Dilip Kumar Singh vs The State Of Jharkhand ...
2021 Latest Caselaw 1212 Jhar

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               IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 6871 of 2017

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Dilip Kumar Singh, s/o Sri Ram Balak Singh, r/o Village-Bela, PO-Chiriwan, PS-Atri, Dist.-Gaya, Bihar ..... Petitioner

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1.The State of Jharkhand represented thorugh Principal Secretary, Home, Prison and Crisis Management Department, Jharkhand, Ranchi

2.The Principal Secretary, Home, Prison and Crisis Management Department, Jharkhand, Ranchi

3.The Inspector General of Jail, Jharkhand at Ranchi, PO and PS Dhurwa, District Ranchi, Jharkhand

4.The Jail Superintendent, Mandal Jail, Dhanbad, PO and PS and District Dhanbad, Jharkhand ..... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Rajendra Krishna, Advocate Mr. Rajiv Ranjan Tiwary, Advocate For Resp.-State :- Mr. P.A.S. Pati, GA-II

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6/10.03.2021 Heard Mr. Rajendra Krishna, the learned counsel assisted by

Mr. Rajiv Ranjan Tiwary, the learned vice counsel appearing for the

petitioner and Mr. P.A.S. Pati, the learned counsel appearing on behalf of

the respondent State.

2. This writ petition has been heard through Video

Conferencing in view of the guidelines of the High Court taking into

account the situation arising due to COVID-19 pandemic. None of the

parties have complained about any technical snag of audio-video and

with their consent this matter has been heard.

3. The petitioner has prayed for quashing the order dated

11.09.2017 passed by the appellate authority and for quashing the order

dated 20.04.2016 passed by the disciplinary authority whereby the

petitioner has been dismissed from service.

4. The petitioner was appointed as Constable in the year 1983

and in that capacity the petitioner was transferred to various jail and in

2014 the petitioner was working as Kakshapal in the District Jail,

Dhanbad. On 17.04.2014, as the senior warden was on leave, the

petitioner was given charge of senior warden and accordingly the

petitioner took charge of 927 prisoners after 12 p.m. when the prisoners

had to be counted. In the evening when the prisoners were again

counted it was found that one prisoner namely Ram Bilash Tantubai was

missing and alarm was raised by the petitioner and the said fact was

being informed to the senior officials. The said prisoner escaped from

the jail by jumping the wall of the jail. The petitioner was suspended

from service and was directed to report at Lok Nayak Jai Prakash Narayan

Central Jail, Hazaribagh where the petitioner was served with the charge

sheet (Prapatra-ka) with the charge of negligence. A departmental

proceeding was initiated against the petitioner and the enquiry officer

and the presenting officer were appointed. The petitioner participated in

the departmental proceeding and in the enquiry, the enquiry report was

submitted wherein the charge against the petitioner has been said to be

proved. The petitioner was issued second show cause. The petitioner

replied the second show cause and after considering the second show

cause, the disciplinary authority by order dated 20.04.2016 dismissed the

petitioner from service. The petitioner filed the appeal before the

appellate authority and the appellate authority by order dated 11.09.2017

confirmed the dismissal order. Aggrieved with this, the petitioner has

moved before this Court.

5. Mr. Rajendra Krishna, the learned counsel for the petitioner

assailed the impugned orders on the ground that the charge sheet has

not ben issued by the competent authority. He submits that in the case of

the petitioner the I.G., Prison is the appointing authority and the charge

sheet in question has been issued by the Superintendent of Divisional

Jail, Dhanbad. He submits that the charge sheet itself was incompetent

and on this ground alone, this writ petition is fit to be allowed.

6. He further relied in the case of Union of India v. B.V.

Gopinath, (2014) 1 SCC 351 , paragraph 4, 51, 52 and 53 of the said

judgment are quoted hereinbelow:

"4. On 7-9-2005/8-9-2005, whilst working on the aforesaid post, Mr Gopinath (Respondent 1) was served with a charge-sheet under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 [hereinafter referred to as "the CCS (CCA) Rules"]. The said charge-sheet was issued on the allegation that in 2003 the respondent was alleged to have approached one chartered accountant in Chennai for securing his transfer to Mumbai by offering bribe to the PA to the then Minister of State (Revenue). Thus, the charge levelled against the respondent was that he failed to maintain integrity; and exhibited a conduct which is unbecoming of a government servant. The respondent submitted his reply to the allegations wherein he denied the charges levelled against him. He requested for supply of certain documents. In due course, the inquiry officer and the presenting officer were appointed.

51. Ms Indira Jaising also submitted that the purpose behind Article 311, Rule 14 and also the Office Order of 2005 is to ensure that only an authority that is not subordinate to the appointing authority takes disciplinary action and that rules of natural justice are complied with. According to the learned Additional Solicitor General, the respondent is not claiming that the rules of natural justice have been violated as the charge memo was not approved by the disciplinary authority. Therefore, according to the Additional Solicitor General, CAT as well as the High Court erred in quashing the charge-sheet as no prejudice has been caused to the respondent.

52. In our opinion, the submission of the learned Additional Solicitor General is not factually correct. The primary submission of the respondent was that the charge-sheet not having been issued by the disciplinary authority is without authority of law and, therefore, non est in the eye of the law. This plea of the respondent has been accepted by CAT as also by the High Court. The action has been taken against the respondent in Rule 14(3) of the CCS (CCA) Rules

which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges. The term "cause to be drawn up" does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority. The term "cause to be drawn up" merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed "definite and distinct articles of charge-sheet". These proposed articles of charge would only be finalised upon approval by the disciplinary authority. Undoubtedly, this Court in P.V. Srinivasa Sastry v. CAG has held that Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, at the same time it is pointed out that: (SCC p. 422, para 4) "4. ... However, it is open to the Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority."

It is further held that: (SCC p. 422, para 4) "4. ... Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holders of a civil post."

53. Further, it appears that during the pendency of these proceedings, the appellants have, after 2009, amended the procedure which provides that the charge memo shall be issued only after the approval is granted by the Finance Minister."

7. He further submits that in the enquiry proceeding not even

a single witness has been examined and only on the basis of the

documents the enquiry officer has come to the conclusion and submitted

the report and stated that the charge against the petitioner has been

proved. He submits that in the enquiry proceeding also at least some

evidence is required to be laid to prove those documents which has not

been made in the case in hand. To buttress his argument, he relied in

the case of 'Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570,

paragraph 23 of the said judgment is quoted hereinbelow:

"23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."

8. He further submits that the charge is with regard to

negligence and only on the negligence the petitioner has been dismissed

and the punishment order is disproportionate to the charge and on the

point of disproportionate of charge, he relied on in the case of B.C.

Chaturvedi v. Union of India, (1995) 6 SCC 749, paragraph nos. 22, 23 and

24 of the said judgment are quoted hereinbelow:

"22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.

23. It deserves to be pointed out that the mere fact

that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh case13 that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article

142. That, however, is a different matter.

24. What has been stated above may be buttressed by putting the matter a little differently. The same is that in a case of a dismissal, Article 21 gets attracted, and, in view of the interdependence of fundamental rights, which concept was first accepted in the case commonly known as Bank Nationalisation case, which thinking was extended to cases attracting Article 21 in Maneka Gandhi v. Union of India15, the punishment/penalty awarded has to be reasonable; and if it be unreasonable, Article 14 would be violated. That Article 14 gets attracted in a case of disproportionate punishment was the view of this Court in Bhagat Ram v. State of H.P. also. Now if Article 14 were to be violated, it cannot be doubted that a High Court can take care of the same by substituting, in appropriate cases, a punishment deemed reasonable by it."

9. He further relied in the case of Colour-Chem Ltd. v. A.L.

Alaspurkar, (1998) 3 SCC 192, paragraph 14 of the said judgment is

quoted hereinbelow :

"14. So far as this point is concerned it has to be held that when the punishment of dismissal was shockingly disproportionate to the charges held proved against them

reinstatement with continuity of service was the least that could have been ordered in their favour. There is no question of the appellant losing confidence in them. In this connection learned Senior Counsel for the appellant tried to submit that apart from going to sleep in the early hours of the morning when the night shift was coming to a close the machine was kept working and that would have created a hazard for the working of the plant and the possibility of an explosion was likely to arise. So far as this contention is concerned it must be stated that this was not the case of the management while framing the charge-sheets against the workmen. Not only that, there is not a whisper about the said eventuality and possibility in the evidence led by the management before the Labour Court. But that apart no such contention, even though mentioned in the written objections before the Labour Court, was ever pressed into service for consideration before the Labour Court at the stage of arguments, nor any decision was invited on this aspect. No such contention was also canvassed by the appellant in revision before the Industrial Court or before the High Court. This contention, therefore, must be treated to be clearly an afterthought and appears to have been rightly given up in subsequent stages of the trial by the management itself. All that was alleged by its witness before the Court was that because of the respondents going to sleep and allowing the machine to work without pouring raw material therein the production went down to some extent. That has nothing to do with the working of the unattended machine becoming a hazard or inviting the possibility of any explosion. Under these circumstances and especially looking to the past service record of the respondents it could not be said that the management would lose confidence in these workmen. The work which they were doing was not of any confidential nature which an operator has to carry out in the plant. It was a manual work which could be entrusted to anyone. Consequently the submission of learned Senior Counsel for the appellant, that in lieu of reinstatement compensation may be awarded to the respondents, cannot be countenanced. It must,

therefore, be held that the Labour Court was quite justified in ordering reinstatement of the respondent-workmen with continuity of service. However because of the misconduct committed by them, of sleeping while on duty in the night shift the Labour Court has imposed the penalty of depriving the workmen, Respondents 3 and 4 respectively, of 60% and 50% of the back wages. After the award they have been granted 100% back wages till reinstatement.

But, in our view, as Respondents 3 and 4 went to sleep while on duty and that too not alone but in the company of the entire staff of 10 mazdoors, they deserve to be further punished by being deprived of at least some part of their back wages even after the award of the Labour Court till actual reinstatement. Interest of justice would be served, in our view, if Respondent 3 is directed to be paid only 40% of the back wages even after the award of the Labour Court till actual reinstatement pursuant to our present order. Similarly Respondent 4 will be entitled to only 50% back wages even after the date of the Labour Court's award till actual reinstatement as per the present order. In addition thereto, the appellant-management will be entitled to give written warnings to both these respondents when they are reinstated in service not to repeat such misconduct in future. The imposition of this type of additional penalty, in our view, would be sufficient in the facts and circumstances of the case and will operate as a suitable corrective for the respondent-employees. They have suffered enough since more than 14 years. They are out of service for all these 14 years. At the time when they went to sleep in the night shift they were pretty young. Now they have naturally grown up in age and with the passage of years more maturity must have dawned on them. Under these circumstances the cut in the back wages as imposed by the Labour Court and as further imposed by us would be quite sufficient to act as a deterrent for them so that such misconduct may not be committed by them in future. The third point is answered as aforesaid by holding that the order of reinstatement is justified but the order of back wages as ordered by the Labour Court requires to be modified to the aforesaid

extent."

10. On these grounds, he submits that the impugned orders are

required to be interfered by this Court and the writ petition may kindly

be allowed.

11. Per contra, Mr. P.A.S. Pati, the learned counsel appearing on

behalf of the respondent State submits that the supplementary counter

affidvait has be filed pursuant to the order of this Court wherein it has

been stated that the charge sheet got approval from the competent

authority i.e., I.G., Prison. He refers to page 13 of the supplementary

counter affidavit and submits that the I.G., Prison has approved the

appointment of the enquiry officer as well as the presenting officer. He

submits that Praptra-Ka was also looked into by the I.G, Prison and in

that view of the matter, the approval of the I.G., Prison was there. He

submits that the charge sheet has been issued by the competent

authority. He draws the attention of the Court to the enquiry proceeding

and submits that the enquiry officer has considered the Rule 302 of the

Jail Manual. He submits that the entire responsibility is on the petitioner

in the light of Rule 302 and enquiry officer has rightly considered the

Rule 302. He submits that the onus lies upon the petitioner to prove his

innocence and the petitioner's has failed to prove it. There is no illegality

in the enquiry proceeding, he submits that negligence is required to be

dealt with strictly as the petitioner was discharging the duty of warden in

the concerned jail. Mr. Pati, the learned State counsel tried to distinguish

the judgments relied by Mr. Rajendra Krishna, the learned counsel

appearing for the petitioner in the case of 'Union of India v. B.V. Gopinath'

(supra) and submits that the facts of that case were different whereas in

the case in hand, the competent authority has proved the charge sheet.

On these grounds, he submits that the writ petition is fit to be dismissed.

12. In the light of the above facts and the submissions of the

learned counsels appearing for the parties, the Court has gone through

the materials on record. On perusal of the Annexure-1 (Prapatra-ka)

contained in the writ petition, it transpires that the charge sheet has been

issued by the Superintendent of Divisional Jail, Dhanbad. The case of the

petitioner is being fortified in the light of the judgment rendered in the

case of 'Union of India v. B.V. Gopinath (supra). On perusal of the

supplementary counter affidavit filed by the respondent State, it

transpires that the note sheet has been placed before the I.G. concerned

and the I.G concerned has only seen the appointment of the enquiry

officer and the presenting officer and he has directed to conclude the

departmental proceeding. On perusal of the documents annexed with the

supplementary counter affidavit, the Court has not found that there is

any approval with regard to the charge sheet of the petitioner. Rule 29 of

the Jail Manual clearly stipulates that every Jailor, Assistant and

Probationary Assistant Jailor, medical subordinate, compounder and the

subordinate staff and clerk employed in the manufactory department of

Central and District jails shall be appointed by the Inspector General and

shall not be dismissed by any officer subordinate to him. On perusal of

the supplementary counter affidavit, it also transpires that there is no

approval of the charge sheet by the disciplinary authority. Thus, the Court

comes to the conclusion that the charge sheet was not issued by the

competent authority. On perusal of the enquiry proceeding annexed with

the writ petition, it is apparent that not even a single witness has been

examined to prove the charge against the petitioner. It is well settled that

even for proving the document in the enquiry proceeding, atleast some

witnesses are required to be laid to prove those documents which has not

been done in the case in hand and this aspect of the matter has been

considered by the Hon'ble Supreme Court in the case of 'Roop Singh

Negi' (supra). In the enquiry report, the enquiry officer at page 6 has

come to the conclusion that the entire responsibility cannot be fastened

upon the petitioner. So far as negligence is concerned, for discharging

the duty misconduct would not constitute unless the consequences

directly attributable to the negligence would be such as to irreparable or

the resulted damage would be so heavy with the degree of culpability

would be very high. In the case in hand, the prisoner has been arrested

on the next day and who was also examined in the enquiry proceeding

and he has disclosed the fact how he has escaped from the jail. The

dismissal order also shocks the conscience of the Court.

13. As a cumulative effect of the above discussion, the

impugned orders will not sustain in the eye of law, and, accordingly, the

impugned orders dated 11.09.2017 and 20.04.2016 are quashed.

14. The matter is being remitted back to the competent

authority who will consider the case of the petitioner in the light of the

discussions made hereinabove and will pass the reasoned order.

15. With the aforesaid observations and direction, the writ

petition stands allowed and disposed of.

( Sanjay Kumar Dwivedi, J) SI/,,