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Birendra Kumar Pandey Vs. State of Jharkhand and Ors - Court Judgment

LegalCrystal Citation
CourtJharkhand High Court
Decided On
AppellantBirendra Kumar Pandey
RespondentState of Jharkhand and Ors
.....bihar. ... petitioner versus 1.state of jharkhand. 2.director general-cum-inspector general of police, jharkhand, ranchi, police head quarter, p.o & p.s.: dhurwa, dist: ranchi, jharkhand; 3.deputy inspector general of police, jharkhand armed police, p.o & p.s.: dhurwa, district: ranchi, jharkhand; 4.commandant, jharkhand armed police-04, bokaro steel city, p.o: bokaro steel city, p.s.: bokaro steel city, dist: bokaro, jharkhand. respondents ------ coram: hon’ble mr. justice pramath patnaik ------ for the petitioner : mr. (dr.) s.n. pathak, sr advocate. mr. rakesh kr. roy, advocate. for the respondents : mr. chanchal jain, j.c to aag ------ c.a.v. on 14.06.2016 pronounced on 09/09/2016 per pramath patnaik, j.: in the accompanied writ application, the petitioner has inter alia prayed.....

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 6708 of 2014 ------- Birendra Kumar Pandey, son of Sri Krishna Pandey, resident of Village: Banahi, P.O: Banahi, P.S.: Shahpur Patti, Dist: Bhojpur, Bihar. ... Petitioner Versus 1.State of Jharkhand. 2.Director General-cum-Inspector General of Police, Jharkhand, Ranchi, Police Head Quarter, P.O & P.S.: Dhurwa, Dist: Ranchi, Jharkhand; 3.Deputy Inspector General of Police, Jharkhand Armed Police, P.O & P.S.: Dhurwa, District: Ranchi, Jharkhand; 4.Commandant, Jharkhand Armed Police-04, Bokaro Steel City, P.O: Bokaro Steel City, P.S.: Bokaro Steel City, Dist: Bokaro, Jharkhand. Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Mr. (Dr.) S.N. Pathak, Sr Advocate. Mr. Rakesh Kr. Roy, Advocate. For the Respondents : Mr. Chanchal Jain, J.C to AAG ------ C.A.V. on 14.06.2016 Pronounced on 09/09/2016 Per Pramath Patnaik, J.: In the accompanied writ application, the petitioner has inter alia prayed for quashing order dated 21.09.2004 passed by the commandant, Jharkhand Armed Police, whereby services of the petitioner has been dismissed and for quashing appellate order dated 05.03.2005 passed by Deputy Inspector General of Police, Ranchi and further for quashing revisional order dated 25.04.2013.

2. Bereft of unnecessary details, the facts as delineated in the writ application, is that the petitioner while posted at Chaibasa, a memo of charge was served upon the petitioner on 07.07.2003 alleging therein that the petitioner has not reported on duty since 26.03.2003. Pursuant thereto, the petitioner submitted his show cause reply, annexing the relevant documents, medical prescriptions, receipts etc, stating therein that the absence was 2 because of compelling circumstances, which was beyond the control of the petitioner, but it is alleged that the enquiry officer without paying any heed to the genuine explanation of the petitioner disbelieved the medical reports of the petitioner and held the petitioner guilty of the charges. Thereafter, second show cause was issued. However, basing on the findings recorded by the enquiry officer, the disciplinary authority imposed the impugned punishment without appreciating the contentions raised by the petitioner in his second show cause reply. Against the order of disciplinary authority, the petitioner preferred appeal, which was rejected by passing a most cryptic order. Being aggrieved, the petitioner preferred memorial/revision, that was also rejected on the ground of limitation and order passed by the disciplinary as well as appellate authority was affirmed.

3. Learned senior counsel for the petitioner submitted that the impugned order of dismissal from services has been passed by the disciplinary authority without taking into account the medical reports and disbelieving the same without any valid reason. It has further been submitted that the absence was not intentional or wilful rather it was under the compelling circumstances, which was beyond the control of the petitioner. Learned senior counsel for the petitioner further submitted that if the allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding the absence will not amount to misconduct. In this context, learned senior counsel for the petitioner relied upon a judgment rendered in the case of 3 Krushnakant B. Parmar Vs. Union of India & Anr as reported in (2012) 3 SCC178 It has further been submitted that what is not in the charge, cannot be taken into consideration for awarding punishment, but, in the appellate order passed by the appellate authority dated 5.3.2005, while passing the order, the punishment awarded earlier has been taken into consideration. In support of his submission, he has referred to the judgment rendered in the case of M.V. Bijlani Vs. Union of India & Ors as reported in (2006) 5 SCC88 Learned senior counsel for the petitioner further submits that the enquiry report is perverse as no enquiry has been conducted under Rule 843 of the Police Manual. A report from the local police to the Superintendent of Police of said district is required to be done before coming to a finding, but in the case at hand such procedure has not been followed violating Rule 843 of the Police Manual. It has further been submitted while awarding punishment the past services of the petitioner has been taken into account without giving any notice, which is in violation of the laws laid down by the Hon'ble Apex Court in the case of Indu Bhushan Dwivedi Vs. State of Jharkhand & Anr as reported in (2010) 11 SCC278 4. Controvering the averments made in the writ application, the respondents have filed counter affidavit. Learned counsel for the respondents submitted that after prolonged absence of the petitioner, the commandant issued letter at the home address of the petitioner with specific direction to join duty within three days, failing which disciplinary action shall be taken against him, but the petitioner did not respond to. Thereafter, charge was framed 4 against the petitioner, which was sent by registered post at his home address. The petitioner joined his duty on 17.12.2003 whereafter the enquiry officer served copy of deposition to the petitioner on 26.12.2003 and provided time to cross-examine the witnesses but the petitioner did not cross-examine any witnesses. Learned counsel for the respondents submitted that after fulfilling the principles of natural justice, the disciplinary authority finding the absence as wilful overstay falling under the allegation of serious in nature as per Rule 843 of the Police Manual, imposed the punishment of dismissal from services, which has rightly been confirmed in appeal as well as in revision.

5. After having heard learned counsel for the respective parties at length and on perusal of the documents on record, I am of the opinion that the petitioner has not been able to demonstrate any legally tenable point to warrant interference by this Court, due to following facts, reasons and judicial pronouncement: (I).Admittedly, in the present case, the petitioner remained unauthorizedly absent for a long period of time, for which, a proceeding was initiated. From perusal of records, it is quite evident that since the inception of departmental proceeding till its culmination there is no procedural irregularity. Looking to the facts of the case, it is to be seen as to whether the case of the petitioner comes within the ambit and scope of no evidence so as to enable this Court to exercise power conferred under Article 226 of the Constitution of India. The factum of absence has been proved and during the course of hearing sufficient opportunity has been afforded to the petitioner to put forth his defence as to whether the absence was willful or it was due to 5 unavoidable or compelling circumstances. Inspite of opportunities afforded to the petitioner notwithstanding the fact that the petitioner belongs to a disciplined force, the disciplinary authority upon perusal of the enquiry report has found the allegations levelled against the petitioner to be true and passed the impugned order, which has been affirmed by the appellate as well as by the revisional authority. (ii).Furthermore, the Hon'ble Apex Court in the case of Ex- Constable Ranvir Singh Vs. Union of India & Ors as reported in (2009) 3 SCC97has held that the punishment of dismissal inflicted upon the appellant is not disproportionate considering the fact that the judicial review of the matter is not supposed to substitute its own opinion on reappraisal of the evidence in exercise of power of judicial review. However, the Court can interfere with the punishment imposed when it is found to be totally irrational or outrageous defiance of logic. This limited scope of judicial review is temporary and interference is required only when the punishment is shockingly disproportionate. (iii).In the case at hand, in view of the seriousness of allegation and misconduct committed by the petitioner, the power of judicial review cannot be applied and moreover the fact finding given by the enquiry officer based upon the materials on record cannot be interfered with, as has been held by Hon'ble Supreme Court in the case of State of Uttar Pradesh and Another Vs. Man Mohan Nath Sinha & Another as reported in (2009) 8 SCC310, specially at paragraph 15, which is quoted herein below:

6. “ 15.The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. .............. ” Applying the aforesaid principles of Hon'ble Apex Court, as indicated herein above, I find no reason to interfere with the impugned order. (iv).So far as the decisions cited by learned counsel for the petitioner is concerned, there is absolutely no quarrel over the propositions/ratio laid down by the Hon'ble Apex Court but in the facts and circumstances of the case those decisions are not applicable in this case. The decision rendered in the case of Krushnakant B. Parmar (Supra) has been rendered in the context of unauthorized absence, which was construed to be not wilful but in the instant case the unauthorized absence has been found to be willful by the enquiry officer. Therefore, the aforesaid decisions are not applicable in this case.

6. In view of the aforesaid facts, reasons and judicial pronouncements, as stated in the foregoing paragraphs, the impugned order of dismissal from services; appellate order and the order passed by the revisional authority do not warrant interference by this Court. Hence, the writ petitioner, being devoid of any merit, is dismissed. (Pramath Patnaik, J.) Alankar/-

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