Jharkhand High Court
Kali Prasad Singh vs The Union Of India on 3 July, 2018
Author: D.N. Patel
Bench: Amitav K. Gupta, D.N. Patel
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
I.A. No.9288 of 2017
with
L.P.A. No.533 of 2017
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Kali Prasad Singh, son of Sri Bindra Prasad Singh, resident of Village-Pipri, P.O. & P.S. Allipur, District Sultanpur (Uttar Pradesh) ...... Appellant Versus
1. The Union of India
2. The Deputy Inspector General of Police, Central Industrial Security Force, Bharat Coking Coal Ltd., P.O. & P.S. Dhanbad, Dhanbad
3. The Commandant, Central Industrial Security Force, Bharat Coking Coal Ltd., P.O. & P.S. Dhanbad, Dhanbad ...... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant : Mr. Abdul Kalam Rashidi, Advocate Mr. Rajendra Ram Ravidas, Advocate For the Respondents : Mr. Prashant Vidyarthy, C.G.C.
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07/Dated 3rd July, 2018 Oral Order:
Per: D.N. Patel, A.C.J:I.A. No.9288 of 2017
1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 46 days in preferring this Letters Patent Appeal.
2. Having heard counsels for both the sides and looking to the reasons stated in this interlocutory application, especially in para nos.3 and 4 thereof, there are reasonable grounds for condonation of delay.
3. We, therefore, condone the delay of 46 days in preferring this Letters Patent Appeal.
4. I.A. No.9288 of 2017 is allowed and disposed of.L.P.A. No.533 of 2017
5. This Letters Patent Appeal has been preferred by the appellant (original petitioner) whose writ petition being W.P.(S) No.3247 of 2005 was dismissed by the learned Single Judge vide judgment and order dated 25th July, 2017 whereby the order of dismissal of this appellant by the disciplinary 2 authority was upheld.
6. Having heard the counsel of both sides and looking to the facts and circumstances of the case, it appears that there was gross misconduct committed by this appellant and hence charges were framed on 26th June, 2001 (Annexure-1). There were three charges labelled against this appellant;
one is about consumption of the alcohol during the duty hours and to misbehave with his superior. So far as second charge is concerned, when he was sent for medical check up, he ran away instead of going for medical check up and so far as the third charge is concerned, he has broken the glass of the window of Mr. B. Singh who was also a Constable working in the Central Industrial Security Force and caused him injury.
7. After giving adequate opportunity of being heard during the enquiry, the enquiry officer gave his report and charges labelled against him have been held as proved.
8. Disciplinary authority has also given a notice and opportunity of being heard to this appellant and passed an order on 08.11.2001 for dismissal of this employee.
9. Thereafter, again opportunity of being heard was given by the appellate authority and after giving adequate opportunity of being heard to this appellant, the departmental appellate authority has also dismissed the appeal preferred by this appellant vide order dated 15th February, 2002.
10. Being aggrieved by the order passed by the disciplinary authority and the appellate authority a writ petition being W.P.(S) No.3247 of 2005 was preferred by this appellant which was also dismissed by the learned Single Judge vide judgment and order dated 25th July, 2017 and hence, the appellant (original petitioner) has preferred the present Letters Patent Appeal.
11. Having heard the counsel of both the sides and looking to the facts and circumstances of the case, it appears that because of consumption of alcohol during duty hours and misbehaviour with the superior officers of the Central Industrial Security Force by this appellant and also looking to the fact that when the high ranking administrative officers of Central Industrial Security Force had tried to send him for medical check up, he ran away by pushing another Constable. Thus, he has avoided medical check up and he has also broken the glass of window of another officer of Central Industrial Security 3 Force. All these charges have been held as proved from the enquiry officer's report which is based upon the evidences given by several witnesses. Looking to the enquiry officer's report it cannot be said that it is based upon no evidence. On the contrary, looking to the enquiry officer's report and evidences on record, we see no reason to interfere with the enquiry officer's report. Even otherwise, we are not sitting in an appeal against the conclusion of the enquiry officer's report. Adequate opportunity of being heard was given to this appellant at every stage which has been availed by this appellant. There is no procedural lacuna in holding the departmental proceeding. Departmental proceeding have been conducted by the respondents in accordance with law.
12. Now, the only question left with this Court is to appreciate whether quantum of punishment is unreasonably excessive. We have perused the order passed by the disciplinary authority dated 8 th November, 2001 which is at Annexure-7, the appellate authority's order which is at Annexure-10 and also looking to the fact that this appellant has worked with a disciplinary force, i.e., Central Industrial Security Force, and looking to the nature of misconduct, the quantum of punishment inflicted upon him cannot be labelled shockingly disproportionate punishment nor it can be labelled unreasonably excessive punishment.
13. In the case of State of Punjab v. Ex-Constable Ram Singh reported in (1992) 4 SCC 54 it has been held by Hon'ble the Supreme Court as under:
"9. The next question is whether the single act of heavy drinking of alcohol by the respondent while on duty is a gravest misconduct. We have absolutely no doubt that the respondent, being a gunman having service revolver in his possession, it is obvious that he was on duty; while on duty he drunk alcohol heavily and became uncontrollable. Taking to drink by itself may not be a misconduct. Out of office hours one may take to drink and remain in the house. But being on duty in a disciplined service like police service, the personnel shall maintain discipline and shall not resort to drink or be in a drunken state while on duty. The fact is that the respondent after having had heavy drink, was seen roaming or wandering in the market with service revolver. When he was sent to the doctor for medical examination he abused the medical officer on duty which shows his depravity or delinquency due to his drinking habit. Thus it would constitute gravest misconduct warranting dismissal from service. The authorities, therefore, were justified in imposing the penalty of dismissal. The courts below failed to properly appreciate the legal incidence and the effect of the rules."
(emphasis supplied) 4
14. In the case of Samar Bahadur Singh v. State of U.P. reported in (2011) 9 SCC 94 it has been held by Hon'ble the Supreme Court as under:
"6. We have considered all the aforesaid submissions in the light of the records that are available with us. The medical report which is placed on record indicates that the appellant had consumed alcohol, but he was not intoxicated. The appellant was missing from the headquarters on 27-10-1991 from the morning and he was caught in the case registered under Section 392 IPC in the evening. The appellant wishes to make a defence that he was advised to take medicine but the prescription which is placed in the departmental proceedings does not indicate that any medicine was prescribed in that prescription. The appellant was arrested in the criminal case in connection with stealing of a bottle of foreign liquor and even during that time he had consumed alcohol prior to the incident. These facts have been brought out in the inquiry proceedings initiated against him in which the appellant did not participate. Therefore, whatever allegations have been brought against him, have been proved by placing cogent materials on record, which go unrebutted due to his absence in the proceedings. We also find that the appellant has been charged on the ground of negligence, dereliction of duty and consuming liquor. The aforesaid facts are found proved in the departmental proceedings.
8. Now, the issue is whether punishment awarded to the appellant is disproportionate to the offence alleged. The appellant belongs to a disciplinary force and the members of such a force are required to maintain discipline and to act in a befitting manner in public. Instead of that, he was found under the influence of liquor and then indulged himself in an offence. Be that as it may, we are not inclined to interfere with the satisfaction arrived at by the disciplinary authority that in the present case punishment of dismissal from service is called for. The punishment awarded, in our considered opinion, cannot be said to be shocking to our conscience and, therefore, the aforesaid punishment awarded does not call for any interference."
(emphasis supplied)
15. In the case of Kendriya Vidyalaya Sangthan v. J. Hussain reported in (2013) 10 SCC 106 it has been held by Hon'ble the Supreme Court as under:
"12. Here in the given case, we find that the High Court has totally downplayed the seriousness of misconduct. It was a case where the respondent employee had gone to the place of work in a fully drunken state. Going to the place of work under the influence of alcohol during working hours (it was 11.30 a.m.) would itself be a serious act of misconduct. What compounds the gravity of delinquency is that the place of work is not any commercial establishment but a school i.e. temple of learning. The High Court has glossed over and trivialised the aforesaid aspect by simply stating that the respondent was not a "habitual drunkard"
and it is not the case of the management that he used to come to the school in a drunken state "regularly or quite often". Even a 5 singular act of this nature would have serious implications.
14. Thus, in our view entering the school premises in working hours i.e. 11.30 a.m. in an inebriated condition and thereafter forcibly entering into the Principal's room would constitute a serious misconduct. Penalty of removal for such a misconduct cannot be treated as disproportionate. It does not seem to be unreasonable and does not shock the conscience of the court. Though it does not appear to be excessive either, but even if it were to be so, merely because the court feels that penalty should have been lighter than the one imposed, by itself is not a ground to interfere with the discretion of the disciplinary authorities. The penalty should not only be excessive but disproportionate as well, that too to the extent that it shocks the conscience of the court and the court is forced to find it as totally unreasonable and arbitrary thereby offending the provision of Article 14 of the Constitution. It is stated at the cost of the repetition that discretion lies with the disciplinary/appellate authority to impose a particular penalty keeping in view the nature and gravity of charge. Once it is found that the penalty is not shockingly disproportionate, merely because in the opinion of the Court lesser punishment could have been more justified, cannot be a reason to interfere with the said penalty."
(emphasis supplied)
16. In the case of Union of India v. Diler Singh reported in (2016) 13 SCC 71 it has been held by Hon'ble the Supreme Court as under:
"24. The learned counsel for the respondent has submitted that even if the charges have been proven, the punishment of dismissal in the obtaining factual matrix is absolutely harsh and shocking to the conscience. It is his submission that the punishment is disproportionate. The respondent was a part of the disciplined force. He has left the campus without prior permission, proceeded to the market, consumed liquor and quarrelled with the civilians. It has been established that he had consumed liquor at the market place, and it has been also proven that he had picked up quarrel with the civilians. It is not expected of a member of the disciplined force to behave in this manner. The submission, as has been noted earlier, is that the punishment is absolutely disproportionate. The test of proportionality has been explained by this Court in Om Kumar v. Union of India, Union of India v. G. Ganayutham and Union of India v. Dwarka Prasad Tiwari.
26. We are inclined to think so as a member of the disciplined force, the respondent was expected to follow the rules, have control over his mind and passion, guard his instincts and feelings and not allow his feelings to fly in fancy. It is not a mild deviation which human nature would grant some kind of lenience. It is a conduct in public which has compelled the authority to think and, rightly so, that the behaviour is totally undisciplined. The respondent, if we allow ourselves to say so, has given indecent burial to self-control, diligence and strength of will power. A disciplined man is expected, to quote a few lines from Mathew Arnold:
"We cannot kindle when we will 6 The fire which in the heart resides, The spirit bloweth and is still, In mystery our soul abides:
But tasks in hours of insight will'd Can be through hours of gloom fulfill'd."
Though the context is slightly different, yet we have felt, it is worth reproducing."
(emphasis supplied)
17. In the case of Lalla Ram v. D.C.M. Chemical Works Ltd. reported in (1978) 3 SCC 1 it has been held by Hon'ble the Supreme Court as under:
"9. Though it is true that private quarrel between an employee and a stranger with which the employer is not concerned as in Agnani case falls outside the categories of misconduct, it cannot be reasonably disputed that acts which are subversive of discipline amongst employees or misconduct or misbehaviour by an employee which is directed against another employee of the concern may in certain circumstances constitute misconduct so as to form the basis of an order of dismissal or discharge. It cannot also be disputed that the extent of jurisdiction exercisable by an approving authority under Section 33(2)(b) of the Act is very limited as has been clearly and succinctly pointed out by this Court in a number of decisions. In Lord Krishna Textile Mills v. Its Workmen this Court after referring to its earlier decisions and explaining the distinction between "permission" and "approval"
observed as follows:
"Therefore, putting it negatively the jurisdiction of the appropriate industrial authority in holding an enquiry under Section 33(2)(b) cannot be wider and is, if at all, more limited, than that permitted under Section 33(1) and in exercising its powers under Section 33(2) the appropriate authority must bear in mind the departure deliberately made by the Legislature in separating the two classes of cases falling under the two sub-sections, and in providing for express permission in one case and only approval in the other. It is true that it would be competent to the authority in a proper case to refuse to give approval, for Section 33(5) expressly empowers the authority to pass such order in relation to the application made before it under the proviso to Section 33(2)(b) as it may deem fit; it may either approve or refuse to approve; it can, however, impose no conditions and pass no conditional order (SCR p. 212). In view of the limited nature and extent of the enquiry permissible under Section 33(2)(b) all that the authority can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by Section 33(2)(b) and the proviso are satisfied or not. Do the Standing Orders justify the order of dismissal? Has an enquiry been held as provided by the Standing Orders? Have the wages for the month been paid as required by the proviso? and, has an application been made as prescribed by the proviso (SCR p. 216)"
(emphasis supplied) 7
18. In the case of U.P. SRTC v. Subhash Chandra Sharma reported in (2000) 3 SCC 324 it has been held by Hon'ble the Supreme Court as under:
"9. The Labour Court, while upholding the third charge against the respondent nevertheless interfered with the order of the appellant removing the respondent from the service. The charge against the respondent was that he, in a drunken state, along with the Conductor went to the Assistant Cashier in the cash room of the appellant and demanded money from the Assistant Cashier. When the Assistant Cashier refused, the respondent abused him and threatened to assault him. It was certainly a serious charge of misconduct against the respondent. In such circumstances, the Labour Court was not justified in interfering with the order of removal of the respondent from the service when the charge against him stood proved. Rather we find that the discretion exercised by the Labour Court in the circumstances of the present case was capricious and arbitrary and certainly not justified. It could not be said that the punishment awarded to the respondent was in any way "shockingly disproportionate" to the nature of the charge found proved against him. In our opinion, the High Court failed to exercise its jurisdiction under Article 226 of the Constitution and did not correct the erroneous order of the Labour Court which, if allowed to stand, would certainly result in a miscarriage of justice."
(emphasis supplied)
19. In view of the aforesaid facts, reasons and judicial pronouncements and looking to the nature of misconduct, it cannot be said that the punishment inflicted upon this appellant is shockingly disproportionate nor it can be labelled as unreasonably excessive punishment. These aspects of the matter have been properly appreciated by the learned Single Judge while deciding the writ petition being W.P.(S) No.3247 of 2005 dated 25 th July, 2017. We see no reason to take any other view than what is taken by the learned Single Judge and hence, there is no substance in this Letters Patent Appeal and the same is therefore dismissed with a cost of Rs.10,000/- (rupees ten thousand) which will be deposited by the appellant (original petitioner) within four months before the Secretary, Women & Child Development and Social Security, Government of Jharkhand towards Juvenile Justice Fund. This amount shall be paid in Account No.3734498462-5, Jharkhand Juvenile Justice Fund, State Bank of India, Project Bhawan, Hatia, Ranchi to be utilized for the welfare of the juveniles, as per the duties assigned to the State under the Juvenile Justice (Care & Protection of Children) Act, 2015.
20. Copy of this order will be sent to:
(a) The Secretary, Department of Women & Child 8 Development and Social Welfare, Government of Jharkhand, Ranchi and
(b) The Member Secretary, Jharkhand Legal Services Authority, Nyay Sadan, Doranda, Ranchi.
21. This Letters Patent Appeal is, hereby, dismissed with cost.
(D.N. Patel, A.C.J.) (Amitav K. Gupta, J.) NKC/Tarun