Jharkhand High Court
Bishwanath Majee vs The State Of Jharkhand on 16 February, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4956 of 2015
Bishwanath Majee, aged about 39 years, Constable No 2498, son of
Bhudev Chandra Majee, resident of Village - Digwadih, No.- 10,
Dumaria Tanrd Busti, P.O. - Jelgora, P.S. - Jorapokhar, District -
Dhanbad (Jharkhand) ... ... Petitioner
-Versus-
1. The State of Jharkhand
2. The Principal Secretary, Ministry of Home Affairs, Government of
Jharkhand, Project Building, P.O. & P.S. - Dhurwa, District -
Ranchi
3. The Deputy Inspector General of Police, Coal Belt, Bokaro, at P.O.
P.S. & District - Bokaro
4. The Superintendent of Police, Dhanbad at P.O., P.S. & District -
Dhanbad ... ... Respondents
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner : Mr. Swapan Maji, Advocate
For the Respondents : Mr. Navneet Toppo, AC to GP I
---
17/16.02.2024 Heard the learned counsels for the parties.
2. This writ petition has been filed for the following reliefs:
"i. Quashing Order dated 5.2.2015 passed by Superintendent of
Police, Dhanbad, in DNB 434/15, by which Respondent No.4 has
convicted the Petitioner in Departmental Proceeding and has
removed the Petitioner from service of Police and for quashing
order of punishment as removal of service dated 25.01.2016 passed
by Deputy Inspector General of Police, Dhanbad in Departmental
Appeal No.13/14; and for
ii. Commanding the Respondents to allow the Petitioner to continue
in his service during the pendency of this application; and for
iii. Issuance of a writ in the nature of prohibition for restraining the
Respondents from acting in pursuance to order of petitioner's
removal as contained in Annexure - 11; and / or
iv. In the alternative for commanding the Respondents for disposal of
the Departmental Appeal of the Petitioner as early as possible;
and for any other relief(s) for which the Petitioner is entitled in
law."
3. This writ petition was earlier dismissed vide judgment dated
07.03.2022 against which the petitioner preferred an appeal being
L.P.A. No.152 of 2022.
4. Before the Hon'ble Division Bench the petitioner confined his
argument to the limited aspect regarding non-compliance of the
principles of natural justice and submitted that the writ Court did not
consider the question as it was not pleaded in the writ application.
Consequently, the amendment was filed at the appellate stage to
incorporate the question of non-compliance of principle of natural
justice. It was stated that the witnesses were examined in presence of
the petitioner but the petitioner was never allowed to cross-examine
the witnesses and this being a very important aspect the amendment to
the writ petition was allowed at the appellate stage and the order
passed by the writ court in W.P.(S) No.4956 of 2015 dated 07.03.2022
was set aside and the matter was remanded back for reconsideration
after amendment.
5. The order dated 17.05.2023 passed in L.P.A. No.152 of 2022 is
quoted as under:
"1) In this case, the appellant, being the petitioner in W.P. (S)
No.4956 of 2015, has assailed the order passed by the learned
Single Judge on 07.03.2022, whereby the writ petition was
dismissed.
2) Learned Senior Counsel Mr. V.P. Singh would confine his
argument to the limited aspect regarding non-compliance of the
principles of natural justice.
3) It is borne out from the records that the petitioner-appellant
has taken a plea about non-compliance of the principles of natural
justice in the sense that he was never granted any opportunity to
cross-examine the witnesses before the appellate authority and the
appellate authority has not considered this aspect, but,
unfortunately, the petitioner has not pleaded in this respect in the
writ application. In that view of the matter, the learned Single
Judge did not consider the question of non-compliance of the
principles of natural justice in the departmental proceeding.
4) After filing this Letters Patent Appeal the petitioner has filed
an application for amendment of the writ application to
incorporate this question of non-compliance of principles of
natural justice which, in our considered opinion, is a very
important aspect to be considered as it is stated that the witnesses
were examined in his presence but he was never allowed to cross-
examine the witnesses. In that view of the matter, we are inclined to
allow the application for amendment. Accordingly, I.A. No. 2554 of
2023 is allowed.
5) Since the pleading has to be reconsidered, we consider it
appropriate to remand the matter back to the learned Single Judge
for reconsideration after amendment, after affording reasonable
opportunity of filing additional counter affidavit to the State, if so
desired.
6) In the result, this appeal is allowed. The order dated
07.03.2022 passed by the learned Single Judge is hereby set aside
and the matter is remanded back to the learned Single Judge for
reconsideration after amendment. The petitioner-appellant shall do
well to file the amended writ petition within ten days after ensuing
vacation.
7) Pending Interlocutory Applications, if any, stand disposed of.
8) No orders as to costs.
9) Urgent Certified copies as per Rules."
6. Pursuant to the order dated 17.05.2023 passed in the aforesaid
LPA, an amended writ petition was filed and vide order dated
28.08.2023, the respondents were allowed to file a counter-affidavit to
the amended writ petition. Consequently, a counter-affidavit to the
amended writ petition has been filed and a rejoinder has also been
filed. As per the amendment sought for in terms of order dated
17.05.2023 passed in LPA No.152 of 2022, following points have
been added:
"(a) That the petitioner further says and submits that during Enquiry
Proceeding Enquiry Officer has not given option either to petitioner or
to his co-employee to cross Examine the witnesses produce in support
of the charges by the Respondent Department. The petitioner was asked
to sign on typed copy of the statement of the witnesses of the department
and a threatening was given by the Enquiry Officer that if he will cross
examine P.W.s then he will be dismissed earlier, from the service. Even
by giving mental pressure on the petitioner the Enquiry Officer has
taken signature of petitioner in the Typed Statements of the P.W.s. The
Enquiry officer has also not given any opportunity to the petitioner to
produce any Defense Witness. Therefore, entire Enquiry Proceeding
was conducted in violation of Principle of Natural Justice.
(b) That the appellate authority has also not given any notice or
opportunity of being heard before deciding the appeal."
Arguments of the Petitioner
7. The learned counsel for the petitioner has confined his
arguments on the point of violation of principles of natural justice and
in addition he has submitted that since the alleged incident had taken
place when the petitioner was mentally unfit, therefore a sympathetic
view may be taken by this Court.
8. The learned counsel for the petitioner has submitted that the
alleged incident regarding 11 rounds of firing had taken place in view
of the fact that the petitioner was given continuous duty due to which
the petitioner was mentally unstable and, therefore, the reason for such
firing cannot be totally attributable to the petitioner. The learned
counsel has also submitted that though there were 11 rounds of firing
but no person was injured and there has been no loss of any life or
property on account of the action of the petitioner.
9. While arguing the point of natural justice, the learned counsel
has submitted that before the enquiry officer on 02.03.2014, three
witnesses were examined but during enquiry proceeding the enquiry
officer had not given option to the petitioner or his co-employee to
cross-examine the witnesses produced in support of the charges. He
has also stated that the petitioner was asked to sign on typed copy of
the statement of the witnesses of the department and a threatening was
given by the enquiry officer that if he will cross-examine the P.Ws,
then he will be dismissed earlier from the service. It is case of the
petitioner that on account of mental pressure on the petitioner, the
enquiry officer had taken signature of the petitioner in typed
statements of P.Ws and that the enquiry officer had also not given any
opportunity to the petitioner to produce defence witnesses and,
therefore, the entire enquiry proceeding was conducted in violation of
the principles of natural justice.
10. During the course of hearing of this case and upon a specific
query made by this Court, the learned counsel has placed the reply
filed to the 2nd show cause as contained in Annexure - 10 to the
amended writ petition and has referred to internal page no.2 of the said
reply. In the said reply, the petitioner had stated that enquiry officer
had taken the evidences of only those persons like Vijay Kumar Singh
and Sri Shankar Oraon who had deposed to hold him guilty but the
evidences of other persons who were present in place of occurrence
were not taken who could have held the petitioner innocent. The
learned counsel has fairly submitted that the aforesaid plea which has
been introduced by way of amendment was not taken in the 2nd show
cause reply filed by the petitioner as contained in Annexure - 10 and
during the course of hearing also no such statement from the 2 nd show
cause reply has been pointed out to the Court.
11. The learned counsel has also placed the memorandum of appeal
filed on 18.02.2015 before the appellate authority which has been
annexed along with the counter-affidavit filed by the respondents and
while placing the memo of appeal also, the learned counsel has not
been able to point out any such plea raised through the amendment in
the petition. However, the learned counsel for the petitioner has
referred to the additional memo of appeal which was filed before the
appellate authority as contained in Annexure - 12 which was filed on
04.03.2015 and from the said memo of appeal, the learned counsel has
referred to paragraph nos.15 and 16 and has submitted that the plea
which has been raised in the writ petition has been raised before the
appellate authority on 04.03.2015. The learned counsel submits that
such plea was raised before the appellate authority still the appellate
authority has dismissed the appeal and has passed a punishment of
compulsorily retirement from service. The learned counsel submits
that on account of violation of principles of natural justice as has been
placed on record through the amendment petition, the impugned order
passed by the disciplinary authority calls for interference. The learned
counsel has also submitted that a sympathetic view may be taken and
the petitioner be given lessor punishment. The petitioner is of only 39
years of age and therefore, considering the totality of the
circumstances, the impugned order of punishment be set aside.
Arguments of the respondents
12. The learned counsel appearing on behalf of the respondents has
submitted that a detailed counter-affidavit has been filed in the present
case and the statements of the witnesses have also been placed on
record and the records reveal that that the petitioner had duly put his
signature on the same. The learned counsel has also referred to the
final statement which was given by the petitioner before the enquiry
officer at Annexure - L/1 wherein the petitioner has stated that
whatever he had stated in his first show cause reply, the same may be
treated as final reply. The learned counsel has submitted that even at
this stage before the enquiry officer, no grievance or objection was
raised by the petitioner with regards to the points raised through
amendment in the writ petition. The learned counsel submits that the
allegations made by the petitioner against the enquiry officer that the
enquiry officer had forced the petitioner to put certain signature and
had threatened the petitioner not to cross examine the witnesses is not
borne out of the records of the enquiry proceedings or no such
grievance was ever raised by the petitioner before the disciplinary
authority while filing his 2nd show cause reply nor such plea was
raised in his initial memo of appeal and such plea was raised for the
first time only by filing the additional memo of appeal which is
apparently an afterthought.
13. The learned counsel has submitted that the scope of interference
in the matter of disciplinary proceeding is very limited. He has also
submitted that the incident which led to disciplinary proceedings is not
in dispute and it is the case of the petitioner that on account of mental
imbalance/insomnia such an incident had happened. The learned
counsel submits that firing of 11 rounds without any reason cannot be
taken lightly and order of compulsory retirement from service as
passed by the appellate authority does not call for any interference.
The petitioner is not fit to continue in disciplinary force.
Findings of this Court
14. The petitioner has confined to violation of principles of natural
justice and has also submitted that the punishment imposed is
disproportionate to the charges. The grievance of the petitioner is that
the petitioner was not permitted to cross-examine the three witnesses
and was made to sign on the typed copies of their evidences and was
threatened by saying that if the petitioner would cross examine any of
the witnesses, he will be dismissed from service. It is also the case of
the petitioner that he was not given the opportunity to produce defence
witnesses.
15. It is not in dispute that the petitioner was a police constable and
at the relevant point of time, he was posted at Pokharia Picket, Tundi,
P.S. Dhanbad.
16. It was alleged that the petitioner made 11 rounds fire in air at
about 5 p.m. on 29.07.2013 from his AK-47 rifle in his room and
outside his room; upon hearing such firing, the unit in-charge and
other constables caught hold of him and took him to Dhanbad police
station; upon observation it was recorded that the petitioner had lost
his mental balance; the allotted arms was examined by the expert on
03.10.2013; on the basis of the report dated 22.10.2013, a
departmental proceeding was proposed against the petitioner.
17. The petitioner was suspended from his service vide office order
dated 19.12.2013 and was issued memo of charge vide memo no.5148
dated 28.12.2013 with a direction to file his show cause. In the memo
dated 28.12.2013 itself, various exhibits and witnesses from the side
of the department were mentioned. The petitioner filed reply to the
show cause on 03.01.2014 (Annexure-6).
18. It is apparent from the reply to the memo of charge, which was
filed by the petitioner on 03.01.2014 (Annexure - 6) that the incident
was not in dispute and the petitioner only tried to explain the
circumstances under which he had fired 11 rounds.
It was the explanation of the petitioner that he was under physical and
mental tension for 2 to 3 weeks and he was suffering from insomnia
inasmuch as he was not able to sleep at night. The petitioner was also
aggrieved by the fact that at times, the duty was from 10 pm to 12
midnight; 12 midnight to 2 am and at times from 2 am to 4 am which
was also a reason for his sleeplessness due to which he was not even
feeling hungry and such state of affairs continued for quite some time.
On the date of the incident i.e on 29.07.2013, the petitioner was
having headache and lost his senses and suddenly the petitioner found
himself outside the police headquarter in Dhanbad and thereafter he
does not know what happened. Subsequently, the petitioner found
himself in the mental hospital at RINPAS and ultimately after being
treated he became fit for duty. The petitioner also explained that so far
as the incident of 29.07.2013 is concerned, he was at the picket with
AK-47 where he had fired 11 rounds in his room and outside the
room. He also stated that Mangra Oraon had heard the firing and took
control of the petitioner with the help of his associates. The petitioner
had stated that the entire incident had taken place due to his mental
imbalance and the petitioner having regained his mental health
insisted that the order of suspension be set aside and he be taken back
in service.
19. However, the enquiry proceeding had taken place in connection
with the charges of firing of 11 rounds. The petitioner duly
participated in the enquiry proceedings. It appears that the statements
of three witnesses were taken and typed copy of the same was also
handed over to the petitioner in which the petitioner had also put his
signature. The depositions do not reflect any cross examination by the
petitioner. The petitioner was granted an opportunity to give his final
statement before the enquiry officer and the petitioner clearly stated in
writing that he has nothing to say in his defence except what has
already been stated in his 1st show cause reply. At this stage also the
petitioner did not raise any grievance regarding the case argued by the
petitioner that the petitioner was threatened by the enquiry officer that
the petitioner would be dismissed from service if he would cross
examine the witnesses. Further, the petitioner did not show any
willingness to produce any defence witness in his final statement nor
made any grievance regarding grant of opportunity to produce defence
witness and simply reiterated his statement made in the 1 st show cause
reply. Petitioner did not raise any such grievance even before the
disciplinary authority or before any other authority. The content of the
aforesaid final statement vide letter filed by the petitioner before the
enquiry officer as contained in Annexure L/1 of counter-affidavit is
quoted as under:
lsok esa]
lapkyu inkf/kdkjh]
lg
iqfyl fujh{kd] flUnjh vapyA
izlax& iqfyl fujh{kd dk;kZy; flUnjh vapy ds dk;kZy; Kkikad&372@14] fnuakd 19-
05-14
fo"k;& /kuckn ftyk fo0dk0l0&13@14 ds fo:) vafre cpko Li'Vhdj.k vH;kosnuA
egk'k;]
mijksDr izlax ,oa fo'k; ds laca/k esa fou;iwoZd dguk gS fd esjs }kjk lefiZr izFke
cpko vH;kosnu dks gh vafre cpko vH;kosnu le>rs gq, eq>s nks'keqDr djus dh d``ik iznku
dh tk,A
blds fy, Jheku~ dk vkHkkjh jgwx a kA
Jheku~ dk fo"oklHkktu
iq0l0 2498 fo"oukFk ekth
20. This Court finds that the enquiry officer considered the case of
the petitioner that he had fired under a condition of mental imbalance
as he could not sleep properly for last few days but held the petitioner
guilty by recording that the petitioner never raised his grievance
before any authority and rejected the explanation furnished by the
petitioner and held the petitioner guilty of the charges.
21. The 2nd show cause was issued to the petitioner to which the
petitioner duly responded vide letter dated 18.11.2014 (Annexure- O).
In the 2nd show cause reply, the grievance of the petitioner was that the
enquiry officer had taken the evidences of only those persons like
Vijay Kumar Singh and Sri Shankar Oraon who had deposed to hold
him guilty but the evidences of other persons who were present in
place of occurrence were not taken who could have held the petitioner
innocent. The petitioner also stated that in view of the judgment
passed by High Court in order to hold a person guilty there should be
at least two witnesses and the witness of the complainant could not
have been taken into consideration for holding the petitioner guilty.
The aforesaid stand of the petitioner as mentioned in 2 nd show cause
notice is quoted as under:
"संचालन पदाधिकारी महोदय द्वारा अपने धिभागीय कारर िाई संचालन के क्रम में मुझे
दोषी प्रमाधित करने के धलए धसर्र साक्ष्ों का ब्यान धलया गया है िे भी ऐसे साक्ष् जैसे
परचारी प्रिर श्री धिजय कुमार धसंह स०अ०धन० प्रथम पुधलस केंद्र िनबाद श्री शंकर
उरााँ ि ये दोनों पदा० न तो घटना स्थल पर थे न ही घटना को दे खे है । घटना स्थल पर
मौजूद साधियों का बयान इस प्रकरि में ही धलया गया है जो मुझे धनदोष साधबत कर
सके। ऐसी भी माननीय उच्च न्यायालय के धनिरय के अनुसार धकसी भी दोषी के दोष
को प्रमाधित करने के धलए कम से कम दो साधथयों का होना धनतां त ही आिश्यक है ।
जबधक इस प्रकरि में प्रभारी स०अ०धन० मंगरा उरााँि धजन्ोंने अपना प्रधतिेदन समधपरत
धकया है और साक्ष् के रूप में अपना बयान धदया है जो साक्ष् हो ही नहीं सकते। चूाँधक
िे इस प्रकरि में िादी है । धजनके धलखखत प्रधतिेदन के आिार पर मुझे धनलंधबत धकया
गया था। ऐसे इस घटना में मात्र एक ही साक्ष् आमोरर है ।"
22. It was also the case of the petitioner in the 2nd show cause reply
that on account of his unfitness, both physical and mental, the
petitioner having fired suddenly from his AK-47 is not a serious
offence so as to dismiss a person from service. The petitioner also
filed a copy of the medical certificate. Such stand was taken by the
petitioner in internal page no.3 which is quoted under:
Jheku~ jkaph raf=dk euksfpfdRlk lac) foKku laLFkku fjuikl
jkaph }kjk fd;s x;s esjh 'kkjhfjd tkap muds }kjk tkjh fd;s x;s
fpfdRlk izek.k i= dh QksVks izfr Jheku~ ds voyksdukFkZ lefiZr dj jgk
gwaA
Jheku~ mYys[kuh; gS fd lapkyu ink0 Jh JhdkUr mik/;;
iq0fu0] flUnjh vapy ds }kjk /kuckn ftyk foHkkxh; dkjZokbZ la0 13@14
esa muds }kjk lefiZr fo0dk0 lapkfyr dj lefiZr dh xbZ izfrosnu ds
vk/kkj ij Jheku~ us esjs fo:) lsok ls c[kkZLrxh laca af/kr tokc ekaxh gSA
tcfd fu;ekuqlkj iqfyl lsok esa dk;Zjr dehZ t?kU; vijk/k tSls MdSrh]
pksjh] cykRdkj] ywV bR;kfn ekeyksa esa vkjksfir O;fDr dks gh lsok ls
c[kkZLrxh dh ltk nh tk ldrh gSA 'kkjhfjd :i ls LoLFk vkSj vpkud
ekufld larqyu fcxM+ tkus ds dkj.k ,0ds0 47 ls vpkud gokbZ
Qk;fjax gks tkus ls dksbZ t?kU; vijkf/kd ?kVuk u gqbZ gS ftlds dkj.k
lsok ls c[kkZLr fd;k tk ldsA izek.k Lo:i fpfdRlh; izek.k i= Hkh
bldk mYys[k gSA
vr% Jheku~ ls izkFkZuk gssS fd mijksDr fcUnqvksa ij lgkuqHkwfr iwoZd
fopkj djrs gq, esjs fo:) yxk;s x;s vkjksiksa ls eq>s eqDr djus dh d``ik
iznku dh tk;A
23. This Court finds that in the 2nd show cause reply-
- it was neither the grievance of the petitioner that he was not
given any opportunity to cross-examine the witnesses;
Nor
- It was his grievance that the enquiry officer had threatened
him not to cross-examine witnesses;
Nor
- It was his grievance that he was not given any opportunity
to lead his defence evidence.
Further, there is no indication of any such grievance in the record
which has been produced by the respondents through their counter-
affidavit.
Rather the enquiry report reveals that at the end of the examination
of the witnesses the petitioner was called upon to give his closing
remarks and even at this time the petitioner had simply stated that
the petitioner had nothing to say in the matter except what was
already stated in his 1st show cause reply which has already been
quoted above.
24. After considering his 2nd show cause reply, the petitioner was
dismissed from service vide the order dated 05.02.2015 against which
the petitioner filed appeal on 09.02.2015. The memo of appeal has
been brought on record by the respondents in their counter-affidavit.
Upon perusal of the initial memo of appeal filed by the petitioner, this
court finds that no such grievance has been raised by the petitioner as
has been alleged by the petitioner in connection with violation of the
principles of natural justice through the amendment of the writ
petition i.e (a) denial of opportunity to cross-examine the witnesses (b)
the enquiry officer had threatened him not to cross-examine witnesses
and (c) he was not given any opportunity to lead his defence evidence.
25. The petitioner raised the aforesaid points of natural justice for
the first time by filing additional memo of appeal which has been filed
by the petitioner along with the writ petition in paragraph nos.15 and
16 as under:
¼15½ egksn;] bl foHkkxh; dk;Zokgh esa l0v0fu0 eaxjk mjkao] ifjpkjh
izoj rFkk j0v0fu0 izFke] iqfyl dsUnz] /kuckn xokg gSaA fnuakd
02-03-14 dks bu rhuksa dh xokfg;ka gqbZ gSA igys ls VkbZi fd;s x;s
buds c;ku esjs le{k yk, x, vkSj eq>s buij gLrk{kj djus dks
dgk x;kA eq>s Li'V dgk x;k fd tgka rqEgkjk uke VkbZi fd;k
x;k gS] ogka ij gLrk{kj djuk gS vkSj fdlh Hkh xokg ls ftjg
ugha djuh gSA ;fn xokgksa ls ftjg djksxs rks tYnh gh lsok ls
c[kkZLr gks tkvksxAs eSa ,d lh/kk&lk/kk vlgk; iqfyl gwaA eSa budh
ckrksa esa vk x;k vkSj eSusa igys ls VkbZi fd;s x, c;kuksa ij
gLrk{kj dj fn,A
¼16½ egksn;] eq>s Mjk /kedk dj xokgksa ds c;ku ij gLrk{kj djk;s x;s
gSaA eq>s xokgksa ls izfrijh{k.k djus ds esjs vf/kdkj ls oafpr fd;k
x;k gSA ;g foHkkxh; dk;Zokgh ls lacaf/kr fu;e rFkk izkd``frd
U;k; rFkk LoPN O;ogkj ds fl)karksa ds izfrdwy gSA
26. This Court finds that the aforesaid two points as paragraph
nos.15 and 16 have been raised for the first time in the additional
memo of appeal filed on 04.03.2015 in which the petitioner has made
very serious personal allegations against the enquiry officer that the
enquiry officer had threatened the petitioner not to cross examine the
witnesses. Such allegations were never made at any stage earlier
although the petitioner had repeated opportunities to make a grievance
to this effect. This Court finds that the grievance which has been
raised through the amendment in the writ petition has been raised for
the first time only at the appellate stage in the additional memo of
appeal. Even before the enquiry officer the petitioner did not raise any
such objection or expressed his willingness to cross examine the
witnesses or to produce defence evidence; the petitioner had his final
defence statement in writing where he had taken a specific stand that
he has nothing to say except whatever was stated in the 1 st show cause
reply. Further, neither any such grievance was ever raised in his reply
to the 2nd show cause nor any such grievance was raised in the
memorandum of appeal initially filed by the petitioner.
27. This Court has gone through the enquiry report and the material
placed on record by the respondents pursuant to the order of this Court
after the matter was remanded for consideration of the plea of
violation of natural justice and allegation of threatening given to the
petitioner by the enquiry officer raised through the amended writ
petition and finds that enquiry proceeding has been held in accordance
with the principles of natural justice and the allegations made by the
petitioner regarding (a) denial of opportunity to cross-examine the
witnesses (b) the enquiry officer had threatened him not to cross-
examine witnesses and (c) he was not given any opportunity to lead
his defence evidence, has no basis at all. This Court is of the
considered view that such grievance which has been raised by the
petitioner for the first time in the additional memo of appeal at the
later stage before the appellate authority is apparently an afterthought.
Same ground has been raised through the amended writ petition.
28. However, the enquiry officer has considered the specific stand
taken by the writ petitioner that the petitioner was suffering from
insomnia on account of the timings of duty assigned to the petitioner
but has rejected such plea without getting the medical certificate
submitted by the petitioner duly verified and examination of the
doctor. These aspects of the matter were taken care of by the appellate
authority.
29. The appellate order reveals that the appellate authority had
directed for further enquiry vide memo dated 01.04.2015 so as to get
the documents relating to treatment of the petitioner duly verified
from RINPAS which was duly done and the documents produced by
the petitioner was duly verified and the evidence of the concerned
doctor was also recorded and it was found that the petitioner was
advised to get monthly checkup done in RINPAS. Thereafter vide
letter dated 19.01.2016 the records of the disciplinary proceedings
were again sent to the appellate authority with a recommendation to
give a punishment of removal from service instead of dismissal from
service earlier imposed by the disciplinary authority. However, the
appellate authority considered the medical documents of the
petitioner; the advice of the doctor that the petitioner requires monthly
check-ups; and the advice of the doctor that the petitioner should be
kept away from arms duty and upon consideration of the same, the
appellate authority was of the view that it was not in the interest of the
police department to continue the petitioner in service. Consequently,
the appellate authority modified the order of punishment from
dismissal to compulsory retirement. This Court is of the view that
punishment imposed upon the petitioner by the appellate authority is
appropriate and adequate and does not call for any interference under
writ jurisdiction.
30. This Court is of the considered view that scope of interference
in the matter of disciplinary proceeding is very limited. From the
records of the case and also from the arguments advanced by the
learned counsel for the petitioner, it is not in dispute that the incident
of filing 11 rounds by the petitioner had happened but it is case of the
petitioner that the incident had happened due to his mental
imbalance/insomnia. The disciplinary authority had passed an order of
dismissal but the appellate authority has modified the order of
punishment and passed an order of compulsory retirement taking into
consideration the medical/mental condition of the petitioner and the
advice of the doctor and was of the view that it would not be proper to
retain the petitioner in police service. This Court is of the considered
view that the appellate authority has taken a sound decision by citing
reasons which does not call for any interference under writ
jurisdiction. This Court cannot be guided by sympathy towards the
petitioner and ask the respondents to impose lesser punishment when
the appellate authority has found that it would not be proper to retain
the petitioner in police service.
31. As a cumulative effect of the aforesaid findings, this Court is
not inclined to interfere with the impugned order of compulsory
retirement passed by the appellate authority in exercise of powers
conferred under Article 226 of the Constitution of India.
32. This writ petition is accordingly dismissed.
Saurav (Anubha Rawat Choudhary, J.)
