Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.5937 of 2007 Dharmnath Singh, S/o Late Shankar Singh, R/o Special Branch, Deputy Superintendent Office, P.O., P.S. & District-Garhwa. …… Petitioner Versus 1.The State of Jharkhand 2.The Director General of Police, Govt. of Jharkhand, Ranchi. 3.The Inspector General of Police(Special Branch),Govt. Of Jharkhand, Ranchi. 4.The Deputy Inspector General of Police(Special Branch), Govt. of Jharkhand, Ranchi. 5.The Superintendent of Police(Security), Special Branch, Ranchi. …… Respondents --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK --------- For the Petitioner : Mr. K.K.Singh, Advocate For the Respondents : Mr. Sahid Khan, J.C. to S.C.(Mines) 07/01.08.2017 In the instant writ petition, the petitioner has, inter alia, prayed for quashing the order dated 10.08.2006 passed by the respondent- Superintendent of Police, Special Branch, Ranchi pertaining to punishment of stoppage of increment in salary for a period of one year and further salary for the period of absence i.e. 47 days was seized and the period of absence has been directed to be adjusted against extraordinary leave. The petitioner has further prayed for quashing the order dated 11.01.2007 passed by the appellate authority, wherein the appellate authority has modified the order of punishment of stoppage of increment in salary reducing the punishment of stoppage of increment from one year to six months, which is equivalent to one black mark and remaining punishment remained as such. The petitioner has further prayed that after quashing the orders dated 10.08.2006 and 11.01.2007, the period of absence may be adjusted against the earned leave and salary may be released to the petitioner for the aforesaid period.
2. The brief fact, as disclosed in the writ petition, is that the petitioner was posted as Driver in the Police Department. Because of suffering from back pain, the petitioner reported sick and applied for leave to transport officer on 06.04.2005, as is evident from Annexure-1 to this petition, but the permission was not given to him. The petitioner could not report to Headquarter on 10.04.2005 being Sunday and on the next day i.e. 11.04.2005 being Sarhul Holiday, he reported on 12.04.2005 along with all documents showing treatment. After showing the documents, petitioner went to Police Hospital, Doranda for the test and the Medical Officer referred the petitioner to RIMS, which has been mentioned by the petitioner in the application dated 12.04.2005(Annexure-2 to this petition). .2. Thereafter, the petitioner informed the department in writing on 13.04.2005(Annexure-3 to this petition) that he is undergoing treatment, but the illness could not be cured till 06.05.2005 and he has been advised by the doctor for physiotherapy and thereafter, the condition of petitioner considerably improved on 26.05.2005 and then he reported for duty on 27.05.2005, as is evident from Annexures-4 & 5 to this petition. It has been averred in the writ petition that the respondent-authorities vide letter dated 28.05.2005 requested for medical check up of petitioner from Civil Surgeon through Board and the petitioner remained physically present before Medical Board on 08.06.2005 and the Civil Surgeon submitted his report on 25.07.2005, which suggested that the petitioner was suffering from back pain, but ignoring the same, a show cause notice was issued to the petitioner and, accordingly, the petitioner submitted his reply annexing all the applications and medical prescriptions. The respondent-authority decided to hold departmental enquiry and, accordingly, the memo of charges has been served upon the petitioner. The petitioner submitted his reply on the charges levelled against him vide Annexure-8 to this petition. After completion of the departmental enquiry, the enquiry officer submitted its report. On receipt of enquiry report, the disciplinary authority inflicted punishment vide Annexure-9 to this petition.
3. Being aggrieved by the order of punishment by the disciplinary authority, the petitioner preferred appeal before the appellate authority and the appellate authority vide order dated 11.01.2007(Annexure-10 to this petition) has modified the order of punishment reducing the punishment of stoppage of increment from one year to six months and other punishment remained as such.
4. Being aggrieved by and dissatisfied with the impugned order of punishment passed by the disciplinary authority dated 10.08.2006(Annexure-9) and the order of appellate authority dated 11.01.2007(Annexure-10), the petitioner left with no other alternative and efficacious remedy, has approached this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances.
5. Learned counsel for the petitioner has vociferously submitted that the impugned order of punishment has been vitiated on the ground that neither copy of enquiry report was supplied nor the second show cause was issued to the petitioner prior to infliction of punishment. Therefore, the impugned order is illegal, perverse, which requires judicial review by this Court. Learned counsel further submitted that the .3. punishment of stoppage of increment of six months passed by the appellate authority, is a major punishment as per Rule 824F and 828 of the Police Manual. In this regard, learned counsel has referred to Rule- 834 and 835 of the Police Manual. Learned counsel further submits that because of illness, the petitioner could not join duty, which has surfaced in the enquiry report and the absence of petitioner was neither intentional nor unauthorized because he was constrained to remain absent from duty due to physical ailment. In this regard, learned counsel for the petitioner has referred to more particularly paragraphs-18 & 19 to the decision of Hon'ble Apex Court in the case of 'Krushnakant B. Parmar Vrs. Union of India & another' reported in (2012)SCC3178. So far as breach of principle of natural justice for non-issuance of second show cause notice is concerned, learned counsel for the petitioner has referred to paragraphs-12,13 & 14 to the decision of this Court in the case of 'Harinandan Rajak Vrs. State of Jharkhand & others' reported in J.L.J.R. 2008(3)440.
6. Controverting the averments made in the writ petition, a counter affidavit has been filed on behalf of respondent nos. 3 to 5, wherein it has been submitted that the petitioner was aware of the enquiry report submitted by the enquiry officer. Hence, allegation put forward by the petitioner that the enquiry report was not served to him and the disciplinary authority had not given any opportunity for filing representation against the finding of the enquiry officer is denied. The petitioner was given sufficient opportunity for filing representation against the finding of enquiry officer. The charges imposed by the disciplinary authority were proved. The petitioner filed appeal before the Deputy Inspector General of Police and later on before the Inspector General of Police, which was considered by the I.G. of Police, Special Branch taking into account the petitioner's stand on some points and passed the order minimizing the quantum of punishment imposed earlier by the Superintendent of Police.
7. A supplementary counter affidavit has been filed on behalf of respondent no.5, wherein the copy of enquiry report has been annexed as Annexure-A to the supplementary counter affidavit.
8. Learned J.C. to S.C.(Mines) has reiterated the submission made in the counter affidavit. Learned counsel submits that considering the gravity of the charges and misconduct committed by the petitioner, the punishment imposed on him appears to be proportionate, just and proper. Therefore, there is absolutely no ground for interference. Learned counsel further submits that the petitioner has not put forward the point as to under .4. what circumstance he has been prejudiced for non-supply of copy of enquiry report.
9. After hearing the learned counsel for the respective parties and on perusal of the records, I am of the considered opinion that the petitioner has been able to make out a case for interference by this Court due to the following facts and reasons: In the instant case, unauthorized absence of petitioner from duty, the departmental proceeding has been initiated against the petitioner and the memo of charges as per Annexure-7 to this petition are that (a) the petitioner after reporting sick without taking permission went to Police Hospital, JAP-1, Ranchi and took four days rest while according to rule he was to go for treatment after taking permission from his incharge; (b) He was advised rest of four days by medical officer and thus he was likely to resume his duty on 10.04.2005, but he did not join his duty till then; (c) for being absent from his duty and absconding without permission his payment was stopped vide Special Order dated 11.04.2005 and he became present on his duty on 27.05.2005, which shows his indiscipline and negligence towards his duty and (d) on 21.05.2005 he was searched to be present before Medical Board for which order was issued by his superior officer, but found absconder and was belatedly sent before Medical Board on 08.06.2005. In pursuance of the aforesaid charges, the petitioner submitted his reply along with the medical certificates. The matter was enquired into and the enquiry officer after completion of enquiry, submitted report that the charges levelled against the petitioner have been proved because not taking permission from the higher authority, but in the enquiry report, the factum of illness of the petitioner has surfaced. So far as not obtaining permission from the higher authority is concerned, the enquiry officer has found the petitioner guilty of the said charge, but basing on the enquiry report passed by the disciplinary authority (Annexure-9) and it was modified by the appellate authority(Annexure-10, which are impugned in this writ petition, stoppage of increment of six months is a major punishment as per Rule 828 of the Police Manual. Therefore, for infliction of major punishment and supplying the copy of enquiry report was sine qua non for conduction of fair enquiry. In the instant case, admittedly, no copy of enquiry report was supplied to the petitioner causing grave prejudice to the petitioner. It would be apposite to refer Rule-824F, 828 and 835 of the Police Manual, which are as follows: “Rule-824F: Black mark or marks, .5. Rule-828: Infliction of major punishments.-(a)of the punishments permitted by rule 824, the items in serials (a) to (f) of that rule shall be regarded as major punishments, and shall be inflicted by an officer not below the rank of Superintendent. Rule -835: Effect of black marks-A reduction or forfeiture or withholding of increment for a specific offence shall carry the following black mark value:- A reduction, etc., up to six months …. 1 black mark A reduction, etc., up to twelve months ….. 2 black marks A reduction, etc., for longer than twelve months .... 3 black marks Whatever be the number of black marks in any one act of delinquency, it shall still count as one major punishment.”
10. On perusal of the provisions, there is no doubt that the infliction of punishment for stoppage of six months increment is a major punishment as per Rule 828 of the Police Manual but so far as non- supply of the copy of enquiry report is concerned, the same has caused serious prejudice to the petitioner.
11. So far as another infirmity in the instant proceeding is concerned, due to non-issuance of second show cause notice prior to infliction of punishment, the proceeding has been vitiated in view decision rendered by Hon'ble Apex Court in the case of 'Managing Director, ECIL, Hydrabad & Ors. Vrs. B. Karunakar & Ors.' reported in (1993) 4 SCC727 12. In view of reasons stated herein above and as a logical sequitur to the aforesaid reasons, the impugned order of punishment dated 10.08.2006(Annexure-9) and the order of the appellate authority dated 11.01.2007 (Annexure-10) are quashed. However, the respondents are at liberty to start proceeding from the stage of supply of copy of enquiry report after affording reasonable opportunity of hearing to the petitioner and conclude the same as early as possible, preferably within a period of six months from the date of receipt/production of a copy of this order.
13. With the aforesaid direction, this writ petition stands allowed. (Pramath Patnaik, J.) s.b.