Jharkhand High Court
Krishna Kumar Singh vs State Of Jharkhand & Ors on 12 April, 2016
Author: Pramath Patnaik
Bench: Pramath Patnaik
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W.P. (S) No. 5656 of 2008
with W.P. (S) No. 6041 of 2008
with W.P. (S) No. 6077 of 2008
...
In the matter of n application under Article 226 of the Constitution of India.
...
Krishna Kumar Singh, Ex- Constable No. 245, son of Late Inder Singh, resident of
Vill. Bhajania, P.O. & P.S. Mohammadganj, District Palamau
... Petitioner [In W.P. (S) No. 5656 of 2008]
1. Sukhnath Pandey, son of Birendra Pandey, resident of Village-Kundi, P.O. Ranka-
Bollia, P.S. Garhwa, District - Garhwa. (Jharkhand).
2. Ajay Kumar Singh son of Arjun Singh, resident of Village Warab, P.O.
Nemdarganj, P.S. Akabarpur, Dist. Nawadah (Bihar).
3. Chandra Mohan Gope son of Bandhu Gope, resident of Village - Khora Bhakua
Toli P.O. Khora, P.S. Gumla Dist. Gumla (Jharkhand).
4. Mangal Singh Pingua son of Late Ramlal Pingua, resident of village - Pokoriya
P.O. Kumar Dogo District - West Singhbhum (Jharkhand).
... Petitioners [In W.P. (S) No. 6041 of 2008]
Siyaram Kunwar, Ex. Habaldar Son of Late Rajeshwar Kunwar, resident of village-
Nurchak P.O. Chiksi P.S. Sigori Dist - Patna (Bihar) presently resident of New
Police Line, P.S. & P.S. Gonda, Kanke Road, Ranchi, Dist - Ranchi.
... Petitioner [In W.P. (S) No. 6077 of 2008 ]
-V e r s u s-
1. State of Jharkhand
2. Director General of Police, Jharkhand, Ranchi
3. Deputy Inspector General, South Chotanagpur Region, Ranchi.
4. Deputy Inspector General of Police (Personnel), Jharkhand, Ranchi.
5. Senior Superintendent of Police, Ranchi. ... Respondents [In all the cases].
...
For the Petitioners : - M/s. Deepak Kumar Sinha, Siddhartha Berlia
and Suresh Kr., Advocates. [In W.P. (S) No. 5656 of 2008]
Mr. Rajiv Ranjan, Sr. Advocate and M/s. Shashank
Shekhar and Shresth Gautam, Advocates [In W.P. (S) No. 6041 of 2008] and
M/s. Rajesh Kumar, Amit Kumar
and Manindra Kr. Sinha, Advocates [In W.P. (S) No. 6077 of 2008]
For the Respondent-State: - Mr. Himanshu Kumar Mehta, A.A.G.
and M/s. M. Patra and Sharad Kaushal, J.C. To A.A.G. [In all the cases]
...
P R E S E N T: -
HON'BLE MR. JUSTICE PRAMATH PATNAIK.
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C.A.V. On : - 25/02/2016 Delivered On : 12/04/2016
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Per Pramath Patnaik, J.
In all these writ applications, the facts are more or less identical and
common question of law is involved, therefore, with the consent of the
respective counsels, all the writ petitions are heard analogously and
disposed of by this common order/judgment.
2. The petitioners, in the aforesaid writ applications, being aggrieved
by the impugned order of dismissal, dated 01.06.2008, passed by the
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Respondent No. 5, Senior Superintendent of Police, Ranchi being
confirmed by the appellate authority i.e. respondent no.3 vide order dated
23.10.2008, the petitioners have been constrained to approach this Court invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of their grievances.
3. Sans details, the facts as disclosed in the writ applications is that the petitioners were posted to guard, one life convict, namely, Anil Sharma, while undergoing treatment in R.I.M.S., Ranchi. Since the said accused fled away from the custody of the petitioners, an F.I.R. was lodged in Bariatu Police Station on 23.05.2008. It has been averred in the writ application that one Arun Kumar, Officer-in-charge of Bariatu P.S. under whose jurisdiction, the RIMS is situated, was also suspended for the self same charges but later on, his suspension was revoked, as revealed from Annexure-2 to the writ application as per the averments made in the writ application. The respondents without issuance of any show-cause notice or without initiating any departmental proceeding, straightway on the basis of Article 311 (2) (b) of the Constitution of India proceeded against the petitioners on the basis of conjectures and surmises and imaginary grounds on the allegations that the petitioners helped the accused, Anil Sharma in fleeing away from the Police custody and passed the order of dismissal from services.
4. Being aggrieved by the order of the disciplinary authority, against the order of major punishment, the petitioner preferred appeal before the appellate authority and the said appeal has also been rejected by the appellate authority in a very mechanical manner. It has further been averred in the writ application that prior to the impugned order of punishment of dismissal from services, the petitioners who were deputed at RIMS to keep vigil on the activities of accused Anil Sharma, were placed under suspension vide order dated 23.05.2008 on the charges of having helped accused Anil Sharma in fleeing away from RIMS. It has also been averred in the writ application that the then A.D.G.P. made an enquiry into the whole episode and submitted a report wherein, he has mentioned that the Deputy Collector along with other various Government officers, who are involved in helping the accused Anil Sharma to flee away from the 3 Police custody but surprisingly the petitioners have been suspended but the Officer in-charge of Bariatu P.S., who was suspended for the self same offence, have been subsequently let off but the petitioners have been inflicted with major punishments like dismissal from services and left with no other speedy, alter and efficacious remedy, the petitioners have approached this Court for redressal of their grievances.
5. Per contra, counter affidavit has been filed by the Respondent No. 5, controverting the averments made in the writ application.
6. In the counter affidavit, it has been inter alia, submitted that the petitioner being constables were attached with the Ranchi District Police Force. The petitioners were posted to guard a veteran criminal, namely, one Anil Sharma, who was undergoing treatment at Rajendra Institute of Medical Science. In spite of the fact that the said criminal was under life imprisonment in the hospital, he had enjoyed every facility with the collusion of the petitioners deputed over there.
7. For the protection of the criminal, Anil Sharma, the following Police personnels were deputed : -
(i) Havaldar Siya Ram Kunwar,
(ii) Constable 245, Krishna Kumar Singh,
(iii) Constable 1429 Sukhnath Pandey,
(iv) Constable 1204 Ajay Kumar Singh,
(v) Constable 1931 Chandra Mohan Gope and
(vi) Constable 1732 Mangal Singh Pingua
8. It has further been submitted that in spite of proper protection given to the criminal, Anil Sharma, due to the inefficiency and laches on the part of the aforesaid Police personnels, including the petitioners, criminal Anil Sharma, fled away, which created law and order problem. During enquiry, the fact has emerged that in the night of 22/23.05.2008 at about 12.00 to 2.00 Hours, he was seen with Karu Singh at Jora Talab with Sunil Sharma at RIMS Chowk and with Kanhaiya Singh at Chutiya and had taken alcohol. During enquiry, it has also emerged that the matter was reported by the above named police personnels to the Bariatu Police very late and the time of fleeing away and the time of reporting of fleeing away was different. The fact was that these police personnels, who were deputed for the protection of 4 criminal Anil Sharma has conspired with him in the entire story of his fleeing away and have given sufficient time to him. They reported very late on 23.05.2008 at 13:00 hours at Bariatu Police Station and narrated a concocted story that Anil Sharma had fled away when was being taken for pathology test at 12.00 hours on 23.05.2008. This act of the Police personnels has tarnished the image of the Jharkhand Police. Considering the above, self proved charges against the petitioner, the then Superintendent of Police, Ranchi has only two options either to initiate a departmental proceeding against the petitioners or to dismiss them under the provisions of Article 311 (2) (b) of the Constitution of India, which empowers to dismiss such a person under the provisions without initiating a departmental proceeding. The then Superintendent of Police of Ranchi in the impugned order has observed that "It is not reasonably practical to hold departmental enquiry" and dismissed the writ petitioners and the same order has been affirmed by the D.I.G. of Police, South Chhotanagpur Region, Ranchi.
9. Before adverting to the rival contentions, it would be apposite to refer to Article 311 (2) (b) of the Constitution of India, which mandates : -
311. (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:
Provided that this clause shall not apply-
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;
(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonable practicable to give to that person an opportunity of showing cause; or
(c) where the President or Governor or Rajpramukh, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.
(3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause (2), the decision thereon of 5 the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.
9. Mr. Rajiv Ranjan, learned senior counsel appearing for the petitioners in W.P. (S) No. 6041 of 2008 has strenuously urged that the constitutional mandate, as provided under Article 311 (2) (b) has not been complied, since no reason has been assigned because Article 311 (2) (b) of the Constitution envisages twin test, first is satisfaction and the second is the reason to be recorded in writing. Learned senior counsel for the petitioners has strenuously urged that the impugned order does not satisfy the mandatory provision of Article 311 (2) (b) of the Constitution of India. On that score, the impugned order is assailable, being non-est in the eye of law. In this regard, learned senior counsel for the petitioners has referred to the following decisions of the Hon'ble Supreme Court.
(i) In the case of Sudesh Kumar-versus-State of Haryana and others reported in (2005) 11 SCC 525, the Hon'ble Apex Court in para 5 envisages : -
"5. It is now established principle of law that an enquiry under Article 311 (2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311 (2) (b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an inquiry. A reading of the termination order by invoking Article 311 (2) (b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why is not reasonably practicable to hold an inquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. This is no ground for dispensing with the inquiry. On the other hand, it is not disputed that, by order dated 23-12-1999, the visa of the complainant was extended up to 22-12-2000. Therefore, there was no difficulty in securing the present of Mr. Kenichi Tanaka in the inquiry."
(ii) In the case of Risal Singh-versus-State of Haryana and others reported in (2014) 13 SCC 244 the Hon'ble Apex Court in para para 8 held as under : -
6"8. Recently, in Reena Rani v. State of Haryana, after referring to the various authorities in the field, the Court ruled that when reasons are not ascribed, the order is vitiated and accordingly set aside the order of dismissal which had been concurred with by the Single Judge and directed for reinstatement in service with all consequential benefits. It has also been observed therein that the order passed by this Court would not preclude the competent authority from taking action against the appellant in accordance with law."
10. Mr. Rajesh Kumar, learned counsel for the petitioner in W.P. (S) No. 6077 of 2008, while supporting the arguments advanced by Mr.Rajiv Ranjan, learned senior counsel appearing for the petitioners in W.P. (S) No. 6041 of 2008 has argued that the F.I.R. was also lodged by Mr. Arun Kumar, Officer-in-charge of the Bariatu Police Station, RIMS on 23.05.2008. He was suspended and the said Arun Kumar was asked for filing show-cause and after consideration of show-cause vide Annexure-2 to the writ application, he has been punished with two black marks and with censure but the petitioners have been inflicted with major punishment like dismissal from services. In this regard learned counsel for the petitioner has referred to the judgment in the case of Mala Devi-versus-State of Jharkhand & Ors. reported in 2007 (4) JLJR 478, wherein, in para 7, it has been held as under :-
"7. Learned counsel submitted that the impugned order has been passed without following the mandatory provisions of the Constitution and without giving the petitioner an opportunity of hearing. He further submitted that in her reply to the purported first show cause, she had denied the allegation that she had voluntarily given any statement admitting that her husband was not a permanent employee; father she had, in clear words, alleged that her signature was obtained on a plain paper on the plea that the same was required for releasing her current and arrears of salary. Once the same was denied, it was incumbent on the respondents either to accept the same or to hold an enquiry by framing charges, as requird under law. The same having not been done, there was no occasion for the respondents to take a decision without giving the petitioner sufficient opportunity of hearing. By the impugned order, the petitioner has been deprived of her livelihood without following the due procedure and, as such, the impugned order is violative of Articles 14 and 16 of the Constitution of India."7
11. Mr. Deepak Kumar Sinha, learned counsel for the petitioner in W.P. (S) No. 5656 of 2008, while adopting the arguments of Mr. Rajiv Ranjan, learned senior counsel appearing for the petitioners in W.P. (S) No. 6041 of 2008 have referred to the following judgments of the Hon'ble Apex Court.
(i) AIR 2014 SC 2922 para 4,
(ii) (2014) 10 SCC 301, paras 22, 23, 24, 28, 46 and 47.
12. As against the submissions of the learned counsel for the petitioners, Mr. Himanshu Kumar Mehta, learned Additional Advocate General appearing for the respondents-State in his usual fairness, has strenuously urged that Article 311 (2) (b) of the Constitution of India, has been fully complied, so far as the impugned orders of punishment is concerned. Only after satisfaction, the reasons have been recorded in writing in the impugned orders. So the impugned order is not subject to judicial review. In this respect, learned Additional Advocate General for the State has referred to the following decisions of the Hon'ble Supreme Court : -
(i) (1985) 4 SCC 252,
(ii) (1998) 5 SCC 216 and
(iii) AIR 1985 SC 1416.
13. After hearing the learned counsel for the respective parties and on perusal of the records, I am of the considered view that the petitioners have been able to make out a case for interference due to the following facts and reasons : -
(i) Admittedly, in the instant case, the impugned order of punishment of dismissal from service has been passed without any cogent reasons, thereby Article 311 (2) (b) of the Constitution of India has been violated, therefore, the impugned order of punishment do not confirm to the requirement of Article 311 (2) (b) of the Constitution of India and the same being wholly unsustainable, are liable to the set aside.
(ii) In the case on hand, it has been demonstrated in W.P. (S) No. 6077 of 2008 that one Mr. Arun Kumar, Sub-Inspector, In- charge of Police Station, RIMS, who was initially suspended and was asked show cause, was let off with two black marks and 8 censure, whereas, the petitioners with the same allegations, have been inflicted with major punishment of dismissal from services and have been subjected to discrimination, so far as doctrine of parity is concerned. In this respect, So far as parity in quantum of punishment among the delinquents is concerned, it would be profitable to refer to the judgment rendered by the Hon'ble Apex Court in the case of Rajendra Yadav Vs. State of Madhya Pradesh and Others as reported in (2013) 3 SCC 73, in particular paragraph 9, which is quoted herein below:
"9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences."
(iii) After having gone through the judgments cited by the learned counsel for the petitioners in the case of Sudesh Kumar- versus-State of Haryana and others reported in (2005) 11 SCC 525, In the case of Risal Singh-versus-State of Haryana and others reported in (2014) 13 SCC 244 as well as the judgment in the case of Mala Devi-versus-State of Jharkhand & Ors. reported in 2007 (4) JLJR 478 (supra), the ratio of the aforesaid decisions are applicable to the case of the petitioners.
(iv) The decision cited by the learned Additional Advocate General appearing for the Respondent-State reported in (1985) 4 SCC 252 is not applicable to the facts of the present case, because in the said judgment, the twin test for dispensing with regular departmental proceeding i.e. satisfaction and cogent 9 reasons have been recorded in writing, but in the instant case, the impugned order is bereaved of cogent reasons and satisfaction. The another decision cited by the learned Additional Advocate General reported in (1998) 5 SCC 216 is also not applicable, because it is a case under Article 311 (2) (c) of the Constitution of India and the present case falls under Article 311 (2) (b) of the Constitution of India. Similarly, so far as the judgment cited by the learned Additional Advocate General i.e. (1985) 3 SCC 398, there is absolutely no second opinion to the ratio decided by the Constitution Bench of the Hon'ble Apex Court, but the same is not applicable on the ground that Article 311 (2) second proviso
(b) condition of recording in writing reasons for satisfaction regarding reasonable practicability of holding enquiry is mandatory and the reasons should be recorded but on perusal of the impugned order of dismissal dated 01.06.2008, being confirmed by the appellate authority vide order dated 23.10.2008 do not contend cogent reasons so as to come within the ambit and scope of Article 311 (2) (b) of the Constitution of India.
14. Viewed thus, the impugned orders of punishment of dismissal from service, dated 01.06.2008, passed by the Respondent No. 5, Senior Superintendent of Police, Ranchi as well as the order dated 23.10.2008, passed by the appellate authority i.e. respondent no. 3 are hereby quashed and set aside and the matter is remitted to the respondents to pass appropriate order on the quantum of punishment strictly in accordance with law within a period of 12 weeks from the date of receipt/communication of the order.
15. With the aforesaid observations and directions, all these writ petitions stand disposed of.
(Pramath Patnaik, J.) Jharkhand High Court, Ranchi Dated - 12/04/2016 APK/N.A.F.R.