Jharkhand High Court
Raghunandan Yadav Aged 29 Years Son Of ... vs State Of Jharkhand Through Director ... on 26 November, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 5261 of 2018
....
Raghunandan Yadav aged 29 years son of Shri Bhuneshwar Yadav resident of Village- Dumariatand, P.O.-Keshwari P.S.-Suriya District-Giridih ...Petitioner Versus
1. State of Jharkhand through Director General of Police having its office at police headquarters, P.O.+ P.S.-Dhurwa, District-Ranchi.
2. D.I.G., Palamau Range, Daltonganj-cum-Principal Jungle Warfare School, Netarhat, P.O.+P.S.-Netarhat, District-Latehar
3. Dy.S.P. Jungle Warfare School, Netarhat P.O.+P.S.-Netarhat, District-Latehar
4. D.I.G., Jharkhand Armed Police Force, having its office at Rani Kothi, P.O.+P.S.-Doranda, District-Ranchi
5. Commandant, Jharkhand Armed Police (4), Bokaro having its office at P.O.+P.S.-Bokaro Steel City, District-Bokaro ......Respondents With W.P. (S) No. 5663 of 2018 ....
Rajeev Ranjan aged 32 years son of Shri Raghunandan Rajak resident of Village- 1B, Ambedkar Nagar, P.O.-Sector-2, P.S.-City, Thana District-Bokaro ...Petitioner Versus
1. State of Jharkhand through Director General of Police having its office at police headquarters, P.O.+ P.S.-Dhurwa, District-Ranchi.
2. D.I.G., Palamau Range, Daltonganj-cum-Principal Jungle Warfare School, Netarhat, P.O.+P.S.-Netarhat, District-Latehar
3. Dy.S.P. Jungle Warfare School, Netarhat P.O.+P.S.-Netarhat, District-Latehar 1
4. D.I.G., Jharkhand Armed Police Force, having its office at Rani Kothi, P.O.+P.S.-Doranda, District-Ranchi
5. Commandant, Jharkhand Armed Police (4), Bokaro having its office at P.O.+P.S.-Bokaro Steel City, District-Bokaro ......Respondents With W.P. (S) No. 5730 of 2018 ....
Amit Kumar Tiwari aged 31 years son of Shri Harihar Tiwari resident of Village-Tolra P.O.-Tolra P.S.-Rehla District-Palamau ...Petitioner Versus
1. State of Jharkhand through Director General of Police having its office at police headquarters, P.O.+ P.S.-Dhurwa, District-Ranchi.
2. D.I.G., Palamau Range, Daltonganj-cum-Principal Jungle Warfare School, Netarhat, P.O.+P.S.-Netarhat, District-Latehar
3. Dy.S.P. Jungle Warfare School, Netarhat P.O.+P.S.-Netarhat, District-Latehar
4. D.I.G., Jharkhand Armed Police Force, having its office at Rani Kothi, P.O.+P.S.-Doranda, District-Ranchi
5. Commandant, Jharkhand Armed Police (4), Bokaro having its office at P.O.+P.S.-Bokaro Steel City, District-Bokaro ......Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioners : Mr. Abhay Kr. Mishra, Advocate Mr. Anshuman Mishra, Advocate Mr. Ajit Kr. Dubey, Advocate For the State : Mr. Shubham Gautam, AC to AAG-V Mr. Niraj Kr. Misrha, AC to GP VI ......
2
C.A.V. on 31.08.2024 Pronounce on 26.11.2024
All the above W.P.(S) No. 5261 of 2018,
W.P. (S) No. 5663 of 2018, W.P. (S) No. 5730 of 2018 have been heard and are being disposed of together, as issues in these writ applications are similar matter relate to same transaction and same enquiry.
2. W.P(S) No. 5261 of 2018 has been filed on behalf of the petitioner for quashing the final punishment order as contained in Memo No. 4132 dated 31.12.2010 (Annexure-7) there is major punishment order passed against the petitioners passed by the Jharkhand Armed Police Force (4), Bokaro by which the order of punishment has been passed by withholding two increments with cumulative effect and Censure against the writ petitioner which will also be applicable in future.
3. They have further prayed for quashing order dated 01.03.2017 vide Annexure-9 by which the appeal filed on behalf of the petitioner has been rejected on the ground of limitation and for restoration of petitioners' salary to its original place and also for grant of arrears of salary with all consequential benefits.
4. W.P(S) No. 5663 of 2018 has been filed on behalf of the petitioner for quashing the final punishment order as contained in Memo No. 4131 dated 31.12.2010 (Annexure-6) there is major punishment order passed against the petitioner passed by the Jharkhand Armed Police Force (4), Bokaro by which the order of punishment has been passed by withholding two increments with cumulative effect and Censor which will also be applicable in the future.
5. The petitioner further prayed for quashing order dated 01.03.2017 vide (Annexure-7 & 8) by which the appeal filed on 3 behalf of the petitioner has been rejected on the ground of limitation and for restoration of petitioners' salary to its original place and also for grant or arrears of salary with all consequential benefits.
6. W.P(S) No. 5730 of 2018 has been filed on behalf of the petitioner for quashing the final punishment order as contained in Memo No. 4134 dated 31.12.2010 (Annexure 7) as there is major punishment order passed against the petitioner passed by the Jharkhand Armed Police Force (4), Bokaro by which the order of withholding two increments with cumulative effect and Censor has been passed which will also be applicable in the future.
7. The petitioner further prayed for quashing order dated 01.03.2017 vide Annexure-9 by which the appeal filed on behalf of the petitioner has been rejected on the ground of limitation and for restoration of petitioners' salary to its original place and also for grant or arrears of salary with all consequential benefits.
8. Learned counsel for the petitioners has submitted that impugned order dated 31.12.2010 as contained in Annexure 7 in the above all the three writ petitions are illegal, arbitrary and non-sustainable in the eyes of law. It is submitted that appellate order dated 01.03.2017 as contained in Annexure-9, Annexure-8 and Annexure-9 respectively in the above writ petitions are also illegal, arbitrary and not sustainable in the eyes of law. As the appeal has been rejected merely on the ground of delay. It is submitted that the order dated 31.12.2010 passed by the Commandant, Armed Police Force, Bokaro has been passed in violation of natural justice and without supplying any Enquiry Report and without affording reasonable opportunity to the petitioner. It is submitted that all the above three writ petitioners in the W.P(S) No. 5261 of 2018, W.P(S) No. 5663 of 2018 and W.P(S) No. 5730 of 2018 were appointed in 4 the police department and while they were under training at Jungle Warfare School, Netarhat. Then certain dispute arose with regard to poor supply of water, poor facilities of medical treatment, electricity and the elementary facilities of bed and food were not available in this aforesaid Jungle Warfare School, and as such there was huge high and cry among trainees. It is submitted that the several persons had died due to poor medical treatment and 2-3 deaths had been reported due to Malaria, which was rampant in the Training Camp. In above background, Kanhaiya Mandal constable no.429 had become seriously ill and had become unconscious. However, when information was given to Dy. S.P. Training Camp Netarhat, then no step was taken and thereafter by alternative arrangement the said Kanhaiya Mandal was taken in the ambulance and it was informed in all the Training Camp that Kanhaiya Mandal had died and as a result of which many Trainee Constables had rushed to the place and they saw that Kanhaiya Mandal is seriously ill and he was being taken for further treatment to Hospital. This incident was objected by one and all trainees and the all the writ petitioners and others had raised this issue. However, instead of providing proper facilities in the training camp to the constable, a charge sheet was served upon the petitioners on 06.10.2010.
9. In Writ Petition W.P(S) No. 5261 of 2018, the Memo No. 3420 of dated 06.10.2010 is enclosed as Annexure-1.
10. In Writ Petition W.P(S) No. 5663 of 2018, the Memo No. 3421 of dated 06.10.2010 is enclosed as Annexure-1.
11. In Writ Petition W.P(S) No. 5730 of 2018, the Memo No. 3418 of dated 06.10.2010 is enclosed as Annexure-1.
12. It is submitted that prior to issuance of charge sheet then Dy.S.P Training School Netarhat had made complaint to D.I.G Palamau with respect to incident taking place on 13.07.2010 and 5 even the report was submitted on 22.07.2010 by the Dy.S.P. to DIG and vide letter dated 11.08.2010, the Inspector General of Police (i.e. I.G.) directed for initiation of departmental proceeding against the petitioner and thirteen others.
13. It is submitted that Enquiry Officer had submitted enquiry report in favor of the petitioner by exonerated twice from the charges leveled against them. However, the copy of the enquiry report was not supplied to the petitioners to the above writ petitions. However, the petitioners had received second show cause notice for filing the show cause and the petitioner had filed their show cause/explanation on 18.10.2010(Annexure-6).
14. However, while Memo No. 4132 of 31.12.2010 Annexure 7, the Commandant Jharkhand Police Force (4) passed the order of punishment by withholding with two (2) increments along with three Censors with cumulative effect and the three Censure will remain in future also and thus major punishment order has been passed against the petitioner. Thereafter, the petitioner had filed appeal before the D.I.G, which was also rejected on 01.03.2017(Annesure-9).
15. It has been submitted that in writ petition at Para 31 that the departmental proceeding has been proceeded against the petitioner is in complete violation of principles of natural justice as the complainant is the Dy. S.P., who were not providing the facilities, but he had made the complaint and he also became the witness and at his instance, the other constables, had deposed against the petitioners. Even thereafter the charges could not be proved and as such they were exonerated by the Enquiry Officer but the Disciplinary Authority that is the Commandant had differed with the view of Enquiry Officer without assigning any reason and has imposed the second show cause notice and final order an order of 6 penalty in disregard to principle, of natural justice and law laid down by the Hon'ble Supreme Court of India. The learned counsel for the petitioner has placed reliance upon the judgment passed in the case by the Managing Director, ECIL, Hyderabad Vs. B. Karunakar and Others reported in 1993 (4) SCC 727 on the point of non-supply of enquiry report. On the question of differing by the Disciplinary Authority from Enquiry Officer's Report, the petitioner has also placed reliance on the judgment reported in the case of S.P. Malhotra Vs. Punjab National Bank & Others, reported in (2013) 7 SCC 251 and Punjab National Bank & Others, Vs. Kunj Behari Misra, reported in (1998) 7 SCC 84 and has submitted that in case of that the disciplinary authority differs with the enquiry report of the Enquiry Officer then he should assign reasons.
16. On the question of parity, on the point of punishment order, the learned counsel for the petitioner has submitted that one constable namely Sujeet Kumar Ojha was given less punishment who was also part of the same transaction and hence there should be parity in the punishment order. In support of the above submission by the learned counsel of the petitioner has placed reliance on the judgment reported in the case of Rajendra yadav Vs. State of Madhya Pradesh and Others Reported in (2013) 3 SCC 73 and in the case of Life Insurance Corporation of India and Others Vs. Triveni Sharan Mishra Reported in (2014) 10 SCC 346. It has been submitted in view of these all writ petitions may be allowed and the punishment order dated 31.12.2010 has contained in Annexure 7 In the above writ petitions and appellate order passed by the D.I.G as contained in Annexure-9, Annexure-8 and Annexure-9 in the above writ petitions respectively, by the D.I.G may be set aside and the writ petition may be allowed and the petitioner may be given the consequential benefits.
717. On the other hand, learned counsel for the State submitted that the writ petitions filed on behalf of the petitioners are devoid of merit and fit to be dismissed. It is submitted that the act of the writ petitioners amounts to indiscipline and misbehavior with his Superior Officers. However, the authority had taken lenient view by imposing certain minor punishments upon the petitioners instead of terminating/dismissing him from the services. It is submitted though the above writ petitioners were trainees but they had worked like leaders and had formed the group.
18. It is submitted that the petitioners were appointed as a constable on 26.03.2010 in Jharkhand Armed Police Force, Bokaro and they were sent for basic training to Jungle Warfare School, Netarhat. However, during training period the petitioners along with other trainees had formed a leadership group and started leading a procession by shouting slogans and had also blocked the way of the Dy.S.P Suresh Prasad Ray and one Thakur Mahto who was driving the vehicle to visit Trainee Constable Kanhaiya Mandal for taking him to hospital. However, the petitioner and another members of the leadership group took Thakur Mahto out of the vehicle and had beaten him and the petitioners and others were also putting pressure to move the Dy.S.P Suresh Prasad Ray who was giving training to the trainee constables. Therefore, the charges against the petitioners were serious in nature and even charge memos were also issued against the other co-delinquents who were members of the leadership group vide Memo No.3420 dated 06.10.10 i.e. Annexure-A. It is submitted that the petitioners were a member of the discipline force and aggressive behavior of the petitioners would imbalance the discipline his battalion and will also give a bad impression of the Police in the society. It is submitted that on receipt of the reply of the 8 petitioners one Rajnath Singh was appointed as the Enquiry Officer, and entire record was placed before 02.11.2010 and the date of departmental proceeding fixed on 18.11.2010 and the petitioners and the witness were directed to represent on 18.11.2010 vide Memo dated 04.11.2010 as contained in Annexure-C. It is submitted that on 18.11.2010 all the witnesses except Dy.S.P. Suresh Prasad Ray were present and thereafter the petitioners and all the witnesses gave their evidence. However, the petitioners do not choose to cross-examine them and the next date was fixed on 02.12.2010 vide Memo dated 25.11.2010 i.e. the Annexure-D to the Counter Affidavit. However, even on 02.12.2010 neither the petitioners nor the witness Dy.S.P Suresh Prasad Ray were present and as such the departmental proceeding was fixed on 10.12.2010. On 10.12.2010 all the petitioners and witness Suresh Prasad Ray were present and gave the evidence but the petitioners chosen not to cross-examine him and the petitioners were directed to submit their show cause on 18.12.2010. But the petitioners submitted their final show cause stating therein that their first show cause be treated to be their final show cause vide Annexure-G. On considering of all the show cause filed by the evidence adduced by the petitioners, the Enquiry Officer held that the petitioners as guilty of the charges, an Enquiry Report was submitted on 30.12.2010, the disciplinary authority vide order on 31.12.2010 that is (Annexure-I) passed the order of punishment against the petitioners.
19. Thereafter, the petitioners preferred appeal before the D.I.G, Jharkhand Armed Force Police, Ranchi on 22.09.2016 that is lapse of almost seven years. Hence, the Appellate Authority Rule 852(a) of Police manual has rejected the appeal of the petitioners as time 9 barred and communicated the same vide Memo No.502 dated 01.03.2017.
20. Thus, there is no illegality in the order passed by the disciplinary authority and the appellate authority and as such this writ petitions may be dismissed.
21. Having heard learned counsel for both the sides and from going through the records it would appear that all the writ petitioners were appointed on 26.03.2010 appointed by the J.A.P Bokaro and they were directed to undergo training by the period of four months at Jungle Warfare School, Netarhat and they are said to have given their joining in Jungle Warfare School, Netarhat on 20.06.2010.
22. It has been alleged that during the training period the petitioners along with other trainee constables had formed a leadership group and had started procession by shouting slogans and blocked the way of the Dy.S.P Suresh Prasad Ray who was the Training Officer and as they had assaulted one Thakur Mahto, who was driving the vehicle for taking one training constable Kanhaiya Mandal to the hospital.
23. The petitioners have contended that there was no basic facilities at Jungle Warfare Training School, Netarhat and 2-3 persons had already died and death had taken place on account of Malaria disease and there were no proper medical facilities and basic amenities and due to which they were apprehensive of their health and life.
24. It appears that on hearing illness of one Kanhaiya Mandal, who was being taken to hospital by Suresh Prasad Ray, the Dy.S.P. along with one Trainee Constable Thakur Mahto in a vehicle, they were stopped by the petitioners and even the Trainee Officers informed the petitioner are alleged to have been assaulted, one 10 Thakur Mahto who was driving the vehicle in question.
25. This caused annoyance to the Dy. S.P. who was the Training Officer and as such the Dy.S.P. Training School, Netarhat complaint the matter to DIG vide letter dated 13.10.2010 (Annexure-2).
26. Thereafter, the said report of Dy.S.P. to sent to I.G. on 22.07.2010 vide letter dated 22.07.2010 (Annexure-3) and vide letter dated 11.08.2010, I.G. Training directed the D.I.G, Jungle Warfare School, Netarhat to initiate the departmental proceeding against the thirteen police constables including the petitioners, were in serial no. 1-2 and 5 respectively and also one Sujeet Kumar Ojha, who was in serial no.3.
27. Learned counsel for the petitioners has contended that by filing supplementary affidavit that said Sujeet Kumar OJha Trainee Constable was given less punishment of one black mark and he was given warning and his increment was withheld for one year which will be equivalent to three black marks however it will not be effect on his future's increments in pays who were part of the same transaction of same group, which has alleged the shown disregard to the Dy.S.P. and had beaten the Trainee Constable Thakur Mahto, who was the driving the vehicle. The punishment order of Sujeet Kumar Ojha, is enclosed as (Annexure-I & J).
28. From going through the pleadings of both the sides, it is further evident that the respondent has denied the fact of supply of enquiry report to the petitioners in their counter affidavits before issuing him the show cause notice on 13.12.2010 vide Annexure-F to the counter affidavit.
29. From perusal of the Enquiry Report dated 30.12.2010 as contained in Annexure-5 to the writ petition as well as Annexure-H in the counter affidavit, it reveals that the Enquiry Officer i.e. the Inspector had opined that a mob was led by the Trainee Constables 11 and they had obstructed the way of their Senior Officers. However, he had not named any Trainee Constables including these petitioners in any specific overt act though, he has observed that even if there was lack of facilities in the training constables should have performed their duties during their training on schedule. They should have placed the matter before their seniors respectively in case of any complaint.
Enquiry officer also finds that there is no evidence of assaulting Thakur Mahto, Police Force no. 394 by fist and slap but it is not denied as there was huge crowd and he had held the petitioners namely Raghunandan Yadav, Rajeev Ranjan and Amit Kumar Tiwari of the charges.
30. It transpires that second show cause notice was issued to the petitioners vide Memo No. 4000 dated 13.12.2010 as contained in Annexure-F to the Counter affidavit filed by the respondents and no punishment order was proposed in this show cause notice dated 13.12.2010, rather it was informed that evidence of the witnesses had been recorded and the date of final defense is fixed on 18.12.2010 and hence, the delinquent and should submit his final show cause by 18.12.2010.
31. However, the petitioners have submitted their respective reply on 16.12.2010 (i.e. Annexure G) and submitted that they had already submitted his explanation firstly and as such said explanation may be treated as his final explanation. Thereafter, the Disciplinary Authority vide order dated the Commandant, J.A.P vide order dated 31.12.2010 has passed the punishment order as follows;-
(i) Although the conduct of the petitioner, warrants dismissal however, considering the human aspect they were awarded punishment withholding increment of two years, which will be equivalent to three black marks and which will be 12 effective in future also.
(ii). The petitioner has been warned for not repeating this incident in future otherwise the proceeding will be initiated for dismissal.
32. Thus, it is evident in the Enquiry report that the petitioner had been found guilty but the copy of enquiry report was not served upon the petitioner neither by the Enquiry Officer nor by the Disciplinary Authority and hence non supply of Enquiry report to the Petitioners, amounts to violation of Principle of Natural justice.
33. It has been held in the case of Managing Director, ECIL, Hyderabad Vs. B. Karunakar and Others reported in 1993 (4) SCC 727, at Para 61,62 & 63 as follows.
Para-61:- It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well-settled law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice.
The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that the Evidence Act has no application to the inquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by 'evidence' in the proviso to Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be 13 placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both.
Para-62:- Shri P.P. Rao obviously realising this effect, contended that the enquiry officer being a delegate of the disciplinary authority is not bound by the delegatee's recommendations and it is not a material unless it is used by the disciplinary authority. Therefore, the need for its supply does not arise and the principles of natural justice need not be extended to that stage as the officer/workman had opportunity at the inquiry. In support thereof he placed strong reliance on Suresh Koshy George v. University of Kerala [(1969) 1 SCR 317 : AIR 1969 SC 198] ; Shadi Lal Gupta v. State of Punjab [(1973) 1 SCC 680 : 1973 SCC (L&S) 293 : (1973) 3 SCR 637] ; Hira Nath Misra v. Principal, Rajendra Medical College, Ranchi [(1973) 1 SCC 805 : AIR 1973 SC 1260] ; Satyavir Singh v. Union of India [(1985) 4 SCC 252 :
1986 SCC (L&S) 1 : AIR 1986 SC 555] ; Secretary, Central Board of Excise & Customs v. K.S. Mahalingam [(1986) 3 SCC 35 : 1986 SCC (L&S) 374] and Union of India v. Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] . I am unable to agree with his contentions. Doubtless that the enquiry officer is a delegate of the disciplinary authority, he conducts the inquiry into the misconduct and submits his report, but his findings or conclusions on the proof of charges and his recommendations on the penalty would create formidable impressions almost to be believed and acceptable unless they are controverted vehemently by the delinquent officer. At this stage non-supply of the copy of the report to the delinquent would cause him grave prejudice. S.K. George case [(1969) 1 SCR 317 :
AIR 1969 SC 198] renders no assistance. It is only an inquiry against malpractice at an examination conducted by the University under executive instruction. Therein the students were given an opportunity of hearing and they were supplied with all the material, the foundation for the report. The observations of the Bench of two Judges with regard to the theory of two stages in the Inquiry under Article 311 also bears little importance for the foregoing consideration in this case. It is already seen that this Court held that the inquiry from the stage of charge-14
sheet till the stage of punishment is a continuous one and cannot be split into two. The reliance in Keshav Mills Co. Ltd. v. Union of India [(1973) 1 SCC 380 :
(1973) 3 SCR 22] is also of no avail. Therein it was pointed out that under Section 18-A of the I.D.R. Act there was no scope of enquiry at two stages and the omission to supply enquiry report, before taking the action, did not vitiate the ultimate decision taken.
In Shadi Lal case [(1973) 1 SCC 680 : 1973 SCC (L&S) 293 : (1973) 3 SCR 637] Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules did not provide for the supply of copy of the report of an inquiry conducted by the fact finding authority before inquiry. It was held that the delinquent officer was supplied with all the materials and was given opportunity to make representation and the same was considered. The report did not indicate anything in addition to what was already supplied to him. Under those circumstances it was held that the principles of natural justice cannot be put into an iron cast or a strait-jacket formula. Each case has to be considered and the principles applied in the light of the facts in each case. The effect of the violation of the principles of natural justice on the facts of the case on hand needs to be considered and visualised. The effect of Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio was considered by my brother Sawant, J. and it needs no reiteration. The reliance on S.K. George case [(1969) 1 SCR 317 : AIR 1969 SC 198] in Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio renders no assistance in the light of the above discussion. Since Mahalingam case [(1986) 3 SCC 35 : 1986 SCC (L&S) 374] which was after the Forty-second Amendment Act, the need to supply second show- cause notice was dispensed with, regarding punishment and therefore, that ratio renders no assistance to the case. Hira Nath Misra case [(1973) 1 SCC 805 : AIR 1973 SC 1260] also is of no avail since the inquiry was conducted relating to misbehaviour with the girl students by the erring boys. The security of the girls was of paramount consideration and therefore, the disclosure of the names of the girl students given in the report or their evidence would jeopardise their safety and so was withheld. Accordingly this Court on the fact situation upheld the action of the Medical College. Satyavir Singh [(1985) 4 SCC 252 : 1986 SCC (L&S) 1 : AIR 1986 SC 555] ratio also is of no assistance as the action was taken under proviso to Article 311(2) and Rule 199 of the CCA Rules. The 15 inquiry into insubordination by police force was dispensed with as the offending acts of the police force would generate deleterious effect on the discipline of the service. Asthana case [(1988) 3 SCC 600 : 1988 SCC (L&S) 869] was considered by my brother Sawant, J. in which the report was not supplied and it was upheld. It should, thus be concluded that the supply of the copy of the enquiry report is an integral part of the penultimate stage of the inquiry before the disciplinary authority considers the material and the report on the proof of the charge and the nature of the punishment to be imposed. Non-compliance is denial of reasonable opportunity, violating Article 311(2) and unfair, unjust and illegal procedure offending Articles 14 and 21 of the Constitution and the principles of natural justice.
Para-63:- The emerging effect of our holding that the delinquent is entitled to the supply of the copy of the report would generate yearning for hearing before deciding on proof of charge or penalty which Forty- second Amendment Act had advisedly avoided. So while interpreting Article 311(2) or relevant rule the court/tribunal should make no attempt to bring on the rail by back track the opportunity of hearing as was portended by the Gujarat High Court. The attempt must be nailed squarely. Prior to the Forty-second Amendment Act the delinquent had no right of hearing before disciplinary authority either on proof of charge or penalty. So after Forty-second Amendment Act it would not be put on higher pedestal. The Gujarat High Court's decision is, therefore, not good law. However, the disciplinary authority has an objective duty and adjudicatory responsibility to consider and impose proper penalty consistent with the magnitude or the gravity of the misconduct. The statute or statutory rules gave graded power and authority to the disciplinary authority to impose either of the penalties enumerated in the relevant provisions. It is not necessarily the maximum or the minimum. Based on the facts, circumstances, the nature of imputation, the gravity of misconduct, the indelible effect or impact on the discipline or morale of the employees, the previous record or conduct of the delinquent and the severity to which the delinquent will be subjected to, may be some of the factors to be considered. They cannot be eulogised but could be visualised. Each case must be considered in the light of its own scenario. Therefore, a duty and responsibility has been cast on the disciplinary authority to weigh the pros and cons, consider the case and impose appropriate punishment.
16In a given case if the penalty was proved to be disproportionate or there is no case even to find the charges proved or the charges are based on no evidence, that would be for the court/the tribunal to consider on merits, not as court of appeal, but within its parameters of supervisory jurisdiction and to give appropriate relief. But this would not be a ground to extend hearing at the stage of consideration by the disciplinary authority either on proof of the charge or on imposition of the penalty. I respectfully agree with my brother Sawant, J. in other respects in the draft judgment proposed by him.
34. It further transpires that although a cryptic enquiry report was submitted by the Enquiry Officer without fixing any accountability upon the petitioners, yet he held them guilty for the charges leveled against them on the ground of indiscipline and disobedience and for obstructing his senior officers. Hence, the disciplinary authority was bound to give its specific reasons for deferring with the view of Enquiry officer as the Enquiry Officers on merely held the petitioners guilty for the charges.
35. It has been held in the case S.P. Malhotra Vs. Punjab National Bank & Others, reported in (2013) 7 SCC 251 at Para- 9 to 11 as follows:-
''Para-9:- Mr P.S. Patwalia, learned Senior Counsel appearing for the appellant has submitted that the Division Bench has not examined the case in correct perspective and failed to appreciate that the judgment in ECIL [ECIL v. B. Karunakar, (1993) 4 SCC 727 :
1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] had no application in the instant case. The matter was squarely covered by the judgment of this Court in Punjab National Bank v. Kunj Behari Misra [Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] and the ratio thereof had correctly been applied by the learned Single Judge. Thus, the appeal deserves to be allowed.
Para-10:- Per contra, Mr Rajesh Kumar, learned counsel appearing for the respondent Bank has defended the judgment of the Division Bench contending that there was no requirement of serving 17 the recorded reasons for disagreement by the disciplinary authority to the delinquent if such a decision was taken prior to the date of decision of ECIL [ECIL v. B. Karunakar, (1993) 4 SCC 727 :
1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] i.e. 20-11-1990, and therefore, no interference is required in the appeal.
Para-14:- Kunj Behari Misra [Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] itself was the case where the disciplinary authority disagreed with the findings recorded by the enquiry officer on 12-12- 1983 and passed the order on 15-12-1983 imposing the punishment, and immediately thereafter, the delinquent officers therein stood superannuated on 31-12-1983. In Kunj Behari Misra [Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] this Court held as under :
(SCC p. 97, para 19) "19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
(emphasis supplied) Para-15:- . The Court further held as under : (Kunj Behari Misra case [Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] , SCC p. 97, para 21) "21. Both the respondents superannuated on 31-12- 1983. During the pendency of these appeals, Misra died on 6-1-1995 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this 18 stage the cases should be remanded to the disciplinary authority for the start of another innings." Para-16:- The view taken by this Court in the aforesaid Kunj Behari Misra case [Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] has consistently been approved and followed as is evident from the judgments in Yoginath D. Bagde v. State of Maharashtra [(1999) 7 SCC 739 : 1999 SCC (L&S) 1385 : AIR 1999 SC 3734] , SBI v. K.P. Narayanan Kutty [(2003) 2 SCC 449 : 2003 SCC (L&S) 185 : AIR 2003 SC 1100] , J.A. Naiksatam v. High Court of Bombay [(2004) 8 SCC 653 : 2004 SCC (L&S) 1190 :
AIR 2005 SC 1218] , P.D. Agrawal v. SBI [(2006) 8 SCC 776 : (2007) 1 SCC (L&S) 43 : AIR 2006 SC 2064] and Ranjit Singh v. Union of India [(2006) 4 SCC 153 : 2006 SCC (L&S) 631 : AIR 2006 SC 3685] Para-17:- In Canara Bank v. Debasis Das [(2003) 4 SCC 557 : 2003 SCC (L&S) 507 : AIR 2003 SC 2041] this Court explained the ratio of the judgment in Kunj Behari Misra [Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] , observing that it was a case where the disciplinary authority differed from the view of the inquiry officer.
"26. ... In that context it was held that denial of opportunity of hearing was per se violative of the principles of natural justice." (Debasis Das case [(2003) 4 SCC 557 : 2003 SCC (L&S) 507 : AIR 2003 SC 2041] , SCC p. 578, para 26) Para-18:- In fact, not furnishing the copy of the recorded reasons for disagreement from the enquiry report itself causes prejudice to the delinquent and therefore, it has to be understood in an entirely different context than that of the issue involved in ECIL [ECIL v. B. Karunakar, (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] .
36. It has been held in the case of Punjab National Bank and Others Vs. Kunj Behari Misra reported in (1998) 7 SCC 84 at Paragraphs 17 and 19 as follows:-
"Para-17:- These observations are clearly in tune with the observations in Bimal Kumar Pandit case [AIR 1963 SC 1612 : (1964) 2 SCR 1 : (1963) 1 LLJ 295] quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent 19 officer. If the enquiry officer had given an adverse finding, as per Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.
Para-19:- The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.
36. It has been held by Hon'ble Supreme Court in the case of 20 S.R. Tewari vs. Union of India and Another reported in (2013) 6 SCC 602 at Paragraph nos.24, 25 and 26 as follows:-
"Para-24:- The question of interference on the quantum of punishment has been considered by this Court in a catena of judgments and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur v. Union of India [Ranjit Thakur v. Union of India, (1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113 : AIR 1987 SC 2386] , this Court observed as under : (SCC pp. 620-21, paras 25 & 27) "25. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.
***
27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review."
(emphasis supplied) (See also Union of India v. G. Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S) 1806 : AIR 1997 SC 3387] , State of U.P. v. J.P. Saraswat [(2011) 4 SCC 545 : (2011) 1 SCC (L&S) 718] , Chandra Kumar Chopra v. Union of India [(2012) 6 SCC 369 : (2012) 2 SCC (L&S) 152] and High Court of Patna v. PandeyGajendra Prasad [(2012) 6 SCC 357 :
(2012) 2 SCC (L&S) 140 : AIR 2012 SC 2319] .) Para-25:- In B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44 :
AIR 1996 SC 484] , this Court after examining its various earlier decisions observed that in exercise of the power of judicial review, the court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in 21 exceptional and rare cases, in order to shorten the litigation, itself impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, the court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority. Para-26:- In V. Ramana v. A.P. SRTC [(2005) 7 SCC 338 : 2006 SCC (L&S) 69 : AIR 2005 SC 3417] , this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the Court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the court itself can impose appropriate punishment by recording cogent reasons in support thereof."
37. It further transpires that in the same act of indiscipline one Sujeet Kumar Ojha was also proceeded and was held guilty by the Enquiry Officer, however the Disciplinary Authority had passed the punishment order to withholding one increment for one year and this shall not be applicable in future and thus there is complete disparity in the matter of punishment.
On the one hand, one Sujeet Kumar Ojha has been let off by giving minor punishments whereas these petitioners major punishment in terms of Rule 852-A Jharkhand Police Manual.
38. It has been held in the case of Rajendra Yadav Vs. State of 22 Madhya Pradesh and Others Reported in (2013) 3 SCC 73 Para 9 to 12 as follows:-
''Para-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.
This extract is taken from Rajendra Yadav v. State of M.P., (2013) 3 SCC 73 : (2013) 1 SCC (L&S) 476 :
2013 SCC OnLine SC 149 at page 76 Para-10:- The principle stated above is seen applied in a few judgments of this Court. The earliest one is DG of Police v. G. Dasayan [(1998) 2 SCC 407 : 1998 SCC (L&S) 557] wherein one Dasayan, a police constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The disciplinary authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on the Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co- delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India. This extract is taken from Rajendra Yadav v. State of M.P., (2013) 3 SCC 73 : (2013) 1 SCC (L&S) 476 : 2013 SCC OnLine SC 149 at page 76 Para-11:- In Shailesh kumar Harshad bhai Shah case [(2006) 6 SCC 548 : 2006 SCC (L&S) 1486] the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the 23 benefit.
This extract is taken from Rajendra Yadav v. State of M.P., (2013) 3 SCC 73 : (2013) 1 SCC (L&S) 476 : 2013 SCC OnLine SC 149 at page 76 Para-12:- We are of the view that the principle laid down in the abovementioned judgments would also apply to the facts of the present case. We have already indicated that the action of the disciplinary authority imposing a comparatively lighter punishment on the co-delinquent Arjun Pathak and at the same time, harsher punishment on the appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the appellant and order that he be reinstated in service forthwith. The appellant is, therefore, to be reinstated from the date on which Arjun Pathak was reinstated and be given all consequential benefits as were given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs.''
39. In the case of Life Insurance Corporation of India and Others Vs. Triveni Sharan Mishra Reported in (2014) 10 SCC 346.
Para 14 as follows:-
''Para-14:- From the papers on record before us, it appears that for mentioning less qualification to secure the job, another similarly situated employee (one Daluram Patidar) was let off by Life Insurance Corporation of India by awarding punishment of stoppage of increments for two years with cumulative effect. We are of the opinion that the High Court has rightly taken note of the said fact while allowing the writ petition, and directing the employer to consider the imposition of similar penalty after reinstatement of the writ petitioner. ''
40. It further transpire learned appellate authority has dismissed the appeal merely on the ground of limitation without considering the facts of the petitioner and as the Appellate order passed by the D.I.G J.A.P, Ranchi is also illegal and not sustainable in eye of law.
41. Under circumstances mentioned above and in view of law laid by the Hon'ble Supreme Court order dated 31.12.2010 passed by the Commandant, JAP (4), Bokaro as contained in Annexure-7 24 and the appellate order dated 01.03.2017 passed by D.I.G J.A.P, Ranchi as contained Annexure-9, Annexure-8 and Annexure-9 in W.P.(S) No. 5261 of 2018, W.P.(S) No. 5663 of 2018 and W.P. (S) No. 5730 of 2018 respectively are set aside and these writ petitions i.e. W.P.(S) No. 5261 of 2018, W.P. (S) No. 5663 of 2018 and W.P. (S) No. 5730 of 2018 are allowed and the writ petitioners will be entitled to all consequential benefits.
(Sanjay Prasad, J.) Nishant/-
NAFR 25