Shrikant Ram … v. The State of Jharkhand The Competent Appellate Authority cum Deputy Inspector General, Jharkhand Arms
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 7719 of 2013 Shrikant Ram …. Petitioner 1. 2. 3. Versus The State of Jharkhand The Competent Appellate Authority cum Deputy Inspector General, Jharkhand Arms Police, Ranchi. The Commandant cum Disciplinary Authority, JAP, Bokaro. …. Respondents CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ For the Petitioner For the Respondents
Legal Reasoning
------ : Mr. Abdul Kalam Rashidi, Advocate Ms. Asifa Begum, Advocate : Mr. Divyam, AC to SC-IV ----- 7/ 11.03.2024 Heard the parties. 2. The petitioner has challenged the order contained in Memo No. 3006 dated 21.11.2007 passed by respondent no.3 by which he has been dismissed from service. The appellate order dated 04.01.2013 confirming the dismissal order is also under challenge. 3. The petitioner joined the service after completion of training on 28.2.2006 at JAP-6, Bokaro. Thereafter without any information and without any leave application, the petitioner left the office on 12.3.2006, which led to issuance of charge memo vide memo no. 1732 dated 12.7.2006 and it was sent to the residential address of the petitioner. When no response was received, the disciplinary authority, after issuance of second show cause notice along with the copy of enquiry report, inflicted the punishment of dismissal to the petitioner. The petitioner preferred appeal on 28.6.2012, but the same was also rejected on the ground of limitation. Having no efficacious and alternative remedy, the petitioner has approached this Court. 4. Learned counsel for the petitioner submits that the order of dismissal is not tenable in the eyes of law on the ground that the absenteeism of the petitioner was not willful, rather, it was due to compelling circumstance, as the petitioner was suffering from mental illness. Learned counsel submits that the petitioner was not in a position to explain before the respondent authorities to the very memo of charge and other show cause notices and only after regained from the mental illness, he preferred appeal before the appellate authority, but the same was also not considered on the 2 ground of limitation. Learned counsel further submits that the petitioner was not served with the copy of the second show cause notice and without appreciating the reply of the petitioner, the punishment of dismissal is disproportionate to the nature of misconduct. Learned counsel submits 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 opportunity of hearing to the delinquent. Learned counsel further submits that even the petitioner has been deprived of the subsistence allowance and on that score alone, the entire departmental proceeding was harsh and the same is fit to be quashed and set aside. 5. On the other hand, Mr. Divyam, leaned counsel for the respondents submits that the petitioner has been held guilty of the charges by the inquiry officer. Ample opportunity under the provisions of law were provided and it is the petitioner, who had chosen not to file reply to the notices issued by the respondents and also not appeared before the authorities. Learned counsel further submits that the petitioner was given liberty to prefer appeal and he availed the same, but due to huge delay in preferring the appeal, the same was not entertained by the appellate authority. Therefore, no folly has been pointed by the petitioner in the entire departmental proceeding, which warrants interference by this Court. So far as the argument of learned counsel for the petitioner that no subsistence allowance has been paid to the petitioner is not correct. Actually, the petitioner has been paid the subsistence allowance. 6. Having heard the learned counsel for the parties and upon perusal of the record, this Court is of the considered view that no case is made out by the petitioner for interference in the impugned order of dismissal. Admittedly the petitioner has been held guilty of the charge of unauthorized absence by the inquiry officer. Every opportunity was provided to the petitioner in the entire departmental proceeding. It is the petitioner who never chose to appear before the respondent authorities. Neither any application nor any information from any quarter has been given to the respondents regarding his illness. Nothing has been brought on record that the petitioner was ever hospitalized or he was getting treatment in house. The petitioner being a member of disciplined force it is expected from him to maintain discipline, rules, regulation etc. Even one day of unauthorized leave is a misconduct. 3 7. The argument of learned counsel for the petitioner that the petitioner was not paid subsistence allowance is totally falsified in view of the specific averments made in the order of the dismissal order as well as appellate authority. 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 Ho’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. 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 (e) themselves 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. 4 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. The Hon’ble Apex Court in the case of State of Bihar Vs. Phulpari Kumari, reported in (2020) 2 SCC 130 held in para-6 as under:- 6. The criminal trial against the respondent is still pending consideration by a competent criminal court. The order of dismissal from service of the respondent was pursuant to a departmental inquiry held against her. The inquiry officer examined the evidence and concluded that the charge of demand and acceptance of illegal gratification by the respondent was proved. The learned Single Judge and the Division Bench of the High Court committed an error in reappreciating the evidence and coming to a conclusion that the evidence on record was not sufficient to point to the guilt of the respondent: 6.1. It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of “no evidence”. Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge. 6.2. The High Court ought not to have interfered with the order of dismissal of the respondent by re-examining the evidence and taking a view different from that of the disciplinary authority which was based on the findings of the inquiry officer.” 10. 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 21.11.2007 affirmed up the appellate authority vide order dated 04.01.2013. 11. This writ petition is devoid of any merit and the same is hereby dismissed. R.Kr. (Dr. S. N. Pathak, J.)