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Saryu Paswan Vs. State of Jharkhand and Ors - Court Judgment

LegalCrystal Citation
CourtJharkhand High Court
Decided On
AppellantSaryu Paswan
RespondentState of Jharkhand and Ors
Excerpt:
.....to the criminal case is not acceptable since law works and decides the matter in his own way. learned counsel for the respondent-state has submitted that under section 3 of the government servant conduct rule 1976, it is established that it is expected from every government servant that he may do nothing which is unbecoming of a government servant and therefore, the petitioner cannot be permitted to be released from civil liabilities and accordingly departmental proceeding was initiated and on the basis of findings recorded in the departmental proceeding, punishment has been awarded to the petitioner and the criminal proceeding is based on the criminal liability of the petitioner. learned counsel for the respondent-state has further submitted that considering the facts, the appeal.....
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P. (S) No. 1489 of 2012 … Saryu Paswan, son of Late Sibu Paswan, resident of Village – Rehua, P.O.- Niwthu, P.S.-Atri (Batani), District – Gaya, Bihar ; presently retired as Rail Dy. SP, Jamshedpur/Adityapur, P.O. & P.S. -Adityapur, District – Saraikela Kharsawan, Jharkhand. … … Petitioner -V e r s u s- 1. State of Jharkhand.

2. Principal Secretary, Government of Jharkhand, Project Building, P.O. & P.S.-Dhurwa, District - Ranchi.

3. Home Secretary, Government of Jharkhand, Project Building, P.O. & P.S.- Dhurwa, District – Ranchi.

4. Accountant General, Jharkhand, P.O. & P.S. - Doranda, Ranchi.

5. Director General-cum-Inspector General of Police, Project Bhawan, P.O. & P.S. - Dhurwa, Ranchi 6. Deputy Inspector General of Police, South Chotanagpur Range, Jharkhand, Ranchi P.O. + P.S. - Dhurwa, District - Ranchi. … Respondents … CORAM: - HON’BLE MR. JUSTICE PRAMATH PATNAIK. … For the Petitioner : - Mr. (Dr.) S. N. Pathak, Sr. Advocate and Mr. Rishikesh Giri, Advocate. For the Respondents : - Mr. Chanchal Jain, J.C. to A.A.G. … C.A.V. On : - 23/06/2016 Delivered On :

16. 09/2016 ... Per Pramath Patnaik, J.

In the instant writ application, the petitioner has inter alia prayed for issuance of an appropriate writ in the nature of certiorari for quashing the order dated 17.08.2010, passed by the Principal Secretary, Government of Jharkhand and further for issuance of an appropriate writ in the nature of mandamus commanding upon the respondents for payment of the retiral benefits and for fixation of pension in view of the last pay drawn after quashing of the aforesaid order dated 17.08.2010.

2. Sans details, the facts as disclosed in the writ application, in a nutshell is that the petitioner was appointed as a Sub-Inspector of Police on 01.07.1976 in the erstwhile State of Bihar and belongs to reserve category. It has been averred in the writ application that the petitioner was promoted as Inspector of Police in the year 1982 and remained posted at several places in the erstwhile State of Bihar. It has been submitted that in the year 2004, the petitioner was promoted as Dy.S.P. and remained posted in several districts 2 of erstwhile State of Bihar. It has been stated that in the year 2005, after cadre division, the petitioner was alloted the State of Jharkhand and was posted as Vigilance Dy. S.P. where he remained posted up to December, 2005. It has been further averred that in the month of January, 2006, the petitioner was posted as Sub-Divisional Police, Barhi. It has been further submitted that the petitioner was posted as Rail Dy.S.P. in Jamshedpur on 04.04.2011 from where he superannuated on 31.12.2011. It has been further stated that while the petitioner was posted in the district of Jamshedpur as Rail Dy.S.P., charges were framed against him and a proceeding was initiated in view of the FIR lodged against him in Saraidhela Police Station of Dhanbad as Saraidhela P.S. Case No. 332 of 2008. It has been further averred that against the charges, the petitioner filed a show cause reply dated 06.10.2009. The Enquiry Officer did not consider the show cause reply of the petitioner and a proceeding was initiated vide Departmental Proceeding No. 51 of 22. It has been further stated that before the Enquiry Officer, the petitioner filed his second show cause reply. It has been further averred that the Enquiry Officer before coming to the findings of guilt, asked a final show cause reply and the petitioner filed the same on 02.02.2010. It has been further stated that the Enquiry Officer did not consider the show cause reply and held the petitioner guilty of the charges. It has been further averred that the basis of the departmental proceeding was a criminal case against the petitioner and in the said criminal case, proceedings have been stayed by the Court and the petitioner has been enlarged on bail. The entire family of the petitioner was implicated in the criminal case which shows the mala fide intention of the complainant. The Enquiry Officer found the petitioner guilty of the charges and forwarded the copy to the Disciplinary Authority. The Disciplinary Authority, the Principal Secretary, Government of Jharkhand, passed an order of punishment by the order of the Governor of the State vide order dated 17.08.2010. Against the order dated 17.08.2010, the petitioner preferred appeal for reviewing the order dated 17.08.2010 but the said appeal was also rejected vide order dated 01.10.2011. The petitioner has challenged the order of the Disciplinary Authority as well as the Appellate Authority. Left with no other efficacious, alternative and speedy remedy, the 3 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. Chanchal Jain, learned J.C. to A.A.G. 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 regarding pensionary benefits and arrear of pay, the pension paper of the petitioner has not been received in their office, as yet. It has been stated that so far as arrear pay and allowances of the petitioner is concerned, it appears from the service history enclosed with the writ petition that the petitioner was a basic grade officer who was drawing his pay and allowances on the basis of Pay Slips, issued by the Finance Department, Jharkhand, Ranchi.

5. Counter affidavit has been filed on behalf of the respondent-State, controverting the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that the petitioner, the retired Deputy Superintendent of Police, Rail Jamshedpur, when posted as Sub Divisional Police Officer, Barhi, a report was sent from the police headquarter, Jharkhand, alleging him an offender of the Dhanbad (Saraidhela) Thana Kand no. 332 of 2008 dated 13.05.2008, and recommendation for his suspension and departmental proceeding as well. It has been further stated that considering above, the Department suspended the petitioner vide notification No. 1397, dated 11.04.2009 and proceeding was also initiated against him for indiscipline, moral turpitude, misconduct and being a unbecoming of a police officer and Government servant and the resolution issued vide memo no. 1950 dated 15.05.2009 and the charge sheet (Prapatra 'Ka') was issued. It has been further stated that the conducting officer submitted the report vide his letter no. 411 dated 14.04.2010 in which he has stated in detail the reason of his findings against charges. It has been further stated that in the light of above opinion of the conducting officer, it was decided to impose major punishment and before awarding of punishment following the rule of natural justice a second show cause notice was served to the delinquent vide letter no. 4271 dated 12.07.2010. It has been further 4 submitted that the post retiral benefits of the petitioner has already been finalized.

6. Learned senior counsel for the petitioner has vehemently submitted that the service excerpts of the petitioner right from the year 2002 to 2008 have been outstanding and he was recommended for the President Police Medal, the highest Award of the State and the Union of India for Police Officers vide recommendation dated 18.12.2012 but the past service records of the petitioner have not been taken into consideration before passing the impugned order. Learned senior counsel for the petitioner has submitted that non-consideration of the case of the petitioner for payment of retiral benefits is against the provisions of law and the order passed by the respondent is without jurisdiction. Learned senior counsel for the petitioner has submitted that the petitioner cannot be punished to draw the initial pay scale of his post without subjecting the reduction in rank and the petitioner is entitled for salary of the suspension period as his suspension is automatically revoked as he has superannuated on 31.12.2011. Learned senior counsel for the petitioner has submitted that the respondent authorities should have awaited for the outcome of the criminal case before passing of the order of punishment. Learned senior counsel for the petitioner has submitted that the charges have not been proved in the departmental proceeding and hence, the petitioner is entitled for payment of his retiral dues with all statutory interest. Learned senior counsel for the petitioner has submitted that the entire charge is based on the criminal case, but in the said criminal case, proceedings have been stayed by the Court and the petitioner has been enlarged on bail. In support of his contentions, learned senior counsel for the petitioner has referred to and relied upon the judgment of the Hon'ble Apex Court in Narinder Mohan Arya vs United India Insurance Co. Ltd. and others reported in (2006 ) 4 SCC713 Learned senior counsel for the petitioner has submitted that the punishment awarded is not commensurate with Rule 49 of the Police Manual. Learned senior counsel for the petitioner has further submitted that non-consideration of the show cause reply is violative of the principles of natural justice.

7. Per contra, learned J.C. to A.A.G. for the respondent-State has vociferously submitted that the contention of the petitioner that 5 Departmental proceeding is prejudicial to the criminal case is not acceptable since Law works and decides the matter in his own way. Learned counsel for the respondent-State has submitted that under Section 3 of the Government Servant Conduct Rule 1976, it is established that it is expected from every Government servant that he may do nothing which is unbecoming of a Government servant and therefore, the petitioner cannot be permitted to be released from civil liabilities and accordingly departmental proceeding was initiated and on the basis of findings recorded in the departmental proceeding, punishment has been awarded to the petitioner and the criminal proceeding is based on the criminal liability of the petitioner. Learned counsel for the respondent-State has further submitted that considering the facts, the Appeal filed by the petitioner has been rejected by the Appellate Authority i.e. the Council of Ministers. In support of his contentions, learned counsel for the respondent-State has referred to and relied upon the judgment of the Hon'ble Apex Court in U.P.SRTC vs. Ram Kishan Arora reported in (2007) 4 SCC627 Learned counsel for the respondent-State has further submitted that the 02nd punishment has lost its effect. Learned counsel for the respondent-State has further submitted that the Appellate order dated 01.10.2011 (Annexure-9) has not been challenged by the petitioner in the present writ application. So far as the post retiral benefits of the petitioner is concerned, it has already been stated in the counter affidavit that the post retiral benefits of the petitioner has already been finalized.

8. After hearing the learned counsel for the respective parties at length and having given my anxious consideration to the issues involved in the instant writ application, I am of the considered view that the petitioner has not been able to demonstrate any legally tenable ground to warrant any interference in the impugned order of punishment due to the following factual and legal aspects : - (i) Before awarding major punishment, following the rule of natural justice a second show cause notice was served to the delinquent vide letter no. 4271 dated 12.07.2010. (ii) After considering the entire facts, the Appeal filed by the petitioner has been rejected by the Appellate Authority i.e. the Council of Ministers. 6 (iii) In Section 3 of the Government Servant Conduct Rule 1976, it is established that it is expected from every Government servant that he may do nothing which is unbecoming of a Government servant and therefore, the petitioner cannot be permitted to be released from civil liabilities and accordingly departmental proceeding was initiated and on the basis of findings recorded in the departmental proceeding, punishment has been awarded to the petitioner and the criminal proceeding is based on the criminal liability of the petitioner 9. In view of the reasons stated in the foregoing paragraphs, the impugned order of punishment dated 17.08.2010 (Annexure-7), passed by the Principal Secretary, Government of Jharkhand, does not warrant any interference by this Court. Accordingly, this writ petition, sans merit, is hereby dismissed. (Pramath Patnaik, J.) APK


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