Kishun Deo Choudhary v. The State of Jharkhand through Home Secretary, Dhurwa, Ranchi The Director General-cum-Inspector General of
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 3362 of 2013 Kishun Deo Choudhary … Petitioner Vs. The State of Jharkhand through Home Secretary, Dhurwa, Ranchi The Director General-cum-Inspector General of Police, Dhurwa, Ranchi The Deputy Inspector General of Police, Special Branch, Jharkhand, Ranchi, Dhurwa, Ranchi … Respondents 1. 2. 3. ---------- CORAM: THE HON'BLE DR. JUSTICE S.N.PATHAK : Mr. P.P. N.Roy, Sr. Advocate For the Petitioner
Legal Reasoning
Ms. Pragati Prasad, Advocate For the Respondents : Mr. Munna Lal Yadav, Advocate ----------- 07/ 07.02.2023 The petitioner has approached this Court with a prayer for quashing the order dated 30.03.2013 issued by the Principal Secretary, Home Department, Govt. of Jharkhand (Annexure-11), whereby and whereunder, the appeal preferred by the petitioner against the order of dismissal dated 24.04.2004 passed by the Director General-cum-Inspector General of Police, Jharkhand has been rejected/dismissed. Further, prayer has been made for quashing the order dated 24.08.2004 passed by the Director General-cum- Inspector General of Police, Jharkhand, whereby and whereunder, the petitioner has been dismissed from service. Further, prayer has been made for a direction upon the respondents for reducing the penalty of dismissal, imposed upon the petitioner to the penalty of forfeiture of increments as has been done in case of similarly situated persons. Further prayer has been made for a direction upon the respondents to pay the monetary benefits to the petitioner under the head of retiral benefits and fix pension, for which the petitioner would have been legally entitled to get after his superannuation for treating the intervening period as period spent on service. 2. The case of the petitioner lies in a narrow compass. The petitioner was appointed as Sub-Inspector of Police in the year, 1976 and posted at Fulparash in Madhubani District in the State of Bihar. Thereafter, he was promoted to the post of Inspector and he was posted as Group Officer, 2 Special Branch, Bihar Sharif (Nalanda), Bihar and later on, he was transferred as Inspector, In-charge at Kotwali, Police Station, Bhagalpur and during this period, he was elected as President of Police Association. While the petitioner was posted as Inspector-In-Charge, Kotwali Police Station, and was also President of Police Association, an incident with regard to one Jokhu Singh Sub-Inspector of Police, who was posted at Saharsha was summoned in the Court of learned ADJ First, Bhagalpur to give his evidence, but in spite of summon, he did not appear, then warrant of arrest was issued against him and thereafter, he was taken into custody by the learned 1st Additional District & Sessions Judge, Bhagalpur and due to this reason the Police Personnel became annoyed and they had made slogan before the Court of learned 1st Additional District & Sessions Judge, Bhagalpur for release of Jokhu Singh and they had done the same incidence in the Court premises also. This incident was taken very seriously by the Court and a contempt proceeding was initiated against the petitioner and eight other police personnel and in that Contempt Proceeding, the petitioner along with others were convicted and petitioner was sentenced to undergo S.I. for three months, whereas the other police personnels were sentenced to undergo SI for two months vide judgment dated 10.02.1998 passed in CWJC No.10625 of 1997, which was heard along with contempt petition. 3. Against the judgment passed by the Hon’ble Patna High Court, the petitioner and all the police personnels, filed appeal before the Hon’ble Apex Court, but the Hon’ble Apex Court affirmed the order passed by the Hon’ble High Court and petitioner along with other Police Officers were directed to surrender before the court below. The petitioner surrendered before the Court of learned District Judge, Bhagalpur on 07.06.2004 and was taken behind the bar. It is further the case of the petitioner that a show cause notice was issued to the petitioner by the Inspector General of Police, Special Branch, Jharkhand, Ranchi on 08.06.2004 as to why a disciplinary action be not taken against him. In view thereof, the petitioner filed his reply on 17.06.2004 denied the allegation as he was not present on the alleged date of occurrence. Accordingly, he was suspended by the Deputy Inspector General of Police, Special Branch, Jharkhand, on 22.07.2004 w.e.f. the date of his surrender in the Court i.e., 07.06.2004. Thereafter, he was dismissed from 3 services vide order dated 21.08.2004 passed by the Director General of Police, Jharkhand, Ranchi. 4. Aggrieved by the same, the petitioner had preferred an appeal on 26.11.2004 before the Home Secretary, Govt. of Jharkhand, Ranchi under Rule 851 (B) of Bihar Police Manual. Thereafter, the Special Secretary, Home Department, Govt. of Jharkhand had written letter to Director General of Police, Jharkhand for examining the facts and grounds taken in the appeal and to submit its report. In compliance of the same, the Inspector General of Police (Administration), Jharkhand, Ranchi had submitted its report to the Home Secretary, on 04.10.2008 and had recommended to reinstate the petitioner in the service after taking a lenient view, imposing punishment of withholding of three increments of the petitioner. However, when no decision was taken in the appeal of the petitioner, he filed a writ petition being WP(S)
Decision
No.2721 of 2012, which was disposed of vide order dated 21.03.2013 with a direction upon the respondents to pass an order in the appeal preferred by the petitioner, in accordance with law. 5. Accordingly, the Home Secretary, Govt. of Jharkhand rejected the appeal preferred by the petitioner vide order dated 30.03.2013 without considering the grounds raised by the petitioner in the appeal as well as recommendation of Director General of Police as well as order passed by Appellate Authority in case of similarly situated Police Officers in the State of Bihar, wherein they were reinstated in services after reducing the punishment of dismissal to stoppage of 5 increments. Hence, the petitioner has been constrained to knock the door of this Court. 6. Mr. P.P. N. Roy, learned Sr. counsel for the petitioner assails the impugned orders on the ground that it is a case of discrimination as similarly situated persons have been given lesser punishment by the Appellate Authority in the State of Bihar, but the respondents in appeal without considering the points raised by the petitioner, has illegally and arbitrary rejected the appeal. Learned Sr. counsel further submits that when similarly situated persons were also dismissed and their dismissal order was modified/reduced to stoppage of five increments for the same charge in the State of Bihar and they were reinstated in services and also they are getting 4 retiral benefits, the appellate authority ought to have allowed the appeal of the petitioner, giving the similar benefits to the petitioner also. The appellate Authority, without considering the recommendation of the Director General of Police as well as order passed by the appellate Authority, in case of similarly situated persons, who have been reinstated in services, after reducing the punishment of dismissal of stoppage of five increments, in a mechanical way and without application of mind, rejected the appeal of the petitioner, which is not tenable in the eyes of law. 7. He further submits that when the order passed in appeal, reducing the punishment of dismissal to forfeiture of five increments, in case of similarly situated persons, was again enhanced to the punishment to dismissal from service by the DGP, Bihar, those persons have approached Hon’ble Patna High Court, challenging the order passed by the Director General of Police, Bihar and the Hon’ble Patna High Court vide order dated 30.11.2009 set aside the dismissal order, restored the appellate order and as such, similarly situated persons were reinstated in services with the reduced punishment imposed in appeal and as such, petitioner is also entitled for similar relief. He further submits that petitioner was also not present at the time of occurrence in the Court premises and without any enquiry held by the respondents, the punishment order of dismissal has been issued. Learned Sr. counsel places heavy reliance on the reported judgment of Full Bench of Patna High Court in case of Md. Nazimuddin & Anr. Vs. The State of Bihar & Ors. reported in 1990 BBCJ 279. 8. Mr. Munna Lal Yadav, learned counsel for the respondents vehemently opposes the contention of the learned Sr. counsel for the petitioner and submits that petitioner was President of the Police Association and petitioner has been dismissed from service under Article 311 and as such, there was no occasion to initiate a regular departmental proceeding. The petitioner has been dismissed on the ground of conviction, which has been affirmed by the Hon’ble Apex Court, there is no question of interference. The petitioner along with other shouted slogan in the Court of 1st Additional District Judge for release of Sub-Inspector, Jokho Singh in the court premises and as such, petitioner was sentenced to undergo SI for three months, whereas 5 others were sentenced to undergo S.I. for two months only vide judgment dated 10.02.1998 passed in CWJC No.10625/1997, affirmed up to Hon’ble Apex Court. Accordingly, the petitioner surrendered before the learned Court below and was sent to jail custody and as such, a show cause notice was issued to him, asking him to file his explanation that why proceeding should not be drawn against him under Article 311 of the Constitution and provision of Police Manual and thereafter, considering the reply filed by the petitioner, he was dismissed from service. There is no illegality or infirmity in the impugned orders. The State of Bihar had reduced the dismissal order of similarly situated persons to stoppage of five increments and not the State of Jharkhand and as such, there is no discrimination. 9. Be that as it may, having gone through the rival submission of the parties, this Court of the considered view that admittedly, the petitioner was convicted in contempt proceeding and the same was affirmed upto the Hon’ble Apex Court and pursuant to the same, the petitioner has been dismissed from service under Article 311 and as such, there is no requirement for initiating a regular departmental proceeding. From perusal of Clause (a) of the second proviso to Article 311, it appears that clause (a) of the second proviso is to stipulate that the requirement of clause (2) of holding an inquiry consistent with the principles of natural justice would not apply where a person is dismissed, removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge. The action of the respondent- State cannot be regarded as having acted with perversity in dismissing a person who has been convicted of a serious offence of the nature involved in pursuance of the provisions of the second proviso to Article 311(2) and, as in the present case, the petitioner is an Inspector and his action clearly shows that it was unbecoming of a police officer to make slogans in the Court premises of learned First Additional District & Sessions Judge, Bhagalpur and action was contemptuous, therefore, he was held guilty of the charges and convicted and matter was affirmed up to the Hon’ble Apex Court and as such, rightly the petitioner has been dismissed from services under Article 311. 10. The plea of the learned Sr. counsel for the petitioner that since 6 similarly situated persons in the State of Bihar have been given lesser punishment, same punishment may also be inflicted upon the petitioner is not acceptable to this Court as petitioner has been convicted and the same has been affirmed up to the Hon’ble Apex Court. The Hon’ble Allahabad High Court while dealing with the aforesaid aspect, in case of State of U.P. Vs. Prem Milan Tiwari, reported in 2015(3) ALJ 528, has clearly observed which reads thus:- “ The conduct of the respondent which has led to the conviction of a charge under Section 302 cannot, by any circumstance, be regarded as warranting any treatment other than the punishment of dismissal under clause (a) of the second proviso to Article 311(2) or under Rule 8(2)(a). Ultimately, as has been held by the Supreme Court until the conviction is set aside by an appellate or higher court, it would not be advisable to retain such a person in service. If he succeeds in the appeal or in any other proceeding, the matter can always be reviewed in such a manner that he would not suffer any prejudice. 11. Further, the Police Officers are the members of the disciplined force and any member termed to be indiscipline, has to be taken seriously. Rightly the impugned order of dismissal dated 24.8.2004 has been passed against the petitioner, there is no illegality or infirmity in the impugned order. 12. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, no interference is warranted in the instant case as there is no merit. Resultantly, writ petition stands dismissed. punit/- (Dr. S.N. Pathak, J.)