Ex Havaldar Ajay Ghale, s/o late Prveer Ghale, r/o Jap-I Block No. 07, Quarter v. 1. The State of Jharkhand. 2. Director General of Police, Jharkhand, Ranchi, Project Bhawan
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 636 of 2022 ----- Ex Havaldar Ajay Ghale, s/o late Prveer Ghale, r/o Jap-I Block No. 07, Quarter No. 13, PO Hinoo, PS Doranda, District Ranchi. .......Appellant Versus 1. The State of Jharkhand. 2. Director General of Police, Jharkhand, Ranchi, Project Bhawan H.E.C. Campus Ranchi, PO & PS Dhurwa, District Ranchi. 3. Inspector General of Police, Training Jharkhand, Ranchi, Project Bhawan H.E.C. Campus Ranchi, PO & PS Dhurwa, District Ranchi. 4. Deputy Inspector General of Police Jharkhand, Ranch, Armed Police (JAP), Nepal House, PO & PS Doranda, District Ranchi. 5. Commandant, Jharkhand, Armed Police-I, (JAP-I), PO & PS Doranda, …. Respondents District Ranchi. CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA ------- For the Appellant ------ : Mrs. Ritu Kumar, Advocate Mr. Prem Prakash, Advocate Mr. I. Ashraf, Advocate For the Respondent-State : Mr. Piyush Chitresh, AC to learned AG ------ 31st January 2023
Decision
O R D E R Per, Shree Chandrashekhar,J. The appellant has challenged the writ Court's order dated 20th October 2022 on the ground that the plea set-up by him that the punishment of dismissal from service is disproportionate to the proved misconduct has been summarily rejected by the writ Court. 2. In the order dated 20th October 2022 passed in W.P (S) No. 290 of 2011, the writ Court has made the following observations: “15. After going through the enquiry report, this Court is of the considered view that enquiry officer has taken into account the cogent materials including the admission of the petitioner at the stage of enquiry and therefore the enquiry report cannot be said to be based on no evidence or perverse as argued by the learned counsel for the petitioner. This Court further finds that the petitioner had responded to the second show cause notice and in the said reply also, the petitioner has nowhere denied any of the allegation rather he has given the reason for consumption of alcohol on account of his disturbed family life. This Court finds that the order of punishment as contained in Annexure - 3 dated 18.06.2008 has considered the enquiry report and also the reply of the petitioner and has dismissed the petitioner from service. The appellate authority has also considered the appeal and dismissed the appeal by a reasoned order. The revisional 2 LPA No. 636 of 2022 authority has also dismissed the revision by a reasoned order. 16. Considering the aforesaid facts and circumstances of this case and the limited scope of interference in the matter of disciplinary proceedings under Article 226 of the Constitution of India particularly when three authorities have applied their mind and found the petitioner guilty, there is no scope for appreciation of materials produced before the enquiry officer and coming to a different finding. The plea of the learned counsel for the petitioner that the enquiry report is based on ‘no evidence’ has already been rejected in the aforesaid paragraphs. There is no scope to consider sufficiency of materials produced before the enquiry officer who held the petitioner guilty. Once the finding of the enquiry officer is based on some cogent material, there is no scope for reappreciation of materials under Article 226 of the Constitution of India while scrutinizing the proceedings of the disciplinary authorities. 17. As a cumulative effect of the aforesaid findings, no case for interference is made out in writ jurisdiction of this court. Accordingly, this writ petition is dismissed.” 3. Briefly stated, the appellant after 28 years of unblemished service was issued a charge memo on 3rd August 2007 on the allegation that on 1st May 2007 he consumed liquor while on duty from 22:00 hours to 24:00 hours and created unnecessary ruckus in the barrack. On the next day, he was posted at the residence of the Commandant on security duty from 08:00 pm to 06:00 am where he was found in drunken condition. In the departmental enquiry, the appellant admitted that he consumed liquor during the duty hour and the enquiring officer tendered his opinion through enquiry report dated 3rd January 2008 that the charge against the delinquent government employee has been proved. The disciplinary authority having considered the aforesaid enquiry report passed the order of dismissal from service on 18 th June 2008 and, the departmental appeal and memorial preferred by the appellant have also been dismissed. 4. In the background of the aforesaid facts, Mrs. Ritu Kumar, the learned counsel for the appellant has submitted that the departmental authorities were swayed away by the admission by the appellant that he has consumed alcohol while on duty but the authorities have not considered the recommendation of the enquiring officer that the delinquent government employee may be granted pardon. 5. To support her submissions, the learned counsel for the appellant has drawn our attention to the order dated 18th June 2008 whereunder the disciplinary authority has recorded his concurrence with the report by the enquiring officer. 3 LPA No. 636 of 2022 6. The submission made is that once the enquiry report has been accepted by the disciplinary authority he should have atleast considered the recommendation of the enquiring officer. 7. There is no dispute that the misconduct imputed to the appellant on the basis of which the domestic enquiry has been started occurred in 28th year of his service. No doubt quantum of punishment is an issue exclusively within the domain of the departmental authority and except in a very limited kind of cases the writ Court would not interfere with the order of punishment. But then, there is no law of any universal application that in no situation the writ Court shall not interfere with the order of punishment. It is a well-accepted proposition that the order of punishment passed even in a properly constituted departmental enquiry is liable to be interfered with where the order of punishment is found disproportionate to the charge of misconduct. Under section 21 of the Indian Evidence Act, admission by a person is a relevant fact which can be used against the person who makes it. But then, an admission is also just a piece of evidence which needs to be proved like any other fact. In this context, we may indicate that the so-called admission of the appellant is that on account of his family problems he had consumed liquor on 1st May 2007 and 2nd May 2007 while on duty. The aforesaid relevant aspects of the matter were not considered by the writ Court and the writ petition has been summarily dismissed, without addressing the contentions raised on behalf of the appellant on quantum of punishment. 8. On a glance at the order dated 20th October 2022, it seems to us that the writ Court felt itself constrained by the general principle that the findings of fact recorded in the departmental enquiry are not open to challenge in a proceeding under Article 226 of the Constitution of India. We are fortified in our opinion also for the reason that the writ Court has started consideration of the matter with the judgment in “Pravin Kumar v. Union of India” (2020) 9 SCC 471, whereunder the Hon'ble Supreme Court has observed as under: “28. It is thus well settled that the constitutional courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority. 4 LPA No. 636 of 2022 29. The High Court was thus rightly concerned more about the competence of the enquiry officer and adherence to natural justice, rather than verifying the appellant's guilt through documents and statements. It clearly noted that evidence was led, cross-examination was conducted and opportunities of addressing arguments, raising objections, and filing appeal were granted. The conclusion obtained was based upon these very evidence and was detailed and well- reasoned. Furthermore, the High Court did not restrict the scope of judicial review, rather adopted a liberal approach, and delved further to come to its own independent conclusion of guilt. Similarly, we have no doubt in our minds that the appellate authority had carefully dealt with each plea raised by the appellant in his appeal and had given detailed responses to all the contentions to satisfy the appellant's mind. The disciplinary authority too was impeccable and no infirmity can be found in the report of the enquiry officer either. 30. Even in general parlance, where an appellate or reviewing court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed insofar as it remains plausible or is not found ailing with perversity. The present case is neither one where there is no evidence, nor is it one where we can arrive at a different conclusion than the disciplinary authority, especially for the reasons stated hereunder.” 9. Mr. Piyush Chitresh, the learned State counsel has referred to the judgment in “Union of India v. M. Duraisamy” (2022) 7 SCC 475 to submit that long length of unblemished service is not a ground to interfere with the quantum of punishment. But what distinguishes this case from the facts in “M. Duraisamy” is that there were serious allegations of misappropriation and fraud made against “M. Duraisamy”. The appellant who has undergone rigors of the departmental proceedings in the last more than 15 years and now superannuated from service and also keeping in mind that this was the first misconduct committed by him and the enquiring officer has made a favourable recommendation, we are of the opinion that the punishment of dismissal from service requires interference by this Court. 10. Accordingly, the order dated 29th October 2010 as approved by the appellate authority and revisional authority is quashed. 11. In the peculiar facts and circumstances of the case, we think that remanding the matter back to the departmental authority for deciding the quantum of punishment would not be proper and, therefore, we have formed an opinion that it would serve the interest of justice if the appellant is awarded punishment of compulsory retirement with post retiral benefits. 12. Ordered accordingly. 5 LPA No. 636 of 2022 13. The order passed by the writ Court is set-aside and, consequently, W.P (S) No. 290 of 2011 and LPA No. 636 of 2022 are allowed in the aforesaid terms. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 31st January, 2023 RKM-NAFR