Jharkhand High Court
Badal Chandra Manhi vs The State Of Jharkhand on 3 March, 2022
Author: S. N. Pathak
Bench: S.N. Pathak
1 W.P.(S) No. 2735 of 2016
with
W.P.(S) No. 2742 of 2016
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2735 of 2016
Badal Chandra Manhi .... .... Petitioner
With
W.P.(S) No. 2742 of 2016
Raghunandan Jha .... .... Petitioner
Versus
1. The State of Jharkhand.
2. Director General & Inspector General of Police, Jharkhand, Ranchi.
3. Deputy Inspector General of Police, Jharkhand Armed Police Force,
Ranchi.
4. The Commandant, Jharkhand Police Force -6, Jamshedpur.
.... .... Respondents
(In both cases)
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CORAM : HON'BLE MR. JUSTICE DR. S.N. PATHAK
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For the Petitioners : Mr. Prem Pujari Roy, Advocate For the Respondent-State : Mr. Om Prakash Tiwari, G.P.-III
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10/ 03.03.2022 Since the common impugned order is challenged in both these writ petition, they are heard together and are being disposed of by this common order.
2. Heard the parties.
3. The petitioners have challenged the impugned order of dismissal dated 25.11.2008, whereby the petitioners were dismissed from service. The appellate orders passed by the appellate authority rejecting the appeal of the petitioners, as also the revisional order contained in Memo Nos. 144/D dated 26.02.2016 (Annexure-9) and 143/D dated 26.02.2016 (Annexure-8) respectively, passed by the revisional authority are also under challenge. The petitioner further prayed for reinstatement in service with all consequential benefits.
4. Shorn of unnecessary details, as per factual matrix of the case are that the petitioners while posted at Manoharpur Police Station, working on the post of Constable in Battalion- B, Jharkhand Armed Force-6 Jamshedpur, was served with a memo of charge dated 25.06.2008 alleging therein that they went on leave without permission and had misbehaved with a passenger on Tata Allepey Express Train which caused delay of 28 minute in plying of the said train, and for the said charges, departmental proceeding has been initiated against them. Thereafter enquiry officer submitted his 2 W.P.(S) No. 2735 of 2016 with W.P.(S) No. 2742 of 2016 report dated 25.09.2008, holding therein that the charges against the petitioners stood proved. Second show cause notice was issued on 29.9.2008 asking to show cause as to why the petitioners be not terminated from service for the aforesaid proved charges. The petitioners replied the show cause notices. Thereafter, the disciplinary authority inflicted the punishment of dismissal from service vide order dated 25.11.2008. Being aggrieved, the petitioners preferred statutory appeal before DIG, Jharkhand, with a specific affidavit dated 27.08.2008 filed by the alleged passenger who has in categorical terms denied any specific misbehavior by the petitioners. However nothing has been appreciated by the appellate authority, and the appeal preferred by the petitioners stood dismissed. Pursuant to direction passed by this Court, the petitioners preferred memorial under Rule 853 of the Police Manual. None of the points has been taken care by the learned revisional authority, and in a most arbitrary and perfunctory manner, the memorial filed by the petitioners stood dismissed vide order dated 26.02.2016. Having no option left, the petitioners knocked the door of this Court.
5. Mr. Prem Pujari Roy, learned counsel appearing for the petitioners submits that the order of dismissal, as also affirmed up to the revisional authority, are neither sustainable in law nor on facts. Learned counsel submits that from bare perusal of memo of charge, it appears that mainly there are two charges levelled against the petitioners. So far as the first charge of unauthorizedly leaving the guard room is concerned, learned counsel submits that the same falsifies from the preliminary enquiry report dated 07.06.2008 submitted by Dy. Superintendent of Police, JAC -6 Jamshedpur that with the prior permission and / or as per the order/direction issued by the Hawaldar Nimai Chandra Mahanti, the petitioner Raghunandan Jha has gone to the Manoharpur Railway Station for receiving his ailing constable colleague (petitioner Badal Chandra Manjhi). As far as second charge of assaulting with one passenger, which caused delay of 28 minutes in plying of the train is concerned, learned counsel submits that the same is completely false and frivolous which can be demonstrated from the fact that the said passenger namely S.Dinkar has himself sworn an affidavit which has been brought to the notice of the respondent. The said passenger in categorical terms admitted that the petitioners have not indulged with him in 3 W.P.(S) No. 2735 of 2016 with W.P.(S) No. 2742 of 2016 any manner and nothing untoward incident has taken place on 19.05.2008. Thus the genesis of the entire incident falsifies and for no omission and commission, the petitioners had been proceeded with departmental proceeding and have been kept out of service since last 14 years.
6. On merits, learned counsel submits that there are serious lacuna in the entire departmental proceeding as none of the established procedure has been adhered by the respondents while carrying out the quasi-judicial proceeding, more particularly, the Disciplinary Authority/Appellate Authority as well as the Revisional Authority have failed to appreciate that the petitioners have not been afforded any opportunity to cross examine any of the prosecution witnesses, and a capital punishment of dismissal from service has been inflicted arbitrarily. Learned counsel further submits that the very passenger namely S.Dinkar, against whom it was alleged that the petitioners have committed assault, has in categorical words on affidavit has sworn that nothing untoward incident has taken place on 19.05.2008 against him, and the petitioners are in no way involved in commission of any of the alleged illegal act. Learned counsel further submitted that there is a finding in the preliminary enquiry report dated 07.06.2008 submitted by Dy. Superintendent of Police, JAF -6 Jamshedpur that with the prior permission and /or as per the order/direction issued by the Hawaldar Nimai Chandra Mahanti, the petitioner Raghunandan Jha has gone to the Manoharpur Railway Station for receiving his ailing constable colleague (petitioner Badal Chandra Majhi). Learned counsel further submits that not a single independent witness was examined who was present at the time of alleged occurrence, and the petitioners have been terminated from service only on the basis of deposition of prosecution witnesses i.e. all the witnesses are hearsay witness and/or employees serving at the police Station, who admittedly was not present at the place of occurrence at any point of time. Learned counsel submits that a capital punishment for dismissal from service for such a trivial issue is highly misconceived, perverse, and against the materials available on record, and for a completely un- corroborative alleged misdeed the capital punishment of dismissal from service has been inflicted which is highly excessive, harsh and shockingly disproportionate and will shock the conscience of a prudent person warranting the order of dismissal to be quashed and set aside by this Court. Learned counsel also submits that in 4 W.P.(S) No. 2735 of 2016 with W.P.(S) No. 2742 of 2016 absence of any material to substantiate the alleged charge by any independent witness, imposing capital punishment of dismissal from service for such a trivial misconduct is completely in teeth of Judgments rendered by the Hon'ble Supreme Court of India in catena of Judgments. To buttress his argument, learned counsel places heavy reliance upon the decisions of the cases of Arun Kumar Singh Vs. State of Bihar, reported in 1991 (1) PLJR 228, AIR 1969 SC 983 (Central Bank of India Vs. Prakash Chandra Jain), (2013) 11 SCC 187 (Jai Bhagwan Vs. Commissioner of Police & Ors.), (2010) 2 SCC 772 (State of U.P. Vs. Saroj Kumar Sinha).
7. Per contra, counter affidavit has been filed. Mr. Om Prakash Tiwary, learned counsel representing the State submits that the petitioners have not been able to make out a case for interference by this Court. Learned counsel refers the memo of charge with respect to petitioner Badal Chandra Manjhi, wherein he has visited at Tata Main Hospital for his medical check- up and after being declared fit by doctor, he moved to company headquarter at Mohanpur and illegally ascent in the train and entangled a sit, which was already reserved in the name of Mr. S. Dinkaer, and this petitioner misbehaved with the said persons and molest the family of that passenger and after the petitioner called his friend (petitioner Raghunandan Jha, who was on duty at Mohanpur Police Station as Constable) assaulted the said passenger and for that reason, the train service was detained for about 28 minutes. He submits that pursuant to the reply submitted by the petitioners, the enquiry officer submitted the enquiry report holding the charges proved, which culminated into dismissal of service. The petitioners were given opportunity to submit their reply, which they duly submitted. After considering the reply of the petitioners, the penalty order was passed. The petitioners preferred appeals against the penalty order and after considering every points raised in the appeals, the appellate authority rejected the same. Therefore, the petitioner preferred the memorials, pursuant to direction of this Court in W.P.(S) No.2649 of 2010 (Badal Chandra Manhi Vs. State of Jharkhand & Ors) and W.P.(S) No. 2430 of 2010 (Raghu Nandan Jha Vs. State of Jharkhand & ors), which were also rejected. He submits that there is no procedural irregularity pointed out by the petitioners in the facts and circumstances of the present case and hence, the writ petitions deserve to be dismissed.
5 W.P.(S) No. 2735 of 2016with W.P.(S) No. 2742 of 2016
8. Be that as it may, having gone through the rival submissions of the parties across the Bar, this Court is of the considered view that the case of the petitioners needs consideration. It is well settled that the Courts normally will not interfere with the findings of fact recorded in departmental enquiries, but it is equally too well settled that if such findings are based on no evidence or there is perversity, the Courts will, however, interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.
9. In the present case, mainly, there are two charges levelled against the petitioners, as is evident from the memo of charge. The first charge against petitioner Raghunandan Jha is that he unauthorizedly went on leave on 19.5.2008 from the guardroom and second charge is that petitioner Raghunandan Jha along with his friend (petitioner Badal Chandra Manjhi) assaulted one passenger, namely, S. Dinkar, who was traveling in Tata Allepey Express Train, which caused a delay of 28 minutes in plying of the said Train.
10. From perusal of preliminary enquiry report dated 7.6.2008, which was submitted by Dy. Superintendent of Police, Jharkhand Armed Police-6, Jamshedpur, it is crystal clear that the petitioner Raghunanda Jha left the guard room for receiving his ailing friend, Badal Chandra Manjhi (petitioner in W.P.S No.2735 of 2016) on the order/direction of Hawaldar Nimai Chandra Mahanti. So far as second charge of assaulting passenger namely, S. Dinkar is concerned, from perusal of affidavit sworn by the said passenger, which has been brought on record as Annexure-5, it is evident that he in categorical terms admitted that the petitioners have not indulged with him in any manner and nothing untoward incident has taken place on 19.5.2008.
11. On such omission act, which has no genesis, the petitioners were proceeded departmentally and the enquiry officer proved the charges against the petitioners, without examining the evidences presented by the Department itself and even in absence of the delinquent to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. The Hon'ble Apex Court in the case of Brij Bihari Singh v. Bihar State Financial Corpn., (2015) 17 SCC 541, has held as under:-
6 W.P.(S) No. 2735 of 2016with W.P.(S) No. 2742 of 2016 "It is well settled that a person who is required to answer a charge imposed should know not only the accusation but also the testimony by which the accusation is supported. The delinquent must be given fair chance to hear the evidence in support of the charge and to cross-examine the witnesses who prove the charge. The delinquent must also be given a chance to rebut the evidence led against him. A departure from this requirement violates the principles of natural justice. Furthermore, the materials brought on record pointing out the guilt are required to be proved. If the enquiry report is based on merely ipse dixit and also conjecture and surmises, it cannot be sustained in law."
12. The Hon'ble Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank of India & Ors., reported in (2009) 2 SCC 570 , in para-14 thereof, observed as under:-
"14. ... The orders of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence."
13. Further the Hon'ble Apex Court while dealing with the role of enquiry officer, in the case of State of U.P. Vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772, observed as under:-
"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have 7 W.P.(S) No. 2735 of 2016 with W.P.(S) No. 2742 of 2016 been taken into consideration to conclude that the charges have been proved against the respondents.
29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.
30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."
14. It is the specific case of the petitioners that they have not been afforded any opportunity to cross-examine any of the prosecution witnesses and there is no denial to this averment, in the counter affidavit filed by the respondents. Law is well settled that in the departmental enquiry, the essential component is the reasonable opportunity and principles of natural justice. The delinquent must be given reasonable opportunity to cross- examine the witnesses if their statements are relied upon by the Inquiry Officer. The disciplinary proceedings are of a quasi-judicial character, therefore, there has to be a conclusion on the basis of some evidence. If there is no evidence to sustain the charge against the delinquent, he cannot be held guilty and the findings would be perverse. In this connection, the Hon'ble Supreme Court in the case of Kuldeep Vs. Commissioner of Police and Others reported in (1999) 2 Supreme Court 10, in para-27 thereof, had held as under:
" 27. This rule which lays down the procedure to be followed in the departmental inquiry itself postulates examination of all the witnesses in the presence of the accused who is also to be given an opportunity to cross examine them. In case, the presence of any witness cannot be procured without undue delay, inconvenience or expense, his previous statement could be brought on record subject to the conditions that the previous 8 W.P.(S) No. 2735 of 2016 with W.P.(S) No. 2742 of 2016 statement was recorded and attested by a police officer superior in rank than the delinquent. If such statement was recorded by the Magistrate and attested by him, then also it could be brought on record. The further requirement is that the statement either should have been signed by the person concerned, namely, the person who has made that statement, or it was recorded during an investigation or a judicial inquiry or trial. The Rule further provides that unsigned statement shall be brought on record only through the process of examining the Officer or the Magistrate who had earlier recorded the statement of the witness whose presence could not be produced."
15. Further, in the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and Others reported in (2013) 4 Supreme Court Cases Page- 465, the Supreme Court has held the cross examination of witness is one part of the principles of natural justice and requires that the party must be given an opportunity to adduce the evidence and the opposite party should be taken opportunity to cross-examine the witnesses. Cross- examination is one part of the principles of natural justice.
16. The aforesaid discussion makes it evident that, not only should the opportunity of cross examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross- examination is an integral part and parcel of the principles of natural justice.
17. In the case at hand, the petitioners were proceeded departmentally, on the basis of complaint of one passenger of Tata Allepey Express for assaulting him and his family and thereby, delay in plying of the train. The said passenger was never cross-examined by these petitioners. Further he admitted by swearing an affidavit that the petitioners were not indulged with him in any manner and nothing untoward incident had happened. So far as allegation of early leaving the duty place is concerned, it is very much clear from the preliminary enquiry report dated 7.6.2008 that after obtaining permission, petitioner Raghunandan Jha has gone to Manoharpur Railway Station where this incident has occurred. The enquiry report further revealed that not a single independent witness was examined to corroborate the occurrence which took place at railway station. The 9 W.P.(S) No. 2735 of 2016 with W.P.(S) No. 2742 of 2016 enquiry officer without considering these materials had made up his mind to find them guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left. Therefore, the inquiry officer, the disciplinary authority and the appellate authority have faltered in discharge of their duties resulting in miscarriage of justice, and in such a matter, this Court will certainly interfere with disciplinary inquiry or the resultant orders passed by the competent authority on that basis if the inquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case.
18. However, in totality of the facts and circumstance, it cannot be ignored that the petitioners went on railway station, where some occurrence took place, which caused in delay in plying of the train by 28 minutes. Even assuming this, it appears that the nature of allegation alleged against these petitioners are trivial in nature and as such, this Court is of the view that dismissal from service of the petitioners is a harsh punishment and the order for dismissal could be substituted by an order that they shall not be entitled to any arrears of salary or other financial benefits for the period between the date of dismissal and the date of their reinstatement.
19. As a sequel to the aforesaid rules, guidelines, judicial pronouncements and facts and circumstances, this Court is of the view that the impugned orders of dismissal dated 25.11.2008 with respect to the petitioners are hereby quashed and set aside. Consequently, the appellate orders passed by the appellate authority and the revisional order contained in Memo Nos. 144/D dated 26.02.2016 (Annexure-9) and 143/D dated 26.02.2016 (Annexure-8) respectively, passed by the revisional authority are also quashed and set aside. The respondents are directed to reinstate the petitioners in service forthwith. However, the petitioners are not entitled for back wages.
20. With the aforesaid observations and directions, both writ petitions stand allowed.
(Dr. S. N. Pathak, J.) R.Kr.