Jharkhand High Court
Bhim Singh vs The State Of Jharkhand on 13 July, 2021
Equivalent citations: AIRONLINE 2021 JHA 1487
Author: Deepak Roshan
Bench: Deepak Roshan
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.4529 of 2015
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Bhim Singh ... ... Petitioner
Versus
1. The State of Jharkhand.
2. The Director General & Inspector General of Police, Jharkhand, P.O. & P.S.-Dhurwa, District-Ranchi.
3. The Deputy Inspector General of Police (Budget), Jharkhand, P.O. & P.S. Dhurwa, District-Ranchi.
4. The Deputy Inspector General of Police, Palamu Range, Daltonganj, P.O. & P.S.-Daltonganj, District- Palamu.
5. The Superintendent of Police, Garhwa, P.O., P.S. & District-Garhwa. ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner :Mrs. Ritu Kumar, Adv. For the Respondents :Mr. Anil Kr. Singh, A.C to S.C.-V
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Through:- Video Conferencing
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16/13.07.2021 Heard learned counsel for the parties through V.C.
2. The instant writ application has been preferred by the petitioner praying therein for quashing and setting aside the order as contained in Memo No.1353 dated 22.05.2001; whereby the petitioner was awarded punishment of dismissal from service and also for quashing the order passed by the Appellate Authority (respondent No.4) vide Memo No.1311 dated 27.11.2001 whereby the appeal preferred by the petitioner has been rejected. 2 Petitioner has also challenged the order passed by the respondent No.2 whereby the memorial filed by the petitioner was rejected.
3. The facts of the case as disclosed in the writ application is that the petitioner was appointed as Constable and joined the service on 18.01.1984 and he was also given first time bound promotion in the year 1994. On 14.11.1995, he joined the post of Constable in the district headquarter, Garhwa. He was also the office bearer of District Police Men's Association.
On 30.12.1995, an F.I.R was lodged on the basis of a written report of the Officer-in-Charge, Garhwa Police Station against the petitioner alleging that on 30.12.1995 at Bazar Samittee Garhwa, in course of election of Office bearers of Bihar Police Men's Association, sound of firing was heard from the northern barrack of the office due to which Election Officer started dispersing and upon interrogation it could be known that the petitioner had fired from his licensee rifle with a view to disturb the election process.
In contemplation of the aforesaid activity, a departmental proceeding being D.P. No.44/96 was also initiated against this petitioner and a charge-sheet was served upon him on 14.12.1996.
Thereafter, the petitioner filed a reply and duly participated in the departmental proceeding and the Inquiry Officer found the charges against this petitioner to 3 be proved and finally an order of termination from the service has been passed by the Disciplinary Authority.
4. Petitioner had earlier moved before this Court in W.P.(S) No.04/2002 which was disposed of with a liberty to the petitioner to prefer memorial before the Director General-cum-Inspector General of Police, Jharkhand to decide the claim.
Petitioner had again moved before this Court in W.P.(S) 661 of 2006 which was disposed of vide order dated 23.01.2015 by directing the Director General-cum- Inspector General of Police, Jharkhand to decide the memorial and pass speaking order in accordance with law. Relevant paragraphs Nos. 18 to 21 are quoted herein below:-
"18. The learned single judge while remitting the matter before the Director General-cum- Inspector General of Police, Jharkhand directed the Director General-cum-Inspector General of Police, Jharkhand to decide the memorial. It means that the authority who has been empowered to decide anything is supposed to have applied its mind and he cannot delegate such power and rely upon the decision taken by the subordinate authority. The power of appeal, review or memorial is statutory provision which has been conferred to an authority who is supposed to take decision after proper verification of the record and going through the entire records.
19. The learned single Judge in W.P.(S) No.4 of 2002 after taking into consideration this aspect of the matter had directed the Director General of Police to consider the memorial. But from perusal of the order as 4 contained in Annexure-5 the same has been issued on the order of Director General-cum- Inspector General of Police, Jharkhand but issued under the signature of Deputy Inspector General of Police (Headquarter).
20. In that view of the matter, the order dated 12.08.2003 passed in pursuance to W.P.(S) No.4 of 2002 is not sustainable in law or facts, hence, the same is, hereby, quashed.
21. The matter is remanded to the Director General-cum-Inspector General of Police, Jharkhand who shall decide the memorial and pass speaking order in accordance with law within eight weeks from the date of receipt of copy of this order."
5. Ms. Ritu Kumar, learned counsel for the petitioner submits that the charge against this petitioner was same and similar in the criminal case in which the petitioner has been acquitted and this aspect of the matter has not been considered either by the Disciplinary Authority or the Superior Authorities. She further submits that it is not only a case of procedural irregularities rather it is a case of non-appreciation of evidence as well as the settled law that when the delinquent employee is charged in both disciplinary proceeding and criminal case and if he is acquitted in criminal case then certainly the Disciplinary Authority should not brushed aside the order passed in criminal case and pass an order judiciously.
In support of her contention, learned counsel for the petitioner relied upon the judgment passed in the case of G.M.Tank Vs. State of Gujarat and others reported in (2006) 5 SCC 446. She further relied upon the judgment in 5 the case of Deputy Inspector General of Police and another Vs. S. Samuthiram reported in (2013) 1 SCC
598.
6. Mr. Anil Kr. Singh, learned counsel for the respondent-State submits that there is no procedural irregularity in the impugned order and the petitioner has been given fair opportunity to defend himself. He further submits that acquittal in the criminal case when seven witnesses have been declared hostile; cannot be said that the petitioner was honourably acquitted. He further submits that it is true that the charges in the departmental proceeding and the criminal case are one and the same and in the criminal case he has been acquitted but only for the sole reason that seven witnesses were declared hostile. He further submits that the charge is very grave and the petitioner being a police officer using his licensee rifle in any election is unwarranted and for which the department has rightly dismissed this petitioner from the service.
7. Having heard learned counsel for the parties and after going through the documents available on record and the averments made in the respective affidavits, it appears that an F.I.R. was lodged on the basis of written report of the Officer-in-Charge, Garhwa Police Station against the petitioner on the allegation that on 30.12.1995 at Bazar Samittee, Garhwa, in course of election of Office bearers of Bihar Police Men's Association, a sound of firing was heard from the northern Barrack of the office due to which 6 Election Officer started dispersing and upon interrogation it could be known that the petitioner had fired from his licensed rifle with a view to disturb the election process and thus, an FIR was registered under Section 307 of the IPC and also under Section 27 of Arms Act.
Thereafter, the petitioner was also proceeded departmentally and was served with a charge-sheet on the basis of allegation that the petitioner fired from his licensed rifle and disturbed the peace and tranquility on 30.12.1995 and on the basis of such charge-sheet, a departmental proceeding No.44/96 was initiated against the petitioner in which an order of termination from the service has been passed against this petitioner. The petitioner has further challenged the order of punishment before the superior authorities but unfortunately could not be succeed.
8. From record it further appears that in W.P(S) No.661 of 2006 which was earlier filed by the petitioner, it has been categorically held by this Court in paragraph No.18 that the authority who has been empowered to decide anything is supposed to have applied its mind and he cannot delegate such power and rely upon the decision taken by the subordinate authority. Thereafter, the matter was remitted back to the Director General-cum-Inspector General of Police, Jharkhand with a direction to decide the memorial and pass a speaking order in accordance with law. Thereafter speaking order has been passed wherein it has been contended that merely because the delinquent is 7 acquitted in criminal case cannot absolve him from departmental proceeding.
9. At this stage, it is pertinent to mention here that the departmental proceeding was initiated pursuant to the FIR lodged against this petitioner and the charge in the departmental proceeding was exactly same and similar with that in the criminal case in which the petitioner has been acquitted honourably, inasmuch as, the learned trial court has held that in absence of cogent and reliable evidence the accused is acquitted from the charges.
From the judgment passed in the criminal court it appears that P.W.2-Bhuneshwar Ram who is the informant-cum-first I.O. of the case was also the witness in the departmental proceeding. It further transpires from the order of trial court that the said witness had categorically stated that he is not seen the accused at the time of firing rather he is a hearsay witness. It further transpires that the P.W.-3 in the criminal case was one Mahesh Tiwari, Hawaldar who has deposed that he was posted as Election Officer and at about 8 p.m some scuffle took place between agents of the parties and the hall was closed from inside. There was no firing at the time of counting nor has he seen any one firing at the time of election.
On the basis of these witnesses, the learned trial court acquitted the petitioner. For brevity, paragraph 10 of the order passed in the criminal case is quoted herein below:-
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"10. In view of aforesaid discussions and appreciation of evidence available on record adduced from both sides, I am of the conclusion that prosecution worsely failed to establish the charges levelled against accused Bhim Singh. In absence of cogent and reliable evidence I am constrained to acquit the accused from the charges levelled against him. Accordingly accused Bhim Singh is acquitted from the aforesaid charges, he appears on bail, he is discharged from the liability of his bail bonds and set at liberty forthwith."
10. Way back in the year 1999, the Hon'ble Apex Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another reported in (1999) 3 SCC 679 has held that the criminal case was thrown out and the appellant was acquitted in which same witnesses were examined in criminal case who were also witnesses in the departmental proceeding as such, it would be unjust and unfair to allow the findings recorded at the departmental proceedings to stand. Paragraph 34 of the said judgment 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 9 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."
Again, in the case of G.M. Tank (supra) the Hon'ble Apex Court has reiterated the above proposition of law in paragraph-31 as under:-
"31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was 10 found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
In the instant case too, the I.O was examined as departmental witness as well as he was P.W.-2 in criminal case, as such ignoring the judgment passed by the learned trial court when the charge is same and similar will be miscarriage of justice.
11. In the instant case, the revisional authority on remand has rejected the claim of the petitioner for his reinstatement and contended that merely because the delinquent is acquitted in criminal case cannot absolve him from departmental proceeding.
In this regard it is also pertinent to refer the argument of the learned counsel for the state that acquittal in the criminal case when seven witnesses have been declared hostile; cannot be said that the petitioner was honourably acquitted.
The word "honourable acquittal" came up for consideration before the court in the case of RBI Vs. Bhopal Singh Panchal reported in (1994) 1 SCC 541. The said judgment was again relied by the Hon'ble Apex Court in the case Deputy Inspector General of Police 11 and another Vs. Samuthiram reported in (2013) 1 SCC 598 wherein at paragraph 24 it has been held as under:-
"24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
12. As a matter of fact, in catena of judgments the Hon'ble Apex Court has held that when the charge in criminal case as well as in departmental proceeding are one and the same and if the petitioner has been honourably acquitted then certainly in the departmental proceeding; the authority should not brushed aside the judgment of trial court. In the instant case also the charge in the departmental proceeding and criminal case are one and the same, inasmuch as, the departmental proceeding was 12 initiated pursuant to the lodging of F.I.R. Further the I.O who was witness on behalf of the department was also prosecution witness in the criminal case in which he has categorically stated that as per FIR itself he has not seen the accused at the time of firing rather he is a hearsay witness. He has deposed at paragraph No.4 that he draws written report in accordance with the order of S.P. He further stated that he cannot say that in which block of Bazar Samittee place of occurrence is situated.
In nutshell, this Investigating Officer whose evidence was demolished before the trial court was the main witness in departmental proceeding and further the Election Officer who was also prosecution witness in criminal case has stated that there was no firing.
13. The Revisional Authority after direction of this Court has held in its order that as per the Supreme Court the accused who has been acquitted on the benefit of doubt should not be benefited in departmental proceeding. This part of order is perverse in the facts and circumstances of this case, inasmuch as, even the Investigating Officer of the case as well as the Election Officer has deposed that there was no firing and only on the basis of those witnesses, the criminal court has acquitted this petitioner.
14. Though it is very difficult to define precisely what is meant by the expression "honourably acquitted" but in the instant case when the accused is acquitted after full consideration of prosecution evidence and that the 13 prosecution had miserably failed to prove the charges leveled against this petitioner, it can possibly be said that the petitioner was honourably acquitted.
15. In view of the aforesaid findings, the instant writ application is, hereby, allowed and the order of punishment of dismissal from service as contained in Memo No.1353 dated 22.05.2001 and all subsequent orders, are hereby quashed and set aside.
16. It goes without saying that the petitioner will be entitled for all consequential benefits. However, it is clarified that so far as the issue of payment of salary from the date of termination till the date of reinstatement is concerned; a fresh order shall be passed as per the rule and regulation of the Police Manual.
17. Consequently, the instant writ application stands allowed.
(Deepak Roshan, J.) Fahim/-