Jharkhand High Court
Ajit Kumar Yadav Son Of Ramgrahi ... vs The State Of Jharkhand on 12 June, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 862 of 2016
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Ajit Kumar Yadav son of Ramgrahi Singh, resident of Village
Maheshpur Raj, PO PS Maheshpur Raj, District Pakur.
... Petitioner
-versus-
1. The State of Jharkhand.
2. Director General of Police cum Inspector General of Police
Jharkhand, Ranchi, Office at Project Building, Dhurwa, Ranchi.
3. The Deputy Inspector General of Police, Santhal Pargana Region,
Dumka.
4. The Superintendent of Police, Dumka.
... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Petitioner : Mr. Rajesh Kumar, Advocate
Mr. Amit Kumar, Advocate
Mr. Manindra Kumar Sinha, Advocate
For the Respondents : Mr. Aman Kumar, AC to G.P. I
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ORDER
RESERVED ON 01.03.2023 PRONOUNCED ON 12.06.2023
Petitioner, in this writ petition, has prayed for quashing the letter
dated 24.06.2011, in connection with Departmental Proceeding No.18 of 2011,
whereby the petitioner has been dismissed from service. Further, appellate
order dated 19.12.2011 passed by the Deputy Inspector General of Police vide
memo No. 1958/SA.SHA is also under challenge as the Appellate Authority
dismissed the department appeal of the petitioner. The memorial order dated
07.09.2015, whereby the memorial of the petitioner has been dismissed is also
under challenge.
2. Learned counsel appearing on behalf of the petitioner submits that
the order of punishment is shockingly disproportionate to the proved
misconduct. When the punishment is shockingly disproportionate to the proved
misconduct, the Court can exercise the jurisdiction under Article 226 of the
Constitution of India and set aside the order of punishment. He further argued
that co-delinquent, namely, Ram Shankar Mishra was punished with only
stoppage of increment, whereas if the allegations are properly weighed, it will
be evident that the charge against the said Ram Shankar Mishra was much
graver. The allegation against Ram Shankar Mishra is that he, in connivance
with the petitioner, had sent off the petitioner from duty, as a result of which
the criminal, who was under treatment in the hospital, managed to escape. On
the aforesaid charge, the petitioner has been dismissed, whereas the said
Ram Shankar Mishra was punished with stoppage of increment. This disparity
is a ground for challenging the order of punishment. He submitted that the
allegation that because of negligence of this petitioner the under trial prisoner,
who was undergoing treatment at Sadar Hospital, managed to escape, is
without any basis, thus finding the petitioner guilty cannot be sustained.
Counsel for the petitioner also submitted that the Appellate Authority did not
take into consideration the concept of parity of punishment and rather
dismissed the appeal in a most mechanical manner.
3. Counsel appearing for the State submitted that the chargesheet
was submitted against the petitioner and the petitioner was subjected to a
Departmental Proceeding. The Enquiry Officer found the charge to be proved,
thus, the petitioner was dismissed from service. There is no procedural
illegality or irregularity in the instant case, thus, this Court should not interfere
with the order of punishment. The petitioner, who is in the police force, acted in
a most irresponsible manner, which led to escape of a criminal from Sadar
Hospital, thus, the punishment cannot be said to be disproportionate.
4. I have also gone through the pleadings of the parties. Petitioner
was a constable and was serving in the District Police Force, Dumka. Two
prisoners were under treatment at Sadar Hospital, Godda. The petitioner was
on duty. Hawaldar-in-charge was on leave. On 03.03.2011, petitioner left his
place of duty without informing anyone. The prisoners, thereafter, on
04.03.2011, escaped. When the petitioner was questioned, he stated that he
did not flee from his duty, but, for some time, went out. It was later on detected
that in absence of this petitioner, the other Guard was covering him up and
was giving an impression that this petitioner was still on duty. Further, it was
found that when the petitioner left his place of duty, he kept his fire-arms and
ammunitions in the prisoners' ward of the hospital in a box, which was not
properly secured also, whereas the District Armory was hardly 100 meters
from the hospital. With the aforesaid charges, chargesheet was issued to the
petitioner vide memo No.373 dated 09.03.2011. Enquiry Officer was
appointed. The Enquiry Officer conducted the enquiry and found the charges
to be proved, thus, submitted the report to the Disciplinary Authority. The
Disciplinary Authority, after completing all the procedures, considering the
Enquiry Report, passed the order dated 24.06.2011, dismissing the petitioner
from service. The appeal preferred by the petitioner was also dismissed and
so was the memorial.
5. The scope of interference in a Departmental Proceeding, by
exercising jurisdiction under Article 226 of the Constitution of India, is very
limited. This Court, while exercising jurisdiction under Article 226 of the
Constitution of India, is not sitting in appeal. This is not an appellate
jurisdiction. The Hon'ble Supreme Court, in the case of Director General of
Police, Railway Protection Force and Others vs. Rajendra Kumar Dubey
reported in (2020) SCC OnLine SC 954 has held that the High Court cannot
act as a Court of appeal. In the said judgment, at paragraph 33 thereof, while
referring to the decision in the case of Andhra Pradesh versus S. Srii Rama
Rao reported in AIR 1963 SC 1723, the Hon'ble Supreme Court has observed
as under: -
33. In State of Andhra Pradesh v. S. Sree Rama Rao, a
three judge bench of this Court held that the High Court
under Article 226 of the Constitution is not a court of
appeal over the decision of the authorities holding a
departmental enquiry against a public servant. It is not
the function of the High Court under its writ jurisdiction
to review the evidence, and arrive at an independent
finding on the evidence. The High Court may, however
interfere where the departmental authority which has held
the proceedings against the delinquent officer are
inconsistent with the principles of natural justice, where
the findings are based on no evidence, which may
reasonably support the conclusion that the delinquent
officer is guilty of the charge, or in violation of the
statutory rules prescribing the mode of enquiry, or the
authorities were actuated by some extraneous
considerations and failed to reach a fair decision, or
allowed themselves to be influenced by irrelevant
considerations, or where the conclusion on the very face
of it is so wholly arbitrary and capricious that no
reasonable person could ever have arrived at that
conclusion. If however the enquiry is properly held, the
departmental authority is the sole judge of facts, and if
there is some legal evidence on which the findings can
be based, the adequacy or reliability of that evidence is
not a matter which can be permitted to be canvassed
before the High Court in a writ petition.
6. In the case of Union of India versus P. Gunasekaran reported in
(2015) 2 SCC 610 at paragraph 13 the Hon'ble Supreme Court has held as
under:-
13. Under Articles 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 the
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.
7. Further, in the case of Lucknow Kshetriya Gramin Bank versus
Rajendra Singh reported in (2013) 12 SCC 372 at paragraph 17 has held as
follows: -
17. If there is a complete parity in the two sets of cases,
imposing different penalties would not be appropriate as
inflicting of any/higher penalty in one case would be
discriminatory and would amount to infraction of the
doctrine of equality enshrined in Article 14 of the
Constitution of India. That is the ratio of Rajendra Yadav
case, already taken note above. On the other hand, if
there is some difference, different penalty can be meted
out and what should be the quantum is to be left to the
appellate authority. However, such a penalty should be
commensurate with the gravity of misconduct and cannot
be shockingly disproportionate. As per the ratio of
Obettee (P) Ltd. case even if the nature of misconduct
committed by the two sets of employees is same, the
conduct of one set of employees accepting the guilt and
pleading for lenient view would justify lesser punishment
to them than the other employees who remained adopted
the mode of denial, with the result that charges stood
proved ultimately in a full-fledged enquiry conducted
against them. In that event, higher penalty can be
imposed upon such delinquent employees. It would
follow that choosing to take a chance to contest the
charges such employees thereafter cannot fall back and
say that the penalty in their cases cannot be more than
the penalty which is imposed upon those employees who
accepted the charges at the outset by tendering
unconditional apology.
At paragraph 19 of the aforesaid judgment, the Hon'ble Supreme
Court has summarized the various principles as discussed in the said
judgment, which read as under: -
19. The principles discussed above can be summed up
and summarized as follows:
19.1 When charge(s) of misconduct is proved in an
enquiry the quantum of punishment to be imposed in a
particular case is essentially the domain of the
departmental authorities.
19.2 The courts cannot assume the function of
disciplinary /departmental authorities and to decide the
quantum of punishment and nature of penalty to be
awarded, as this function is exclusively within the
jurisdiction of the competent authority.
19.3 Limited judicial review is available to interfere with
the punishment imposed by the disciplinary authority,
only in cases where such penalty is found to be shocking
to the conscience of the court.
19.4 Even in such a case when the punishment is set
aside as shockingly disproportionate to the nature of
charges framed against the delinquent employee, 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.
19.5 The only exception to the principle stated in para
19.4 above, would be in those cases where the co-
delinquent is awarded lesser punishment by the
disciplinary authority even when the charges of
misconduct were identical or the co-delinquent was
foisted with more serious charges. This would be on the
doctrine of equality when it is found that the employee
concerned and the co-delinquent are equally placed.
However, there has to be a complete parity between the
two, not only in respect of nature of charge but
subsequent conduct as well after the service of charge-
sheet in the two cases. If the co-delinquent accepts the
charges, indicating remorse with unqualified apology,
lesser punishment to him would be justifiable.
Thus, as per paragraph 19.4, when two delinquents, arising out of
the same act, are charged with different punishment, the Court can interfere
with such cases.
8. On this background, I have scrutinized the chargesheet, the
enquiry report, the order of punishment and also the appellate order. The
allegation against the petitioner is that he left his place of duty without
informing his senior authorities. As per the Department, this was in connivance
with the other police officials including one Ram Shankar Mishra. Further, the
allegation against the petitioner is that he kept his arms and ammunitions in
prisoners' ward in a most unsecured manner, when the District Armory was
100 meters away from the hospital. Taking advantage of irresponsibility of this
petitioner and others, the prisoners managed to escape. There is an allegation
that the petitioner and others connived and helped the prisoners to escape.
While I go through the enquiry report, I find that though the fact that he was on
duty on the date when the prisoners escaped has been proved, but, there is no
material to prove that he has connived with the prisoners or others to facilitate
them to escape. Further, I find that the Enquiry Officer relied upon the
evidence of Ram Shankar Mishra, who testified against this petitioner. This
Police Officer Ram Shankar Mishra was also involved in the same incident and
he was also a delinquent in a Departmental Proceeding and was charged vide
order dated 09.03.2011 for committing misconduct. Be it noted that Ram
Shankar Mishra was on duty along with this petitioner in the said hospital.
9. So far as the punishment is concerned, I find that the petitioner
has been inflicted with punishment of dismissal from service whereas Ram
Shankar Mishra was only punished with stoppage of an increment. From the
charge, it would be clear that this petitioner and Ram Shankar Mishra, they
both left from the place of duty, i.e., the hospital. Taking advantage of their
absence, prisoners fled. Though there were two Departmental Proceedings,
one against this petitioner and one against Ram Shankar Mishra, charge
against both of them was proved, but, surprisingly, this petitioner was
dismissed from service and Ram Shankar Mishra was punished with stoppage
of one increment. The punishment was inflicted by the same authority, i.e., the
Superintendent of Police, Godda. Ram Shankar Mishra was punished on
09.03.2011, whereas this petitioner was punished on 24.06.2011.
10. The petitioner preferred an appeal and the appellate order dated
19.12.2011 vide Memo No.1958 has been brought on record. When I go
through the appellate order, I find that the Appellate Authority narrated the
facts of the case and thereafter held that since sufficient opportunity was
granted to the petitioner and the petitioner defended himself, thus, felt that
there is no ground to interfere with the order of punishment.
11. The statutory Appellate Authority has to dispose of the appeal,
considering the grounds taken by the delinquent employee. In a mechanical
manner, the appeal cannot be disposed. Merely writing that he has considered
the grounds and the defence of the delinquent is not sufficient. The appellate
order should reflect that he has considered the grounds. The Appellate
Authority should deal with the grounds taken by the delinquent. In the instant
case, I find that this consideration is lacking in the appellate order. The
Appellate Authority has not dealt with the grounds taken by the petitioner.
Merely writing the word 'considered' is not sufficient and will not even suggest
that the defence has been dealt with. The word 'consider' has been explained
by the Hon'ble Supreme Court in the case of Chairman, Life Insurance
Corporation of India & Others versus A. Masilamani reported in (2013) 6
SCC 530. In paragraph 19 of the said judgment, the Hon'ble Supreme Court
has held that an opinion has to be formed by the statutory authority, which
should be reflected on the records itself. Paragraph 19 of the said judgment
reads as under: -
19. The word "consider" is of great significance.
The dictionary meaning of the same is, "to think
over", "to regard as", or "deem to be". Hence,
there is a clear connotation to the effect that there
must be active application of mind. In other words,
the term "consider" postulates consideration of all
relevant aspects of a matter. Thus, formation of
opinion by the statutory authority should reflect
intense application of mind with reference to the
material available on record. The order of the
authority itself should reveal such application of
mind. The appellate authority cannot simply adopt
the language employed by the disciplinary
authority and proceed to affirm its order. (Vide
India Oil Corpn. Ltd. v. Santosh Kumar and
Bhikhubhai Vithalbhai Patel v. State of Gujarat).
12. As held earlier, there was no material before the Enquiry Officer to
arrive at a finding that the petitioner had connived with the other delinquent
and the prisoners. Further, more or less on the same allegation, arising out of
same transaction, one delinquent, namely, Ram Shankar Mishra was punished
with lesser punishment than that of the petitioner. Further Ram Shankar
Mishra, who was himself a chargesheeted employee, arising out of the same
transaction, was allowed to depose in this case against the petitioner. These
aspects have not been taken note of by the Appellate Authority. Be it noted
that in view of the principles laid down by the Hon'ble Supreme Court in the
case of Lucknow Kshetriya Gramin Bank (supra) the punishment order can
be challenged on the ground of parity also.
13. Considering what has been held above, I am of the opinion that
the Appellate Authority has not exercised his jurisdiction, primarily, which
ought to have been exercised. Thus, I am inclined to set aside the appellate
order. Consequently the memorial order is also set aside. The matter is
remitted before the Appellate Authority to decide the appeal of the petitioner
afresh and pass a reasoned order dealing with the defence of the petitioner.
The Appellate Authority may grant one opportunity of hearing to the petitioner.
It is made clear that the appeal should be disposed of afresh within a period of
12 (twelve) weeks from the date of receipt of a copy of this order.
14. This writ petition stands disposed of.
(Ananda Sen, J.)
Kumar/Cp-02
