Jharkhand High Court
Permanand Singh vs State Of Jharkhand & Ors on 24 April, 2015
Author: Pramath Patnaik
Bench: Pramath Patnaik
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5832 of 2009
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Permanand Singh son of Late Upendra Singh, resident of village-
Nandpur, P.O- Suryagarha, P.S.-Suryagarha, District - Munger (now
Lakhisarai), Bihar ... Petitioner
Versus
1.The State of Jharkhand
2.The Director General of Police, Jharkhand, Ranchi
3.The Deputy Inspector General of Police, Santhal Pargana Range,
Dumka.
4.The Superintendent of Police, Dumka ... Respondents
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CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioner : Mr. Manoj Tandon, Advocate
For the Respondents : Mr. Mohan Kumar Dubey, J.C to A.G
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C.A.V. On 30.03.2015 Pronounced on 24/04/2015
Per Pramath Patnaik, J.:
In the accompanied writ application, the petitioner has inter
aila, prayed for setting aside/quashing the order dated 31.08.1992
passed in Departmental Proceeding No. 7/1991 by respondent no.
4-Superintendent of Police, Dumka, whereby petitioner has been
dismissed from services and to quash order dated 26.12.2002
passed by respondent no. 3-Deputy Inspector General of Police,
Santhal Pargana Range, Dumka confirming the order passed by
disciplinary authority and also for direction upon the respondent to
reinstate the petitioner in service with full back wages along with
consequential service benefits.
2. The factual matrix, bereft of unnecessary details in a nutshell
is that the petitioner was appointed as constable in the month of
January, 1985 in pursuance of appointment letter issued to the
petitioner as contained in Memo no. 196 dated 28.01.1985 and
after joining, he continued to discharge his duties. While continuing
as such, a Memo of charge was framed against the petitioner vide
Memo no. 409 dated 12.03.1991 (Annexure 2), containing the
charge as under:
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"The character of this petitioner was found to be doubtful
in course of character verification for employment."
It has been stated that thereafter enquiry was conducted by
the enquiry officer, who submitted enquiry report dated 16.08.1991
(Annexure 3). In the said enquiry report, it has been stated that
enquiry was conducted ex-parte since the petitioner did not turn up
in the departmental proceeding. In the enquiry report, it has further
been stated that on the basis of the evidence of the witnesses and
the exhibits, the charge was proved against the petitioner and the
petitioner was found guilty of the charges. Thereafter, the
Superintendent of Police, Dumka vide Memo no. 2074/Ra Ka dated
05.11.1991(Annexure 4) directed the petitioner to submit reply within 15 days as to why the petitioner shall not be dismissed from services, to which, the petitioner responded on 20.12.1991 (Annexure 5) contending therein that the copy of character verification was never served upon the petitioner. Pursuant thereto the Superintendent of Police, Dumka punished the petitioner by order dated 31.08.1992 passed in Departmental Proceeding No. 7/1991 (Annexure 6). Thereafter, it has been stated that the petitioner preferred appeal before Deputy Inspector General of Police, South Pargana Range, Dumka in the month of November, 1992. It has further been stated that in the year 2001, when the petitioner approached the office of Deputy Inspector General of Police, South Pargana Range, Dumka, he was told that copy of the appeal was missing and, on being directed, the petitioner again submitted appeal on 22.07.2001, which too stood rejected vide order dated 26.12.2002 by the Deputy Inspector General of Police, Santhal Pargana Range, Dumka.
3. Being aggrieved by the impugned order of punishment of dismissal dated 31.08.1992 and order dated 26.12.2002, the 3 petitioner has approached this Court under Article 226 of the Constitution of India for redressal of his grievances.
4. Per contra, the respondents have filed the counter affidavit controverting the averments made in the writ application. It has been submitted in the counter affidavit that the petitioner was temporarily appointed on the post of Constable and during character verification of the writ petitioner, on the report of Officer- in-Charge, Suryagarha Police Station, Munger, Bihar, the character of the petitioner was found to be doubtful and it has come to surface that several cases of road robbery and dacoity viz. Suryagarha P.S. Case No. 184 of 1982 under Section 395; Case No. 191 of 1982 under Section 395; Case No. 1 of 1983 under Section 396; Case No. 4 of 1983 under Section 395, Case No. 118 of 1983 under Section 395 and Case No. 138 of 1983 under Section 395 has been instituted and on the order of Superintendent of Police, Munger, the necessary Dossier A/147 was also opened against the petitioner. It has been submitted that on the above report, the petitioner was dismissed from services by Superintendent of Police, Sahebganj. Aggrieved thereof, the petitioner filed appeal before the Deputy Inspector General of Police, Santhal Pargana Range, Dumka, who after hearing the petitioner accepted the appeal and set aside the order of Superintendent of Police, Sahebganj vide order dated 17.12.1989 (Annexure B). It has further been stated in the counter affidavit that under provisions of Police Manual charge was framed by the Superintendent of Police and with a copy of character verification report it was supplied to the petitioner vide Memo no. 409 dated 12.03.1991 for clarification but the petitioner never submitted clarification on the charge. Thereafter, Departmental proceeding no. 7/91 was initiated against the petitioner and the 4 conducting officer has given sufficient opportunities for fling 2 nd clarification and to cross-examine the witnesses but the petitioner remained absent, therefore, lastly on 16.08.1991, the conducting officer furnished his opinion to the Superintendent of Police Dumka for further action. It has further been stated that on the findings of the conducting officer, the Superintendent of Police, Dumka vide Memo no. 2074/Ra. Ka dated 5.11.1991 directed the writ petitioner to submit his clarification within 15 days, to which, the petitioner responded on 06.12.1991 stating therein that he has not been provided the copy of exhibits of charge, copy of character verification report and copy of opinion of the conducting officer, which were however supplied by the Superintendent of Police, Dumka vide Memo no. 443 dated 03.04.1992 and further the writ petitioner has been given 15 days time for filing his clarification. The writ petitioner submitted his clarification on 03.06.1992, which was found unsatisfactory by the Superintendent of Police, Dumka and accordingly the writ petitioner was ordered to be dismissed from his services vide order dated 31.08.1992. The writ petitioner filed appeal before the Deputy Inspector General of Police, Santhal Pargana Range, Dumka, that too after lapse of several years i.e in the year 2001, which was dismissed vide order dated 25.12.2002. It has further been contended that the action taken by the authority concerned is legal, genuine and in consonance with provisions of the Police Manual as such the writ petition derseves to be dismissed in limine.
5. Learned counsel for the petitioner in the rejoinder affidavit stated that the petitioner was appointed against the permanent post, hence, the same cannot be treated to be a temporary appointment. It has further been submitted that a detailed reply 5 with respect to aforesaid cases have been given in the second show cause reply dated 20.12.1991 explaining therein the position of the petitioner but the same has not been considered by the respondents while inflicting punishment to the petitioner.
6. Heard Mr. Manoj Tandon, learned counsel for the petitioner and Mr. Mohan Kumar Dubey, J.C. to learned Advocate General for the respondents.
7. Learned counsel for the petitioner has assailed the impugned order of dismissal mainly on the following grounds:
(I).The impugned order of dismissal dated 31.08.1992 and appellate order dated 26.12.2002 have been passed without following the principles of natural justice and they are non-
speaking and cryptic orders.
(ii).The impugned order of dismissal passed by the disciplinary authority has been passed in infraction of Rule 828 of the Jharkhand Police Manual.
(iii).The entire departmental proceeding conducted against the petitioner by the respondents-authorities is a mere eye-wash and perfunctory departmental proceeding has been conducted visiting the petitioner with infliction of major punishment.
(iv).The very Memo of charge is defective and the same does not constitute any misconduct and, therefore, whole departmental proceeding is vitiated on the ground that the charges are defective, vague and evasive.
(v).Furthermore, the impugned orders are violative of Article 14 and 311(2) of the Constitution of India.
(vi).Appendix 49 of the Jharkhand Police Manual has been violated as it envisages that with the memo of charge copy of exhibits must be supplied, which in the case at hand is missing. 6
8. Countering the submissions of the learned counsel for the petitioner, learned counsel for the respondents has vehemently defended the action of the respondents by submitting that considering the gravity of charges and the criminal antecedent of the petitioner, the services of the petitioner has rightly been dispensed with, leaving the limited scope of this Court for interference.
9. On perusal of the materials available on record and after giving my anxious consideration to the rivalised submissions, the impugned order of dismissal at Annexure 6 dated 31.08.1992 and appellate order dated 22.07.2001 at Annexure 8 deserves to be quashed and set aside for the following facts and reasons:
(i).On perusal of the alleged charge as contained in Memo no. 409 dated 12.03.1991, it appears that the same being not specific appears to be very vague and allegation in the charge does not constitute misconduct. Moreover, after rendering about 6 years of services, the proceeding has been initiated relating to character verification.
(ii).That the very appointment order was issued in the year 1985 that was subject to verification of educational qualification, caste certificate etc. and it was quite open to the respondents to scrutinize the documents before issuance of appointment letter or before joining of the petitioner in services and the respondents ought not to have allowed the petitioner to continue in service for a period of six years.
(iii).So far as the above-referred criminal cases are concerned, the learned counsel for the petitioner has drawn my attention to the reply to second show cause notice submitted by the petitioner on 20.12.1991 (Annexure 5), in which, the petitioner has quoted the 7 order passed by the learned S.D.J.M., wherein it has been stated that case was instituted against unknown and investigating officer has however made the petitioner in the array of accused but due to non-appearance of informant and witnesses, no T.I.P. could be done, hence, the petitioners in that case were discharged from charges. It has further been submitted that against the final form no protest petition has been filed. It has further been submitted that similar were fate of other cases. Therefore, it is quite clear that on the date of appointment, there was no criminal case pending against the petitioner and whatever criminal cases were there, that stood obliterated due to filing of final form.
(iv).Furthermore, the impugned order of dismissal at Annexure 6 and appellate order at Annexure 8 appears to have been passed without strict compliance of principles of natural justice violating Article 311 (2) of the Constitution of India.
(v).Nothing has been brought on record that after joining to the post of constable any misconduct has been committed by the petitioner but the allegation pertaining to the petitioner is prior to his service career, finally culminating in the issuance of Final Form, which cannot be strictly construed to be a misconduct. So the guilt ought not to have been fastened on the petitioner relating to various police cases instituted during the year 1982-83 and those cases have no direct nexus to the alleged misconduct committed by the petitioner. Therefore, the alleged charges do not stand to reason and culmination of the said charges in the impugned order of the punishment like dismissal from services, is not sustainable in law.
(vi).Moreover, the punishment appears to be grossly disproportionate to the alleged misconduct and the impugned 8 order of punishment under Annexure 6 and appellate order are hit by doctrine of proportionality so far as quantum of punishment is concerned.
10. In view of the discussions made herein-above, the impugned order of dismissal dated 31.08.1992 at Annexure 6 and appellate order dated 26.12.2002 at Annexure 8 are hereby quashed. The respondents are directed to reinstate the petitioner in services, if not attained the age of superannuation in the meantime.
11. So far as back wages are concerned, since the petitioner was lethargic enough in approaching the Court, applying the principle of 'no work no pay' the petitioner is not entitled for any back wages during the interregnum period i.e. from the date of termination till the date of reinstatement. However, the petitioner shall be entitled to benefit of continuity in service so far as computation of period of pension and other retiral benefits are concerned.
12. With the aforesaid observations and directions, this writ application is disposed of.
(Pramath Patnaik, J.) Alankar/-