Jharkhand High Court
Anil Kumar Singh vs State Of Jharkhand & Ors on 23 July, 2009
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (S) No. 1831 of 2007
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Anil Kumar Singh ... Petitioner
-V e r s u s-
State of Jharkhand & Others ... Respondents
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CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
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For the Petitioner : - Mr. Dhananjay Kumar Dubey, Advocate.
For the Respondents : - Mr. Amit Kumar, J.C. to Sr. S.C.-I.
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5 / 23.07.2009Heard Sri Dhananjay Kumar Dubey, learned counsel for the petitioner and J.C. to Sr. S.C.-I for the respondent State.
2. Challenge in this writ application is to the order as contained in Memo No. 4533 dated 13.08.2004 (Annexure-6) issued by the Respondent No. 5 whereby a punishment of stoppage of one annual increment, equivalent to two black marks has been inflicted on the petitioner. A prayer has also been made for quashing the order dated 21.04.2006 (Annexure-8) of the appellate authority (Respondent No. 4) whereby the appeal preferred by the petitioner against the impugned order of the Respondent No. 5, has been dismissed.
The petitioner has also prayed for a direction upon the respondents to pay the salary to the petitioner for the period from 01.07.2003 to January, 2004 on the ground that the petitioner had continued to discharge his duties during the aforesaid period at the station where he was posted.
3. A counter affidavit has been filed on behalf of the respondents.
4. The facts of the petitioner's case is that he was initially appointed as a Constable in the year 1982 in the district of East Singhbhum and since the date of his joining the post on 11.06.1982, he had been discharging his duties on being posted at the Sakchi Police Station, Jamshedpur.
In the month of June, 2003, a general order of transfer was issued by the Police Headquarters by which the petitioner was also transferred from Jamshedpur to Chatra and pursuant to the transfer order, he was relieved from his post on 01.07.2003 to enable him to join the transferred post.
5. The petitioner could not promptly comply with the transfer order on account of his illness and he submitted an application before his superior in office namely the Respondent No. 3 praying for stay of the transfer order. While the petitioner was expecting a decision on his -2- application for stay, a general notice was issued by the department on 28.12.2003 whereby all such police personnel, who had not complied with the transfer orders, were called upon to submit their respective show cause replies by 02.01.2004. The petitioner thereafter, without waiting any further for a decision on his application for stay of the transfer order, obtained "Command" from his superior officer and proceeded to join at the transferred place of posting at Chatra on 22.01.2004.
However, the petitioner was served with a chargesheet on 23.01.2004 and was asked to submit his explanation to the charge as to why he did not comply with the orders of transfer.
The petitioner submitted his explanation on 23.01.2004 informing the authorities concerned that he has already obtained "Command" and joined his transferred place of posting at Chatra.
6. The petitioner's grievance is that thereafter he did not hear anything from the respondent authorities but all of a sudden, he was served with the impugned order of punishment and it was only then that he could learn that not being satisfied with his replies to the show cause notice, the authorities concerned had initiated a departmental proceeding and had conducted the proceeding ex-parte and after finding the charges proved against him, the disciplinary authority has inflicted the punishment upon the petitioner by virtue of the impugned order (annexure-6). The further grievance of the petitioner is that the appellate authority has rejected the petitioner's appeal without application of mind and in a mechanical manner.
7. Assailing the impugned orders, learned counsel for the petitioner submits that the impugned orders are arbitrary, illegal and in gross violation of the principles of natural justice.
Learned counsel explains by referring to the impugned order of his punishment (Annexure-6) that from the impugned order itself, it could transpire that the purported departmental proceeding was conducted ex- parte against the petitioner on the ground that inspite of notices to appear and participate in the departmental proceeding on several dates, the petitioner did not appear. Learned counsel submits that this statement is totally misleading in as much as despite the fact that the petitioner had intimated to the concerned authorities that he had joined his transferred place of posting at Chatra, yet, the notices purportedly issued in the departmental proceeding, were directed to the address of his previous -3- place of posting namely the Police Lines, Jamshedpur. The petitioner therefore could not possibly know about any such proceeding nor could he be informed about any such notices in order to enable him to appear and participate in the departmental proceeding.
8. Learned counsel argues further that under Rule 824 of the Jharkhand Police Manual, the stoppage of one increment, equivalent to two black marks, is a major punishment. Such major punishment could not have been inflicted by the disciplinary authority without affording the petitioner adequate opportunity of defending his case. No notice was served upon the petitioner nor even a copy of the report of the disciplinary enquiry was served upon him to enable him to make his effective and proper defence.
9. Referring in this context to the judgement in the case delivered by this Court in the case of Krishna Murari Sahay Vs. Steel Authority of India Limited vide W.P.(S) No. 6618 of 2002, learned counsel submits that the infliction of a major punishment without prior notice to the petitioner and without supplying him a copy of the report of the disciplinary proceeding, has been held to be a violation of the principles of natural justice and cannot be sustained.
10. Denying and disputing the entire claim of the petitioner, learned counsel for the respondents would argue that admittedly the petitioner did not comply with the transfer orders and had overstayed at the station inspite of his being relieved from the post, for further six months. Such conduct of the petitioner was in essence an act of misconduct and had constituted the charge which was proved against him. The proceeding was initiated against the petitioner but he did not choose to participate in the same and therefore the petitioner cannot claim to have suffered any prejudice on account of the disciplinary proceeding being conducted ex- parte against him.
11. From the facts stated by the petitioner, undisputedly, in the show cause replies, the petitioner had informed the concerned authorities that he has joined his transferred post at Chatra. It further appears that the notices purportedly issued against him calling upon him to participate in the departmental proceeding on the different dates, were sent to a wrong address in as much as it was sent to the Police Lines, Jamshedpur, despite the fact that the petitioner had left Jamshedpur on being relieved and had joined his posting at Chatra.
-4-It is manifest from the above admitted facts that the petitioner was not adequately informed about the departmental proceeding nor was he offered adequate opportunity to participate in the proceeding.
It further appears from the admitted facts that the punishment of stoppage of one increment, equivalent to two black marks, is a major punishment, as defined under Rule 824 of the Jharkhand Police Manual.
12. It is an established principle of service jurisprudence that before inflicting any major punishment on a Government employee, he should be given adequate notice to enable him to defend himself effectively. The adequate notice includes the supply of a copy of the enquiry report which is to be acted upon by the disciplinary authority for the proposed major punishment. Since admittedly, none of these mandatory requirements were carried out by the respondents before inflicting the punishment upon the petitioner, the impugned order of punishment has certainly to be considered as violative of principles of natural justice and the same cannot be sustained.
13. From the perusal of the order of the appellate authority it appears that the above observed aspects which appear conspicuously from the admitted facts, have not been considered at all by the appellate authority and , as learned counsel for the petitioner would point out, the impugned order of the appellate authority appears to have been passed mechanically.
14. In the light of the above discussion, I find merit in this writ application. Accordingly, the same is allowed. The impugned orders (Annexures- 6 & 8) are hereby set aside.
With these observations, this writ application is disposed of.
(D.G.R. Patnaik, J.) Birendra/