Jharkhand High Court
Jaideo Pandey & Ors vs State Of Jharkhand & Ors on 1 July, 2017
Author: S.N. Pathak
Bench: S. N. Pathak
1 W.P.(S) No. 504 of 2010
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 504 of 2010
1. Jaideo Pandey;
2. Tara Chand Mahto
3. Dwarika Prasad;
4. Deo Chand Rajwar ... ... Petitioners
VERSUS
1. The State of Jharkhand
2. Deputy Commissioner, Dhanbad
3. Superintendent of Police, Dhanbad
4. District Commandant, Home Guard, Dhanbad
5. The General Manager, BSNL, Ranchi
... ... Respondents.
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
For Petitioners : Mr. Mahesh Tewari, Advocate.
For State: Mr. Vishal Kumar Roy, JC to SC-IV
06/01.07.2017Heard learned counsel for the parties.
2. The petitioners have approached this Court with a prayer for quashing the letter no. 309, Dated 15.07.2009, issued under the signature of District Commandant, Home Guard, Dhanbad whereby they have been removed from the service without following the principles of natural justice and further to reinstate them in service.
3. The brief facts of the case as has been delineated in the instant writ petition is that petitioners were appointed as constables of the Home Guard on 13.02.1979 and 15.11.1989 respectively having an unblemished service career. Pursuant to the order of the Commandant dated 08.05.2009, they had been deputed in the office of Manager, BSNL, Purana Bazar and they started their duty in accordance with requirement of the concerned office. In the mean time, due to death of one businessman namely Bihari Lal Choudhary, vide Annexure-3, the petitioner have been removed from service on the allegations of dereliction of duty without giving them any opportunity of hearing. Being aggrieved, petitioners submitted representation before the Deputy Commissioner, Dhanbad along with copy to the Superintendent of Police, Dhanbad and District Deputy Commandant, Home Guard with a request to reinstate them in service. When grievance of the petitioner were not redressed, the petitioners moved before this Court by filing instant writ petition.
4. Mr. Mahesh Tewari, learned counsel appearing for the petitioners submits that the impugned order has been passed in violation of principles of natural justice and without issuance of any show cause and as such, the same is not sustainable in the eyes of law. Learned counsel further submits that neither any opportunity has been granted to the petitioners to file their reply nor any departmental proceeding 2 W.P.(S) No. 504 of 2010 has been initiated. Learned counsel further submits that the impugned action is totally in violation of Articles 311(2) of the Constitution of India. Learned counsel draws attention of this Court towards Police Manual as also towards Home Guard Rules and submits that in case of termination/ dismissal, specific charge has to be issued and regular departmental proceeding is required, which is lacking in the instant case. Learned counsel further submits that prior to termination, no opportunity has been afforded and the impugned order smacks of stigma. The cardinal principles of natural justice ought to have been followed before passing the order of termination/ dismissal. Learned counsel further submits that the order of punishment is disproportionate to the charges and harsh and excessive keeping in view the gravity of charges. Learned counsel further submits that in view of various Judgments rendered in such matters, if the order of punishment is disproportionate, this Court sitting under Article 226 of the Constitution of India has every power to remand the case before the respondents authorities to consider on the quantum of punishment. Learned Counsel submits that a Bench of this Court, vide order dated 17.02.2010 passed in W.P.(S) No. 504 of 2010, has stayed operation of termination order dated 15.07.2009 of the similarly situated persons. Learned counsel further submits that a Bench of this Court vide order dated 10.07.2015 in W.P.(S) No. 5852 in the case of Ramadhin Pandey and others, has been pleased to quash the termination order and as such, the petitioners herein may also be given similar benefits.
5. Mr. Vishal Kumar Roy, J.C. To learned S.C.-IV appearing for the respondents - State submits that counter affidavit has already been filed. Learned counsel submits a person was murdered at the hands of anti-social elements just 20- 25 meters away from the BSNL Gate and as such, there is apparent dereliction of duty on the part of petitioners and s such, they have rightly been punished. The order has been passed after recommendation of the Deputy Commissioner, Dhanbad. Learned counsel further submits that the enrollment of Home Guards are renewed after every four years if they satisfy the criteria. Petitioners were called and asked for explanation and due opportunity were given to them to show their explanation but the same was not found to be satisfactory and as such, their services have been terminated. Learned counsel further refers to provisions of Section 9(b) and (c) of Jharkhand Home Guards Act, 2005 which reads as under:
"Section 9(b) - Without sufficient excuse neglects or refuses to obey any lawful order or direction given to him for the performance of his duties or fails to discharge his function as a member of the Home Guards while on duty, or
(c) deserts his duty"
Learned counsel submits that the services of the petitioners have been 3 W.P.(S) No. 504 of 2010 terminated in accordance with aforesaid provisions and there is no illegality of the order passed by the respondents which appears to be justified in view of gross negligence and dereliction of duty on part of the petitioners.
6. Be that as it may, having gone through rival submission of the parties, this Court is of the view that case of the petitioners need consideration. It is an admitted fact that before passing of the impugned order, no opportunity was afforded to the petitioners and in complete violation of constitutional provisions i.e. Articles 311(2) of the Constitution of India, the impugned order has been issued. Even no specific charges were framed neither it was served on the petitioners. No departmental proceeding was ever initiated. It cannot be termed as termination simplicitor. It has also been brought to the notice of the Court that a coordinate Bench of this Court has stayed order of termination vide order dated 17.02.2010 passed in W.P.(S) No. 504 of 2010 and further a Bench of this Court vide order dated 10.07.2015 in W.P. (S) No. 5852 in the case of Ramadhin Pandey and others, has been pleased to quash the termination order. Present impugned order also arises out of same order of termination. Hence, on the same doctrine, the petitioners herein ought to have been extended the similar benefits of continuity in service or reinstatement in service. No enquiry was conducted whatsoever before coming to the conclusion that it was petitioners who were responsible for the incident of murder or there was any dereliction of duty on their part.
7. Considering aforesaid aspects of the matter, orders passed by coordinate Bench of this Court, I hereby quash the impugned letter no. 309, Dated 15.07.2009, issued under the signature of District Commandant, Home Guard, Dhanbad and petitioners are directed to be reinstated in service forthwith. However, the respondents are at liberty to initiate proceeding afresh, if so legally advised in strict adherence to the principles of natural justice and in consonance with the relevant provisions of Jharkhand Home Guard Act, 2005.
8. With the aforesaid directions, this writ petition is allowed.
(Dr. S.N. Pathak, J.) RC/