Jharkhand High Court
Satish Kumar vs The State Of Jharkhand on 26 February, 2020
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(LETTERS PATENT APPELLATE JURISDICTION)
.....
L.P.A. No. 772 of 2015 ......
Satish Kumar ...... Appellant
Versus
1. The State of Jharkhand
2. The Director General-cum-Inspector General of Police, Jharkhand, Ranchi
3. The Inspector General of Police, Jharkhand, Ranchi, Police Head Quarter, P.O. & P.S. Dhurwa, District- Ranchi, Jharkhand
4. The Deputy Inspector General of Police, Coal Range, P.O. & P.S. Bokaro Steel City, District- Bokaro, Jharkhand
5. The Superintendent of Police, Dhanbad, P.O. & P.S. District- Dhanbad, Jharkhand ..... Respondents .....
PRESENT:
HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE KAILASH PRASAD DEO For the Appellant : Mr. Bhanu Kumar and Mr. Manoj Kumar Ram, Advocates For the Respondents : Mr. Manoj Tandon, AAG, Mr. Ranesh Anand, AC to AAG .......
By Court: Heard, learned counsel for the appellant and the State.
2. Being aggrieved with the penalty of dismissal from service vide order contained in memo no.1341 dated 06.03.2010 annexure-6 passed by the Superintendent of Police, Dhanbad, writ petitioner herein constable no.1682 approached this Court. The writ Court affirmed the order of dismissal dated 06.03.2010 and the order passed by the appellate authority and the Revisional Authority dated 08.07.2010 and 05.05.2012 respectively.
3. Learned Single Judge upon consideration of the case of the parties declined to interfere in the matter inter alia holding as under:-
"(i) In the instant case, the petitioner alongwith other constables were deputed for security in PMCH but the accused got burn injury and was admitted to casual department of PMCH, thereafter the accused person was transferred to RIMS Ranchi. The Sub Divisional Officer, Dhanbad inspected the ward of PMCH, during course of inquiry, where the accused person was treated, there was no constables in dress. Two security personnels had gone out and other two were lying in barrack. As per the statement of the accused, there was candles and matches in the prisoner ward, the fire incident took place due to absence of the petitioner and others on the spot the fire engulfed. Due to such lapses the proceeding was initiated and the disciplinary authority on perusal of the inquiry report has passed the impugned order, which has been affirmed by Appellate as well as Revisional Authority. The High Court under Article 226 cannot reappraise the evidence and cannot disturb the facts finding given 2 by the Disciplinary authority since it is settled law that the High Court has limited scope to exercise any extra-ordinary jurisdiction under Article 226 of the Constitution of India and, therefore, findings recorded by the inquiry officer and punishment of dismissal from services being affirmed by the Appellate and Revisional Authority cannot be interfered with.
(ii) In the case in hand, in view of the seriousness of allegation and misconduct committed by the petitioner, the power of judicial review cannot be applied. Moreover, finding three consecutive materials on record cannot be interfered with, as has been held by the Apex Court in the case of Uttar Pradesh and Another Vs. Man Mohan Nath Sinha & Another as reported in (2009) 8 SCC 310.
(iii) In that view of the matter, I find no reason with the impugned order of dismissal from services passed by the Disciplinary, Appellate as well as Revisional Authority."
4. Learned counsel for the appellant has urged the following grounds to assail the penalty order affirmed by the learned Single Judge:-
(i) Appellant was on deputation in PMCH, Dhanbad on 22/23.09.2008 i.e., the date of incidence for securing the custody of the Bansi Lal, accused in R.C.5-(A) of 2005 A.H.D.R. However, he was not on duty during the period of incidence i.e. 10 to 15 minutes before 04:00 a.m. on the fateful night. This finding of fact has been recorded by the disciplinary authority i.e, the Superintendent of Police, Dhanbad. The disciplinary authority has found that during that period, when the prisoner accused tried to commit suicide by igniting fire, Constable no. 1075, Anil Kumar was on duty between 2 a.m.. to 4 a.m. On feeling the urge to relieve himself, Anil Kumar informed Vincent Dhan, Constable No.1486, to be there in his place and went away towards the washroom. Constable No.1486, Vincent Dhan wore his uniform and as soon as he came towards the varandah, Constable, Anil Kumar returned and saw smoke coming out of the prisoners' ward. He raised brawl and informed the Hawaldar and other police constables. As per the findings of the disciplinary authority, thereafter, on instructions of Hawaldar, appellant- Satish Kumar rushed to call the Doctor for his treatment. This finding of the disciplinary authority is in consonance with the duty chart issued by the guard in-charge, Kishori Sah, PMCH, Saraidhela, Dhanbad, which the appellant has brought on record as Annexure-10 dated 22.09.2008. The statement at para 13 to that in the memo of appeal has not been categorically denied by the respondents in their counter affidavit at para 39 though a vague denial has been made.
(ii) The disciplinary authority has proceeded to impose the maximum 3 penalty of dismissal from service on all the four Constables and the Hawaldar by the common order dated 06.03.2010 impugned herein, though the nature of misconduct, if any, may be different in respect of individual Constables as they were having roster duty of two hours, each in rotation.
(iii) A common charge-sheet bearing memo no.3710 dated 28.08.2009 was issued against all the Police Constables including the appellant as also the Halwadar. It was alleged that when the incidence of 22.09.2008 of burning of accused, Bansi Lal in prisoners' ward in PMCH Dhanbad, was inquired by the Sub-Divisional Officer, Dhanbad on 31.10.2008 at 11:30 hours none of the Police Constables were found on duty, neither were any uniform of the police personnel available. Two Police personnel had gone out while two were lying in the barrack. On inquires from the prisoners, it transpired that one candle and match box were there in the prisoners' ward which was used for igniting fire, whereas the Constables had denied this fact during enquiry. The prisoners' ward and the barrack are adjacent, separated by only a wall. On catching of fire by the bed, Police constables ought to have come to know of it, but the fact that the victim suffered considerable burn injuries indicates that the Police personnel came to know later on and obviously were not on duty. On enquiries made from the prisoners also it was confirmed that they were on the roof top. Learned counsel for the appellant submits that this preliminary enquiry was held more than one month after the incidence behind the back of the appellant and when the prisoner had died on 23 rd October 2008 itself.
(iv) That on the basis of this enquiry, conducted behind the back of the appellant, charges of dereliction in duty were framed against all the Police Constables and hawaldar disciplinary proceeding was initiated. It is submitted that the author of this preliminary enquiry i.e. Sub Divisional Officer, Dhanbad has not been adduced as a witness by the prosecution in support of the charges. The confidential reader of the Superintendent of Police and Sub Divisional Officer were adduced as witnesses by the presenting officer. These witnesses had no first hand information of the incidence and could not have deposed as to the role of this appellant as alleged in the charges. The enquiry report of Sub Divisional Officer, Dhanbad was adduced as exhibit during enquiry. The enquiry officer 4 concluded the enquiry in haste without giving adequate opportunity to the delinquent employee i.e. appellant and submitted a cryptic report of one and half page holding the charges established against the appellant and other Police personnel. There is clear violation of principles of natural justice in conduct of the proceedings.
(v) It is urged that official misconduct would arise for a breach of duty and violation of the statutory rules, if any. The charges are vague in nature. Moreover, during the enquiry proceedings also, none of the prosecution witnesses or any other material evidence were able to establish that the appellant was on duty when the incidence took place 10-
15 minutes before 4.00 a.m. The 2 hours duty roster of this appellant from 12.00 a.m. till 2.00 a.m. in the night of 22.09.2008 was over much before the incidence took place. The findings of the disciplinary authority also take note of the fact that on brawl being raised, appellant rushed to call the Doctor on the instructions of the Hawaldar. This shows that though he was in close vicinity, but not on actual duty during that period. As such, no charge of dereliction of duty could be made out against this appellant.
(vi) The order of the disciplinary authority suffers from non-application of mind since a common penalty has been imposed upon all the Police personnel irrespective of the duty and responsibility entrusted to each one of them, as per the roster of duty hours allotted by the Guard In-charge, PMCH, Dhanbad. The impugned order, therefore, is not supported by reasons holding him guilty for the alleged misconduct.
(vii) It is submitted that though the appellant was not responsible for any dereliction in duty, as he was not on duty during the period of incidence, a common punishment order cannot be proportionate to the alleged misconduct even if allegedly established. By imposing the maximum punishment of dismissal from service in terms of Rule 824 under Chapter XXV of the Police Manual, the disciplinary authority has committed serious error in law and on facts. The order of dismissal from service, is therefore, shockingly disproportionate to the alleged misconduct, if at all assumingly established.
5. Based on these grounds, learned counsel for the appellant has prayed for interference in the matter. It is submitted that the learned Single Judge has failed to consider the salient aspects of the case of the petitioner/appellant herein and affirmed the order of punishment without 5 scrutinizing the materials on record which depicts serious fallacy in conduct of the departmental proceeding in holding the appellant guilty of the alleged charges.
6. Reliance is placed on the case of B.C. Chaturvedi v. Union of India & Ors. reported in (1995) 6 SCC 749, wherein the Apex Court has held in para-12 & 13 as follows:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
7. Reliance is also placed on a decision of the Apex Court in the case of Harjit Singh and Another vs. State of Punjab and Another, reported in 2007(9) SCC 582, Paras 2 and 3.
8. Learned Additional Advocate General, Mr. Manoj Tandon representing the State has countered the submissions of the appellant. It is urged that the whole incidence has to be considered from a wider perspective. A prisoner was undergoing treatment in PMCH, Dhanbad for whose security one section of police force comprising one Hawaldar and 6 four Constables were deputed. All of them had collective responsibility to ensure the safety and security of the undertrial prisoners during treatment at the hospital. The Sub-Divisional Officer, Dhanbad in his preliminary enquiry held on 31.10.2008 has found that the barrack was adjacent to the prisoners ward and separated by only a wall. However, the incidence took place as the security personnel were not diligent in discharging their duties and were unavailable in vicinity of the ward. The other prisoners also deposed before the Sub Divisional Officer, Dhanbad that at the time of incidence, they were on the roof top. In such cases of collective responsibility, individual Police personnel cannot escape penalty on technical grounds that the incidence took place when he was not on roster duty. The entire section of the Police personnel posted at the prisoners' ward were supposed to be vigilant to ward off any such unwarranted incidence. The mere fact that the prisoner was able to ignite fire using candle and match-stick shows that candle and match-stick had been introduced in the prisoners' ward due to lack of vigilance of these Police personnel. Learned counsel for the State submits that the scope of interference under judicial review in disciplinary proceedings is limited to scrutinizing the decision making process. If the findings of the disciplinary authority are based upon evidence and are not perverse, the Writ Court should not act as an appellate authority to substitute its opinion on the findings of fact.
9. In the present case, after the findings rendered by the enquiry officer, the delinquent was given an opportunity to submit reply to the second show cause notice. The disciplinary authority considered the reply of the delinquent along with all other materials on record and rightly came to a considered finding that there was serious dereliction of duty on the part of the Police personnel posted at the prisoners' ward for security of under- trial accused which resulted in the mishap. Considering the nature of the charges proved against him after giving adequate opportunity to defend himself, the order of punishment does not suffer from any non-application of mind or absence of reasoning. Moreover, the penalty of dismissal from service is commensurate to the serious misconduct considering the gravity of the charge established against the appellant herein. In such circumstances, no leniency should have been shown by the disciplinary authority. This Court may not interfere in the quantum of penalty unless it 7 is shown to be shockingly disproportionate to the established misconduct. Learned counsel for the State further submits that the delinquent got opportunity to prefer an appeal and revision against the order of dismissal, but no tenable grounds on law or facts were made out for interference by the superior authorities. Learned Single Judge has taken note of the seriousness of the misconduct committed by the petitioner. Since interference in findings of fact of disciplinary authority in exercise of the powers under Article 226 are on limited grounds, learned Single Judge has rightly declined to interfere in the matter. As such, no grounds are made out on the part of the appellant for interference in the impugned judgment. Even if a different view on findings of fact may be possible, the Writ Court should not substitute its view in place of the disciplinary authority while exercising the powers of judicial review. As such, the appeal being devoid of merit is fit to be dismissed.
10. Learned counsel for the appellant in-reply has submitted that even the preliminary inquiry report of Sub-Divisional Officer, Dhanbad adduced as exhibit during the inquiry shows that because of load-shedding candle and match-sticks were kept in the prisoners' ward to ensure light during the evening and night hours. This being a normal practice, it could not be expected that a prisoner will use it for making an attempt to commit suicide.
11. Learned counsel for the appellant further submitted that the report of the Sub-Divisional Officer, Dhanbad also shows that the injury sustained due to burn by the prisoner was up to extent of 30% in aggregate. He had suffered only 4% injury in the right and left upper limb, 16% injury on the back and only 6% injury on the face and neck. It is also true that the incidence did not lead to his immediate death but he died on 23.10.2008 i.e. after one month. Therefore, the order of punishment is fit to be quashed.
12. We have considered submissions of the learned counsel for the parties, at length and taken note of the relevant materials on record. The factual narrative need no repetition as it had been adequately captured in the forgoing paragraphs. The issue to be answered in the present appeal is whether the appellant was responsible for serious misconduct entailing dismissal from service? As the facts of the case reveal, the Superintendent of Police/disciplinary authority has in his findings clearly taken note of 8 that when the incidence took place about 10-15 minutes before 04:00 a.m. on 22.09.2008, Constable, Anil Kumar was on duty. Anil Kumar felt the urge to relieve himself and asked Constable, Vincent Dhan to take over. Constable, Vincent Dhan wore his uniform and by the time he was ready, Constable, Anil Kumar had returned. Anil Kumar himself saw smoke coming out of the prisoners' ward. On raising of brawl the Hawaldar, Kishori Sah and appellant i.e. Constable no.682 rushed to the place. On instructions of the Hawaldar, appellant rushed to call the Doctor for treatment of the prisoner, Bansi Lal, who had sustained burn injury. As it further appears, the preliminary enquiry was conducted on 31.10.2008 by the Sub-Divisional Officer, Dhanbad after more than one month of the incidence and that too after the death of the prisoner, Bansi Lal on 23.10.2008. The report is dated 08.11.2008. The report also suggests that the prisoner had sustained 4% injury on his right and left upper limb, 6% injury on his face and neck and 16% injury on the back, which indicates that the bed was actually ignited. As taken note above, the prisoner is said to have died after one month of treatment on 23.10.2008 at RIMS, Ranchi.
13. The question that arises in the aforesaid gamut of facts, undisputed by the parties, is whether the appellant who was not on roster duty during the period of incidence did commit an official misconduct of dereliction in duty serious enough to suffer extreme penalty of dismissal from service? Objectively considered an official misconduct would arise in case of breach of duty or violation of statutory rule applicable to the employee. The charges framed against the appellant, the findings of the inquiry officer and the order of penalty, none of them explicitly show that appellant was responsible for breach of duty and violation of any statutory rule at the time when the incidence took place. Appellant was not on roster duty at the time of incidence, though he appears to be in close vicinity to the prisoners' ward since he had rushed along with Hawaldar to the prisoners' ward on hearing the brawl. In such a case, where duties of police personnel are defined, as per duty chart, a police personnel who had evidently completed his roster duty of 2 hours between 12 a.m. and 2 a.m. in the night of 22.09.2008 and was relieved by his successor for the next two hours of roster duty, could not directly be held responsible for breach of duty as has been held against him. The 9 distribution of duty as per roster chart is with a purpose, so that armed sentry entrusted with protection of prisoner, could be vigilant in their respective duty hours allotted to them and rejoin their duties as per their duty chart after a break. It is not a case, where on brawl being raised, the appellant did not appear immediately. Rather he was there at the scene of occurrence immediately and on instructions from the Hawaldar rushed to call the Doctor for treatment of prisoner who had undergone burn injury. In such circumstances, it does not appeal to reason that a finding of guilt against the appellant of the same gravity could be recorded by the enquiry officer and the disciplinary authority viz.a.viz. the other Police personnel who was on actual duty during the period of incidence. In matters of disciplinary proceeding, where penalties are imposed on proof of official misconduct, guilt or responsibility of such individual delinquent employee has to arrived at as per the clearly defined role and responsibility of individual delinquent employees'. The disciplinary authority seems to have evaluated the role of each of these Police personnel on a common yardstick, despite taking note of the fact that it was the other Constable, Anil Kumar who on sentry roster duty between 2.00 a.m. to 4.00 a.m. when the incidence took place. Even if a view is taken that all the Police personnel on deputation in the prisoners' ward were collectively responsible for ensuring the security of prisoner, the degree and extent of responsibility of each of them would not be the same.
14. In the facts and circumstances of the present case, as discussed herein-above, it appears that a finding of guilt for a serious charge of dereliction of duty, entailing dismissal from service, has been recorded against the appellant. The disciplinary authority has completely failed to show independent application of mind to the case of this appellant, though he was not on roster duty during that period. Presence of candle and match-sticks in the prisoners' ward has been found be a normal practice to take care of load-shedding. The statement of the prisoner, Banshi Lal, who got the burn injury and survived for one month was not taken even during preliminary enquiry since it was conducted more than one month after the incidence and after his death on 23.10.2008. No other independent witness present at the place of occurrence during the incidence were adduced during the enquiry proceedings.
1015. As observed, herein-above, the finding of guilt of such a serious dereliction of duty against the appellant recorded by the disciplinary authority is not sustainable as neither the charge nor the material evidence adduced during enquiry go to show that the appellant committed any dereliction of duty during his duty hours. We may profitably refer to the decision of the Apex Court in the case of State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya, reported in (2011) 4 SCC 584 at para 7.
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. 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. (VideB.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44] , Union of India v. G. Ganayutham [(1997) 7 SCC 463 :
1997 SCC (L&S) 1806] , Bank of India v. Degala Suryanarayana [(1999) 5 SCC 762 : 1999 SCC (L&S) 1036] and High Court of Judicature at Bombay v. Shashikant S. Patil [(2000) 1 SCC 416 : 2000 SCC (L&S) 144] .)"
[emphasis supplied] It has been held that Courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in the 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.
16. On the basis of the discussions made herein-above and the reasons recorded, it appears to this Court that the disciplinary authority did not act 11 reasonably in arriving at such a conclusion or findings of guilt against the appellant on the basis of the materials on record and thereby committed perversity. Tested on the anvil of the principles laid down by the Apex Court, as above, the finding of the guilt recorded against the appellant can be termed as perverse and arbitrary based on no evidence. Consequently the order of penalty from dismissal of service can not be sustained on such perverse and arbitrary findings of guilt. The impugned order of dismissal therefore, cannot be allowed to stand in the aforesaid facts and circumstances and the position in law discussed above lest it may lead to miscarriage of justice.
17. Accordingly, the impugned order/judgment dated 04.12.2015 passed in W.P.(S) No.7671 of 2011 by learned Single Judge is set aside.
18. The order of disciplinary authority dated 06.03.2010 affirmed by the appellate authority vide order dated 08.07.2010 and the Revisional Authority vide order dated 05.05.2012 are accordingly quashed.
19. Consequently, the appellant- Satish Kumar be reinstated in service.
20. However, we do not feel inclined to allow back-wages to the employee for the reasons that he did not discharge his duty during that period. However, he would be entitled to continuity in service for the purpose of pensionary benefits.
21. The appeal is accordingly allowed.
22. I.A. No.6115 of 2016 is closed.
(Aparesh Kumar Singh, J.) (Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated the 26.02.2020 sandeep/R.S.