Santosh Kumar … v. The State of Jharkhand Director General-cum-I.G. of Police, Jharkhand, Ranchi. Deputy Inspector General, Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5796 of 2014 Santosh Kumar …. Petitioner 1. 2. 3. 4. Versus The State of Jharkhand Director General-cum-I.G. of Police, Jharkhand, Ranchi. Deputy Inspector General, Jharkhand Jaguwar (S.T.F.), Ranchi. Superintendent of Police, Jharkhand Jaguwar (S.T.F.), Ranchi. …. Respondents CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ For the Petitioner For the Respondents ------ : Mr. Pradeep Kumar, Advocate : Mr. Shubham Mishra, AC to SC(M)-II ----- 10/ 12.03.2024
Legal Reasoning
Heard the parties. 2. The petitioner has challenged the order contained in Memo No. 4719 dated 27.11.2011 passed by respondent no.4 by which he has been dismissed from service. The appellant order contained in Memo No. 6064 dated 18.9.2014 passed by respondent. 3 whereby the order passed by the disciplinary authority is also under challenge. 3. The brief facts of the case are that the petitioner was appointed as Constable in the year 2005 in the district of West Singhbhum. Thereafter, he was transferred to Jharkhand Jaguwar (S.T.F.), Ranchi where he proceeded for ten days’ leave on 29.8.2010. The petitioner was supposed to join duty on 09.09.2010, but he could not join the duty. Thereafter, several letters were written to the petitioner at his residential address to join the duty, but he failed to do so, which led to initiation of departmental proceeding. The inquiry officer found the charge proved against the petitioner and based on the enquiry report, the disciplinary authority punished the petitioner with capital punishment of dismissal. The appeal filed by the petitioner there-against has also been rejected by the appellant authority and hence, this writ petition. 4. Learned counsel for the petitioner submits that the order of dismissal from service is not sustainable on the simple ground that the absenteeism of the petitioner was not deliberate or willful, rather, it was
Legal Reasoning
beyond his control, as he was suffering from illness. Learned counsel further submits that the petitioner was not served with the copy of second show cause notice, which is the requirement of law and as such, on this count alone, the entire departmental proceeding and the order of dismissal vitiate. He submits 2 that it is the requirement of law that whenever any order visiting with civil and evil consequence is passed, the cardinal principle of natural justice has to be adhered to by providing the adequate opportunity of hearing to the employee at every stage of departmental proceeding and in absence thereof, the capital punishment is too harsh, which requires interference by this Court in its extraordinary writ jurisdiction. 5. Contrary to that, leaned counsel appearing for the respondents submits that several reminders were sent to the petitioner to join the duty upon expiry of the leave period. Thereafter, the enquiry proceeding was started and the petitioner was found guilty of charge of unauthorized absence of 240 days. Adequate and sufficient opportunities under the provisions of law were provided at every stage of the proceeding. Even the ground of absence regarding illness has been considered by the inquiry officer and finally, the petitioner was punished with the capital punishment. Learned counsel further submits that the appellate authority has also considered the grounds taken by the petitioner and finally the appeal of the petitioner was rejected. Learned counsel further submits that the contention of the petitioner that no second show cause notice was given is falsified from the records wherein it was clearly mentioned that the petitioner was given the copy of enquiry report along with the second show cause notice. Even three notices were issued to the petitioner, which the petitioner duly replied. Therefore, no folly has been pointed by the petitioner in the entire departmental proceeding, which warrants interference by this Court. 6. Having heard the learned counsel for the parties and upon perusal of the record, this Court is of the considered view that the impugned order of dismissal requires no interference by this Court. It is no doubt true that the petitioner proceeded for ten days leave and he reported for duty only after 240 days. Several letters / reminders were sent at the residential address of the petitioner, but no response ever come from the side of the petitioner and finally, the inquiry officer held the charge of unauthorized absence of 240 days proved. Even the inquiry officer after conducting the enquiry has mentioned his view that the medical certificates produced by the petitioner were examined and the same were found to be forged and concocted, as the petitioner has failed to produce x-ray report, blood report and bills of medicines. The enquiry officer opined that in absence of these medical 3 documents, it cannot be said that actually the petitioner was ill or not. Therefore, based on the enquiry report, the disciplinary authority passed the order of punishment, which was also affirmed by the appellate authority. 7. The stand of the learned counsel for the petitioner that the copy of the second show cause notice has not been served is totally misplaced. From the records of the departmental proceeding as well as from the specific stand of the respondents in the supplementary counter affidavit, it appears that the petitioner was issued notice thrice and he has filed his replies thereto. The petitioner was even given last show cause notice on 8.7.2011, which was also received and he has submitted his reply thereto. Even otherwise, the learned counsel for the petitioner has failed to apprise this Court as to what prejudice has been caused to him due to non-serving of the copy of second show cause notice, despite the earlier notices received by the petitioner. In the entire writ petition also, it is nowhere mentioned that as to how the petitioner was prejudiced by non-serving the copy of the second show cause notice. In fact, every opportunity was provided to the petitioner at every stages of the entire departmental proceeding. It is the petitioner who failed to establish his case with supportive medical documents. Neither any application nor any information from any quarter has been given to the respondents regarding his illness with supportive documents. The petitioner failed to produce the cogent evidence regarding his illness. The petitioner being a member of disciplined force of is expected from him to maintain discipline, rules, regulation etc. Even one day of unauthorized leave is a misconduct and herein, the petitioner has absented for altogether 240 days. 8. The Court sitting under Article 226 of the Constitution restrains from interfering in the order passed by the disciplinary authority or the findings of the enquiry officer. There cannot be re-appreciation of evidences, unless and until, the Court thinks it proper upon consideration that the authority held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where finding reached by the disciplinary authority is based on no evidence. In this context, the Hon’ble Apex Court in the case of Union of India versus P. Gunasekaran, reported in (2015) 2 SCC 610, held that the High Court in exercise of its power under Article 226 and 227 of the Constitution of India shall not venture into re-appreciation of the evidence. 4 Relevant para-12 and 13 is quoted herein below:- “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) is held according to the enquiry prescribed in that behalf; the procedure (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from a fair conclusion by some considerations extraneous evidence and merits of the case; reaching the to the authorities have allowed themselves (e) influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary have and capricious that no reasonable person could ever arrived at such conclusion; to be (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; the disciplinary authority had erroneously admitted (h) inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (i) its conscience.” go into the proportionality of punishment unless it shocks 9. Further, in the case of Deputy General Manager (Appellate Authority) and Others versus Ajay Kumar Srivastava reported in (2021) 2 SCC 612, it has been held that the power of judicial review, of the constitutional courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. 5 10. Taking into consideration the entire records, I find that none of the grounds, as set forth, are made out in the case, so as to warrant interference by this Court. In the instant case, the punishment order has been affirmed up to the appellate authority, which requires no interference. 11. As a sequitur to the aforesaid observations, rules, regulations, guidelines, legal propositions and judicial pronouncements, I do not find any infirmity in the impugned order dated 27.11.2011 affirmed up the appellate authority vide order dated 18.9.2014. 12. This writ petition is devoid of any merit and the same is hereby dismissed. R.Kr. (Dr. S. N. Pathak, J.)