the extremists. Charge Memo was issued to the petitioner on 10.06.2004 with the charges as under :-
(a) petitioner was deputed as Guard in-charge of Reserve guards,
(b) At the time of incident, the petitioner alongwith other police personnels were watching T.V. and extremists easily entered into the guard room and looted away rifles and cartridges and
(c) that the petitioner did not fight against the naxals.
Petitioner was relieved from suspension during the pendency of departmental proceedings on 18.06.2005. Petitioner was directed to file 3 his final show cause on 23.11.2005 and on 16.12.205, petitioner has filed his show cause. In the enquiry report submitted on 05.07.2006, charges were found to be proved by the enquiry officer and the basis of finding petitioner was held guilty that he was not diligent in discharging his duties. The Respondent No. 6 vide order dated 24.09.2007 contained in Memo no. 4014 (Annexure-16) imposed major punishment of dismissal from service against the petitioner. Against the said order, the petitioner preferred an appeal before the Respondent No.
5. The appeal preferred by the petitioner has been dismissed vide order dated 04.01.2008 contained in memo No. 7 (Annexure-18), passed by the Respondent No. 5. On 13.11.2007, the respondents initiated process to fill up the vacant posts. Final order has been passed on 12.10.2012 against one Shankar Thakur, who was posted as O.P. In-charge in the said Out-post and he was awarded a lessor punishment of reduction in scale for a period of five years which would not have any effect in future. From the said order, it would transpire that the Superintendent of Police has recommended for order of dismissal against him. From the information obtained under the Right to Information Act, on 12.06.2012, it was informed that other police personnels who were present at the out post at the time of occurrence were not subjected to any departmental proceedings. Letter as well as charge report has been handed over to the petitioner on 04.05.2007 and the petitioner has been dismissed from service by the Additional Superintendent of Police which is in violation of Rule 825 of the Police Manual, as he was posted as Additional Superintendent of Police. From the information obtained under the Right to Information Act, on 20.12.2014, it was informed that no seizure list was prepared regarding the alleged incident.
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 his grievances.
4. Counter affidavit has been filed on behalf of the respondents, repelling the contentions made in the writ application. It has been inter 4 alia, submitted in the counter affidavit, that both the orders passed by the disciplinary authority and the appellate authority were passed in consideration of the facts and law and within the authority conferred by law. It has been stated that the quantum of punishment depends upon the gravity of offence or misconduct.
5. Mr. Rohitashya Roy, learned counsel for the petitioner has vehemently submitted that no evidence has been placed on record to prove that the petitioner was negligent in duty at the time of incident. learned counsel for the petitioner has submitted that the enquiry report is cryptic and suffers from non-application of mind and the enquiry officer has not dealt with the grounds raised by the petitioner and also not appreciated the evidence on record.
In support of his contentions, learned counsel for the petitioner has referred to and relied upon the following decisions : -
(i) (2009) 2 SCC 570;
(ii) (1979) 2 SCC 286;
(iii) (2013) 4 SCC 301;
(iv) (2014) 10 SCC 346;
(v) (2009) 12 SCC 78;
(vi) 2012 (1) JCR 9 SC and
(vii) AIR 1987 SC 2386
In support of his submissions, learned counsel for the petitioner has also referred to Rules 522, 523, 524 and 614 of the Jharkhnand Police Manual, Volume-I.
6. Per contra, Mr. Abhijeet Kumar Singh, learned J.C. to G.P. V for the respondent-State has vociferously submitted that the prayer made by the petitioner in this writ application is not maintainable in law, as because no interpretation or substantial questions of constitutional provision is involved in the context of facts averred by the writ petitioner. Learned counsel for the respondent-State has submitted that the conduct of the respondents is in breach of Article 311 (i) of the Constitution of India. Learned counsel for the respondent-State has submitted that the facts of the case of one Police Personnel namely Motay Tiu are not similar to the facts of the case at hand and the 5 allegations of show favour to said Motay Tiu is imaginary.
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) At best, it may be a case of failure to attain high standards of efficiency in duty and would not constitute a misconduct and no misconduct of the petitioner is made out from the charges levelled against him.
(ii) Instead of proving the charges with evidence, entire departmental proceeding has been an exercise to shift the burden of proving the negative on the petitioner, which is not permissible under law.
(iii) Shortcomings of the police outpost was a major cause for the incident and the Police Outpost was not being maintained as per the Police Manual, for which the authorities are alone to be blamed and not the petitioner.
(iv) Petitioner has specifically pleaded that other police personnels also, who were present at the place of occurrence were not departmentally proceeded with and one Shankar Thakur has been awarded lessor punishment and no parity is being maintained with co-delinquents. Hence, this is a case of discrimination.
(v) The entire incident was a matter of circumstances and the punishment awarded is disproportionate to the charges levelled against the petitioner.
(vi). The Hon'ble Apex Court in case of State of Uttar Pradesh and Others Vs. Raj Pal Singh reported in (2010 )5 SCC 783 has been pleased to hold in paragraph 6, which is quoted hereinbelow:
"6. It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are same and 6 identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the Constitution."
(vii). 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:
"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."
8. On cumulative effect of the facts, reasons and judicial pronouncements and as a logical sequitor, the impugned order of punishment dated 24.09.2007 (Annexure-16), passed by the Respondent No. 6 and the order dated 04.01.2008 (Annexure-18), passed by the Respondent No. 5 being not legally sustainable are hereby, quashed and set aside and the matter is remitted to the respondents to consider the matter afresh and pass appropriate order on the quantum of punishment within a period of four months.
9. With the aforesaid direction, the writ petition stands disposed of.
(Pramath Patnaik, J.) Jharkhand High Court, Ranchi Dated - The 29th July, 2016 APK/N.A.F.R.