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Judgment
Sanjay Kumar Dwivedi, J
Heard Mr. Dhananjay Kumar Dubey, learned counsel for the petitioners, Mr. R.K. Shahi, learned A.C. to A.A.G. appearing for the respondents in W.P. (S) Nos. 972 & 6741 of 2007 and Mr. Vishal Kr. Rai, learned A.C. to S.C.-I appearing for the respondents W.P. (S) Nos. 1270 & 1302 of 2007.
The petitioner in W.P.(S) No. 972 of 2007 has preferred this writ petition for quashing the order dated 18.01.2005 and appellate order dated 21.04.2006 whereby the salary of the petitioner has been withheld for the period from 01.11.2003 to 18.02.2004.
Mr. Dubey, learned counsel appearing for the petitioner submits that the petitioner was constable at Jamshedpur and he was transferred in the month of June 2003 and by transfer order the petitioner was transferred from Jamshedpur to Pakur. Pursuant to application of the petitioner for staying the transfer on the ground of illness, the transfer of the petitioner was stayed by the Zonal I.G. of that Range. Thereafter, the petitioner was relieved w.e.f 01.11.2003 for joining at the transfer place. By impugned order dated 28.12.2003, the petitioner was show-caused along with other persons who have transferred but not joined the transferred place. The petitioner was called upon to file show-cause reply by 2.01.2005 against initiation of the departmental proceeding. Thereafter, the petitioner again filed an application on 10.01.2004 before the I.G., Dumka Range, Dumka requesting therein that due to second heart attack he is not able to join the transfer place and the treatment is going on at TMCH, Jamshedpur. By seeing the ailments of the petitioner, the transfer of the petitioner was stayed for six months. Again, he was directed to join the Pakur district. In spite of that the petitioner has not joined the transfer place and he was served with the charge sheet dated 11.02.2004 for not joining on the transfer place w.e.f. 01.11.2003. The petitioner filed his reply on 18.02.2004. The petitioner further filed an application before the Superintendent of Police with request to pay salary for the period of 01.11.2003 to January, 2004 as he has already taken kaman for joining on the transferred place. The petitioner was provided kaman on 18.02.2004. On the above facts, the departmental proceeding was initiated against the petitioner. The petitioner appeared in the departmental proceeding and inquiry officer after appreciating entire facts and the witnesses, came to the conclusion that the charges against the petitioner have not been proved. The disciplinary authority differed with the findings of the Enquiry Officer and passed the order dated 18.01.2005 whereby the aforesaid punishment order has been inflicted upon the petitioner. The petitioner filed appeal before the appellate authority which has also affirmed the order of the disciplinary authority by order dated 21.04.2006. Aggrieved with these two orders, the petitioner has preferred this writ petition.
The petitioner in W.P.(S) No. 1270 of 2007 has preferred this writ petition for quashing the order dated 20.01.2005 whereby the salary of the petitioner has been withheld for the period from 01.11.2003 to 04.08.2004.
Mr. Dubey, learned counsel appearing for the petitioner submits that the petitioner was constable at Jamshedpur and he was transferred in the month of June 2003 and transfer order was issued in which the name of the petitioner was also found that the petitioner was transferred from Jamshedpur to Gumla. Pursuant to application by which the petitioner on the ground of illness requested for staying the transfer, the transfer of the petitioner was stayed by the Zonal I.G. of that Range. Thereafter, the petitioner was relieved w.e.f 08.11.2003 for joining at the transfer place. By order dated 22.06.2004, the petitioner was show-caused for not joining the transfer place and the petitioner was called upon to file show-cause reply by 07.07.2004. Again, vide letter dated 17.08.2004, the petitioner has been asked to file show cause, the petitioner filed his reply on 25.08.2004. It is pertinent to mention here that by order dated 24.08.2004, the petitioner has been adjusted in the district of Jamshedpur in view of the stay order dated 04.08.2004. In spite of that the petitioner was served with the charge sheet dated 11.02.2004 for not joining on the transfer place w.e.f. 01.11.2003. The petitioner filed reply on 07.07.2004. The petitioner further filed an application before the Superintendent of Police with request to pay salary for the period of 01.11.2003 to 04.08.2004. On the above facts, the departmental proceeding was initiated against the petitioner. The petitioner appeared in the departmental proceeding. The Enquiry Officer after appreciating entire facts and the witnesses came to the conclusion that the charges against the petitioner have not been proved. The Disciplinary Authority differed with the findings of the Enquiry Officer and passed the order dated 20.01.2005 whereby the aforesaid punishment order has been inflicted upon the petitioner. The petitioner filed appeal before the appellate authority which has also affirmed the order passed by the disciplinary authority by order dated 25.08.2003. Aggrieved with these two orders, the petitioner has preferred this writ petition.
The petitioner in W.P.(S) No. 1302 of 2007 has preferred this writ petition for quashing the order dated 28.02.2005 whereby the salary of the petitioner has been withheld for the period from 01.10.2003 to 31.03.2004 and 01.06.2004 to 31.07.2004.
Mr. Dubey, learned counsel appearing for the petitioner submits that the petitioner was constable at Jamshedpur and he was transferred in the month of June 2003 and transfer order was issued in which the name of the petitioner was also found. The petitioner was transferred from Jamshedpur to Palamau. Pursuant to application of the petitioner, the transfer of the petitioner was stayed by the Zonal I.G. of that Range. Thereafter, the petitioner was relieved w.e.f 01.08.2004 for joining at the transfer place. The petitioner was put under suspension on 29.07.2004. By application of the petitioner dated 30.07.2004, in which the petitioner prayed for payment of his salary, prayed for relieving him to join at transferred place and requested to revoke suspension and by order dated 02.08.2004, the petitioner was released from suspension. Petitioner also submits that two kamans were issued to join the transfer place one is dated 08.08.2004 and another is dated 13.08.2004. By order dated 12.09.2004, the petitioner was show-caused in the departmental proceeding and the petitioner has filed his reply on 07.10.2004. Vide order dated 20.01.2005 the petitioner was asked to file show cause reply. The petitioner filed his detailed reply on 10.02.2005. On the above facts, the departmental proceeding was initiated against the petitioner. The petitioner appeared in the departmental proceeding. The Enquiry Officer after appreciating entire facts and the witnesses came to the conclusion that the charges against the petitioner have not been proved. The Disciplinary Authority differed with the findings of the Enquiry Officer and passed the impugned order dated 28.02.2005 whereby the aforesaid punishment order has been inflicted upon the petitioner. Vide order dated 14.07.2005, the transfer of the petitioner was stayed permanently till the conclusion of the criminal case pending against the petitioner at Jamshedpur. The petitioner filed appeal before the appellate authority which is still pending. Aggrieved with the impugned order, the petitioner has preferred this writ petition.
The petitioner in W.P.(S) No. 6741 of 2007 has preferred this writ petition for quashing the order dated 18.01.2005 and appellate order dated 21.04.2006 whereby the salary of the petitioner has been withheld for the period from 01.07.2003 to 20.09.2004.
Mr. Dubey, learned counsel appearing for the petitioner submits that the petitioner was constable at Jamshedpur and he was transferred in the month of June 2003. Transfer order was issued and the petitioner was transferred to Chatra. By order dated 05.07.2001 his transfer was stayed. Again a memo charge dated 11.02.2004 was issued against him and pursuant of the memo departmental proceeding was initiated. The petitioner appeared in the departmental proceeding. The petitioner he submits that he has join the transferred place in the district of Chatra on 20.09.2004. The Enquiry Officer after appreciating entire facts and the witnesses came to the conclusion that the charges against the petitioner have not been proved. But on vide memo dated 28.10.2004 the petitioner has been asked to file show cause reply. The petitioner filed explanation on 20.11.2004. The Disciplinary Authority differed with the findings of the Enquiry Officer and passed the order dated 18.01.2005 whereby the aforesaid punishment order has been inflicted upon the petitioner. The petitioner filed appeal before the appellate authority which vide order dated 21.04.2006 affirmed the order of disciplinary authority. Aggrieved with these two orders, the petitioner has preferred this writ petition.
Mr. Dubey, learned counsel appearing or the petitioner(s) assailed the impugned order(s) on the ground that the punishment which has been inflicted upon the petitioner(s) has not reflected under Rule 824 of the Police Manual. Relying on Rule 90, he submits that in view of the Rule 90 of the Police Manual, the kamans services were issued to the constable in these cases. He submits that it is well settled that if the punishment is not prescribed in the Rule then other punishment cannot be inflicted upon the delinquent. To substantiate his argument he relied in the case of Vijay Singh V. State of Utter Pradesh & Ors. reported in 2012 (2) JLJR 2 SC Para 8 and 16 which reads as under:
"8. Admittedly, the punishment imposed upon the appellant is not provided for under Rule 4 of Rules 1991. Integrity of a person can be withheld for sufficient reasons at the time of filling up the Annual Confidential Report. However, if the statutory rules so prescribed it can also be withheld as a punishment. The order passed by the Disciplinary Authority withholding the integrity certificate as a punishment for delinquency is without jurisdiction, not being provided under the Rules 1991, since the same could not be termed as punishment under the Rules. The rules do not empower the Disciplinary Authority to impose "any other" major or minor punishment. It is a settled proposition of law that punishment not prescribed under the rules, as a result of disciplinary proceedings cannot be awarded.
Undoubtedly, in a civilized society governed by rule of law, the punishment not prescribed under the statutory rules cannot be imposed. Principle enshrined in Criminal Jurisprudence to this poena sine lege which means that a person should not be made to suffer penalty except for a clear breach of existing law. H.S. Khushboo vs. Kanniammal & Anr., AIR 2010 SC 3196, this Court has held that a person cannot be tried for an alleged offence unless the Legislature has made it punishable by law and it falls within the offence as defined under Section s 40, 41 and 42 of the Indian Penal Code, 1860, Section 2(n) of Code of Criminal Procedure 1973, or section 3 (38) of the General Clauses Act, 1897. The same analogy can be drawn in the instant case through the matter is not criminal in nature.
Thus in view of the above, the punishment order is not maintainable in the eyes of law.
He also relied in the case of State of Uttar Pradesh and others Vs. Madhav Prasad Sharma reported in (2011) 2 SCC 212 and submits that this case is on the same point which has also been considered by the Hon'ble Supreme Court. He further submits that the Enquiry Officer has exonerated the petitioner(s) and the disciplinary authority differed with the opinion of the Enquiry Officer. He further submits that, the disciplinary authority without following the procedure laid down by the Hon'ble Supreme Court in the case of the Punjab National Bank and Other vs. Kunj Behari Misra reported in (1998) 7 SCC 84 particularly in paragraph 9 of the judgment, has passed the impugned order(s). Mr. Dubey, on the strength of these two rules and judgments relied by him, submits that in view of the above the impugned order(s) cannot sustain in the eyes of law.
As per contra Mr. Shahil Kr. Rai, learned counsel appearing for the respondent submits that the petitioner in W.P.(S.) No. 972 of 2007 in paragraph 9 of the writ petition has depicted that he was suffering from second heart attack whereas it was found that he was not suffered from heart attack rather he was suffered from other disease. He submits that the contention of the petitioner is false. He submits that the superior authority was also not satisfied with the findings of the conducting officer and accordingly they pass the impugned order(s). He submits that the petitioner(s) has not joined the transfer place in spite of the order(s) of the higher authority.
Mr. Rai further relied on the judgment rendered by the Hon'ble Supreme Court in the case of the case of Rajinder Kumar Vs. State of Haryana & Another reported in the (2016) 15 SCC 693 paragraph 6 which reads as under:-
"It is not in serious dispute that the appellant is a serious patient of tuberculosis. According to the disciplinary authority as well as the appellate authority, the appellant became completely unfit for service in view of the background of the unauthorized absence on many occasions. Once a person is found unfit for service on account of intermittent and unauthorized absence for which the delinquent though has a reasonable explanation, no doubt, there is no point in continuing him in service either by reverting him or by imposing punishments like stoppage of increment, etc. But the question is, whether dismissal is the only option in such situations where an employee is found unfit for service. We have no doubt in our mind that indiscipline of any sort cannot be tolerated at all in a disciplined force. However, in the factual background of the appellant which we have referred to above, the disciplinary authority or at least the appellate authority, should have considered whether a punishment other than dismissal would have been appropriate and whether dismissal is the only punishment available and appropriate in the circumstances. The fact that different punishments are prescribed under the Rules shows that there is a discretion vested on the competent authority to decide what should be the proper punishment taking note of the nature of misconduct, its gravity and its impact on the service. Having regard to the facts and circumstances of each case, the disciplinary authority has to take a proper decision on punishment."
He further submits that in view of the case of Rajinder Singh Vs. State of Haryana & Another, the quantum of punishment is in accordance with charge and no interference by this Court is required in the impugned order(s). He further relied in the case of Union of India Vs. P. Gunaeshekaran reported in (2015) 2 SCC 610 and submits that the High Court is very slow in interfering with the impugned order of punishment under Article 226 of the Constitution of India.
So far as the judgments relied by the learned counsel for the respondents are concerned they are distinguishable in the facts and circumstances of these cases. The impugned order(s) are not under challenge on the ground of proportionality and accordingly the case of the petitioner is not covered by Rajinder Kumar (supra) not applicable so far as the case in hand is concerned. The law laid down in the case of Union of India Vs. P. Gunaeshekaran (supra) it is well settled law that so far as disciplinary proceeding is concerned there is no scope of interference by the High Court under article 226 of the Constitution of India, unless a case of interference is made out.
Having heard learned counsel for the parties, this Court finds that so far Rule 824 of Police Manual is concerned punishment awarded to the petitioner is not prescribed. Rule 90 of Police Manual prescribes about the Kaman certificate which was issued in favour of the petitioner(s) on such circumstances; the ground taken by the petitioner(s) is fully covered by the case Vijay Singh (supra) and the case of State of Uttar Pradesh and others Vs. Madhav Prasad Sharma (supra). In view of well settled legal proposition of law, the impugned order(s) cannot sustain in the eyes of law and accordingly, the same are, hereby, quashed and the writ petition (s) are allowed.
With the aforesaid directions and observations, the writ petitions stands allowed and disposed of.