Narwedeshwar Ray vs State of Jharkhand and Others

Rongon Mukhopadhyay, J.—Heard Mr. Mohan Kumar Dubey, learned counsel for the petitioner and Mr. Prem Pujari, learned J.C. to G.A.

In this writ application, the petitioner has prayed for quashing memo No. 110/Go dated 23.04.2004 passed in departmental proceeding No. 25/03 by the respondent No. 3, whereby and whereunder the petitioner''s services has been terminated. Further, the petitioner has challenged the memo No. 74/Go dated 22.07.2003 passed by respondent No. 4, whereby and whereunder the appeal preferred by the petitioner has also been rejected.

The facts leading to the present case is that the petitioner was an employee of Jharkhand Armed Police and while he was posted in J.A.P. Police Training Centre, Padma vide memo No. 2283 dated 21.10.2003, the petitioner was suspended for being absent from duty and the memo of charge was served upon him.

In the departmental proceeding, vide memo No. 110/Go dated 24.04.2004, the petitioner was dismissed from service on the ground of unauthorized absence from duty. Thereafter, the petitioner preferred an appeal before respondent No. 4, which also met with the same fate vide order dated 10.11.2006. Petitioner being aggrieved by the order of termination as well as its confirmation, had preferred a writ application being W.P.(S) No. 6429 of 2012. In the said writ application, an order was passed by this Court on 10.04.2013 by which the writ application was allowed, and the matter was remitted to respondent No. 4 to consider the petitioner''s appeal and dispose of the same afresh in accordance with law. The appellate authority i.e. respondent No. 4 passed the order on 22.07.2013 vide memo No. 74/Go, by which the appeal preferred by the petitioner was once again dismissed.

Being aggrieved by the dismissal of appeal, the petitioner has preferred this present writ application.

Learned counsel for the petitioner has submitted that even earlier also, the order of appeal was set aside by this Court in W.P. (S) No. 6429 of 2012 on the ground that the appellate order was cryptic and no reasons were assigned while dismissing the appeal of the petitioner. It has also been submitted that petitioner was dismissed from service on the allegation of unauthorizedly making himself absent from duty, for 16 days, which was highly disproportionate to the charge. Learned counsel for the petitioner has further submitted that the appellate order dated 22.07.2013 has mostly dealt with the previous record of the petitioner which is de hors the provision of rule 826 of the Bihar Police Manual.

Learned J.C. to G.A. on the other hand has submitted that even after the remand, the petitioner had failed to submit any medical prescriptions to lead credence to his contention that he was mentally sick during the intervening period of 16 days. It has also been submitted that the petitioner was in-charge of Magazine Duty and being on a responsible post, it was incumbent upon him to inform or take prior leave but the petitioner on the contrary had left his place of work without informing his superiors and absented himself for 16 days. While considering the nature of his job, it was a grave misconduct and in such circumstances, the punishment awarded to the petitioner cannot be said to be disproportionate to the charges leveled against him. It has further been submitted by the learned counsel for the respondents that although the previous record of the petitioner was taken into consideration in the appellate order dated 22.07.2013, but, apart from the said order, the fact that inability of the petitioner to submit the necessary documents in support of his claim, were taken into consideration, as also the nature of job of the petitioner, and, therefore it cannot be said that solely on the ground of his previous conduct, the appellate order has been passed.

The petitioner had preferred a departmental appeal against the order dated 24.04.2004, passed by the disciplinary authority and the said departmental appeal was disposed of by passing a very cryptic order which fact had been taken into consideration by this Court in W.P.(S) No. 6429 of 2012 while remitting the matter to the appellate authority i.e. respondent No. 4, to consider the petitioner''s appeal and dispose of the same afresh in accordance with law. The ground which has been urged by the learned counsel for the petitioner in W.P.(S) No. 6429 of 2012 and which has also been urged in this writ application is with respect to rule 826 of the Bihar Police Manual which according to the learned counsel for the petitioner has not been taken into consideration while dismissing the appeal on 22.07.2013. Rule 826 of the Jharkhand Police Manual reads as follows:

"826. Discrimination necessary in awarding punishments. - The punishment awarded should be in conformity with the gravity of offence with which the officer is charged and offences involving moral turpitude shall be carefully discriminated from smaller wrong doings. It should also be borne in mind that the previous record of service of the officer concerned, if it is not already included in the charge of the proceeding shall not be taken into account for determining the quantum of punishment.

The objective of awarding punishment is firstly to keep a record of the wrong doings of the officer and secondly as a measure of correction to alert him to improve his work and conduct. Several punishments awarded in one lot such as during inspections which do not provide an opportunity to the delinquent officer to improve himself are not likely to be helpful. In any case, the punishment cannot be awarded without carefully, considering the defence of the delinquent officer.

Before issuing orders of minor punishment, it is necessary to apprise the delinquent of the substance of the charges against him and he should be given adequate opportunity for defence. After this has been ensured, the punishment can be awarded. However, in the case of major punishments (see Rule 828) formal proceedings in P.M. Form No. 178 will have to be drawn up."

(Emphasis supplied)

It is apparent from perusal of rule 826 of Jharkhand Police Manual that if the previous record of services of the officers concerned is not included in the charge of the proceeding, the same shall not be taken into consideration for the purpose of deciding the quantum of punishment.

The charge memo which has been annexed to the writ application discloses a single charge which is to the effect that on 05.08.2003 in the morning, the petitioner without taking permission or without informing the higher officials deserted the campus and returned back in the afternoon on 16.08.2003 i.e. after 16 days.

The charge memo at sub para-2 amply discloses about the past conduct of the petitioner and that in spite of the punishment given earlier there was no positive change in the conduct of the petitioner. This indication in the memo of charge cannot be said to be inclusive of the charge. The charge has been distinctly prepared and the reference with respect to the past conduct is by no stretch of imagination said to be a part of charge which was framed against the petitioner. Under such circumstances rule 826 of Jharkhand Police Manual will squarely apply, but this fact has perhaps escaped the attention of the respondent No. 4 while dismissing the appeal of the petitioner on 22.07.2013.

In this context learned counsel for the petitioner has referred to a judgment in the case of Braj Kishor Singh Vs. State of Jharkhand and Others, (2005) 2 BLJR 1415 : (2005) 106 FLR 993 : (2005) 3 JCR 274 wherein it was held as follows:

"7. Adverting to the impugned proceeding, I find that the earlier charge of overstayal and the then punishment given to the petitioner was not included in the subsequent charge. The petitioner was proceeded against for overstayal of only 38 days. The petitioner was put under suspension by order dated 11.11.2003 while the petitioner reported on duty on 06.12.2003. There is no question of absence from duty during the period of suspension i.e. from 03.11.2003 to 06.12.2003. The petitioner was on leave from 24.10.2003 to 28.10.2003 and he was to report on duty on 29.10.2003 and as such only after overstayal of leave for five days the petitioner was put under suspension with effect from 03.11.2003. The respondents while passing the impugned orders have not taken the same into consideration. The impugned orders have been passed on the basis of the charge of overstayal of 38 days which is itself erroneous. The respondents have also taken into consideration the previous service records, though the same were not included in the charge of the proceeding. The same is contrary to the provisions of Rule 843 of the Bihar Police Manual. The appellate authority has not at all considered the grounds taken in appeal petition and passed his order mainly on the basis of the previous record holding that the petitioner habitually overstayed the leave. There are medical documents and other documents to support the petitioner''s explanation but the same have not been properly considered by the respondents. It has not been denied that the application for extension of leave was sent by the petitioner by post, but it has not been considered on the ground that the petitioner did not approach the Head Quarter in person to obtain the order of extension of leave. Rule 843 provides that if after explanation, it appears that a police officer had remained absent from duty due to any sufficient reason, he shall be granted leave admissible to him for that period and the punishment is to be inflicted only in the cases where it is proved that the delinquent has violated the rules at his own will. Respondent No. 4 has arbitrarily rejected all the medical documents for not submitting the cash memos of purchase of medicines whereas the petitioner had submitted the death certificate of his Badi Maa and the documents of investigation done in Uphar Seva Sadan and is Colposcopy Center, Sono-Echo Centre and the reports of Ultrasonographic consultation and other documents of the relevant period. The petitioner has also brought on record the copy of the application for extension of leave and the postal registration receipt. As aforesaid, receipt of application has also not been denied by the respondents. It appears from the records that the petitioner had to overstay leave under the compelling circumstances firstly due to the death of his elder aunt (Badi Maa) and thereafter due to serious illness of his wife, which required immediate treatment. The petitioner produced sufficient records in support of the same but without giving due consideration, the respondents have inflicted the punishment of compulsory retirement. It is pertinent to mention that earlier for overstayal of leave about 192 days, the petitioner was awarded only a minor punishment of a black mark, but this time the petitioner has been given punishment of compulsory retirement without any reasonable justification. The said punishment is thus unconscionable, excessive and disproportionate to the charge and the impugned orders of the respondents are arbitrary and violative of the Rules 826 and 843 of the Bihar Police Manual and the same are wholly unsustainable."

Thus, in view of the provisions enumerated in rule 826 of the Jharkhand Police Manual, which when considered in the backdrop of memo of charge served upon the petitioner will reveal that the appellate authority did not consider the said provision in its proper perspective.

So far as contention of the learned counsel for the petitioner with respect to the fact that the appellate authority has only considered the past records of the petitioner and has not stated the ground of dismissal of the petitioner from service with respect to his absence from duty for 16 days, I find from the appellate order that on remand, the petitioner could not even produce any single chit of paper to drive home the fact that the petitioner was indeed under treatment and that he was mentally unfit to attend his duty. This fact has been considered by the appellate authority wherein it has been clearly stated that there was no documents in support of the petitioner i.e. neither any prescriptions nor any medicines regarding his claim for mental illness was produced. Therefore, in such circumstances, the contention of the learned counsel for the petitioner that the defence of the petitioner was not taken into consideration by the appellate authority, and the appellate authority, affirmed the order of termination from service only on the basis of the past conduct of the petitioner is hereby rejected. However, with respect to the punishment imposed upon the petitioner and whether the same is in commensuration with the charge, the appellate order does not disclose that the said fact was considered.

Learned counsel for the petitioner has placed reliance upon the judgment rendered in the case of Rajasthan Tourism Devt. Corporation Ltd. and Another Vs. Jai Raj Singh Chauhan, (2012) 135 FLR 743 : (2012) 4 LLJ 1 : (2011) 6 SCALE 449 : (2011) 13 SCC 541 , and the same relates to absence of 66 days, wherein the punishment of dismissal from service was set aside. The order of the High Court was affirmed and the learned single judge had held as follows-

"That for absence of 66 days, the economic death-knell of the petitioner has been caused by the impugned orders. Therefore, this Court is of the opinion that the punishment is shockingly disproportionate to the nature of the misconduct committed by the petitioner."

Learned counsel for the petitioner has further placed reliance upon the judgment rendered in the case of Jai Bhagwan Vs. Commr. of Police and Others, (2013) 7 AD 694 : AIR 2013 SC 2908 : (2013) 138 FLR 776 : (2013) 9 JT 176 : (2013) LabIC 3139 : (2013) 8 SCALE 392 : (2013) 11 SCC 187 : (2013) 4 SCT 607 : (2013) 3 SLJ 56 wherein, the Hon''ble Supreme Court while considering the order of punishment, which was not proportionate with the charge held as follows-

"16. In the totality of these circumstances, we are of the view that while dismissal from service of the appellant is a harsh punishment the order for dismissal could be substituted by an order of reduction to the rank of a constable with the direction that while the appellant shall have the benefit of continuity of service, he shall not be entitled to any arrears of pay or other financial benefits for the period between the date of dismissal and the date of his reinstatement against the lower post of constable. We are conscious of the fact that this Court cold in the ordinary course remit the matter back to the disciplinary authority for passing a fresh order of punishment considered proper but we are deliberately avoiding that course. We are doing so because the order of dismissal of the appellant was passed in the year 2001. A remand at this distant point of time is likely to lead to further delay and litigation on the subject which is not in the interest of either party. We have, therefore, upon an anxious thought as to the quantum of punishment that is appropriate taken the unusual but by no means impermissible course of reducing the punishment to the extent indicated above."

At this juncture, the learned counsel for the petitioner has submitted that absence of the petitioner for 16 days was not willful and in such circumstances, the same cannot be treated as misconduct. In the said context, he has referred to a judgment rendered in the case of Krushnakant B. Parmar Vs. Union of India (UOI) and Another, (2012) 132 FLR 1023 : (2012) 2 JT 352 : (2012) 2 SCALE 545 : (2012) 3 SCC 178 : (2012) 2 SLJ 19 : (2012) AIRSCW 1633 : (2012) 2 Supreme 254 wherein it was held as follows-

"18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct."

Without entering into the realm of dispute as to whether the absence of the petitioner was willful or not, the contention of the petitioner has been restricted to the highly disproportionate punishment which was imposed upon the petitioner and which has not been considered by the appellate authority as discussed above. The appellate order was passed on 22.07.2013, while taking into consideration the past conduct of the petitioner and there is no separate finding by the appellate authority as to whether the punishment awarded by the disciplinary authority is in commensuration with the charge for which the petitioner was proceeded against. In such circumstances, in absence of such findings, the appellate order dated 22.07.2013 passed by respondent No. 4 cannot be sustained.

Accordingly, the order dated 22.07.2013 is hereby quashed, and the matter is remitted back to the respondent No. 4 to take a decision in accordance with law only with respect to the punishment which should be proportionate to the charge leveled against the petitioner.

This writ petition is allowed and disposed of.