Khira Lohra vs State Of Jharkhand

Sanjay Kumar Dwivedi, J

Heard Mr. A.K. Sinha, learned sr. counsel appearing for the petitioner and Rajesh Kr. Singh, learned A.C. to S.C. VI for the respondents.

This writ petition has been preferred by the petitioner for quashing the Appellate Order dated 6.12.2003 and Revisional Order as well as punishment order.

The learned counsel for the petitioner submits that the petitioner was posted in Latehar district as a constable. An allegation has been levelled against him that on 14.6.2002, he has raised his rifle on his colleagues namely Lal Bahdur Singh while he was in drunken condition and in this context the charge was issued against the petitioner. Thereafter, the departmental proceeding has been initiated against the petitioner and the Enquiry officer has given report saying that charge against the petitioner has been proved and on the basis of the enquiry report Disciplinary Authority has passed the order of dismissal. The petitioner preferred an appeal before the Competent Authority which has been rejected and subsequently revision was filed by the petitioner has also been rejected. Mr. A. K. Sinha, the learned Sr. Counsel submits that on the allegation made by Lal Bahadur Singh, charge against this petitioner has been framed but Lal Bahadur Singh on affidavit stated that on coercion he has made allegation against the petitioner. He denied that he alleged against the petitioner. He submits that the petitioner has been examined medically after four days of the occurrence and as such report has not been brought on the record by the concerned department. He further submits that while issuing the impugned order, the Disciplinary Authority has entered into the past allegation of the petitioner for which he has already been punished and that was not charge and despite of that the Disciplinary authority has passed the order of the dismissal. To substantiate his argument Mr. Sinha relied on decision in the case of Indu Bhushan Dwivedi Vs. State of Jharkhand and Another reported in (2010)11 S.C.C 278. He has also referred the paragraph 28 of the said judgment which reads as follows :-

"28.An analysis of the two judgments shows that while recommending or imposing punishment on an employee, who is found guilty of misconduct, the disciplinary /competent authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. However, such an opportunity is not required to be given if the final punishment is lesser than the proposed punishment".

On the other hand, the learned counsel for the State submits that on enquiry, charge against the petitioner has been proved and his conduct was not good and taking into account that he was in drunken position and he quarrelled with colleague, Disciplinary authority has rightly passed the order of punishment.

Having heard the learned counsel for the parties, this court finds that the petitioner has not been medically examined within 24 hours of the allegation. However, according to Mr. Sinha, he has been examined after four days of the alleged occurrence. The person, on whose allegation charge has been framed, denied that he stated nothing against the petitioner and in view of the ratio made in Indu Bhushan Dwivedi (Supra), the impugned order cannot sustain in the eyes of law. Moreover, the punishment is disproportionate to the charge and accordingly, the impugned order dated 16.12.2013 is, hereby, quashed and this petition is allowed. The matter is remitted back to the respondents to pass order afresh taking into account the observations made herein above.

Accordingly, the writ petition stands disposed of.