1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P. (S) No. 6093 of 2014 … Abdul Shakur, son of late Umarzada, resident of Village : Piro, PO. : Piro, P.S. : Piro, Dist : Bhojpur, Bihar, at present residing at Islampur, P.O. : Makdumpur, P.S. : Balidih, Dist : Bokaro, Jharkhand; … Petitioner -V e r s u s- 1. State of Jharkhand; 2. Director General-cum-Inspector General of Police, Jharkhand, Ranchi, Project Bhawan, P.O. & P.S. : Dhurwa, Dist: Ranchi; 3.Deputy Inspector General of Police, Palamau Range, Daltonganj, P.O. & P.S. : Daltonganj, Dist: Palamau; 4.Superintendent of Police, Garhwa, P.O. : Garhwa P.S. :Garhwa, Dist: Garhwa; … Respondents … CORAM: - HON’BLE MR. JUSTICE PRAMATH PATNAIK. … For the Petitioner : - Mr. (Dr.) S. N. Pathak, Sr. Advocate and Mr. Rakesh Kumar Roy, Advocate. For the Respondents : - Mr. Atanu Banerjee, G.A. … C.A.V. On : - 13/06/2016 Delivered On :
06. 09/2016 ... Per Pramath Patnaik, J.
In the instant writ application, the petitioner has inter alia prayed for issuance of an appropriate Writ/direction in the nature of Certiorari for quashing the order dated 07.09.2009, passed by the Superintendent of Police, Garhwa and the order dated 08.02.2010, passed by the Disciplinary Authority i.e. Deputy Inspector General of Police, Palamau Range, Daltonganj, whereby the respondents-authorities have inflicted punishment of 3 black marks and forfeiting the increment of six months and also forfeiting the salary of 44 days and for issuance of an appropriate writ in the nature of Mandamus commanding upon the respondents to pay the salary of the petitioner for 44 days and for a further direction upon the respondents to pay the benefits of MACP.
2. Sans details, the facts as delineated in the writ application, in a nutshell is that, the petitioner was appointed on 01.10.1971 as Constable in Bihar and subsequently was promoted to the post of Assistant Sub Inspector of Police in the year 1983, on account of his good performance. It has been stated in the writ application that subsequently, the petitioner was promoted on the post of the Sub Inspector in the year 2008-09, on account of his good 2 performance. It has been averred that the petitioner retired from the services on 01.06.2011. It has been submitted that prior to the festival of Eid, the Deputy Superintendent of Police, HQ granted 10 days CPC Leave to the petitioner. It has been further stated that before leaving for vacation, the petitioner applied for 70 days E.L. before S.P. Garhwa on account of marriage of his son namely Musharraf Ali to be held on 19.10.2008 and also on account of treatment of his daughter namely Shahina Khatoon who is a Polio Patient and her treatment is going on in CMC, Vellor where she had to be operated on 31.10.2008. In order to corroborate the statements, the petitioner also annexed the Wedding Card of the marriage of his son alongwith the application for leave before S.P. Garhwa. It has been further averred that on application of the petitioner Munshi of S.P. Office Police No. 433 Vinay Kumar Singh has mentioned Earned Leave for 166 days. It has been further stated in the writ application that when the petitioner returned to join his duty on 19.11.2008, a Departmental Proceeding was initiated against him and on 20.01.2009, the petitioner was served with a notice directing him to submit the explanation within 7 days of the said notice. It has been further averred in the writ application that on 20.01.2009, a Charge Sheet has been submitted to the petitioner alleging therein that the petitioner was granted 10 days Leave from 25.09.2008 to 06.10.2008 but the petitioner returned on duty on 19.11.2008 which shows the negligent and undisciplined behaviour of the petitioner. It has been further submitted that the petitioner was asked to file show cause and petitioner filed the show cause within stipulated period which was not considered and a Departmental Proceeding was initiated against the petitioner. It has been further averred that the Enquiry Officer-cum-Sub Divisional Police Officer, Garhwa after perusing the reports, relevant documents and evidences, found the petitioner guilty of charges. It has been further submitted that agreeing with the findings of the Enquiry Officer and also without paying any heed to the documents annexed by the petitioner giving explanation of the delay, the Disciplinary Authority passed the order of punishment i.e. inflicting punishment of 3 black marks and forfeiting the increment of six months and also forfeiting the salary of 44 days. It has been further submitted in the writ application that against the order of the Disciplinary Authority, the 3 petitioner preferred an Appeal before the Appellate Authority but the Appellate Authority did not consider the contention raised by the petitioner in the Appeal and passed the order dated 08.02.2010 affirming the order of the Disciplinary Authority. It has been further submitted in the writ application that against the order of the Appellate Authority, the petitioner preferred a Memorial/Revision Petition before the Revisional Authority (Respondent No.
2) annexing all the relevant documents, denying and disputing the charges levelled against him but the same was also not considered and the Revisional Authority passed an order dated 07.04.2014 affirming the order passed by the Disciplinary as well as the Appellate Authority. Left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for redressal of his grievances.
3. Heard Mr. (Dr.) S. N. Pathak, learned senior counsel for the petitioner and Mr. Atanu Banerjee, learned G.A. for the respondent-State.
4. Counter affidavit has been filed on behalf of the respondent no. 4, repelling the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that it is not true that without considering the show cause reply of the petitioner proceeding was initiated against him. It has been stated that the petitioner was found guilty of charges by the Enquiry Officer, Garhwa after perusing the reports, relevant documents and evidences and agreeing with the findings of the Enquiry Officer, the Disciplinary Authority has passed the order of punishment but it is not true that no heed was paid towards the documents annexed by the petitioner explaining the delay and in fact, the explanation of delay was not satisfactory. It has been submitted that in the Appeal preferred by the petitioner before the Appellate Authority, Order dated 08.02.2010 was affirmed after considering all the facts and circumstance. It has been further stated that no sufficient material or ground was produced by the petitioner even before the Revisional Authority (Respondent No.
2) and thus, the result was dismissal of the revision.
5. Mr. (Dr.) S. N. Pathak, learned senior counsel for the petitioner has 4 vehemently submitted that the impugned order is illegal, arbitrary, unjust and against the provisions of law and is not at all sustainable in the eyes of law. It has further been submitted that the punishment inflicted is shockingly disproportionate and that the punishment does not commensurate with the gravity of charges. It is further submitted that the the petitioner has a valid legal ground for the leave and the unauthorized absence cannot be treated as misconduct. That the charges levelled against the petitioner is vague and perverse and the action of the respondents is in complete violation of Article 14 and 16 of the Constitution of India and the same amounts to colorable exercise of power. It is also been submitted that the effect of black mark has lost its force and the petitioner is only aggrieved by forfeiting the salary of 44 days. In support of his contentions learned senior counsel for the petitioner has referred to Rule 843 of the Police Manual, which stipulates that if the absence is properly explained and the reasons are valid, it can be accepted.
6. Per contra, Mr. Atanu Banerjee, learned G.A. for the respondent-State has vociferously submitted that the unauthorized absence cannot be treated as misconduct is not true because the post of the Sub Inspector of Police is a very responsible post and it is a gross negligence on the part of the petitioner not to inform his department to extend the leave and it is a misconduct. It has been further submitted that the petitioner's claim that he had a valid legal ground for the Leave may be true but is also true that he had full opportunity to inform the department that he want to extend the Leave and in that case, his case might have been considered sympathetically. It has been further stated that the allegation against the petitioner is clear and grave and the punishment is appropriate and justified.
7. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow : - (i) The punishment inflicted is shockingly disproportionate and does not commensurate with the gravity of charges. The Hon’ble Apex Court in the case of Lucknow Kshetriya Gramin Bank & Anr. Vs. Rajendra Singh as reported in 5 (2013) 12 SCC372in the placitum held as under: “However, the judicial review of the quantum of punishment is available with a very limited scope. The court would frown upon only when the penalty imposed appears to be so disproportionate to the nature of misconduct that it is shocking to the conscience of the court. Even in such a case when the punishment is set aside as shockingly disproportionate, 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.” (ii) The petitioner has a valid legal ground for the leave and the unauthorized absence cannot be treated as misconduct. Rule 843 of the Police Manual stipulates that if the absence is properly explained and the reasons are valid, it can be accepted.
8. On cumulative effect of the facts, reasons and judicial pronouncements, the impugned order dated 07.09.2009, passed by the Superintendent of Police, Garhwa and the order dated 08.02.2010, passed by the Disciplinary Authority i.e. Deputy Inspector General of Police, Palamau Range, Daltonganj, being not legally sustainable, are hereby quashed and set aside. The Disciplinary Authority i.e. Deputy Inspector General of Police, Palamau Range, Daltonganj, (Respondent no.
3) is directed to consider the case of the petitioner afresh in the light of Rule 843 of the Police Manual so far as it relates to punishment of forfeiture of salary of 44 days within reasonable period, preferably within a period of eight weeks from the receipt/communication of the copy of order.
9. With the aforesaid observations/directions, the writ petition stands disposed of. (Pramath Patnaik, J.) APK