In a writ petition by a former Inspector of Police dismissed for conviction in contempt proceedings affirmed by the Apex Court, the High Court rejected the plea of equality and held that dismissal under Article 311(2) proviso was permissible without inquiry.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 3362 of 2013
Kishun Deo Choudhary … Petitioner
CORAM: THE HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner : Mr. P.P. N.Roy, Sr. Advocate Ms. Pragati Prasad, Advocate For the Respondents : Mr. Munna Lal Yadav, Advocate
07/ 07.02.2023 The petitioner has approached this Court with a prayer for quashing the order dated 30.03.2013 issued by the Principal Secretary, Home Department, Govt. of Jharkhand (Annexure-11), whereby and whereunder, the appeal preferred by the petitioner against the order of dismissal dated 24.04.2004 passed by the Director General-cum-Inspector General of Police, Jharkhand has been rejected/dismissed. Further, prayer has been made for quashing the order dated 24.08.2004 passed by the Director General-cumInspector General of Police, Jharkhand, whereby and whereunder, the petitioner has been dismissed from service. Further, prayer has been made for a direction upon the respondents for reducing the penalty of dismissal, imposed upon the petitioner to the penalty of forfeiture of increments as has been done in case of similarly situated persons. Further prayer has been made for a direction upon the respondents to pay the monetary benefits to the petitioner under the head of retiral benefits and fix pension, for which the petitioner would have been legally entitled to get after his superannuation for treating the intervening period as period spent on service.
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Special Branch, Bihar Sharif (Nalanda), Bihar and later on, he was transferred as Inspector, In-charge at Kotwali, Police Station, Bhagalpur and during this period, he was elected as President of Police Association. While the petitioner was posted as Inspector-In-Charge, Kotwali Police Station, and was also President of Police Association, an incident with regard to one Jokhu Singh Sub-Inspector of Police, who was posted at Saharsha was summoned in the Court of learned ADJ First, Bhagalpur to give his evidence, but in spite of summon, he did not appear, then warrant of arrest was issued against him and thereafter, he was taken into custody by the learned 1st Additional District & Sessions Judge, Bhagalpur and due to this reason the Police Personnel became annoyed and they had made slogan before the Court of learned 1st Additional District & Sessions Judge, Bhagalpur for release of Jokhu Singh and they had done the same incidence in the Court premises also. This incident was taken very seriously by the Court and a contempt proceeding was initiated against the petitioner and eight other police personnel and in that Contempt Proceeding, the petitioner along with others were convicted and petitioner was sentenced to undergo S.I. for three months, whereas the other police personnels were sentenced to undergo SI for two months vide judgment dated 10.02.1998 passed in CWJC No.10625 of 1997, which was heard along with contempt petition.
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services vide order dated 21.08.2004 passed by the Director General of Police, Jharkhand, Ranchi.
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retiral benefits, the appellate authority ought to have allowed the appeal of the petitioner, giving the similar benefits to the petitioner also. The appellate Authority, without considering the recommendation of the Director General of Police as well as order passed by the appellate Authority, in case of similarly situated persons, who have been reinstated in services, after reducing the punishment of dismissal of stoppage of five increments, in a mechanical way and without application of mind, rejected the appeal of the petitioner, which is not tenable in the eyes of law.
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others were sentenced to undergo S.I. for two months only vide judgment dated 10.02.1998 passed in CWJC No.10625/1997, affirmed up to Hon’ble Apex Court. Accordingly, the petitioner surrendered before the learned Court below and was sent to jail custody and as such, a show cause notice was issued to him, asking him to file his explanation that why proceeding should not be drawn against him under Article 311 of the Constitution and provision of Police Manual and thereafter, considering the reply filed by the petitioner, he was dismissed from service. There is no illegality or infirmity in the impugned orders. The State of Bihar had reduced the dismissal order of similarly situated persons to stoppage of five increments and not the State of Jharkhand and as such, there is no discrimination.
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similarly situated persons in the State of Bihar have been given lesser punishment, same punishment may also be inflicted upon the petitioner is not acceptable to this Court as petitioner has been convicted and the same has been affirmed up to the Hon’ble Apex Court. The Hon’ble Allahabad High Court while dealing with the aforesaid aspect, in case of State of U.P. Vs. Prem Milan Tiwari, reported in 2015(3) ALJ 528, has clearly observed which reads thus:-
“ The conduct of the respondent which has led to the conviction of a charge under Section 302 cannot, by any circumstance, be regarded as warranting any treatment other than the punishment of dismissal under clause (a) of the second proviso to Article 311(2) or under Rule 8(2)(a). Ultimately, as has been held by the Supreme Court until the conviction is set aside by an appellate or higher court, it would not be advisable to retain such a person in service. If he succeeds in the appeal or in any other proceeding, the matter can always be reviewed in such a manner that he would not suffer any prejudice.
(Dr. S.N. Pathak, J.)
punit/-
3 issues framed by the court
Whether a police officer convicted of contempt and affirmed by the Apex Court can be dismissed from service under Article 311 without a regular inquiry.
Whether the dismissal of the petitioner violates the principle of equality when similarly situated officers in Bihar received reduced punishment.
Whether the High Court can grant a direction to reduce dismissal to forfeiture of increments in the absence of any infirmity in the dismissal order.
Colour shows how this judgement treated each authority
Md. Nazimuddin & Anr. Vs. The State of Bihar & Ors.Referred¶25
Md. Nazimuddin & Anr. Vs. The State of Bihar & Ors. reported in 1990 BBCJ 279
State of U.P. Vs. Prem Milan TiwariExplained¶32
State of U.P. Vs. Prem Milan Tiwari, reported in 2015(3) ALJ 528
Kishun Deo Choudhary
The State of Jharkhand through Home Secretary, Dhurwa, Ranchi
The Director General-cum-Inspector General of Police, Dhurwa, Ranchi
The Deputy Inspector General of Police, Special Branch, Jharkhand, Ranchi, Dhurwa, Ranchi
S.N. Pathak
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court