Jitendra Kumar Pandey vs The State Of Jharkhand
2021 Latest Caselaw 830 Jhar

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    L.P.A. No.606 of 2019
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Jitendra Kumar Pandey, aged about 28 years, son of Late Ram Chandra Pandey, resident of Village - Basriha, P.O. - Deokuli, P.S. - Ichak, District - Hazaribagh.

                                          ...    ...     Appellant
                             Versus
1. The State of Jharkhand.

2. The Director General of Police, Jharkhand, Ranchi, having its office at Police Headquarters, Dhurwa, P.O. & P.S. - Dhurwa, District - Ranchi.

3. The Additional Director General of Police, Jharkhand, Ranchi, having its office at Police Headquarters, Dhurwa, P.O. & P.S. - Dhurwa, District - Ranchi.

4. The Deputy Inspector General of Police, (C.D.I.), Jharkhand, Ranchi, having its office at Nepal House, P.O. & P.S. - Doranda, District - Ranchi.

5. The Superintendent of Police, Nepal House, Ranchi P.O. & P.S. Doranda & District - Ranchi.

                                           ...    ... Respondents
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CORAM :           HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Mr. Indrajit Sinha, Advocate Mr. Ajay Kumar Pathak, Advocate For the Respondents : Ms. Jyoti Nayan, A.C. to G.P.-V

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ORAL JUDGMENT

Order No. 10 : Dated 22nd February, 2021

With the consent of the parties, hearing of the matter

has been done through video conferencing and there is no

complaint whatsoever regarding audio and visual quality.

2. The statement made in supplementary affidavit dated

25.01.2021 explains the defect Nos. 4 and 5 and as such

both are ignored, especially in view of the order dated

13.08.2019 passed in I.A. No. 7629 of 2019 whereby name of

the sole deceased writ petitioner was directed to be expunged

and his legal representatives and successors were directed to

be impleaded but correction could not be made in the file.

I.A. No. 5582 of 2020

3. This interlocutory application has been preferred under

Section 5 of the Limitation Act for condoning the delay of 150

days in preferring this Letters Patent Appeal.

4. Heard parties.

5. Having regard to the averments made in the application

and submissions made on behalf of the appellant, we are of

the view that the appellant was prevented from sufficient

cause in filing the appeal within the period of limitation. As

such, the delay of 150 days in preferring the appeal is hereby

condoned.

6. I.A. No. 5582 of 2020 stands allowed.

L.P.A. No. 606 of 2019

7. The instant intra-Court appeal is under Clause 10 of the

Letters Patent directed against the order/judgment dated

13.08.2019 passed by learned Single Judge of this Court in

W.P.(S) No. 1035 of 2011 whereby and whereunder while

dismissing the writ petition, the writ court has declined to

interfere with the order of punishment of compulsory

retirement inflicted upon the father of the writ

petitioner/appellant.

8. The brief facts of the case which need to be enumerated

herein, read as under :-

The father of the appellant, namely, Ram Chandra

Pandey, was appointed as Constable in the district of

Hazaribgh in the year 1973 and was promoted to the post of

Havildar on 01.07.1979. Subsequent thereto, he was

allocated the cadre in the State of Jharkhand and was being

posted in one place to another. In the year 2007 he was

posted in C.I.D. in the headquarter at Ranchi and while

working as such, a departmental proceeding has been

initiated by issuance of memorandum of charge for

commission of some irregularities. He was put under

suspension vide order dated 19.05.2009. Subsequently, the

suspension was revoked vide order dated 24.02.2010.

The father of the appellant was asked to submit reply to

the charges framed which was responded to on 28.05.2009

but the explanation furnished was not found satisfactory,

therefore, he was asked to appear before the Inquiry Officer.

The father of the appellant appeared before the Inquiry

Officer and defended the charge but the Inquiry Officer found

the charges proved and forwarded the same before the

disciplinary authority. The disciplinary authority issued

second show cause to the father of the appellant and he

submitted reply to the second show cause but the same was

also not found to be satisfactory and, therefore, punishment

of compulsory retirement was passed on 23.02.2010 which

was confirmed by the higher authority vide order dated

18.01.2011 by dismissing revision/memorial against which

the writ petition was filed.

The father of the appellant, in course of pendency of the

writ petition, has died and, therefore, the appellant, namely,

Jitendra Kumar Pandey, has been substituted to sue the

proceeding.

The order passed by the disciplinary authority has been

assailed before this Court by invoking jurisdiction conferred

under Article 226 of the Constitution of India but the said

writ petition has been dismissed by the learned Single Judge

of this Court on the ground that the charge has been found to

be proved by the Inquiry Officer and the due process of the

departmental proceeding has been followed which is the

subject matter of the present intra-court appeal.

9. Mr. Indrajit Sinha, learned counsel appearing for the

appellant, assisted by Mr. Ajay Kumar Pathak, submits that

the learned Single Judge has not appreciated the fact that

merely on account of half hour delay for two days, major

punishment of compulsory retirement has been inflicted that

too the Inquiry Officer has not recorded any finding about

proving or disproving of charge.

He further submits that so far as the allegation of not

carrying the confidential report to the office of concerned

Superintendent of Police is concerned, the father of the

appellant has only asked for issuance of certificate of

command as required under Rule 90 of the Police Manual but

the same was refused to be granted and forcefully the father

of the appellant was asked to carry confidential report to be

submitted before the concerned Superintendent of Police and

that cannot be said to be misconduct when the father of the

appellant had only asked to comply with the statutory

provision.

He further submits that the Inquiry Officer has not

appreciated this aspect of the matter nor the disciplinary

authority and further, the learned Single Judge has also not

appreciated this aspect of the matter, rather, the learned

Single Judge has considered the provision of Rule 60 of the

Police Manual which is not at all applicable in the facts of the

case and, therefore, the impugned order of punishment as

also the order passed by the learned Single Judge are not

sustainable in the eyes of law.

10. Ms. Jyoti Nayan, learned A.C. to G.P.-V, appearing for

the respondent State of Jharkhand, has submitted that there

is no error in the impugned order as the learned

Single Judge has considered the scope of judicial review to

interfere with the administrative decision of the authority in

inflicting punishment.

She submits that the learned Single Judge has also

considered that the charge has been found to be proved by

the Inquiry Officer which has been accepted by the

disciplinary authority and no complaint whatsoever has been

made by the delinquent employee about non-observance of

due procedure of law in the process of departmental

proceeding and, therefore, this Court may not interfere with

the impugned orders.

11. We have heard the learned counsel for the parties,

perused the documents available on record as also the

finding recorded by the learned Single Judge.

12. We deem it fit and proper before looking into the legality

and propriety of the impugned orders to discuss about the

scope of judicial review of the High Court in the matter of

departmental proceeding and imposition of punishment.

It is not in dispute that the scope of judicial review is

very least to be exercised by the High Court sitting under

Article 226 of the Constitution of India.

The Hon‟ble Apex Court while dealing with the scope of

power under Article 226 of the Constitution of India, has

considered the same in the case of Union of India & Others

vs. P. Gunasekaran reported in (2015) 2 SSC 610 wherein

at paragraph 13 thereof, the following guidelines have been

laid down for showing interference in the decision taken by

the disciplinary authority and not to interfere with the

decision which reads hereunder as:

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence.

13. Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience."

The Hon‟ble Apex Court in the case of Management of

State Bank of India vs. Smita Sharad Deshmukh and

Anr. reported in (2017) 4 SCC 75, it has been laid down

therein that it is equally settled position of law that the High

Court sitting under Article 226 of the Constitution of India

can certainly interfere with the quantum of punishment, if it

is found disproportionate to the gravity of offence.

The Hon‟ble Apex Court in the case of Central

Industrial Security Force and Ors. vs. Abrar Ali reported

in (2017) 4 SCC 507, wherein the following guidelines have

been laid down, showing interference by the High Court in

the matter of punishment imposed on conclusion of the

departmental proceeding, the extract of para 13, 14 and 15

thereof, are referred hereinbelow:

"13. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor.

The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence. It is settled law that re-appreciation of evidence is not permissible

in the exercise of jurisdiction under Article 226 of the Constitution of India.

14. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, [(2011) 4 SCC 584], this Court held as follows:

"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."

15. In Union of India v. P. Gunasekaran, [(2015) 2 SCC 610], this Court held as follows:

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:

(a) the inquiry is held by a competent authority;

(b) the inquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

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(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Article 226/227 of the Constitution of India, the High Court shall not:

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience."

It is evident from the judgment referred hereinabove that

the guidelines have been formulated for exercising the power

under Article 226 of the Constitution of India and the High

Court in exercise of power conferred can only see - whether

the authorities have disabled themselves from reaching a fair

conclusion by some considerations extraneous to the

evidence and merits of the case, the authorities have allowed

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themselves to be influenced by irrelevant or extraneous

considerations, the conclusion, on the very face of it, is so

wholly arbitrary and capricious that no reasonable person

could ever have arrived at such conclusion, the disciplinary

authority had erroneously failed to admit the admissible and

material evidence, the disciplinary authority had erroneously

admitted inadmissible evidence which influenced the finding

and the finding of fact is based on no evidence.

The High Court shall not re-appreciate the evidence,

interfere with the conclusions in the inquiry, in case the same

has been conducted in accordance with law, go into the

adequacy of the evidence, go into the reliability of the

evidence, interfere, if there be some legal evidence on which

findings can be based, correct the error of fact however grave

it may appear to be and go into the proportionality of

punishment unless it shocks its conscience.

13. The fact of the case in hand is that the respondents

have issued memorandum of charge alleging therein two

allegations first, that the father of the appellant used to come

to office not on time, rather after 11.30 a.m. and whenever he

wishes he used to go out of office for which on 08.05.2009 he

was cautioned. Second, on 08.05.2009 he was asked to carry

dak pertaining to weekly report but the same was refused to

be complied with on the plea that he was holding a post in

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the association. The inquiry proceeded, witnesses were

examined and the Inquiry Officer found the charge proved.

We deem it fit and proper to go across the Inquiry

Report in order to ascertain as to whether the charges have

been found to be proved by the Inquiry Officer and on what

basis.

So far as the first charge is concerned, it transpires from

the Inquiry Report that the names of several witnesses have

been referred with reference to their depositions made before

the Inquiry Officer wherefrom it is evident that none of the

witnesses have said in specific term about late coming of

office by the father of the appellant.

It is settled position of law that if the finding recorded by

the Inquiry Officer is found to be perverse and if any

punishment is based upon such perverse finding, the same is

not sustainable and further it is not in dispute that in the

departmental proceeding the principle of preponderance of

probability is to be seen but even then the Inquiry Officer is

required to come out with specific finding as has been held by

Hon'ble Apex Court in Triveni Rubber and Plastics,

Tiruvalla, Kerala v. Collector of Central Excise, Cochin

[1994 Supp (3) SCC 665] wherein at paragraph 3 it has been

laid down that unless some relevant evidence has not been

considered or that certain inadmissible material has been

taken into consideration the concurrent finding of fact cannot

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be disturbed in the appeal. Paragraph 3 of the said judgment

is referred hererunder :-

"3. In this appeal it is submitted by Mr Anam, learned counsel for the appellant that the estimate made by the Collector is arbitrary, based on no relevant material and is in the nature of a wild guess. He, therefore, requested that the matter may be remitted back to the Collector for further enquiry. We are unable to accede to the said submission. The quantum of tread-rubber produced in the appellant's factory during the said two years is a question of fact. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the concurrent finding of fact cannot be disturbed by us in this appeal under Article 136 of the Constitution. This is not also a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings."

So far as the second charge pertaining to not carrying

the weekly report (dak) is concerned, it requires to refer

herein that the allegation against the father of the appellant

is that he had asked for a certificate of command which was

found to be disobedience of the order passed by the higher

authority.

We have gone across the provision of Rule 90 of the

Police Manual which speaks about command certificate

stipulating therein that whenever a subordinate police officer

(upto Havildar) is deputed on any duty, a command

certificate in P.M. Form no.9 shall be given to him. He shall

carry it with him and produce it on his return before the

officer-in-charge who shall bring to the notice of the circle

inspector all instances of delay in the performance of any

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duty. Command certificate shall be filed in the office of origin,

except those for journeys involving payment of travelling

allowance, escort charges, etc. which shall be submitted to

the Superintendent. The said provision is being referred as

under :-

"90. Command certificates - Whenever a subordinate police officer (upto Havildar) is deputed on any duty, a command certificate in P.M. Form no.9 shall be given to him. He shall carry it with him and produce it on his return before the officer-in-charge who shall bring to the notice of the circle inspector all instances of delay in the performance of any duty. Command certificate shall be filed in the office of origin, except those for journeys involving payment of travelling allowance, escort charges, etc. which shall be submitted to the Superintendent (see Appendix 57). When more than one constable is deputed the command certificate shall indicate the names of all and the name of that constable shall also be written who will be incharge of the detachment."

It is evident from the provision as contained under Rule

90 of the Police Manual as referred hereinabove that a

command certificate is required to be issued by the

competent authority in case of deputation on any duty as

would be evident from the charge levelled against the

petitioner that he had asked for command certificate. The

question is, if a delinquent employee demands for compliance

of some statutory provision, can it be said to be misconduct.

The definition of „misconduct‟ is required to be referred

herein as has been defined by Hon'ble Apex Court in State of

Punjab and Others v. Ram Singh Ex-Constable [(1992) 4

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SCC 54] that the word „misconduct‟ though not capable of

precise definition, on reflection receives its connotation from

the context, the delinquency in its performance and its effect

on the discipline and the nature of the duty. It may involve

moral turpitude, it must be improper or wrong behaviour;

unlawful behaviour, wilful in character; forbidden act, a

transgression of established and definite rule of action or

code of conduct but not mere error of judgment, carelessness

or negligence in performance of the duty; the act complained

of bears forbidden quality or character. Its ambit has to be

construed with reference to the subject matter and the

context wherein the term occurs, regard being had to the

scope of the statute and the public purpose it seeks to serve.

The police service is a disciplined service and it requires to

maintain strict discipline. Laxity in this behalf erodes

discipline in the service causing serious effect in the

maintenance of law and order.

Our answer would be, it cannot be said to be

misconduct because the misconduct only means if any

action of the employee is contrary to the service

jurisprudence or the job assigned to him which is not

expected from such employee but that spirit is not applicable

in the facts of this case since it is admitted case of the

respondents that a command certificate was asked to comply

with the order of the higher authority for carrying the weekly

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report. If such demand has been made by the delinquent

employee for carrying the confidential documents from one

place to another, the insistence for compliance of the said

statutory provision cannot be said to be a misconduct and as

such, according to our considered view, the very genesis of

the charge about the said allegation of commission of

misconduct on account of fact that the father of the appellant

had asked for command certificate, cannot be termed as

misconduct in view of the provision of Rule 90 of the Police

Manual.

14. Learned Single Judge, instead of answering the issue

about the provision of Rule 90 of the Police Manual, has gone

across the provision of Rule 60 which is not relevant for the

issue as because the said provision speaks about disposal of

station diaries. The said rule provides that the Circle

Inspector has extracted from station diaries all information

required for his daily report, he shall file the diaries in his

office, and at the end of the month they shall be sent to the

office of the Superintendent for record but that provision and

the provision contained under Rule 90 cannot be segregated

as because provision of Rule 60 only provides for transmitting

of record to the office of Superintendent but how it will be

carried out, the same is to be done in pursuance to the

provision of Rule 90 i.e., by issuance of command certificate.

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The learned Single Judge has considered the provision

of Rule 60 that even in case of no command certificate the

record can be transmitted to the office of Superintendent for

record and thereby has found the allegation levelled against

the father of the appellant in this regard to be true but we are

not in agreement with such finding otherwise, the provision

as contained under Rule 90 will be redundant.

Further, if the Police manual contains a provision under

Rule 90 for issuance of command certificate, the same has

got meaning in the present context since the father of the

appellant was asked to carry confidential record from one

office to another that cannot be said to be proper in absence

of issuance of command certificate to an employee who has

been asked to carry the file to transmit it from one office to

another and, therefore, the charge levelled in this regard, in

our considered view, to be said to be non est and being

contrary to the statutory provision as contained under Rule

90 of the Police Manual.

15. We have considered the judgment rendered by the

Hon'ble Apex Court about the power of judicial review in

exercise of power conferred under Article 226 of the

Constitution of India and taken into consideration the fact

that no finding has been recorded by the learned Single

Judge about late coming to the office in spite of warning and

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further, we have also not found from the deposition of the

witnesses about proving of the said charge and, therefore,

according to our considered view, the conclusion, on the very

face of it, is found to be arbitrary and capricious that no

reasonable person could ever have arrived at such

conclusion, finding of fact is based on no evidence and

further the disciplinary authority had erroneously admitted

inadmissible evidence which influenced the finding.

So far as the second charge is concerned, since we have

already held hereinabove that it cannot be said to be

misconduct as per the detailed discussion made hereinabove,

therefore, we are of the view that the order passed by the

disciplinary authority cannot be held to be sustainable in the

eyes of law.

The learned Single Judge has not appreciated the facts

as discussed hereinabove and, therefore, the said judgment is

also required to be interfered with.

16. Accordingly, the order passed by the learned Single

Judge as also the order passed by the disciplinary authority

dated 18.01.2011 are quashed and set aside. The appeal

stands allowed and is disposed of. Consequently, the writ

petition also stands allowed.

17. So far as the issue of back wages is concerned, we are

not inclined to pass direction upon the authority to disburse

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the back wages to the appellant on account of applicability of

no work no pay, however, the period of absence will be

treated on duty for consequential benefits as also for

pensionery benefits.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.)

Birendra/ A.F.R.