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Police 24 Bharat Singh v/s The State of Jharkhand & Others

    W.P.(S) No. 553 of 2012

    Decided On, 13 August 2021

    At, High Court of Jharkhand


    For the Petitioner: Samavesh Bhanj Deo, Advocate. For the Respondent: Rohan Kashyap, AC to GA.

Judgment Text

1. The petitioner who was appointed on the post of Constable on 01.01.1983 faced a departmental proceeding vide charge-sheet dated 08.08.2000. He was dismissed from service by an order of the disciplinary authority and his departmental appeal also stood dismissed. By an order of the Hon'ble Division Bench of this Court the order of dismissal from service was set-aside and the matter was remitted back to the departmental authority on the question of quantum of punishment. By an order dated 16.06.2010 the petitioner was reinstated in service with immediate effect but was denied back wages for the period of termination.

2. Mr. Samavesh Bhanj Deo, the learned counsel for the petitioner submits that the petitioner is aggrieved of a part of the order dated 16.06.2010 by which he has been denied back wages for the period between dismissal from service and his reinstatement in service, primarily on the principle of no work no pay.

3. To assail legality of the order dated 16.06.2010, the learned counsel for the petitioner has raised two-fold contentions viz. (i) in view of specific provision under Rule 841 of the Jharkhand Police Manual more particularly sub-rule (2)(b) the petitioner is entitled for a proportion of full back wages which, however, cannot be less than subsistence allowance which should have been paid to him as if he was under suspension, and (ii) the order dated 16.06.2010 suffers from non-application of mind in as much as the departmental authority has mechanically passed the said order without following the mandate under Rule 841(2)(b).

4. The learned counsel for the petitioner relies on the judgments in (i) “Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam Limited” (2016) 16 SCC 663 and (ii) “United India Insurance Co. Ltd. v. Siraj Uddin Khan” (2019) 7 SCC 564 to fortify his contentions.

5. The charges framed against the petitioner in departmental proceeding no. 63 of 2000 relates to an incident which happened on 20/21.05.2000 at koderma Railway Station where the petitioner and another Constable, namely, Arun Kumar Singh were deputed. The allegation against them is that they misbehaved with Md. Shakil Ahmad, committed marpit and took money from him. The petitioner was afforded opportunity to defend himself in the departmental proceeding and after considering his defence the enquiring officer formed an opinion that the charges framed against the petitioner were proved. A second show-cause notice was issued to the petitioner on 17.10.2002 and he was dismissed from service by the order of the disciplinary authority dated 23.06.2003. This order was unsuccessfully challenged by the petitioner before the appellate authority and the writ Court also dismissed the challenge made by him to the orders dated 23.06.2003 and 12.02.2004 which was passed by the appellate authority. Thereafter the petitioner approached the Letters Patent Court and by an order dated 12.04.2010 the order of dismissal from service was quashed and the matter was remitted to the appellate authority for reconsideration of the matter as regards quantum of punishment awarded to him, for the following reasons:

“Heard the counsel for the parties.

This appeal is directed against the judgment dated 27.04.2009 passed in W.P.(S) No. 1553 of 2004 whereby the learned Single Judge dismissed the writ petition. For better appreciation, the impugned judgment reads as under:

''In the instant writ petition the petitioner prays for issuance of an appropriate writ, order or direction in the nature of certiorari for quashing the order dated 23.06.2003 passed by respondent No. 2 whereby and whereunder the petitioner has been dismissed from service on the ground that he misbehaved with the passenger having a valid ticket and he was subjected to police cruelty and also for quashing of the appellate order dated 12.02.2004 issued under memo No. 67 by respondent No.3 whereby and whereunder appeal preferred by the petitioner was dismissed and confirmed the order of the respondent No.2.

The main contention raised by the counsel for the petitioner is that in a similar charge another person was given a lesser punishment. He also submits that punishment of dismissal and removal was disproportionate.

I have considered the pleadings and rival submissions and the admitted fact remains that all the three authorities had given a concurrent findings of fact and the opportunity was given to the petitioner including the second show cause and thus, it would not be appropriate to re-appreciate or reconsider the matter in the writ jurisdiction.

As regards the similar charges of another person and being awarded lesser punishment, it is well settled that one wrong does not make another wrong to be right and even the charge sheet has not been filed. Considering the aforesaid facts and circumstances of the case, this writ petition is accordingly dismissed.''

Mr. Pathak, learned counsel appearing for the appellant assailed the impugned judgment and also the order of punishment mainly on the ground that departmental proceeding was initiated against two constables having similar allegations but against one of the constable lesser punishment had been imposed by withholding two annual increment but in case of the appellant harsh punishment was imposed by dismissing him from service. This court, on the last date after hearing the parties, directed the State counsel to seek instruction as to why such disproportionate and discriminate punishment has been awarded so far the appellant is concerned.

It appears that the present appellant along with one another constable, Arun Kumar Singh were on duty in Indore- Howrah Express, in which, one Md. Sakil Ahmad was traveling. It was alleged that the train halted at Koderma Railway Station and Md. Sakil Ahmad left the said train for taking drinking water from Platform No. 3. At that time, the appellant and another constable, Arun Kumar Singh caught hold him and handed over to Assistant Sub-Inspector. It was alleged that the money was taken by the police personal from the passenger and he was subjected to assault and cruelty. A departmental proceeding was initiated against both the delinquent police constables. On the charges having been proved punishment of withholding of two increments was imposed on constable, Arun Kumar Singh whereas the order of dismissal from service was passed against the appellant. It appears that the appellant took this point before the appellate authority regarding discrimination in the matter of awarding punishment. The appellate court rejected the said plea on the ground that it is the discretion of the disciplinary authority to impose such punishment which he thinks fit.

Prima facie, we are of the view that the approach of the appellate authority is not in accordance with law. The Disciplinary authority may have discretion to impose punishment, if the charges are proved in the departmental proceeding but that discretion must be exercised judiciously and should not be arbitrary or discriminatory. For this reason alone, the impugned order of punishment of dismissal from service cannot be sustained in law. The appellate authority shall re-consider the matter and shall award appropriate punishment taking into consideration the gravity of the charges leveled against the appellant. Needless to say that the punishment should not be disproportionate to the charges leveled against him as also should not be discriminatory.

With the aforesaid direction and observation this appeal is disposed of.”

6. As noticed above, the appellate authority accepted the plea of parity of the petitioner on quantum of punishment and he was reinstated in service with immediate effect.

7. The power of the writ Court exercising jurisdiction under Article 226 of the Constitution of India to review decision of the departmental authority is by now well defined. It is well-settled that against an order of punishment a certiorari would lie where it is established that the order was passed in breach of the principles of natural justice or contrary to the extant rules. The writ Court may interfere with an order of punishment if it is shown to the Court that the order passed against the delinquent employee was arbitrary and irrational or such that it shocks conscience of the Court. It is, however, well-settled that quantum of punishment is an issue which falls exclusively within the domain of powers of the disciplinary authority and judicial interference with the order of punishment is almost forbidden in the cases which do not fall under the well defined exceptions carved out by the judicial decisions.

8. In “Ranjit Thakur v. Union of India” (1987) 4 SCC 611 the Hon’ble Supreme Court has observed as under:

“25. ..…The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review……”

9. Rule 841 of the Jharkhand Police Manual reads as under:

“841. Allowance during suspension– (a) A member of Government service who is placed under suspension shall, during the period of such suspension, be entitled to receive payment from the authority, under whom he was serving at the time of suspension, as a subsistence allowance an amount equal to the leave salary which he would have drawn under the leave rules applicable to him if he had been on leave on half pay or on half average pay:

Provided that, where the period of suspension exceeds twelve months, it shall be within the competence of the suspending authority to increase or reduce the amount of subsistence allowance for any period subsequent to the period of the first twelve months, subject to the following conditions, namely:

(i) The amount of subsistence allowance may be increased by a suitable amount, not exceeding fifty per cent of the subsistence allowance drawn during the period of the first twelve months, if, in the opinion of the suspending authority, the period of suspension has been prolonged for reasons not directly attributable to the employee concerned;

(ii) the amount of subsistence allowance may be reduced by a suitable amount not exceeding fifty per cent of the subsistence allowance drawn during the period of the first twelve months, if, in the opinion of the suspending authority, the prolongation of the period of suspension has been due to reasons directly attributable to the employee concerned.

(b) But there shall be such a provision that in addition to the subsistence allowance, the authority may direct to such extent and subject to such conditions as it thinks fit, the payment of–

(i) any compensatory allowance admissible from time-to-time on the basis of pay, of which the member of the service was in receipt on the date of suspension, or that may be subsequently sanctioned; and

(ii) dearness allowance not exceeding the amount admissible as such, had he been on leave salary equal to the rate of subsistence allowance payable from time to time.

(c) No member of the Service shall be entitled to receive payment under sub-rule (b) (i) unless he furnishes a certificate that he is not engaged in any other employment, business, profession or vocation.

(d) The authority to grant subsistence allowance shall be the suspending authority.

(e) Pay, allowance and treatment of service on reinstatement.– (1) When a member of the service who has been dismissed, removed compulsorily retired or suspended is reinstated then for his retirement or superannuation while under suspension, the authority competent shall make order as to –

(a) the pay and allowances which shall be paid to him for the period of his absence from duty or of suspension ending with the date of retirement; and

(b) whether or not, the said period shall be treated as a period spent on duty.

(2) (a) Where such competent authority holds that he has been fully exonerated, he shall be granted the full pay to which he would have been entitled had he not been dismissed, suspended, etc., together with any allowance which he was in receipt immediately prior to his dismissal, suspension, etc., or may have been sanctioned subsequently.

(b) In all other cases, he shall be granted such proportion of such pay as such competent authority may direct; provided that the payment of allowance shall be subject to such conditions as may be applicable to it:

Provided further that this shall not be less than the subsistence and other allowances admissible under rule 841 (a).

(3) (a) In a case falling under clause (a) of sub-rule (2) the period of absence from duty shall for all purposes be treated as a period spent on duty.

(b) In a case falling under clause (b) of sub-rule (2) the period of absence from duty shall not be treated as a period spent on duty unless the competent authority specially directs as such in writing.

(c) If the extra cost on account of such payment exceeds Rs.1,000 and if the period of absence exceeds one year, the sanction of Government shall be taken as given in Bihar Service Code Rule 98.

(d) During the period of suspension of any Police Officer/Ministerial Officer the vacancy can be filled up by appointment or promotion provided the extra cost does not exceed rupees one thousand only and the period of suspension does not exceed one year. If it exceeds the above limits, the sanction of Government will be taken.”

10. The petitioner was found guilty in the departmental proceeding and this part of the finding recorded by the departmental authorities has been affirmed by the writ Court and the Hon'ble Division Bench in L.P.A No. 260 of 2009. From the pleadings in the present writ petition, I do not find a reference regarding any objection put forth by the petitioner to the order dated 16.06.2010 of his reinstatement in service without back wages. He tendered his joining without any protest and now he turns back and challenges the order dated 16.06.2010.

11. In “Sanat Kumar Dwivedi v. Dhar Jila Sahakari Bhoomi Vikas Bank Maryadit” (2001) 9 SCC 402 the Hon’ble Supreme Court has held as under:

“2. The admitted facts are that the appellant was reinstated in service by order dated 12-5-1978 with a condition that he will not get any back wages. Obviously, earlier on 8-3-1976 his services were terminated but by the aforesaid order, he was reinstated without back wages. He accepted such reinstatement without back wages by his joining report, Annexure R-4 at p. 106 of the paper-book that he has joined his duty on 13-5-1978. By his own conduct, the appellant has accepted the correctness of the order of reinstatement without back wages. Under these circumstances, subsequent dispute raised by him regarding back wages was clearly not maintainable as held by this Court in State of Punjab v. Krishan Niwas. In view of the settled legal position, no interference is called for. The appeal is therefore, dismissed.”

12. On a plain reading of Rule 841 of the Jharkhand Police Manual, I am of the opinion that it does not confer an absolute right in a dismissed employee who has been permitted to rejoin the service. Rule 841(2)(b) specifically refers to discretion of the competent authority which of course would take a decision in the matter after examining the facts and circumstances in the case. Rule (3) (b) further clarifies that unless there is an order of the competent authority the period of absence from duty shall be treated as such. By all accounts the decision of the disciplinary authority is based on the facts of the case. Except taking a plea that he was prevented from discharging his duty on account of the order of dismissal dated 23.06.2003 the petitioner has not placed on record any material which would demonstrate that the order passed by the appellate authority denying him back wages is perverse and patently illegal.

13. Mr. Rohan Kashyap, the learned AC to GA-II has rightly submitted that the judgments in “Shobha Ram Raturi” (supra) and “United India Insurance Co. Ltd.” (supra) referred to by the learned counsel for the petitioner are not applicable in case of the petitioner and, moreover, since the petitioner was not fully exonerated he cannot claim back wages from the date of his dismissal from service.

14. Moreover, award of back wages is again a matter falling within discretion of the authority/Court. Grant of back wages is not automatic. A glance at one of the earliest judgments in Hindustan Tin Works v. Employees” (1979) 2 SCC 80 would indicate that grant of back wages depends on the facts of the case.

15. In “Hindustan Tin Works” (supra) the Hon'ble Supreme Court has held as under:

“9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the Apex Court now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamdar Mandal and a Division Bench of the Allahabad High Court in Postal Seals Industrial Cooperative Society Ltd. v. Labour Court II, Lucknow have taken this view and we are of the opinion that the view taken therein is correct.”

16. In “J.K. Synthetics Ltd. v. K.P. Agrawal” (2007) 2 SCC 433 the Hon'ble Supreme Court has held as under:

“19. …..The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other simila

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r provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc.” 17. Having considered every aspect of the matter, I find that the order dated 16.06.2010 does not suffer from non-application of mind. The petitioner has failed to demonstrate that he is entitled for back wages. 18. Accordingly, W.P.(S) No. 553 of 2012 is dismissed.