Jharkhand High Court

Kailash Paswan vs The State Of Jharkhand on 18 February, 2021

                                       1

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              W.P.(S) No.1198 of 2012
             (An application under Article 226 of the Constitution of India)
                                    -------

             Kailash Paswan                          ...     ...     Petitioner
                                    Versus
             1.     The State of Jharkhand.

2. Regional Deputy Inspector General of Police, Kolhan Region at Chaibasa, West Singhbhum.

3. Superintendent of Police, Chaibasa, West Singhbhum.

4. Sri Ram Deo Prasad, Enquiry Officer-cum-Police Inspector, Chakradharpur Circle, West Singhbhum.

                                                ...    ... Respondents
                                      -------
                                    PRESENT
                    HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                    -------
             For the Petitioner       :Mr. Gautam Kumar, Adv.
             For the Res.State        : Mr. Jagdish, A.C. to S.C.I
                                    -------
By Court:-              Heard learned counsel for the parties through

             V.C.

2. The instant writ application has been preferred

by the petitioner praying therein for quashing the order as

contained in Memo No.2591 dated 30.05.2008 passed by

the respondent no.3; whereby the petitioner has been

awarded punishment of dismissal from service and it has

been ordered that nothing shall be paid for the period

under suspension and amount of subsistence allowance

shall be adjusted against half earned leave and also for

quashing of the appellate order as contained in Memo

No.477 dated 30.03.2011 passed by the Regional Deputy

Inspector General of Police, Kolhand Region at Chaibasa

whereby the punishment of dismissal awarded by the

Disciplinary authority has been affirmed and appeal has

been rejected. The petitioner has further prayed for a

direction upon the respondent authorities to reinstate the

petitioner in service with all consequential benefits with

and full back wages.

3. The facts as disclosed in the writ application are

that in the year 2004, the petitioner was working with the

concerned respondents as a Police constable and was

posted at Barajamda O.P. On 31.03.2004, an incident

occurred, in which Bada Jamad Police Outpost (District

Chaibasa) was attacked by extremists at 2 p.m and the

extremist looted rifles and cartridges. The petitioner has

also sustained injuries and was under medical treatment.

On 31.03.2004, at the time of attack, petitioner was not on

guard duty rather one Bandhan Oraon was on duty.

On 05.04.2004, the Superintendent of Police,

Chaibasa sent a detailed report to the Deputy Inspector

General of Police, Special Branch, Jharkhand, Ranchi

about the incident, mentioning:-

(a) place of occurrence falls in naxal vested

area-without proper boundary at outpost.

(b) around 40 to 50 extremists attached while

another 10 to 20 stood in guard.

taking rest.

(d) Reasons for incident-unsafe location, small

size of police outpost, less no. of police personnel in

outpost.

(e) It was suggested to depute more police

personals.

4. At the outset, learned counsel for the petitioner

submits that due to the same occurrence of extremist

activities apart from this petitioner who was deputed as

"Guard"; one Rajesh Mani Singh was also charge-sheeted;

who was a "Santri" on the fateful date.

The said Rajesh Mani Singh and the petitioner

were separately charge-sheeted for almost same and similar

charges of negligence and coward and ultimately both the

employees were dismissed from service. The only difference

between the said case and this case is that this petitioner

was "Santri" whereas the petitioner of W.P(S) No.1752 of

2008 was 'Guard'. However the power and responsibility of

both the personnel were same and similar and this Court

in W.P.(S) No.1752 of 2008 after considering the entire

facts and circumstances quashed the impugned order of

punishment and the matter was remitted back to pass a

fresh order on the quantum of punishment.

Learned counsel for the petitioner fairly submits

that since the nature of duty of "Guard" and "Santri" are

same and similar; which has not been controverted by the

learned counsel for the State, the instant writ application

may also be remitted back and a fresh order may be passed

against this petitioner. He concluded his argument that

pursuant to the order of remand by this Court, the

respondent authorities have passed a fresh order by

lowering the punishment and now the said personnel is

posted at his respective place.

5. Learned counsel for the respondent-State fairly

submits that the cause of action and the incident of this

case is same and similar and the only difference is that the

petitioner in this case is "Guard" whereas the petitioner in

W.P.(S) No.1752 of 2008 was "Santri" however, rest all facts

are same and similar.

6. On specific query from this Court as to the power

and nature of duty with regard to the "Santri" and "Guard";

learned counsel fairly submits that only difference is that

the Santri is posted at Malkhana and the Guard is posted

at post. However it is an admitted fact that there was an

attack of extremist activities and after enquiry it was

suggested to depute more police personnel at the place of

occurrence.

7. Having regard to the facts of the case and after

going through the order passed in W.P.(S) No.1752 of 2008

it appears that this Court has critically examined the entire

facts and circumstances of the extremist activities as well

as the detailed report submitted by the Superintendent of

Police, Chaibasa and finally quashed the impugned order

by holding at paragraph no.7 & 8 which are quoted herein

below:-

"7. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow : -

(i) At best, it may be a case of failure to attain high standards of efficiency in duty and would not constitute a misconduct and no misconduct of the petitioner is made out from the charges levelled against him.

(ii) Instead of proving the charges with evidence, entire departmental proceeding has been an exercise to shift the burden of proving the negative on the petitioner, which is not permissible under law.

(iii) Shortcomings of the police outpost was a major cause for the incident and the Police Outpost was not being maintained as per the Police Manual, for which the authorities are alone to be blamed and not the petitioner.

(iv) Petitioner has specifically pleaded that other police personnels also, who were present at the place of occurrence were not departmentally proceeded with and one Shankar Thakur has been awarded lessor punishment and no parity is being maintained with co-delinquents. Hence, this is a case of discrimination.

(v) The entire incident was a matter of circumstances and the punishment awarded is disproportionate to the charges levelled against the petitioner.

(vi). The Hon'ble Apex Court in case of State of Uttar Pradesh and Others Vs. Raj Pal Singh reported in (2010 )5 SCC 783 has been pleased to hold in paragraph 6, which is quoted hereinbelow:

"6. It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the Constitution."

(vii). The Hon'ble Apex Court in the case of Lucknow Kshetriya Gramin Bank &Anr.

Vs. Rajendra Singh as reported in (2013) 12 SCC 372 in the placitum held as under:

"However, the judicial review of the quantum of punishment is available with a very limited scope. The court would frown upon only when the penalty imposed appears to be so disproportionate to the nature of misconduct that it is shocking to the conscience of the court. Even in such a case when the punishment is set aside as shockingly disproportionate, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority

with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case."

8. On cumulative effect of the facts, reasons and judicial pronouncements and as a logical sequitor, the impugned order of punishment dated 24.09.2007 (Annexure-16), passed by the Respondent No. 6 and the order dated 04.01.2008 (Annexure-18), passed by the Respondent No. 5 being not legally sustainable are hereby, quashed and set aside and the matter is remitted to the respondents to consider the matter afresh and pass appropriate order on the quantum of punishment within a period of four months.

8. Respectfully relying the aforesaid judgment

passed in W.P.(S) No.1752 of 2008 and also the facts and

circumstances of this case that the nature of work of

"Santri" is not very much different from that of "Guard" and

as such, applying the same analogy and same reasons; the

impugned order as contained in Memo No.2591 dated

30.05.2008 passed by the respondent no.3 whereby the

petitioner has been awarded punishment of dismissal from

service and appellate order as contained in Memo No.477

dated 30.03.2011 whereby the punishment of dismissal

awarded by the Disciplinary authority has been affirmed

and appeal has been rejected are, hereby, quashed and set