The appellate authority has the power to modify or substitute the punishment, and notice to the petitioner is not necessary when the modification is lenient and in favor of the petitioner.

JUDGMENT :

ANANDA SEN, J.

1. Heard learned counsel for the petitioner and learned counsel for the respondents.

2. Petitioner, in this writ petition, prays for an appropriate order in the nature of certiorari to call for and quash the order dated 04.01.2017 contained in Memo No. 18/Go (Annexure 7 to the writ petition), whereby the appellate authority modified the punishment inflicted upon the petitioner by converting the same from dismissal to compulsory retirement. Prayer has also been made to reinstate the petitioner.

3. This case lies in a very narrow compass. Petitioner was a constable. He was departmentally proceeded on the ground that he is a drunkard. On 20.11.2011, while on patrolling duty, he in a drunken state fell down from the vehicle. He had to be carried to the barrack. He came to senses after a very long time. Again on 21.12.2020, he was found in intoxicated state and his colleagues brought him to the Barrack. On the said allegations, charge-sheet was issued to him. A departmental enquiry was set up and thereafter, following the procedure of law, vide order dated 31.07.2015, petitioner was dismissed from service. Aggrieved by the dismissal order, petitioner preferred a departmental appeal, which was kept pending for a considerable period of time, resulting in filing of writ petition being W.P. (S) No. 5135 of 2015. This Court on 28.11.2015, directed the appellate authority to dispose of the appeal at the earliest. The appellate authority, thereafter, vide impugned order dated 04.01.2017 converted the order of dismissal to that of compulsory retirement with effect from 31.07.2015 (i.e. the date when the initial dismissal order was passed) and has held that the period, which he has not worked, will be treated as “no work no pay.” The said order is under challenge in this writ petition.

4. Only ground taken by the counsel for the petitioner is that while modifying the order of punishment in appeal, the appellate authority has not issued any notice to the petitioner in terms of Rule 854 A (6) of the Jharkhand Police Manual. As per him, as the notices were not issued, the entire appellate order by which the punishment was converted, stands vitiated.

5. Counsel appearing on behalf of the State-respondents, submits that earlier the petitioner was dismissed from service, against which, departmental appeal was filed. Appellate authority considered the appeal and converted the dismissal to compulsory retirement, which, in fact, is a lessor punishment than the punishment which was originally awarded by the disciplinary authority. As per him, Rule 854 A (6) of the Jharkhand Police Manual is not applicable on the facts of this case.

6. From the aforesaid facts and the arguments, it is clear that the petitioner was in the police force. Utmost discipline has to be maintained while serving the police force. Petitioner failed to maintain the discipline for which a disciplinary proceeding was initiated on the charge mentioned above. The enquiry officer found the charge to be proved. Thereafter, vide order dated 31.07.2015, petitioner was dismissed from service. The appellate authority, taking a lenient view, substituted the punishment with that of compulsory retirement. Punishment of compulsory retirement is lenient as compared to dismissal from service, as in case of compulsory retirement, petitioner will get all the service and retiral benefits including provident fund, gratuity and pension, provided he had completed the qualifying period of service. In case of dismissal, an employee will not be paid any amount save and except his own contribution towards the provident fund. The appellate authority converted the punishment which was imposed earlier.

7. Petitioner claimed that he ought to have been noticed in terms of Rule 854 A (6) of the Jharkhand Police Manual. Rule 854 A of the Jharkhand Police Manual which deals with compulsory retirement. Sub-Rule (1) to sub-rule (5) of Rule 854 A deals with a situation when the order of compulsory