Manoj Rai v. …. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P(S) No. 6592 of 2022 Manoj Rai ------ Versus …. …. Petitioner(s). 1. State of Jharkhand 2. Deputy Inspector General of Police, JJ (STF), officiating from Dhurwa, Ranchi 3. Superintendent of Police (Admin), Jharkhand Jaguar (STF) officiating from Dhurwa, Ranchi …. …. Respondent(s) ------
Legal Reasoning
CORAM : HON'BLE MR. JUSTICE ANANDA SEN. For the Petitioner(s) For the State ------ : Ms. Ritu Kumar, Advocate Mr. Samavesh Rai , Advocate : Md. Shahabuddin SC-VII Mr. Suraj Prakash, AC to SC-VII 4/06.02.2023 Heard the parties. 2. In this writ application, petitioner is challenging the order contained in Memo No. 5577 dated 24.9.2012 whereby petitioner was dismissed from service. The Appellate Order contained in Memo No. 1456 dated 5.3.2014 whereby appeal of the petitioner was dismissed, is also under challenge. Both these orders were earlier challenged in writ petition being W.P(S) No. 3432 of 2017. The said writ application was not drafted properly and there was requirement of several document, as a result of which on 22.10.2018 the petitioner was allowed to withdraw the said writ application with a liberty to file a fresh writ application. Consequently, this instant writ application has been filed. 3. It is a case of the petitioner that he was appointed as a Sepoy in the year 2003. A Departmental charge-sheet was issued against the petitioner and he was put under suspension. There were four charges levelled against him which are as follows:- 1) He was absent in the Head Count Parade at night on 25.3.2011, 26.3.2011 and 01.04.2011 and also during the morning Parade on 28.3.2011. He was absent for these four days for which he was kept under suspension but the suspension was revoked on 9.6.2011. 2) After conclusion of his duty on 27.6.2011 at 20 hours, he left the headquarters without any information and remained absent for three days. He returned on 29.6.2011. 3) He was granted 16 days casual leave from 16.8.2011 but he did not join thereafter and remained unauthorizedly absent for 66 days, joined only on 8.11.2011. 4) Again he remained absent for three days without any information from 4.01.2012. 4. On the aforesaid charge a departmental proceeding was initiated against the petitioner, being Departmental Proceeding No. 3 of 2012. -2- Opportunity was granted to the petitioner to defend his case. The enquiry Officer submitted his report finding the allegations to be correct and the charge to be proved. After issuance of second show-cause notice, the petitioner was dismissed from service vide Order No. 5577 dated 24.09.2012. The petitioner preferred an appeal before the Departmental Appellate Authority which was also dismissed by Deputy Inspector General, J.J (STF), Dhurwa, Ranchi vide Memo No.1456 dated 5.3.2014. 5. Counsel for the petitioner submits that Appellate Order is absolutely bad and cryptic and does not even consider the grounds taken by the petitioner. As the petitioner’s mother was ill, he had to attend her, thus he was forced to remain absent, but these facts have not been considered by the Appellate Authority. The Appellate Authority has to individually assess the merits of the appeal and only after properly
Decision
considering the grounds, should have disposed of the appeal, but in the instant case by a non-speaking order, the appeal of the petitioner was dismissed. He submits that the punishment is disproportionate to the charge which has been proved against the petitioner, as the punishment of dismissal is for overstaying for few days which is too harsh. 6. Counsel for the respondents submits that while exercising the power of Judicial Review the scope of interference in this case is limited. Exercising jurisdiction under Article 226 of the Constitution, this Court is not an Appellate Court. He further submits that quantum of punishment is the prerogative of an employer, when the charges stand proved against the delinquent employee, thus this Court should not interfere with the impugned order. 7. It is true that this Court while exercising jurisdiction under Article 226 of the Constitution is not an Appellate Court. Thus Court is not exercising the appellate jurisdiction, rather a supervisory jurisdiction. The scope is thus very limited. Only amongst the conditions prescribed by the Hon’ble Supreme Court, this Court can interfere with the final order passed by the Departmental Authority and one of the conditions is “disproportionate punishment to the proved charge”. Further when an Appellate Authority considers an appeal of a delinquent employee, the said authority is required to consider the grounds of appeal and it is his duty to deal with the points which has been raised by the delinquent employee in appeal. He has to consider the appeal and pass independent reasoned order. Merely writing the word “considered” is not sufficient and will not even suggest that the defence has been dealt with. -3- The word “consider” has been explained by the Hon’ble Supreme Court in the case of Chairman, Life Insurance Corporation of India & Ors Vrs. A Masilamani reported in (2013) 6 SCC 530. In Paragraph 19 of the said judgment, the Hon’ble Supreme Court has held that an opinion has to be formed by the statutory authority, which should be reflected on the records itself. Paragraph 19 of the said judgment reads as under:- “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, to regard as, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority, itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order. (Vide India Oil Corpn. Ltd. V. Santosh Kumar & Bhikhubhai Vithalbhai Patel V. State of Gujarat)”. 8. Considering the aforesaid judgments when I go through the Appellate Order, I find that the Appellate Authority only after referring to the charges which has been levelled against the delinquent employee, dismissed the appeal without recording any independent finding. He only held that adequate opportunity was given to the petitioner to defend the case and the Disciplinary Authority had considered the evidence and thereafter dismissed the petition. From the face of the Appellate order it is apparent that none of the grounds taken by the petitioner was ever touched by the Appellate Authority, far less considered. Thus Appellate Order cannot stand the test of reasonableness. 9. Thus I, set aside and quash the impugned Appellate Order dated 5.3.2014 contained in Memo No. 1456 (Annexure-9 to this application). The matter is remitted to the Appellate Authority to decide the appeal afresh on merits after dealing with the grounds raised by the petitioners. The proportionality of the punishment should also be considered by the Appellate Authority. It will be open for the Appellate Authority to give one opportunity of hearing to the petitioner. 10. Accordingly, the instant writ applications stands disposed of. anjali/cp2 (ANANDA SEN , J)