1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P. (S) No. 4848 of 2009 … Shankar Prasad Singh son of Late Jaldhar Prasad Singh, resident of village-Khajurkorama, P.O.-Nawatoli Bazar, P.S.-Rezaun, district-Banka … … Petitioner -V e r s u s- 1. The State of Jharkhand. 2.The Director General of Police, Jharkhand, Ranchi.
3. The Inspector General of Police, South Chhotanagpur Range, Ranchi.
4. The Deputy Inspector General of Police, Singhbhum (Kolhan) Range, Chaibasa.
5. The Superintendent of Police, Chaibasa … Respondents … CORAM: - HON’BLE MR. JUSTICE PRAMATH PATNAIK. … For the Petitioner : - Mr. (Dr.) S. N. Pathak, Sr. Advocate. and M/s. K. K. Bhatt, B. Thakur and R. K. Roy, Advocates. For the Respondent-State: - Mr. Chanchal Jain, J.C. to A.A.G. … C.A.V. On : - 16/06/2016 Delivered On :
6. 9/2016 ... Per Pramath Patnaik, J.
In the accompanied writ application, the petitioner has inter alia prayed for issuance of a writ in the nature of certiorari for quashing the order passed by the Disciplinary Authority (Respondent No.
5) in Departmental Proceeding No. 40 of 2005, as contained in memo no. 2024 dated 30.4.2008, whereby the petitioner has been inflicted with punishment of dismissal from service.
2. Sans details, the facts as disclosed in the writ application, is that the petitioner was appointed in the year 1994 in the District Police, Dumka and after working there till 2002, he was transferred to Chaibasa. It has been averred that while the petitioner was posted in the Manoharpur Police Station as a Reserve Guard, it was alleged that on 26.03.2005, he alongwith Constable No. 778 Sunil Kumar forcibly took Chinki @ Puja (15 years) and Takli Kumari (16 years) to Adarsh Middle School where Takli Kumari after biting the petitioner rescued herself and informed the villagers and the villagers caught Constable No. 778 Sunil Kumar in attempting to commit rape whereas the petitioner fled away. Accordingly, Manoharpur P.S. Case No. 9 of 2005 2 was instituted under Sections 366/376 and 511 of the Indian Penal Code and both the constables were taken into custody. It has been submitted that on the same allegation a departmental proceeding was also initiated against the petitioner by serving him charge sheet vide memo no. 1532 dated 28.4.2005. It has been further averred that in the said criminal case the victim girls, their guardians and other witnesses have not supported the prosecution case and accordingly the learned Addl. District and Sessions Judge I, Chaibasa vide its judgment and order dated 27.7.2005 passed in S.T. No. 146 of 2005 acqitted the petitioner from the charges. It has been further submitted that for the same charges and similar facts, departmental proceeding no. 40 of 2005 was initiated, in which the Inquiry Officer conducted the enquiry in illegal manner in as much as he himself acted as the Presenting Officer and asked leading question from the petitioner and no reasonable opportunity was given to the petitioner to defend himself nor the petitioner was allowed to produce his witnesses. In the said departmental proceeding the victim girl also not stated anything against the petitioner and her father also clearly stated that her daughter said hat Sipahiji was not involved in the occurrence. It has been further stated that the petitioner on 24.4.2006 submitted his final explanation categorically stating the circumstances from which it would be proved that the petitioner is not guilty of charges levelled against him and accordingly requested the authority to exonerate him from the charges levelled against him since he has not committed any misconduct, but the Enquiry Officer without considering the explanation submitted by the petitioner submitted his enquiry report on 31.01.2008 holding the petitioner guilty of the charges. It has been further averred that the Disciplinary Authority relying upon the enquiry report issued order vide memo no. 2024 dated 30.4.2008, whereby the petitioner was awarded punishment of dismissal from service. It has been further stated in the writ application that being aggrieved by the order of dismissal passed by the Disciplinary Authority, the petitioner filed Appeal dated 9.7.2008 before the Appellate Authority contending that the order of dismissal has been passed in violation of Rule 825 of the 3 Police Manual since Sri Sudhir Kumar Jha was Additional Superintendent of Police and after transfer of Superannuated of Police, Chaibasa he was holding the post of the Superintendent of Police. The petitioner further contended that since he was acquitted in the criminal case and as such awarding punishment of dismissal for the same set of charge is not justified and accordingly requested for setting aside the order of dismissal and exonerating him from the charges levelled against him. It has been stated that the appellate authority rejected the appeal filed by the petitioner vide its order contained in memo no. 570 dated 18.6.2009 without appreciating the facts, contention and law raised by the petitioner. Left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for redressal of his grievances.
3. Heard Mr. (Dr.) S. N. Pathak, learned counsel for the petitioner and Mr. Chanchal Jain, learned J.C. to A.A.G. for the respondents- State.
4. Mr. (Dr.) S. N. Pathak, learned senior counsel for the petitioner has vehemently submitted that the petitioner has been penalized on the basis of a false and frivolous allegation and as such the action of the respondent authority in awarding punishment on such unsustainable charge is wholly illegal and against all canon of justice. Learned senior counsel for the petitioner has further submitted that the Disciplinary Authority without supplying the copy of the enquiry report awarded punishment to the petitioner and thereby denied the petitioner to file representation against the finding of the Enquiry Officer and as such the impugned order of punishment of dismissal is vitiated in law due to non-observance of the Rule/Principle of natural justice and is liable to be set aside on this score alone. In support of his contentions, learned counsel for the petitioner has relied upon Rule 825 of the Police Manual and the Police Act, 1861. In support of his contentions, learned counsel for the petitioner has heavily relied upon the following judgments : - 4 (i) in the case of Narinder Mohan Arya-Vs.-United India Insurance Co. Ltd. and Ors. reported in (2006) 4 SCC713 para 26 (ii) in the case of Javed Shoukat-Vs.-The State of Bihar & Ors. reported in 2000 (2) PLJR552para 10 & (iii) in the case of The State of Bihar & Ors.-Vs.- Javed Shoukat reported in 2002 (3) JLJR299para 6 5. No counter affidavit has been filed on behalf of the Respondent- State controverting the statements made in the writ application. However, Mr. Chanchal Jain, learned J.C. to A.A.G. for the Respondent-State apart from justifying the impugned order of dismissal from service, has assiduously submitted that the act of the petitioner will amount to indiscipline in the service and because of the offence committed by the petitioner, the image of the Police becomes clouded. Learned counsel for the Respondent-State submitted that the disciplinary proceeding was initiated against the petitioner not only on the basis of the charges which was the subject matter of criminal case but also on the charge of not maintaining discipline in the service and efficiency in the public service. Learned counsel for the Respondent- State further submitted that since the charges in both the departmental proceeding and the criminal case were not exactly the same and similar, the impugned order of punishment is perfectly legal and justified. Learned counsel for the Respondent-State submitted that the appellate authority after taking into consideration the fact that the petitioner was acquitted in the criminal case, has affirmed the order of the disciplinary authority on the ground that preponderance of probabilities is adequate to punish the delinquent.
6. The moot point raised in the instant writ application is as to whether the order of dismissal can be sustained in law in respect of the charges for which the petitioner has been acquitted in a criminal case by the court of Sessions.
7. For better appreciation, it would be apposite to refer to Rule 825 of the Police Manual and the Police Act, 1861 which reads as under : - Rule 825. Officers empowered to impose punishment – (a) 5 No police officer shall be dismissed or compulsorily retired by an authority subordinate to that which appointed him. Police Act, 1861 7. Note – Dismissal of a person appointed by the Superintendent of Police by Additional Superintendent of Police is illegal.
8. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow : - (i) The Disciplinary Authority without supplying the copy of the enquiry report awarded punishment to the petitioner and thereby denied the petitioner to file representation against the finding of the Enquiry Officer and as such the impugned order of punishment of dismissal is vitiated in law due to non-observance of the Rule/Principle of natural justice. The Hon’ble Apex Court in the case of Managing Director ECIL Vs. B. Karunakar as reported in (1993) 4 SCC727held as under:
57. “.........The denial of supply of the copy, therefore, causes to the delinquent a grave prejudice and avoidable injustice which cannot be cured or mitigated in appeal or at a challenge under Article 226 of the Constitution or Section 19 of the Tribunal Act or other relevant provisions. Ex post facto opportunity does not efface the past impression formed by the disciplinary authority against the delinquent, however, professedly to be fair to be delinquent. The lurking suspicion always lingers in the mind of the delinquent that the disciplinary authority was not objective and he was treated unfairly. To alleviate such an impression and to prevent injustice or miscarriage of justice at the threshold, the disciplinary authority should supply the copy of the report, consider objectively the records, the evidence, the report and the explanation offered by the delinquent and make up his mind on proof of the charge or the nature of the 6 penalty. The supply of the copy of the report is, thus, a since qua non for a valid, fair, just and proper procedure for the delinquent to defend himself effectively and efficaciously......” 61.........“The proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. The principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Article 14, 21 and 311 (2) of the Constitution, but also, the principles of natural justice............” (ii) Considering the charges proved, the punishment awarded appears to be harsh and shockingly disproportionate being violative of Articles 14, 16, 19 and 21 of the Constitution of India. The Hon’ble Apex Court in the case of Lucknow Kshetriya Gramin Bank & Anr. Vs. Rajendra Singh as reported in (2013) 12 SCC372in the placitum held as under: “However, the judicial review of the quantum of punishment is available with a very limited scope. The court would frown upon only when the penalty imposed appears to be so disproportionate to the nature of misconduct that it is shocking to the conscience of the court. Even in such a case when the punishment is set aside as shockingly disproportionate, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.”
9. On cumulative effect of the facts, reasons and judicial pronouncements and as a logical sequitor the impugned order of punishment of dismissal dated 30.4.2008 passed by the Disciplinary 7 Authority (Respondent No.
5) in Departmental Proceeding No. 40 of 2005 being not legally sustainable is hereby quashed. The Disciplinary Authority (respondent no.
5) is directed to consider the matter afresh and pass appropriate order in accordance with law on the quantum of punishment within a period of four months.
10. With the aforesaid direction, this writ petition stands allowed. (Pramath Patnaik, J.) APK