RAM BAHADUR SINGH Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) In the instant writ application, the petitioner has inter alia prayed for quashing the order dated 1.2.2010, passed by the respondent no. 3, whereby the order of punishment of withholding one increment for a period of three years has been passed and for quashing the order, as contained in order no. 378/10, dated 21.5.2010, whereby the promotion of the petitioner has been denied and further for a direction upon the respondents to consider the case of the petitioner for promotion to the post of Assistant Sub Inspector of Police with effect from the month of May, 2010 along with all consequential benefits.

(2.) Sans details, the facts as disclosed in the writ application is that the petitioner was appointed as a Constable in the State Police with effect from 25.11.1983 and after bifurcation of the State, he has been allocated the cadre of the State of Jharkhand and his services have been placed to the Crime Investigation Department, in which the petitioner is at present posted as Constable. It has been further averred in the writ application that while the petitioner was posted as a member of Crime Investigation Department team in the district of Gumla, one memorandum of charge was issued as contained in memo no. 830 dated 29.5.2009, whereby charges have been levelled regarding unauthorized absence and 2nd charge is with respect of dereliction in duty, while he was deputed to discharge his duties on 9.7.2009. It has been further averred that by virtue of the order dated 29.05.2009, the petitioner was directed to give reply within a period of fifteen days and in pursuance of the same, he has given his reply, denying the entire allegation with specific averment that so far as second charge is concerned, the petitioner has already been inflicted punishment. The respondents authorities without taking into consideration the reply to the show cause, have passed an order on 1.2010, inflicting punishment of withholding one increment for a period of three years, clarifying that it will not affect his future increment. It has been further averred that the order dated 1.2010 is absolutely incorrect and illegal, in view of the fact that although two charges have been levelled against the petitioner one with respect to unauthorized absence while another is with respect to incidence of 9.7.2009 and in the memorandum of charge itself, it has been stated that with respect to incidence occurred on 9.7.2009 a departmental proceeding was already initiated against the petitioner being Departmental Proceeding No.33/05, wherein the punishment of withholding increment for a period of six months has been inflicted upon the petitioner and, thus, with respect to the 2nd charge, he has already been inflicted with a punishment, but, to the utter consternation of the petitioner, the respondent authorities while framing charge against him, the second charge for which the petitioner has already been punished, has also been made a charge against him and hence on this ground alone the entire departmental proceeding is vitiated in law and, as such, the order dated 1.2010 is also not sustainable in the eyes of law as because an employee/person once punished or convicted cannot be re-punished or reconvicted in view of the express provision, as contained in Art. 20 (2) of the Constitution of India. It has been further averred that the respondent authorities have further acted in a highly arbitrary manner in view of the fact that although the petitioner is entitled to be considered for promotion to the next higher post i.e. to the post of Assistant Sub Inspector of Police with effect from the month of May, 2010 but his case has not been considered, rather it has been rejected on the ground of order of punishment dated 1.2010 vide order dated 21.5.2010.

(3.) Per contra Counter affidavit has been filed on behalf of the respondents, repelling the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that one Constable C/140, Ram Bahadur Singh, who was posted in the office of the Deputy Superintendent of Police, CID, Gumla, was traceless from 2.2009 to 4.2.2009 without any information to his superiors and C/22 Kaushal Kumar Mishra was deputed to search him giving command certificate. C/22 Kaushal Kumar Mishra submitted his report in writing that C/140, Ram Bahadur Singh is not available at Gumla area. Thereafter, the Deputy Superintendent of Police, CID, Gumla sent a report to CID, H.Qr., regarding his absence vide his Memo No. 12/09 dated 4.2.2009. Thereafter, a departmental proceeding being D.P. No. 11/09 was initiated against the petitioner, Constable-140, Ram Bahadur Singh and Sri Dinesh Kumar, Police Inspector, CID, was made the conducting Officer. The said departmental proceeding was conducted accordingly and C/140, Ram Bahadur Singh was granted adequate opportunity for his defence. Thereafter, the Conducting Officer submitted his inquiry report on 110.2009 and found the petitioner guilty of the charges levelled against him. After considering the inquiry report and perusing the materials on record and application of judicial mind, the disciplinary authority passed order on 21.5.2010 and imposed punishment of withholding one increment for a period of three years. Unauthorized absence for the period 2.2009 and 4.2.2009 was adjusted as extra-ordinary leave without payment. The promotion of the petitioner was denied vide C.I.D. Order No. 378/10, Memo No. 53/R dated 21.5.2010 and D.G.P. and I.G. of Police Office Memo No. 966/P dated 26.4.2010. Punishment of withholding increment for a period of three years has been inflicted upon the petitioner of which time of occurrence is 2.2009 and the punishment affected his promotion for three years from the date of occurrence i.e. w.e.f. 2.09 to 2.12 and hence his promotion was denied.