Remanded

Ajit Kumar Yadav v. The State Of Jharkhand And Ors.

Jharkhand HC12 Jun 2023WPC/862/2016

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged his dismissal and the appellate order in a departmental proceeding. The High Court held that the appellate authority failed to apply its mind to the petitioner's defense and the significant disparity in punishment compared to a co-delinquent. Consequently, the appellate order was set aside, and the matter was remanded for a fresh hearing.

What did the court decide?

The appellate order and memorial order were set aside. The matter was remanded to the Appellate Authority to decide the appeal afresh within twelve weeks and pass a reasoned order.

Ajit Kumar Yadav Vs The State Of Jharkhand And Ors. — Service and Employment | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 862 of 2016

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Ajit Kumar Yadav son of Ramgrahi Singh, resident of Village Maheshpur Raj, PO PS Maheshpur Raj, District Pakur. … Petitioner

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-versus-

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The State of Jharkhand.

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Director General of Police cum Inspector General of Police Jharkhand, Ranchi, Office at Project Building, Dhurwa, Ranchi. 3. The Deputy Inspector General of Police, Santhal Pargana Region, Dumka.

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The Superintendent of Police, Dumka.

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… Respondents

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CORAM : HON’BLE MR. JUSTICE ANANDA SEN

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For the Petitioner : Mr. Rajesh Kumar, Advocate

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Mr. Amit Kumar, Advocate

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Mr. Manindra Kumar Sinha, Advocate For the Respondents : Mr. Aman Kumar, AC to G.P. I

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O R D E R

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RESERVED ON 01.03.2023 PRONOUNCED ON 12.06.2023

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Petitioner, in this writ petition, has prayed for quashing the letter dated 24.06.2011, in connection with Departmental Proceeding No.18 of 2011, whereby the petitioner has been dismissed from service. Further, appellate order dated 19.12.2011 passed by the Deputy Inspector General of Police vide memo No. 1958/SA.SHA is also under challenge as the Appellate Authority dismissed the department appeal of the petitioner. The memorial order dated 07.09.2015, whereby the memorial of the petitioner has been dismissed is also under challenge.

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2. Learned counsel appearing on behalf of the petitioner submits that the order of punishment is shockingly disproportionate to the proved misconduct. When the punishment is shockingly disproportionate to the proved misconduct, the Court can exercise the jurisdiction under Article 226 of the Constitution of India and set aside the order of punishment. He further argued that co-delinquent, namely, Ram Shankar Mishra was punished with only stoppage of increment, whereas if the allegations are properly weighed, it will be evident that the charge against the said Ram Shankar Mishra was much graver. The allegation against Ram Shankar Mishra is that he, in connivance with the petitioner, had sent off the petitioner from duty, as a result of which the criminal, who was under treatment in the hospital, managed to escape. On

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the aforesaid charge, the petitioner has been dismissed, whereas the said Ram Shankar Mishra was punished with stoppage of increment. This disparity is a ground for challenging the order of punishment. He submitted that the allegation that because of negligence of this petitioner the under trial prisoner, who was undergoing treatment at Sadar Hospital, managed to escape, is without any basis, thus finding the petitioner guilty cannot be sustained. Counsel for the petitioner also submitted that the Appellate Authority did not take into consideration the concept of parity of punishment and rather dismissed the appeal in a most mechanical manner. 3. Counsel appearing for the State submitted that the chargesheet was submitted against the petitioner and the petitioner was subjected to a Departmental Proceeding. The Enquiry Officer found the charge to be proved, thus, the petitioner was dismissed from service. There is no procedural illegality or irregularity in the instant case, thus, this Court should not interfere with the order of punishment. The petitioner, who is in the police force, acted in a most irresponsible manner, which led to escape of a criminal from Sadar Hospital, thus, the punishment cannot be said to be disproportionate. 4. I have also gone through the pleadings of the parties. Petitioner was a constable and was serving in the District Police Force, Dumka. Two prisoners were under treatment at Sadar Hospital, Godda. The petitioner was on duty. Hawaldar-in-charge was on leave. On 03.03.2011, petitioner left his place of duty without informing anyone. The prisoners, thereafter, on 04.03.2011, escaped. When the petitioner was questioned, he stated that he did not flee from his duty, but, for some time, went out. It was later on detected that in absence of this petitioner, the other Guard was covering him up and was giving an impression that this petitioner was still on duty. Further, it was found that when the petitioner left his place of duty, he kept his fire-arms and ammunitions in the prisoners’ ward of the hospital in a box, which was not properly secured also, whereas the District Armory was hardly 100 meters from the hospital. With the aforesaid charges, chargesheet was issued to the petitioner vide memo No.373 dated 09.03.2011. Enquiry Officer was appointed. The Enquiry Officer conducted the enquiry and found the charges to be proved, thus, submitted the report to the Disciplinary Authority. The Disciplinary Authority, after completing all the procedures, considering the Enquiry Report, passed the order dated 24.06.2011, dismissing the petitioner from service. The appeal preferred by the petitioner was also dismissed and so was the memorial.

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5. The scope of interference in a Departmental Proceeding, by exercising jurisdiction under Article 226 of the Constitution of India, is very limited. This Court, while exercising jurisdiction under Article 226 of the Constitution of India, is not sitting in appeal. This is not an appellate jurisdiction. The Hon’ble Supreme Court, in the case of Director General of Police, Railway Protection Force and Others vs. Rajendra Kumar Dubey reported in (2020) SCC OnLine SC 954 has held that the High Court cannot act as a Court of appeal. In the said judgment, at paragraph 33 thereof, while referring to the decision in the case of Andhra Pradesh versus S. Srii Rama Rao reported in AIR 1963 SC 1723 , the Hon’ble Supreme Court has observed as under: -

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33. In State of Andhra Pradesh v. S. Sree Rama Rao, a three judge bench of this Court held that the High Court under Article 226 of the Constitution is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is not the function of the High Court under its writ jurisdiction to review the evidence, and arrive at an independent finding on the evidence. The High Court may, however interfere where the departmental authority which has held the proceedings against the delinquent officer are inconsistent with the principles of natural justice, where the findings are based on no evidence, which may reasonably support the conclusion that the delinquent officer is guilty of the charge, or in violation of the statutory rules prescribing the mode of enquiry, or the authorities were actuated by some extraneous considerations and failed to reach a fair decision, or allowed themselves to be influenced by irrelevant considerations, or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. If however the enquiry is properly held, the departmental authority is the sole judge of facts, and if there is some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a writ petition.

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6. In the case of Union of India versus P. Gunasekaran reported in (2015) 2 SCC 610 at paragraph 13 the Hon’ble Supreme Court has held as under:-

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13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in the case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based; (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.

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7. Further, in the case of Lucknow Kshetriya Gramin Bank versus Rajendra Singh reported in (2013) 12 SCC 372 at paragraph 17 has held as follows: -

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17. If there is a complete parity in the two sets of cases, imposing different penalties would not be appropriate as inflicting of any/higher penalty in one case would be discriminatory and would amount to infraction of the doctrine of equality enshrined in Article 14 of the Constitution of India. That is the ratio of Rajendra Yadav case, already taken note above. On the other hand, if there is some difference, different penalty can be meted out and what should be the quantum is to be left to the appellate authority. However, such a penalty should be commensurate with the gravity of misconduct and cannot be shockingly disproportionate. As per the ratio of Obettee (P) Ltd. case even if the nature of misconduct committed by the two sets of employees is same, the conduct of one set of employees accepting the guilt and pleading for lenient view would justify lesser punishment to them than the other employees who remained adopted the mode of denial, with the result that charges stood proved ultimately in a full-fledged enquiry conducted against them. In that event, higher penalty can be imposed upon such delinquent employees. It would follow that choosing to take a chance to contest the charges such employees thereafter cannot fall back and say that the penalty in their cases cannot be more than the penalty which is imposed upon those employees who accepted the charges at the outset by tendering unconditional apology.

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At paragraph 19 of the aforesaid judgment, the Hon’ble Supreme Court has summarized the various principles as discussed in the said judgment, which read as under: -

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19. The principles discussed above can be summed up and summarized as follows:

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19.1 When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.

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19.2 The courts cannot assume the function of disciplinary /departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.

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19.3 Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.

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

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19.5 The only exception to the principle stated in para 19.4 above, would be in those cases where the codelinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was

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foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of chargesheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.

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Thus, as per paragraph 19.4, when two delinquents, arising out of the same act, are charged with different punishment, the Court can interfere with such cases.

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8. On this background, I have scrutinized the chargesheet, the enquiry report, the order of punishment and also the appellate order. The allegation against the petitioner is that he left his place of duty without informing his senior authorities. As per the Department, this was in connivance with the other police officials including one Ram Shankar Mishra. Further, the allegation against the petitioner is that he kept his arms and ammunitions in prisoners’ ward in a most unsecured manner, when the District Armory was 100 meters away from the hospital. Taking advantage of irresponsibility of this petitioner and others, the prisoners managed to escape. There is an allegation that the petitioner and others connived and helped the prisoners to escape. While I go through the enquiry report, I find that though the fact that he was on duty on the date when the prisoners escaped has been proved, but, there is no material to prove that he has connived with the prisoners or others to facilitate them to escape. Further, I find that the Enquiry Officer relied upon the evidence of Ram Shankar Mishra, who testified against this petitioner. This Police Officer Ram Shankar Mishra was also involved in the same incident and he was also a delinquent in a Departmental Proceeding and was charged vide order dated 09.03.2011 for committing misconduct. Be it noted that Ram Shankar Mishra was on duty along with this petitioner in the said hospital.

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9. So far as the punishment is concerned, I find that the petitioner has been inflicted with punishment of dismissal from service whereas Ram Shankar Mishra was only punished with stoppage of an increment. From the charge, it would be clear that this petitioner and Ram Shankar Mishra, they both left from the place of duty, i.e., the hospital. Taking advantage of their absence, prisoners fled. Though there were two Departmental Proceedings, one against this petitioner and one against Ram Shankar Mishra, charge against both of them was proved, but, surprisingly, this petitioner was dismissed from service and Ram Shankar Mishra was punished with stoppage of one increment. The punishment was inflicted by the same authority, i.e., the

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Superintendent of Police, Godda. Ram Shankar Mishra was punished on 09.03.2011, whereas this petitioner was punished on 24.06.2011. 10. The petitioner preferred an appeal and the appellate order dated 19.12.2011 vide Memo No.1958 has been brought on record. When I go through the appellate order, I find that the Appellate Authority narrated the facts of the case and thereafter held that since sufficient opportunity was granted to the petitioner and the petitioner defended himself, thus, felt that there is no ground to interfere with the order of punishment. 11. The statutory Appellate Authority has to dispose of the appeal, considering the grounds taken by the delinquent employee. In a mechanical manner, the appeal cannot be disposed. Merely writing that he has considered the grounds and the defence of the delinquent is not sufficient. The appellate order should reflect that he has considered the grounds. The Appellate Authority should deal with the grounds taken by the delinquent. In the instant case, I find that this consideration is lacking in the appellate order. The Appellate Authority has not dealt with the grounds taken by the petitioner. Merely writing the word ‘ considered ’ is not sufficient and will not even suggest that the defence has been dealt with. The word ‘consider’ has been explained by the Hon’ble Supreme Court in the case of Chairman, Life Insurance Corporation of India & Others versus 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: -

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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 and Bhikhubhai Vithalbhai Patel v. State of Gujarat).

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12. As held earlier, there was no material before the Enquiry Officer to arrive at a finding that the petitioner had connived with the other delinquent and the prisoners. Further, more or less on the same allegation, arising out of same transaction, one delinquent, namely, Ram Shankar Mishra was punished

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with lesser punishment than that of the petitioner. Further Ram Shankar Mishra, who was himself a chargesheeted employee, arising out of the same transaction, was allowed to depose in this case against the petitioner. These aspects have not been taken note of by the Appellate Authority. Be it noted that in view of the principles laid down by the Hon’ble Supreme Court in the case of Lucknow Kshetriya Gramin Bank (supra) the punishment order can be challenged on the ground of parity also.

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13. Considering what has been held above, I am of the opinion that the Appellate Authority has not exercised his jurisdiction, primarily, which ought to have been exercised. Thus, I am inclined to set aside the appellate order. Consequently the memorial order is also set aside. The matter is remitted before the Appellate Authority to decide the appeal of the petitioner afresh and pass a reasoned order dealing with the defence of the petitioner. The Appellate Authority may grant one opportunity of hearing to the petitioner. It is made clear that the appeal should be disposed of afresh within a period of 12 (twelve) weeks from the date of receipt of a copy of this order. 14. This writ petition stands disposed of.

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(Ananda Sen, J.)

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Kumar/Cp-02

Ajit Kumar Yadav v. The State Of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

Ajit Kumar Yadav v. The State Of Jharkhand And Ors.

Case brief

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