Jharkhand High Court

Shyama Kant Jha vs The State Of Jharkhand on 20 January, 2021

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
               W.P.(S) No. 6070 of 2009
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     Shyama Kant Jha                              ..... Petitioner
                                  Versus
     1.   The State of Jharkhand.

2. The Director General of Police, Govt. of Jharkhand, Project Building, Dhurwa, Ranchi.

3. The Deputy Inspector General of Police, Jharkhand Armed Police, Sector-II, Qtr. No. E/305, Dhurwa, Ranchi.

4. The Commandant, Jharkhand Armed Police-5, Deoghar.

..... Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. J.P.Jha, Sr. Advocate For the Respondents : Mr. Devesh Krishna, S.C.(Mines)III

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13/Dated: 20th January, 2021 Heard through V.C.

2. The instant writ application has been preferred by

the petitioner praying for quashing the order as contained

in Memo No. 92 dated 06.06.2009 issued by the

Respondent No.3.

3. Mr. J.P.Jha, learned senior counsel for the petitioner

referred to an order passed in C.W.J.C. No. 5839 of 1999(R)

and submits that the petitioner had earlier moved before

this Court challenging the order of punishment dated

27.11.1998 passed by the respondent no. 3 and the said

writ application was disposed of by observing that the

petitioner had not invoked the statutory revisional remedy

provided under the Act and the respondents were directed

to consider the same and also to consider the issue of

disproportionate punishment. While referring to the

aforesaid judgment learned senior counsel submits that a

fresh order has been passed by the appellate authority, but

he has not considered the grounds taken by the petitioner

and no reason has been assigned in the impugned order.

He further contended that there was a specific direction by

this Court to consider the issue of proportionality of

punishment; however, not even a single line has been

uttered by the appellate authority. He further submits that

the charge against the petitioner is trivial in nature.

In support of his contention, learned senior counsel

relied upon the judgment delivered in the case of Indu

Bhushan Dwivedi Vs. State of Jharkhand, as reported in

2007 (2) JLJR 328, wherein at para 18 of this Court has

held as under:

18. When such a request has been made by the delinquent himself, it is the bounden duty of the disciplinary authority to have a look at the past records of the petitioner as desired by him mainly to consider if any lesser punishment than the dismissal like demotion or compulsory retirement could be inflicted upon the petitioner, on the basis of the past records."

He further referred to a judgment delivered in the

case of Jai Bhagwan Vs. Commr. of Police & Ors, as

reported in [(2013) 3 JCR 347 (SC)] wherein the Hon'ble

Apex Court at para 13 to 16 has held as under;

"13. Coming to the case at hand we are of the view that the punishment of dismissal from service for the

kind of misconduct proved against the appellant appears to us to be grossly disproportionate. There is no allegation that the appellant had manhandled the police Inspector who had gone to check the cabin. Delay of 10 minutes in opening the cabin door, which according to the appellant was open but had got stuck because of humidity leading to expansion of the wooden frame, was not a matter that ought to have led to the appellant's dismissal after he had served the police force for over 10 years. Even assuming that the version given by the appellant was not acceptable the same did not constitute a misconduct of a kind that would justify the appellant's dismissal from service leading to forfeiture of his past service. That the appellant was not in uniform may also be breach of discipline calling for administrative action against him but not so severe as to throw him out of the police force. The analogy drawn by the appellant in this case and that of Ram Kishan's case (supra) is not, therefore, wholly misplaced. The delinquent in that case too was charged with misbehavior with his superior leading to his dismissal from service which was found by this Court to be disproportionate to the nature of misconduct calling for moderation.

14. Having said that we cannot ignore the fact that the appellant had falsely accused the Inspector of having used casteist abuses to humiliate him which allegation on an inquiry was found to be totally false. It is obvious that the appellant had tried to use the caste card only to escape punishment for the misconduct and indiscipline committed by him. There is no manner of doubt that an allegation like the one made by the appellant could have resulted in his prosecution and dismissal of the superior officer from service. The appellant's case in that view is not on all four corners of Ram Krishna to call for such

leniency as was shown to Ram Krishna.

15. 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 could 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 un-usual but by no means impermissible course of reducing the punishment to the extent indicated above.

16. These appeals are accordingly allowed in the above terms; with a further direction that the respondents shall do the needful expeditiously but not later than three months from the date of this order. No costs."

4. Mr. Devesh Krishna, learned counsel for the

respondent-State submits that the factual part of the

impugned order clearly transpires that show-cause notice

was given to the petitioner and the authority has

considered each and every point raised by the petitioner in

his reply. He further contended that by any stretch of

interpretation, the impugned order cannot be termed as an

order without any reason. Further, the charge leveled

against the petitioner has been fully proved in the

proceeding and the same is very serious in nature. Since

there is no procedural irregularity in the impugned order;

the instant writ application deserves to be dismissed.

In support of his contention he relied upon the

judgment passed in the case of Samar Bahadur Singh Vs.

State of U.P. & Ors, as reported in (2011) 9 SCC 94,

wherein at para 8, the Hon'ble Apex Court has held as

under;

"8. Now, the issue is whether punishment awarded to the appellant is disproportionate to the offence alleged. The appellant belongs to a disciplinary force and the members of such a force are required to maintain discipline and to act in a befitting manner in public. Instead of that, he was found under the influence of liquor and then indulged himself in an offence. Be that as it may, we are not inclined to interfere with the satisfaction arrived at by the disciplinary authority that in the present case punishment of dismissal from service is called for. The punishment awarded, in our considered opinion, cannot be said to be shocking to our conscience and, therefore, the aforesaid punishment awarded does not call for any interference."

He further relied upon the judgment passed in the

case of Govt. of A.P. & Ors., Vs. Mohd. Nasrullah Khan,

as reported in (2006) 2 SCC 373 wherein at para 15 it has

been held as under;

"15. This takes us to the last submission of the counsel for the respondent. Learned counsel for the respondent contended that the offence, said to have been committed, being minor in nature and no loss being caused to the owner of the property, inasmuch as the same had been recovered on the spot, lenient punishment may be awarded in place of dismissal from service. We are unable to countenance this submission. The gravity of the offence must necessarily be measured with the nature of the offence. The respondent was a member of a disciplined force holding the rank of Head Constable. The duty assigned to him was a "bandobast" duty during the visit of the then President Bill Clinton, who ran a security risk of the highest grade. His misconduct could have led to serious security lapse resulting in fatal consequences. But, because of timely detection by the electrician, PW 4, the lens was recovered and immediately restored. We entirely agree with the inquiry officer that the charges are serious in nature, being committed by a member of a disciplined force, who deserved stringent punishment. To instil the confidence of the public in the establishment, the only appropriate punishment in such cases is dismissal from service, which has been correctly awarded."

5. Having heard learned counsel for the parties and

after going through the averments made in the respective

affidavits, it appears that the petitioner had earlier moved

before this Court in C.W.J.C. No. 5839 of 1999 (P) and the

said case was disposed of by passing the following order:-

"The petitioner has not invoked the statutory Revisional remedy provided under the act. The respondents are directed to consider the same and also the issue of disproportionate punishment within a period of three months from the date of receipt of representation of the petitioner."

6. From the impugned order it appears that initially the

facts have been narrated and thereafter, the point which

has been raised by the petitioner has been reproduced and

finally the order of rejection has been passed. For better

appreciation of the case, the operative portion of the

appellate order is quoted herein below:

ÞvihydÙkkZ }kjk vius vihy vH;kosnu esa vU; dksbZ Bksl fcUnq ugha mBk;k x;k gS ftlds vk/kkj ij muds fo:} yxk;s x;s vkjksi [kf.Mr gks ldsA lefiZr vihy vH;kosnu ,oa ml ij lekns"Vk dh dafMdkokj Js.kh rFkk ewy foHkkxh; dk;Zokgh lafpdk esa jf{kr vfHkys[k ;Fkk& lk{; izn'kZ ds c;ku izFke ,oa vafre Li"Vhdj.k dk vihydrkZ ij yxk;s x;s vkjksi ds vkyksd esa foospu fd;k x;kA lekns"Vk }kjk bl ekeys esa iqoZfopkj djus ds mijkUr gh rF;ksa dsa vkyksd esa vkns'k ikfjr fd;k x;k gS ftlesa fdlh izdkj ds la'kks/ku vko';drkZ izrhr ugh gksrh gSaAS vr% fopkjksijkUr bl vihy vH;kosnu dks vLohd`r fd;k tkrk gSaASÞ

7. From bare perusal of the operative portion of the

impugned order it appears that the authority has not

applied his mind and just confirmed the punishment

inasmuch as, there was a specific direction by this Court in

the earlier writ application to consider the case of the

petitioner on the issue of disproportionate punishment;

however, there is no finding with regard to quantum of

punishment in the entire order-sheet.

In this view of the matter this court is of the view

that the respondent authority shall reconsider the case of

the petitioner and pass a reasoned order taking into

consideration the issue of disproportionate punishment.

8. Consequently, the impugned order as contained in

Memo No. 92 dated 06.06.2009 is quashed and set aside.

The matter is remitted back to the respondent no. 3 with a

direction to reconsider the appeal of the petitioner only on

the quantum of punishment and pass a fresh order. It is

made clear that since the petitioner has attained the age of

superannuation, as such the entire exercise shall be

completed by the appellate authority within a period of four

months from the date of receipt/production of the copy of

this order.