Jharkhand High Court
Bibhuti Kumar vs Judiciary on 16 June, 2017
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 4979 of 2012
-------
Bibhuti Kumar, S/o Hari Pd. Singh, at present resident of
Kishore Ganj, P.O. G.P.O, P.S Sukhdeonagar, District - Ranchi.
... Petitioner
Versus
1.State of Jharkhand
2.District Judge-cum-Judicial Commissioner, Civil Court,
Ranchi, P.O G.P.O, Ranchi, P.S. Kotwali, Dist: Ranchi.
3.Registrar, Civil Court, Ranchi, P.O G.P.O, Ranchi, P.S. Kotwali,
Dist: Ranchi... ... .... Respondents
------
CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
------
For the Petitioner : Mr. Bhanu Kumar, Advocate.
Mrs. Bharti Kumari, Advocate
For the Respondents : Mr. Anshuman Kumar, J.C to A.G
------
C.A.V on 17.03.2017 Delivered on 16/06/2017
Per Pramath Patnaik, J.:
In the accompanied writ application, the petitioner has
inter alia prayed for quashing dismissal order dated 17.01.2012
and also appellate order dated 22.02.2014, whereby appeal
preferred by the appellant has been rejected with further prayer
to reinstate the petitioner in services with all consequential
benefits.
2. The facts, in brief, is that initially the petitioner was
appointed on the post of Peon in Civil Court on 30.05.2002.
While continuing as such, it was reported by one Haider Ali, that
the petitioner accepted Rs. 14,000/- on 12.09.2007 for securing
bail of his father, who was accused in Complaint Case No. 717 of
2003, pending in the Court of Sri V.C. Pandey, Judicial
Magistrate, 1st Class, Ranchi. On such complaint, as per
direction of the then Judicial Commissioner, Ranchi, the
appellant was arraigned and on search Rs. 13,390/- was
recovered from his possession. Pursuant thereto, the petitioner
2
was put under suspension and a departmental proceeding was
initiated against the petitioner, which culminated in dismissal of
the petitioner from services. Against which, the petitioner
preferred appeal, which stood rejected vide order dated
22.02.2014.
3. Learned counsel for the petitioner submitted that actual fact is that the petitioner had taken friendly loan from his relative to the tune of Rs. 10,000/- on the same day and he had his own saving of Rs. 3390/-, which he had to send to his native place. But, while he was counting the said amount, it was watched by the complainant. Taking advantage of this situation, when the bail petition of the father of the complainant was rejected, he became furious and made a false allegation that the petitioner had taken money for securing bail, but, on search, it is pertinent to note that only Rs. 13390/- was found in his possession. It has further been submitted that the specific stand taken by the petitioner that he is resident of Sitamarhi and due to heavy rain and flood in 2007, his native house was damaged and for repairing the same he had taken Rs. 10,000/- from one of his associates and rest Rs. 3000/- was his own money, which he had kept for making draft to send the same to his native place, has been disbelieved by the disciplinary authority without any rhyme and reason. It has further been submitted that during investigation, said Haider Ali was made accused as he tried to give bribe a judicial officer to secure bail. If it is so, then the petitioner has got no role in accepting the bribe. 3
4. Learned counsel for the petitioner submitted that besides factual aspect of the matter, the departmental proceeding is fraught with procedural irregularity. In the case at hand, the officer who was a witness of prosecution has framed the charge, hence, by this way he became the judge of his own cause. In support of his submission, learned counsel for the petitioner referred to a decision rendered in the case of Commr. of Police & Ors. vs. Sandeep Kumar as reported in [2011 (2) JCR 186 (SC)]. Besides that the witnesses were not consistent in their evidence, as evident from the deposition of the witnesses. Learned counsel for the petitioner further submits that in the entire episode the concerned Judicial Magistrate was never examined at whose instance it is alleged that the petitioner had taken bribe, who could have been vital witness to arrive at the truth, but, non- examination of the same casts a serious doubt and cloud over the fairness of the entire departmental proceeding as such the impugned order of dismissal is vitiated on the ground of "Wednesbury reasonableness".
5. Learned counsel for the petitioner submitted that for the same instance, a criminal case being Special Case No. 16 of 2007 was also lodged against the petitioner, wherein the petitioner has been honorably acquitted vide order dated 27.02.2015, hence, the order of dismissal cannot be sustained in law. In support of his submission, learned counsel for the petitioner referred to the decision rendered in the case of G.M. Tank Vs. State of Gujarat & Ors as reported in (2006) 5 SCC 446.
4
6. As against this, learned counsel for the respondents submitted that on the allegation of taking bribe for securing bail of father of the complainant, a departmental proceeding was initiated against the petitioner, in which, after following the principles of natural justice and considering the findings of the enquiry officer, order of dismissal has been passed, which has duly been confirmed by the appellate authority. It has further been submitted that disciplinary proceeding is distinct from the criminal proceeding, as the disciplinary proceeding is judged on the standard of proof of preponderance of probability. Therefore, enquiry can always proceed even in cases where criminal cases have been instituted. Learned counsel for the respondents further submitted that so far as acquittal of the petitioner in criminal case is concerned, it is well settled law that acquittal criminal case does not ipse dixit entitle the petitioner for reinstatement in services.
7. On perusal of record, it appears that the same person who initiated the charge against the delinquent has deposed before the enquiry officer as a prosecution witness, which is against the established principle i.e. "no man can be a judge of his own cause". On the contrary, the vital witness, the said Judicial Magistrate was not examined as he was the best person who could have told the truth.
8. Furthermore, for the same instance, a criminal case, being Kotwali P.S. Case No. 631 of 2007 corresponding to Special Case No. 16 of 2007 under Sections 7/8/13(d) of the Prevention of Corruption Act was also lodged against the petitioner on the 5 basis of written complaint of informant-Haider Ali, the son of accused in the so-called Bail Petition/Complaint Case. In the said criminal case, the learned court below considering the testimony of Prosecution Witnesses and materials available on record acquitted the accused i.e. the petitioner and termed the prosecution case as a case of "no evidence", which comes under the zone of honorable acquittal.
9. In this context, it would be profitable to refer the relevant paragraph of the decision rendered by Hon'ble Apex Court in the case of S. Bhaskar Reddy and Another vs. Superintendent of Police and Another as reported in (2015) 2 SCC 365, which is as under:
"22.The meaning of the expression "honourable acquittal" was discussed by this Court in detail in Inspector General of Police v. S. Samuthiram, the relevant paragraph from the said case reads 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."
10. Further, the Hon'ble Apex Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr as 6 reported in (1999) 3 SCC 679 has been pleased to hold as under:
"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.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
11. The Hon'ble Apex Court further in the case of G.M. Tank v. State of Gujarat & Ors as reported in (2006) 5 SCC 446 at paragraph 31 held 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 found to be valid by the courts below, when there 7 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."
12. As a cumulative effect of the facts, reasons and judicial pronouncements, in particular, the fact that before passing impugned orders, the judgment of acquittal was not passed, it would be unjust and unfair to allow the conclusion reached at by the disciplinary authority to stand, hence, the order passed by the disciplinary authority as well as by the appellate authority are hereby quashed and set aside and matter is remitted back to the disciplinary authority to pass a fresh order mainly on the quantum of punishment, taking into consideration the observations made by this Court in the preceding paragraphs and also the fact that the petitioner has been acquitted in criminal case, within a period of two months from the date of receipt/production of copy of this order.
13. With the aforesaid observations and directions, the writ petition stands disposed of.
(Pramath Patnaik, J.) Alankar/-