Partly allowed

Rajesh Kumar v. the State of Jharkhand

Jharkhand HC11 Jul 2023LPA/210/2023

Case brief

AI extract

What is this about?

The High Court held that while the minor in Jharkhand Jaguar STF was not disqualified, the earlier Single Judge erred in quashing removal of CRPF, and thus upheld the dismissal as procedurally sound and proportionate.

What did the court decide?

L.P.A. No. 352 of 2022 allowed; Judgment of single judge set aside. L.P.A. No. 210 of 2023 dismissed; Judgment of single judge upheld.

Rajesh Kumar Vs the State of Jharkhand — Service and Employment | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A. No. 352 of 2022

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1.The Union of India, through Inspector General of Police, Bihar Sector, Central Reserve Police Force, P.O., P.S. & District-Patna (Bihar).

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2.The Deputy Inspector General of Police, Group Centre, Central Reserve Police Force, Mokama Ghat, P.O. & P.S. - Mokama & District-Patna (Bihar).

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3.The Deputy Inspector General of Police-cum-Appellate Authority, Central Reserve Police Force, Patna Range, P.O. & P.S. – Patna, District-Patna (Bihar).

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4.The Commandant, 22 Battalion-cum-Disciplinary Authority, Central Reserve Police Force, Bazar Samiti Parisar, P.O. + P.S. – Merce, District-Hazaribagh (Jharkhand).

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Appellant nos. 1 to 4 are represented through the duly authorized signatory namely SHEEL NIDHI JHA (Age about 58 years) S/O Late Mahanand Jha Posted as DIG (ADM.) at O/O IGP, Central Reserve Police Force, Tiril Ashram, P.O.-Dhurwa, P.S-Nagri District-Ranchi (Jharkhand) ... Appellants

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Versus

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1.Nazir Ahmad Malik, son of Late Adul Gani Malik, resident of Village & P.O.-Tangimulla, P.S.-Achabal, Tahsil Chiargul, DistrictAnantnag, Jammu Kashmir-192201.

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2.Sayeeda Khatoon, wife of Nazri Ahmad Malik, daughter of Sri Husain Ansari, resident of Azadpur Bulli, P.O. & P.S.-Dhanbad, District-Dhanbad. … … ... Respondents

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and

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Rajesh Kumar ... ... Appellant

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Versus

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1.The State of Jharkhand

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2.The Director General-cum-Inspector General of Police, Jharkhand, Ranchi.

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3.The Inspector General of Police, Jharkhand, Jaguar (STF), Jharkhand, Ranchi.

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4.The Superintendent of Police (Administration), Jharkhand Jaguar (STF). ….... Respondents

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--------- CORAM: Sri SANJAYA KUMAR MISHRA, C.J. Sri ANANDA SEN, J.

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--------For the Appellant : Mr. Pratyush Kumar, C.G.C. ( L.P.A. No. 352 of 2022) : M/s. Ritu Kumar, Rajeev Kumar and Niteshwari Kumari, Advocates. ( L.P.A. No. 210 of 2023) For the Respondents : Mr. Sudhir Kumar Sharma, Advocate ( L.P.A. No. 352 of 2022) : Mr. Rahul Saboo, G.P.-II and Mr. Kunal Chandra Suman, A.C. to G.P.-II ( L.P.A. No. 210 of 2023)

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Date of hearing : 11.07.2023

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Date of Judgment : 09.08.2023

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Upon hearing the learned counsel for the parties, this Court passed the following, (Per, S.K. Mishra, C.J.)

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JUDGMENT

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In these two letters patent appeal, preferred under Clause 10 of the Letter Patent, the petitioner in W.P. (S) No. 327 of 2022 has assailed the judgment passed by the learned Single Judge on 12.05.2022, and the petitioner in W.P. (S) No. 721 of 2021 has assailed the order passed by the learned Single Judge on 23.03.2023.

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Both these appeals have a common question of law and similar questions of facts and therefore, taken together for disposal.

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In the first L.P.A., the Union of India through the Inspector General of Police, Bihar Sector, Central Reserve Police Force and other officials of the C.R.P.F., has assailed the order passed by the learned Single Judge, who has allowed the writ application in favour of the petitioner directing quashing the order of punishment dated 04.11.2013 (Annexure-4 to the writ application) and the appellate order dated 11.02.2014 (Annexure-6 to the writ application) and remitting back the matter to the respondentauthorities to take a fresh decision in case of the petitioner, on the point of quantum of punishment.

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The facts of this case may be described without giving unnecessary details, which are as follows:-

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The petitioner-respondent, herein, was appointed as a constable on 30.04.1997 in CRPF Group Center at Bantalab and on 12.06.2010, he was transferred from Group Center, Banatalab to E-

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22 Battalion. On the basis of application/complaint of one Sayeeda Khatoon, dated 15.01.2013, alleging that the petitioner had contracted marriage with her on 06.03.2012 and thereafter, started torturing her physically and mentally for demand of dowry and also gave life threats to her, a preliminary enquiry vide order dated 19.01.2013 was instituted against the petitioner. In course of such enquiry, it was found that the petitioner has contracted 2^nd marriage with Sayeeda Khatoon, without obtaining divorce from his 1^st wife Smt. Nagina Banu. On the basis of said report, charges were framed vide memo dated 27.06.2013 and vide office order dated 02.07.2013, Shri Nitish Kumar, Assistant Commandant was appointed as the Enquiring Officer to enquire into the charges framed against the petitioner. The Enquiry Officer after conducting the enquiry submitted his report to the Commandant, 22 Bn., Hazaribagh-cum-Disciplinary Authority (respondent No. 4), appellant herein, holding the petitioner guilty of the charges. On the basis of report submitted by the Enquiry Officer, the respondent No. 4 vide office order dated 04.11.2013, passed the order of punishment, dismissing the petitioner from service. Aggrieved by such order of punishment, the petitioner preferred appeal before the D.I.G., C.R.P.F., Patna Range, Bihar. The appellate authority after examining records and documents of the departmental proceeding, affirmed the order of punishment awarded by the Disciplinary Authority. Challenging the aforesaid orders, the petitioner has filed the writ petition, which came to be disposed of before the learned Single Judge.

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The final order passed, wherein, is assailed by the C.R.P.F. in this case on the following grounds:-

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(i) The petitioner in this case claimed that he has been inflicted punishment of removal from service for violation of Rule 15 of CRPF Rules, 1965 and Rule 21 of the Central Civil Services (Conduct) Rules, 1964, which prohibits 2^nd marriage, without permission of the Government, as illegal, arbitrary and against the well settled principle of law.

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(ii) It is submitted on behalf of the petitioner that the disciplinary authority as well as the appellate authority while inflicting punishment of removal from service to the petitioner, completely failed to take into account that Sayeeda Khatoon, respondent no. 5 had admitted during her evidence that she consented to the marriage with the petitioner, despite knowing that he was already married with Nagina Banu and out of the said wedlock, they have three children.

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(iii) Terming the punishment of removal from service to be harsh, excessive and disproportionate, it was urged that the said punishment should be quashed.

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The Respondent-Union of India, justifying the orders impugned would submit that in the police force, 2^nd marriage is not permissible except in case of death/divorce of 1^st wife, therefore, the petitioner violated the existing rules and committed an offence/misconduct. Both the disciplinary authority as well as the appellate authority have rightly taken action against the petitioner for contracting plural marriage under existing rules and the punishment awarded to the petitioner is just and valid.

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Learned counsel for the respondents further argues that the petitioner entered into 2^nd marriage by overlooking existing instruction applicable to government servants and committed misconduct in his capacity as a government servant/member of para

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military force, therefore, the punishment order dated 04.11.2013 is just and right as per the existing CRPF Rules/CCS (Conduct) Rules. 5. The learned Single Judge held that the conduct of the petitioner is not praiseworthy and upon perusal of the documents brought on record and the submissions made by the learned counsel appearing for the parties, the case of the petitioner needs consideration.

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The learned Single Judge further held that a member of the disciplinary force is required to maintain absolute discipline. The violation of the rules amounts to misconduct and any punishment awarded for misconduct cannot be wiped out, because of ignorance and innocence. However, from perusal of the charges levelled against the petitioner, it appears that the charges are not as grave as it warrants any major punishment.

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The learned Single Judge further held that the respondent-authorities before passing the impugned orders of dismissal from service ought to have considered that after passing of the impugned orders, the livelihood of the petitioner is at stake and, as such, the respondents should reconsider the matter on the quantum of punishment. In this context, the learned Single Judge has relied upon the reported judgment in Naresh Chandra Bhardwaj-Vs.Bank of India & ors., (2019) 4 SUPREME 614 : (2019) 15 SCC 786 , wherein, the Hon’ble Supreme Court has held that even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by

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itself cannot mandate as to what should be the penalty in such a case.

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The learned Single Judge further relied upon the reported case of Md. Gayasuddin Ansari-Vs.-SAIL & others, (2013) 3 JBCJ 288 (DB) (HC) , wherein, the Division Bench of this Court has held that without seeking permission from the Government before contracting 2^nd marriage, can by no stretch of imagination be said to be such a misconduct, warranting an order of dismissal from service.

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It was a case of an employee of the Steel Authority of India Ltd. and not a case of an employee of a disciplined para military force like the C.R.P.F.

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In L.P.A. No. 210 of 2023, the petitioner-employee happens to be the appellant and the respondent happens to be the State of Jharkhand through the Director General-cum-Inspector General of Police, Jharkhand, Ranchi. This matter was decided by another Single Bench and the order impugned was passed on 23.03.2023.

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The petitioner, therein, was a constable of the armed police, posted in Jharkhand Jaguar (STF), Ranchi. The petitioner was proceeded in a departmental proceeding on account of a complaint made by the father of his first wife, alleging that he has contracted a second marriage with one Sandhya Kumari. A First Information Report was also instituted by the father of the first wife, Rajni Kumari. The petitioner claimed that she had left the petitioner way back and in such circumstances, it cannot be said that the act of the petitioner was contrary to the rules of bigamy. The petitioner further would alternatively submit that the punishment inflicted on him is not commensurate with the charges leveled against him and the same should be reconsidered in terms of Rule 824 of the

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Jharkhand Police Manual, which prescribes the major punishments, which also includes other punishments apart from dismissal/removal.

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The charges were proved in this case. The learned Single Judge while setting aside the order of punishment relied upon the reported cases of Khursheed Ahmad Khan-Vs.-State of Uttar Pradesh and others, (2015) 8 SCC 439 and Jamuna Ram-Vs.State of Jharkhand and others, (2016) SCC OnLine Jhar 3240 , as in the case of Khursheed Ahmed Khan (Supra), the Hon’ble Supreme Court has held that when the first marriage was in subsistence and in these circumstances, the finding of violation of the Conduct Rules cannot be held to be perverse or unreasonable so as to call for interference by the Court. In such circumstances, the High Court was justified in holding that the penalty of removal cannot be held to be shockingly disproportionate to the charge on established judicial parameters.

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In Jamuna Ram (Supra), this High Court has held that as per Rule 23 of Bihar Government Servants’ Conduct Rules, 1976 as well as the provisions of the Police Manual, the punishment inflicted was neither levelled as unreasonably excessive or shockingly disproportionate and therefore has held that he did not find any reason to interfere in the impugned order, passed by the respondents and the appellate order and therefore, dismissed the writ application.

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Such order is assailed by the petitioner, as an appellant in the second Letters Patent Appeal. Since in both the cases, it is not disputed, at this stage that the employees concerned in the C.R.P.F. as well as the Jharkhand JAGUAR STF, has contracted a second marriage and admittedly, they have not obtained permission from the Government, as required under the relevant rules, guiding their

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service, we are of the opinion that the ratio decided by the Hon’ble Supreme Court in the case of Khursheed Ahmad Khan (Supra) is squarely applicable to both the cases. In that case also, the facts are similar. The appellant was employed as Irrigation Supervisor in the Irrigation Department, Government of Uttar Pradesh. He had married one Anjum Begum during subsistence of his marriage with first wife, Sabina Begum, without any permission of the Government, therefore, it was held that there is violation of Rule 29 of the Conduct Rules of the Conduct Rules of the State of Uttar Pradesh. The Hon’ble Supreme Court took into consideration various judgments, passed by the Hon’ble Supreme Court, especially the judgment passed by the Hon’ble Supreme Court in the case of Javed-Vs.State of Haryana, (2003) 8 SCC 369 and held that the matter is no longer res integra. In Javed-Vs.-State of Haryana (Supra), the Hon’ble Supreme Court held that what was protected under Article 25 was the religious faith and not a practice which may run counter to public order, health or morality. Polygamy was not integral part of religion and monogamy was a reform within the power of the State under Article 25. The Court upheld the views of the Bombay, Gujarat and Allahabad High Court to that effect. The Court is also of the view that the Allahabad High Court, upholding such a conduct rule. It was observed that a practice did not acquire sanction of religion simply, because it was permitted. Such a practice could be regulated by law without violating Article 25.

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The learned Single Judge in the second case has taken into consideration the judgment passed by the Hon’ble Supreme Court in Khursheed Ahmad Khan (Supra) is concurred by us and we hold that the punishment of removal from service in case of establishment of misconduct for the act of bigamy/polygamy,

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removal of service cannot be held to be disproportionate to the misconduct established, whenever we deal with the cases relating to employees of the disciplined force like the Central Reserve Police Force, which is one of the important Central Police Force and the Jharkhand JAGUAR Battalion, which has been created for fighting left wing terrorism in the State of Jharkhand and/or ancillary activities, the standard of behavior and activities is far more than an employee, employed in a civil organization. In case of a disciplined organization like the para military or the armed police force, a higher standard of conduct is always expected.

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In that view of the matter, we are of the opinion that the judgment passed by the learned Single Judge, which is assailed in L.P.A. No. 352 of 2022, requires interference, whereas, the judgment passed by the learned Single Judge in L.P.A. No. 210 of 2023 does not require any interference. We must also hold that violating of principle of law, which is well settled by various judgments, is a reflection of a judicial discipline in constitutional Courts. Constitutional Courts are not exempted from following the judicial discipline and the judgment passed by two different Courts/coordinate Benches on the same set of facts and coming to two different conclusions is not a heartening sign for the image of this Court.

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Hence, L.P.A. No. 352 of 2023 is allowed and the judgment dated 12.05.2022, passed by the learned Single Judge in W.P. (S) No. 327 of 2022 is, hereby, set aside. The appeal being L.P.A. No. 210 of 2023 is dismissed and the judgment dated 23.03.2023, passed by the learned Single Judge in W.P. (S) No. 721 of 2021 is upheld.

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