The State of Jharkhand through the Chief Secretary, Jharkhand v. Ranchi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2644 of 2014 Suman Ekka D/o Late Julious Ekka, C/o Mrs. Rozlin Ekka, resident of Mlohalla- Barhai Toli, Near St. Anna Girls’ School, Purulia Road, Ranchi, P.S.- Lalpur, District- Ranchi Petitioner … … 1. The State of Jharkhand through the Chief Secretary, Jharkhand, Versus Ranchi 2. The Director General of Police, Jharkhand, Dhurwa, Ranchi 3. The Inspector General of Police (Training), Jharkhand, Ranchi 4. The Deputy Inspector General of Police, Jharkhand Armed Police, Raja Rani Kothi, Doranda, Ranchi. 5. The Commandant, Jharkhand Armed Police Battalion), Hotwar, Ranchi … --- (Mahila -10 … Respondents CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Respondents
Legal Reasoning
--- : Mr. Diwakar Upadhyay, Advocate : Ms. Abhilasha Kumari, Advocate : None --- 09/10.11.2023 Learned counsel for the petitioner is present. 2. 3. Nobody appears on behalf of the respondents. This writ petition has been filed for the following reliefs: to explain against “(i) for issuance of appropriate writs/ orders/directions in the nature of certiorari to quash the Force Order No. 566/2008 dated 04.04.2008/ Memo No. 1132/R.O. dated 05-04-2008, (Annexure-3), whereby and where under the Commandant, Jharkhand Armed Police – 10 (Mahila Battalion), Hotwar, Ranchi, (Resp. No.5) without supplying the enquiry report to the petitioner and without the proposed affording an opportunity punishment of dismissal from service has passed the order of dismissal of the petitioner from services as Constable no. 259. (ii) further to quash the memo no. 1740/G.S. dated 04-11-2011 (Annexure-4) whereby and where under, the appeal has been rejected by the Deputy Inspector General of Police, Jharkhand Armed Police, Ranchi (Resp. No. 4) without considering the facts and merits of the case, as time barred. (iii) further to quash the memo no. 172/D dated 05.06.2013 (Annexure-6), whereby and where under, the memorial-petition of the petitioner has been rejected without considering the defence of the petitioner delinquent, irregular and ex-parte conduction of JAP-10 Departmental Proceeding no. 11/2007, in which, neither enquiry report was supplied nor show cause against the proposed punishment of dismissal was asked and the petitioner has not been given adequate opportunity of defence. (iv) further for issuance of writ of Mandamus commanding the respondents in service with all consequential benefits.” the petitioner to reinstate 4. The learned counsel for the petitioner has submitted that the petitioner was appointed as constable in Jharkhand Armed Police -10 (Mahila Battalion), Hotwar, Ranchi on 24.03.2005. In the year 2007 2 the petitioner was posted at High Tension Factory, Namkome, Ranchi along with other police personnel. A charge memo was issued to the petitioner on 06.08.2007 alleging that during checking on 04.05.2007 at 09:45 in the night the petitioner was found absent from duty and remained absent thereafter for 59 days. 5. The learned counsel submits that although the charge memo was served upon the petitioner, but subsequent notices in connection with the departmental proceedings were not served and consequently, the petitioner could not participate in the departmental proceeding which resulted in ex-parte inquiry. 6. The learned counsel for the petitioner also submits that in the present case, there has been a gross violation of the procedure in the matter of imposing punishment, inasmuch as, the petitioner has been dismissed from service without serving a copy of the inquiry report and consequently, without calling for any second show-cause. He submits that the inquiry report is dated 04.04.2008 and the petitioner has been dismissed from service on 05.04.2008. The learned counsel
Decision
has referred to the statement made in the writ petition in paragraph 27 and has submitted that the said statement has not been denied by the respondents in the counter-affidavit. 7. The learned counsel for the petitioner further submits that even the dismissal order was not served upon the petitioner for a long time. However, as soon as the petitioner came to know about the order of dismissal, she obtained the same and filed an appeal before the appellate authority. However, the appellate authority rejected the appeal by recording that the appeal was time-barred. He submits that the order of punishment of dismissal was 05.04.2008 and the appeal was filed in the year 2011. The learned counsel further submits that against the appellate order, the petitioner filed a memorial/revision but the same has been dismissed by mentioning that the memorial did not contain the signature of the petitioner. The learned counsel submits that due to inadvertence, the memorial was not signed by the petitioner, but the authority did not grant any opportunity to the petitioner to rectify the said error. However, the fact remains that the memorial was filed by the writ petitioner. The learned counsel submits that considering the fact that the petitioner was not served with the 3 inquiry report and accordingly not served with any show cause in connection with the imposition of major punishment, one opportunity may be given to the petitioner and the impugned orders be set aside. 8. The learned counsel has also submitted that the respondents have taken extraneous materials into consideration at the stage of inquiry and to impose punishment and therefore, the petitioner has been prejudiced by the conduct of the respondents. The learned counsel has also raised a grievance that the petitioner has not been paid the subsistence allowance. 9. The learned counsel has submitted that the petitioner has a right to respond to the inquiry report and for this purpose the respondents be directed to issue the second show-cause notice to the petitioner so that the petitioner may respond to the same and appropriate order may be passed. 10. After hearing the learned counsel for the petitioner and going through the materials on record including the counter-affidavit filed by the respondents, this Court finds that admittedly the inquiry report is dated 04.04.2008 and the major punishment of dismissal from service has been passed on the next date i.e. on 05.04.2008. It further appears from the records that the inquiry report was not given to the petitioner prior to the passing of the order of dismissal and thus no second show- cause was also issued to the petitioner. Consequently, the petitioner has been deprived of her valuable right to respond to the inquiry report which has resulted in violation of Article 311(2) of the Constitution of India. Such action on the part of the respondents is arbitrary and violative of Articles 14 and 21 of the Constitution of India. 11. It further appears that the petitioner had filed an appeal in the year 2011, but the appellate authority has dismissed the same by holding that the appeal was barred by limitation without recording the date on which the petitioner had received a copy of the order of dismissal. It further appears that the petitioner had filed a memorial/revision stating that the petitioner was not served with a copy of the order of dismissal officially. However, the memorial was unsigned and the respondent authority dismissed the memorial by recording that the memorial was not signed and also recording that the appeal was barred by limitation. At no point in time, the authority had 4 pointed out the aforesaid error of the petitioner i.e. absence of signature in the memorial, so that the same could be rectified. It is not in dispute that the memorial was filed by the petitioner only. 12. Considering the totality of facts and circumstances of this case and the fact that the petitioner was neither served with a copy of the inquiry report nor was issued any second show-cause notice prior to imposing the major penalty of dismissal, all the impugned orders passed by the authorities cannot be sustained in the eyes of law and are accordingly set aside. 13. The disciplinary authority shall take up the matter from the stage of issuance of the second show-cause notice to the petitioner at the address which has been provided by the petitioner in the writ petition. The learned counsel for the petitioner has submitted that the address mentioned in the writ petition is the present and correct address of the petitioner. 14. The second show-cause be issued by the disciplinary authority to the petitioner within a period of one month from the date of receipt of a copy of this order and an appropriate order be passed within a period of three months thereafter after considering the second show- cause reply, if any, which may be filed by the petitioner. The petitioner shall produce a copy of this order along with a copy of the entire records of this writ petition before respondent nos. 2 to 5 by 08th December 2023. 15. It is made clear that this Court has not gone into the merit or otherwise of the case of the petitioner and it is for the disciplinary authority to take steps in accordance with law. 16. This writ petition is accordingly disposed of. 17. Pending interlocutory application, if any, is closed. Pankaj (Anubha Rawat Choudhary, J.)