1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 526 of 2009 ------- Yogendra Kumar Singh, son of Sri Kashi Nath Singh, resident of village Bhumihara, Post Beniapur, Posice Station Chapra, District Saran, Bihar. ... Petitioner Vs. 1.The State of Jharkhand 2.The Director General-cum-Inspector General of Police, Jharkhand, Ranchi 3.The Inspector General of Police (Training), Jharkhand, Ranchi 4.The Deputy Inspector General of Police, South Chotanagpur Division, Ranchi. 5.The Senior Superintendent of Police, Ranchi .… … ... Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Ms. Ritu Kumar, Advocate Mr. Samavesh Bhanj Deo, Advocate For the Respondents : Mr. Chanchal Jain, J.C to A.A.G ------ 06/ Dated:
09. h September, 2016 Per Pramath Patnaik, J.: In the accompanied writ application, the petitioner has inter alia prayed for quashing order passed in memo dated 12.11.2008, whereby memorial appeal preferred by the petitioner has been rejected and for quashing appellate order as contained in memo dated 18.06.2001 and further for quashing order dated 31.08.1998, by which, the petitioner has been dismissed from services w.e.f 01.09.1998 and also for direction upon the respondents to reinstate the petitioner in services.
2. The facts, as emanated from the writ application, in a nutshell is that the petitioner while discharging his official duties as constable, arrested one criminal, who somehow managed to escape from the custody, for which an F.I.R. was lodged against the petitioner and another constable, namely, Mahendra Tirkey as well as against the accused-Jitu Munda alleging that the petitioner and constable Mahendra Tirkey helped the accused Jitu Munda to escape from the custody. On the basis of such allegation, the petitioner was put under 2 suspension vide order dated 01.11.1997 and departmental proceeding was initiated against the petitioner and charge-sheet as contained in memo dated 27.01.1998 was served upon the petitioner. However, it is alleged that considering his innocence, his suspension was revoked vide order dated 06.02.1998. It has further been averred that the Enquiry Officer in a very haste manner submitted enquiry report dated 21.04.1998. Basing on said enquiry report, the disciplinary authority imposed the punishment of dismissal from services upon the petitioner vide order dated 31.08.1998 w.e.f 01.09.1998. Against which, the petitioner preferred appeal which was rejected by order as contained in memo dated 18.06.2001. In the meantime, in the criminal case vide judgment dated 15.01.2008, the petitioner and another constable Mahendra Tirkey were acquitted on the ground that the prosecution had not been able to prove and establish the allegation against the accused persons beyond all reasonable doubt.
3. However, being aggrieved by the order of dismissal and appellate order, the petitioner approached this Court by way of filing W.P. (S) No. 967 of 2003, which was disposed of vide order dated 11.07.2008 with liberty to avail appropriate remedy under the Rules. Thereafter, the petitioner preferred Memorial appeal bringing to the knowledge of the revisional authority about his acquittal in criminal case. But, the Memorial Appeal preferred by the petitioner was rejected vide order dated 12.11.2008 without considering the plea raised by the petitioner. Hence, the present application.
4. Learned counsel for the petitioner submitted that enquiry proceeding was taken up only on three dates and the enquiry officer in great haste submitted his report without investigating the allegation levelled against the petitioner in right and correct 3 prospective. It has further been submitted in the departmental proceeding only two witnesses were examined, who were not at all present at the time and place of occurrence, as such the entire proceeding suffers from perversity. It has further been submitted that the petitioner was in drunken condition at the place of occurrence but neither any witness nor any medical examination was done to prove the same. It has further been submitted that the petitioner was not given proper opportunity to examine or cross-examine the witnesses. Learned counsel for the petitioner further submits that the accused, who run away from the custody, himself has deposed that he fled away from the custody due to fear of jail. Learned counsel for petitioner further submitted that in the appeal and memorial, the authorities concerned have not considered the fact that the petitioner has been acquitted in criminal case and on the same and similar ground departmental proceeding was initiated.
5. Controverting the averments made in the writ application, learned counsel for the respondents submitted that the petitioner in a drunken condition threatened the chowkidar and took the keys of Hazat and taken out the accused, who was handcuffed, wherefrom the accused fled away. Basing on these allegation, departmental proceeding was initated against the petitioner, which culminated in dismissal the petitioner from services, which has duly been confirmed in the appeal as well in revision. Learned counsel for the respondents has further submitted that though the petitioner has been acquitted in the criminal case but it is not a clean or honourable acquittal, hence, there is no illegality or propriety in the impugned order,for interference by this Court.
6. Having heard learned counsels for the respective parties at length and on perusal of the documents on record the impugned 4 orders of punishment passed by the disciplinary authority, appellate authority as well as revisional authority are not legally sustainable, in view of the following facts, reasons and judicial pronouncements: (I)On perusal of the record, it appears that charges in the departmental proceeding as well as in criminal proceeding are more or less same and the petitioner has already been acquitted by a competent criminal court where the yardstick is proof beyond all reasonable doubts but in a departmental proceeding the yardstick is the preponderance of probability. However, once the petitioner has been acquitted from the aforesaid charges, his case ought to be considered afresh in the interest of justice. (II)The Hon’ble Apex Court in case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another reported in (1999) 3 SCC679has been pleased to observe in para 34 of the said judgment, which is quoted herein below:
“34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, “the raid conducted at the appellant’s residence and recovery of incriminating articles therefrom”. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the “raid and recovery” at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.” (iii)Furthermore, from perusal of the order passed in memorial, it appears that the acquittal of the petitioner has not been 5 considered in right prospective and simply it has been observed that since the delinquent has been acquitted only because the prosecution has not been able to prove and establish the allegation against the petitioner beyond all reasonable doubt. (iv)In the instant case, the petitioner having rendered services for a considerable period has been visited with punishment of dismissal from services which appears to be excessive and grossly disproportionate since the petitioner would be deprived of getting pensionary and other retirement benefits. Therefore, it would be just and proper for the respondents to consider the case afresh, in the light of the order passed in the aforesaid criminal case.
7. On the conspectus of the facts, reasons and judicial pronouncements, the impugned order of dismissal dated 31.08.1998 passed by the disciplinary authority, which is confirmed by the appellate authority vide order dated 18.06.2001 and further dismissed by the revisional authority vide order dated 12.11.2008 are not legally sustainable and are hereby quashed and set aside.
8. At this stage, learned counsel for the petitioner submitted that remitting the matter to disciplinary authority would further take a long time and the petitioner is on the verge of attaining the age of superannuation. In reply, learned counsel for the respondents submitted that under Rule 853 A of Jharkhand Police Manual, the D.G.P has power to pass order when no appeal or memorial lies. In such view of the matter, the petitioner may approach the authority concerned seeking relief.
9. Viewed thus, the concerned respondent no. 2 is directed to consider the case of the petitioner afresh, in view of the acquittal of the criminal case on the question of quantum of punishment and pass an appropriate order within a period of two months from the 6 date of receipt/production of copy of this order, in accordance with law.
10. With the aforesaid directions, the writ petition stands disposed of. (Pramath Patnaik, J.) Alankar/-