Remanded

Arun Kumar Mishra v. the State of Jharkhand

Jharkhand HC2 Jan 2023WPC/234/2019

Case brief

AI extract

What is this about?

This writ petition challenged the dismissal of a police constable for unauthorized absence. The High Court held dismissal excessive and remanded the case to alter the punishment to compulsory retirement, citing lack of moral turpitude.

What did the court decide?

Petitioner remanded to consider altering punishment from dismissal to compulsory retirement within six weeks and communicate a reasoned order.

Arun Kumar Mishra Vs the State of Jharkhand — Pension and Retirement Benefits | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P(S) No. 234 of 2019

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Arun Kumar Mishra …. …. Petitioner(s).

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Versus

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State of Jharkhand

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The Director General of Police, Jharkhand, Project Bhawan, Ranchi

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The Superintendent of Police, Bokaro

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The Deputy Inspector General of Police, Bokaro

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The Zonal Inspector General of Police, Bokaro …. …. Respondent(s)

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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.

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For the Petitioner(s) : Mr. Binod Kumar, Advocate For the State : Mr. Sharad Kaushal, AC to AAG-III,

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6/02.01.2023

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Heard the parties.

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This application can be disposed of at this stage itself considering he nature of prayer made by the petitioner.

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Counsel for the petitioner submits that after conclusion of a proper Departmental proceeding, the petitioner has been awarded punishment of dismissal from service. As per him the punishment is harsh and disproportionate to the misconduct. He contends that compulsory retirement is also a punishment which could have been inflicted upon the petitioner on the facts of the case. He prays that his quantum of punishment may be altered/modified and the punishment of compulsory retirement be imposed considering the facts of the case, since he has served the department from 1997 and the misconduct alleged is only of unauthorized absence.

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Counsel for the respondents submits that after proper Departmental Enquiry where the petitioner was given full opportunity to defend himself, the punishment was imposed. As the petitioner remained unauthorizedly absent from 31.3.2010, till the date of dismissal the department punished the petitioner and dismissed him from service. Since the quantum of punishment is prerogative of the employer, this Court exercising jurisdiction under Article 226 of the Constitution should not interfere with the quantum of punishment.

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The facts of this case lies in a very narrow compass and the law is well settled. In a departmental proceeding, while exercising jurisdiction under Article 226 of the Constitution the scope of interference is very limited.

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The Hon’ble Supreme Court in the case of Director General of Police, Railway Protection Force and Others versus Rajendra Kumar Dubey reported in 2020 SCC OnLine SC 954 at paragraph 37 thereof has held that it is well settled that High Court cannot act as an Appellate Authority and re-appreciate the evidence, which was led before the enquiry officer. By referring to judgment in the case of State of Andhra Pradesh versus S. Sree Rama Rao , the Hon’ble Supreme Court has held that it is not the function of the High Court to review the findings and arrive at a different decision. In a departmental proceeding, scope is very limited and it is well settled that the High Court can interfere where the departmental authority has acted against the principles of natural justice or where the findings are based on no evidence or in violation of the statutory rules provided. Further, if the punishment imposed is excessive, the Court can interfere. It has also been held by the Hon’ble Supreme Court that under Article 226 and 227 of the Constitution of India, the High Court shall not:-

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(i) re-appreciate the evidence;

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(ii) interfere with the conclusions in the enquiry, in the case the same has been conducted in accordance with law;

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(iii) go into the adequacy of the evidence;

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(iv) go into the reliability of the evidence;

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(v) interfere, if there be some legal evidence on which findings can be based;

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(vi) correct the error of fact however grave it may appear to be;

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(vii) go into the proportionality of punishment unless it shocks its conscience.

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Further, in the case of Deputy General Manager (Appellate Authority)

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and Others versus Ajay Kumar Srivastava reported in (2021) 2 SCC 612 , the Hon’ble Supreme Court at paragraph 24 thereof has held as under:-

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“24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a

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writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.”

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In paragraph 25 of the aforesaid judgment (Ajay Kumar Srivastava) the

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Hon’ble Supreme Court has narrated the scope, which reads as follows:-

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“25. When the disciplinary enquiry is conducted for the alleged misconduct against the public service, the court is to examine and determine:

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(i)whether the enquiry was held by the competent authority;

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(ii)whether rules of natural justice are complied with;

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(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.”

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In paragraph 28 of the aforesaid judgment (Ajay Kumar Srivastava) the Hon’ble Supreme Court has held that while exercising jurisdiction under Article 226 or 136 of the Constitution, the Court will not interfere with the findings of fact arrived at in the departmental enquiry proceeding except in a case of mala fides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.

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From the aforesaid judgments it is clear that the one of the condition in which the Court can interfere with the order of punishment is a situation where the punishment is disproportionate to the misconduct.

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In this case admittedly the petitioner is a Constable. He went on leave for 60 days. He was supposed to join on 31.3.2010 but did not join. Several notices and reminders were issued to him, but he did not resume his duty, for which vide Memo No. 1342 dated 5.4.2013 charge-sheet was issued to h/im. A Departmental proceeding was initiated and after according all the opportunities to the petitioner it was held that petitioner was guilty of the misconduct, as he remained unauthorizedly absent from 31.3.2010 till his dismissal i.e for a period of more than four years. He was dismissed from service vide order dated 23.6.2014. The Appellate order also uphold the dismissal.

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Admittedly there is no procedural illegality or irregularity in the entire departmental proceeding. The petitioner was given sufficient opportunity to defend himself. It is also admitted that petitioner remained unauthorizedly absent for this entire period for which he was inflicted with punishment of dismissal from service.

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As observed earlier if the punishment does not commensurate with the proved misconduct and is harsh and excessive, this Court exercising jurisdiction under Article 226 of the Constitution can interfere with the same. In this case, I find that petitioner has served the department from 1997 but remained absent from March, 2010, unauthorizedly. There is no allegation of defalcation or any other misconduct which involves moral turpitude. This Court is of the opinion that punishment of dismissal from service in this case is too harsh. Compulsory retirement also a punishment which is apparent from Rule 854 A of the Jharkhand Police Manual. Rule 854 A (6) of the said Manual provides that even if delinquent has not completed 21 or 25 years of service and a departmental proceeding has been initiated against him for a misconduct, he can be compulsorily retired. In this case admittedly this petitioner has not completed 21 or 25 years of service but a departmental proceeding has been initiated for a misconduct of unauthorized absence. Thus in this case compulsory retirement can be a punishment for the petitioner. Further a dismissed employee will get no benefit from the employer, whereas if he is compulsorily retired he can get some benefit by which he can sustain his family. Dismissal from service is like death sentence to the family, which in the case in hand is excessive.

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Considering what has been held above, the guilt of the petitioner stands proved for which he needs to be punished but the punishment of dismissal is too harsh which needs to be reconsidered by the employer of the petitioner. The employer may consider his case and alter the punishment of dismissal to that of a compulsory retirement.

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Thus, I remand the matter to Deputy Inspector General of Police, Bokaro who can reconsider the quantum of punishment in view of what has been held above and an appropriate decision should be taken within six weeks from the date of receipt of copy of this order and reasoned order should be communicated to the petitioner.

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Accordingly, the instant writ application stands disposed of.

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(ANANDA SEN , J)

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anjali/cp2

Arun Kumar Mishra v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Arun Kumar Mishra v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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