Jharkhand High Court
Kamlesh Dubey vs The State Of Jharkhand on 4 July, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.55 of 2023
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Kamlesh Dubey, aged about 52 year, son of Sri Babu Lal
Dubey, resident of Village-Dubauli, P.O. Amapali, P.S.-
Pirpainti, District Bhagalpur (Bihar).
... ... Writ petitioner / Appellant
Versus
1. The State of Jharkhand.
2. Director General of Police, Jharkhand, office at Dhurwa,
P.O. & P.S.-Dhurwa, Town and District-Ranchi.
3. Deputy Inspector General of Police, Santhal Pargana
Range, Dumka, having office at Dumka, P.O. & P.S. -
Dumka, District-Dumka.
4. Superintendent of Police, Pakur, having office at P.O.,
P.S. & District-Pakur.
... ... Respondents/Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mr. Manoj Tandon, Advocate
Ms. Neha Bhardwaj, Advocate
Mr. Admya Kerketta, Advocate
Ms. Ankita, Advocate
For the respondent : Md. Shahabuddin, S.C.-VII
Mr. Zeeshan Ahmad Khan, AC to SC-VII
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C.A.V. on 13.06.2024 Pronounced on 04.07.2024
Per Sujit Narayan Prasad, J.
1. The instant appeal, under clause 10 of the Letters Patent, is directed against the judgment/order dated 03.11.2022 passed by the learned Single Judge of this Court in W.P. (S) No. 329 of 2017 whereby and whereunder the order of the punishment of dismissal of appellant from service on conclusion of departmental enquiry as also the order passed by the appellate authority, affirming the order Page 1 L.P.A. No.55 of 2023 passed by the original authority has been refused to be interfered with by dismissing the writ petition. Facts of the Case
2. The brief facts of the case, as per the pleading made in the writ petition is required to be enumerated which reads as under:-
It is the case of the appellant that while he was working as Constable in Jharkhand Police and while he was posted at Maheshpur, Pakur, he was served a charge sheet contained in memo no. 856 dated 27.12.2005, alleging therein that on 28.11.2005 while he was posted in Armed Police Force at Maheshpur P.S., he along with another Police Constable was involved in abusing and assaulting locals while under influence of liquor and in protest 50-60 persons assembled and law and order situation was created.
3. It has further been alleged that when the Officer-in- charge got information, he went to the place of occurrence wherefrom the appellant fled away and came back to the Police Line and the Officer-in-charge managed to bring other constable to the Police Line and the 50-60 persons thereafter came to the Police Station and demanded action against the two policemen and in the meantime the appellant and other constable broke the door and came out Page 2 L.P.A. No.55 of 2023 armed with Rifles and misbehaved with members of public and also misbehaved with police personnel.
4. The appellant was issued memorandum of charge. He filed reply to the charges and thereafter an Enquiry was ordered against the appellant. The Enquiry Officer held the charges to be fully proved and forwarded his findings to the Disciplinary Authority.
5. The Disciplinary Authority issued second show cause to the appellant wherein it was pointed out that the appellant was not allowed to cross examine the witnesses and again the Disciplinary Authority vide its Memo No. 2709 dated 15.12.2006 directed the Enquiry Officer to provide opportunity of cross examination to the appellant.
6. Thereafter the appellant was permitted to cross examine the witnesses which was done on 21.12.2006 and the Enquiry Officer again submitted his report on same day, i.e. 21.12.2006 and the earlier finding were reiterated without appreciating the response of witnesses during cross examination and without even any reference to such cross examination.
7. The disciplinary Authority vide order dated 07.05.2007 accepted the finding of Enquiry Officer and dismissed the appellant from service.
8. The appellant filed appeal before the Appellate Authority and vide order dated 19.04.2008, appellant's Page 3 L.P.A. No.55 of 2023 appeal was dismissed and order of Disciplinary Authority was affirmed.
9. The appellant thereafter moved this Court by filing writ petition being W.P.(S) No. 3517 of 2008 before this Hon'ble Court and challenged the orders passed by Disciplinary Authority as well as Appellate Authority.
10. This Court vide order dated 30.09.2015 allowed the aforesaid writ petition and quashed the orders dated 07.05.2007 and 19.04.2008 passed by Disciplinary Authority and Appellate Authority respectively and the matter was remanded to the Superintendent of Police, Pakur to pass fresh order in accordance with law after supplying second enquiry report to the appellant and after complying with the principles of natural Justice.
11. The appellant thereafter submitted copy of aforesaid order on 25.02.2016 and requested for reinstatement and the Superintendent of Police, Pakur issued Order No. 637/16 dated 04.04.2016 and absorbed the appellant in service and vide order dated 04.04.2016 contained in Memo No. 620/R. Ka. dated 05.04.2016 provided copy of Enquiry Report dated 21.12.2006 and asked him to show cause within 15 days for passing fresh order.
12. The appellant joined his service on 17.04.2016 and submitted his explanation on 29.04.2016.
Page 4 L.P.A. No.55 of 2023
13. The Disciplinary Authority vide order dated 01.06.2016 contained in Memo No. 1031/ Go., Pakur dated 01.06.2016 rejected the appellant's explanation and again dismissed him from service with immediate effect.
14. The appellant preferred appeal on 16.06.2016 against the aforesaid order before the Appellate Authority wherein he pointed out the discrepancies in statement of witnesses during cross examination as also the fact that they were not appreciated by either the Enquiry Officer or the Disciplinary Authority.
15. The Appellate Authority vide order dated 07.10.2016 rejected the appellant's appeal and affirmed the order passed by disciplinary Authority.
16. Being aggrieved with the aforesaid orders dated 01.06.2016 passed by the Disciplinary Authority and order dated 07.10.2016 passed by the Appellate Authority, the appellant again filed writ petition being W.P.(S) No.329 of 2017.
17. The learned Single Judge, after hearing learned counsel for the parties, has dismissed the writ petition against which the instant appeal has been preferred.
18. It is evident from the factual aspect that the appellant while discharging his duty as Constable in Maheshpur, Pakur, he was departmentally proceeded by Page 5 L.P.A. No.55 of 2023 issuing memorandum of charges against him and one other person, namely, Gunadhar Singh.
19. The allegation has been leveled against the appellant that he along with Gunadhar Singh, in intoxicated state, misbehaved and assaulted the general people near cinema hall at Maheshpur. Due to the aforesaid act, there was serious threat to law and order in the area.
20. After receiving such information, higher police officers reached the place of occurrence. The appellant herein, fled from the place of occurrence but another delinquent employee, namely, Gunadhar Singh, was escorted to the police station. The appellant also returned to the police station. They were sent to the police barrack.
21. The appellant appeared in the enquiry proceeding. The enquiry was concluded with the report of proving the charge. Thereafter, the appellant was dismissed from service on acceptance of the enquiry report.
22. The appellant had preferred a writ petition being W.P.(S) No.3517 of 2008 questioning the finding recorded by the Enquiry Officer in Enquiry report on the ground of that no opportunity to cross-examine the witnesses was given.
23. The learned Single Judge of this Court vide order dated 30.09.2015 has quashed the order of dismissal and Page 6 L.P.A. No.55 of 2023 remitted the matter to proceed after supplying the second enquiry report to the petitioner/appellant. Thereafter, second show cause notice was served. The appellant was again punished with the order of dismissal from service.
24. The aforesaid order of dismissal has been challenged by filing writ petition being W.P.(S) No.329 of 2017.
25. The ground has been taken that none of the charges can be said to be proved since the witnesses have not stated anything in the cross-examination regarding the allegation but even then, the charges have been found to be proved by the Enquiry Officer which has been accepted and without taking into consideration the response submitted in terms of the show cause, the order of dismissal has been passed.
26. The respondents have been called upon. They have taken the ground that the finding of the Enquiry Officer cannot be scrutinized by re-appreciating the evidence having limited jurisdiction of the High Court so far as the power of judicial review is concerned in the matter of showing interference with the decision taken by the administrative authority.
27. The learned Single Judge has refused to interfere with the order of punishment by dismissing the writ Page 7 L.P.A. No.55 of 2023 petition against which the present appeal has been preferred.
Argument advanced on behalf of the appellant
28. Mr. Manoj Tandon, learned counsel appearing for the appellant, has taken the following grounds in assailing the impugned judgment: -
(i) It is a case of no evidence since deposition which has been made by the witnesses both in the examination-
in-chief and the cross-examination, if taken together, particularly of Polo Ghosh and Lalu Rai, it would be evident that none of the charges can be said to be proved but the Enquiry Officer, without taking into consideration the testimony which has been made in the cross-examination of the witnesses, namely, Polo Ghosh and Lalu Rai, the charges have been found to be proved and based upon the same, the punishment of dismissal has been imposed.
The argument, therefore, has been advanced that when the witnesses have not proved the charges, then where is the question of proving the charge by the Enquiry Officer and, hence, it is a case of no evidence and, as such, the order of punishment is not just and proper but the learned Single Judge, without appreciating the fact, has declined to interfere with the order of punishment hence, the order passed by the learned Single Judge is not sustainable in the eyes of law.
Page 8 L.P.A. No.55 of 2023
(ii) The learned Single Judge has not appreciated the fact in the right perspective, rather, has gone by recording the finding that once the punishment order has been passed based upon the finding recorded by the Enquiry Officer, the High Court has got no power to interfere in exercise of power of judicial review, otherwise the same will be treated to be re-appreciation of the evidence which is not permissible but the learned Single Judge has not taken into consideration the enquiry report for the purpose of reaching to the conclusion that it is a case of no evidence.
(iii) The main allegation against the appellant is that he was in intoxicated state but there is no medical examination on the issue and in absence of medical report in this regard, the said charge has also been found to be proved, hence the order of dismissal on this count is also not sustainable in the eyes of law.
29. Learned counsel for the appellant has relied upon the judgments rendered by Hon'ble Apex Court in the case of United Bank of India v. Biswanath Bhattacharjee, (2022) 13 SCC 329 and Ram Kishan v. Union of India and Others, (1995) 6 SCC 157.
Argument advanced on behalf of the respondents
30. Md. Shahabuddin, learned S.C.-VII appearing for the respondent State, has taken the following grounds in defending the impugned order: -
Page 9 L.P.A. No.55 of 2023
(i) It has been contended that it is incorrect on the part of the appellant to take the ground that there is no consideration of the testimony of the witnesses, rather, the testimony of the witnesses has been taken into consideration properly and based upon the same the Enquiry Officer has found the charges proved and the learned Single Judge has also considered the testimony so recorded of the witnesses in course of enquiry and considering the limited scope of the power of judicial review, has dismissed the writ petition.
(ii) The memorandum of charge is in two parts which is based upon the place of occurrence. The first part is near the cinema hall where the misconduct has been committed in intoxicated state by the appellant along with another delinquent employee Gunadhar Singh as also has misbehaved with the local people which led the issue of law-and-order situation and when the higher officers came, the appellant fled away and came to police barrack and Gunadhar Singh were escorted to the police barrack. From the barrack, both the delinquent employees including the appellant, came out forcefully and had illegally taken the rifle. The appellant has created nuisance and misbehaved with the local people within the premises of the police station.
Page 10 L.P.A. No.55 of 2023 The second part of the charge has well been proved as would be evident from the testimony of the Officer-in- Charge and two other police constables which has not been rebutted even though opportunity of cross-examination was given to the petitioner as would be evident from the enquiry report said to be the subsequent enquiry report after the order of remand passed by the learned Single Judge vide order dated 30.09.2015 passed in W.P.(S) No.3517 of 2008.
It has been contended that the charge is to be taken into consideration in entirety as also the testimony of witnesses in entirety and it cannot be read out in piecemeal for the purpose of coming to the conclusion.
The argument advanced on behalf of the appellant is in two parts, i.e., in the first part the witnesses have said that they were not at the place of occurrence but even accepting the same to be true, then there is no rebuttal with respect to the second incidence of misconduct committed by the appellant within the premises of the police station.
The Enquiry Officer, on consideration of the testimony of the Officer-in-Charge and two other police constables, has found the charge by taking into consideration the charge in entirety based upon the same if the charge has been found to be proved, which after being Page 11 L.P.A. No.55 of 2023 accepted by the disciplinary authority, order of dismissal has been passed taking into consideration the gross misconduct by a member of the disciplined force, it cannot be said to suffer from an impropriety and if the learned Single Judge, after taking into consideration the aforesaid fact, has refused to interfere with the order of punishment, the same cannot be said to suffer from an error.
31. Learned counsel for the respondents, in support of his argument, has relied upon the following judgments :-
(i) Union of India & Ors. v. Constable Sunil Kumar (2023) 3 SCC 622
(ii) Union of India & Ors v. Subrata Nath,2022 SCC OnLine 1617.
Analysis
32. We have heard learned counsel for the parties, gone across the finding recorded by the learned Single Judge in the impugned order as also the pleading made in the writ petition and the memo of appeal.
33. It is evident from the material available and as per the case of the parties that the appellant while posted as Constable in Maheshpur, Pakur, was proceeded departmentally by issuance of memorandum of charge for committing gross misconduct by a member of disciplined force of misbehaved and assaulted local people near cinema hall which led disruption in the law and order Page 12 L.P.A. No.55 of 2023 situation upon which the higher officers went to the place of occurrence and then the appellant fled away and came back to the Police Line. Thereafter, 50-60 persons came to the Police Station and demanded action against the two policemen and in the meantime the appellant and other constable broke the door and came out armed with Rifles and misbehaved with members of public and also misbehaved with police personnel.
34. The appellant was issued memorandum of charge which needs to be referred herein although the same is in Hindi but for better appreciation the same is being quoted hereunder as :-
"पुलिस 170 कमिे श दू बे के लिरुद्ध अनु शासनहीनता, कततव्यहीनता, उदण्डता एिं एक अयोग्य पुलिसकमी होने का आरोप िगाया जाता है लकिः जब ये महे शपुर थाना के सशस्त्र ररज़ित बि में प्रलतलनयुक्त थे तो लदनााँ क 28-11-05 के संध्या में महे शपुर बाजार स्थित लसने मा हॉि के पास पुलिस 162 गुणाधर लसहं के साथ शराब पीकर नशे की हाित में िानीय िोगों से गािी- ग्लौज एिं मारपीट लकया गया। लजसके लिरोध में करीब 50- 60 व्यस्थक्त उक्त जगह पर जमा हो गये और लिलध-व्यििा की समस्या उत्पन्न होने की संभािना बन गयी।
उनके इस रिैये से पुलिस की छलि धूलमि हुई।
उक्त घटना की सूचना जब थाना प्रभारी को लमिी तो महे शपुर थाना में पदिालपत अ.लन. लमनाषी लकस्कू तथा हििदार सुरदशत न दु बे एिं चौकीदार लदिीप राजिंशी घटनािि पर गये तो पुलिस 170 कमिे श दु बे घटनािि से भाग कर बैरक चिे आये और पुलिस 162 गुणाधर लसहं को िे कर थाना आये और समझाकर बैरक में भे जिाये।
घटना के लिरोध में िानीय व्यस्थक्त पोिो घोष, िािू यादि एिं साथ में अन्य 50-60 व्यस्थक्त थाना पर आ गये और इन दोनों पुलिसकलमत यों के लिरुद्ध कारत िाई करने की मां ग करने िगे। इसी बीच पुलिस 170 कमिे श दु बे एिं पुलिस 162 गुणाधर लसहं द्वारा बैरक दरिाजा तोड़कर हाथ में Page 13 L.P.A. No.55 of 2023 रायफि लिये हुए बाहर आये और िहााँ थाने पररसर में उपस्थित िोगों के साथ अभद्र व्यिहार करने िगे। लजस पर महे शपुर थाना में पदिालपत पुलिस पदालधकारी एिं साधारण बि के पुलिसकमी द्वारा इन दोनों पुलिसकमी को समझाने बुझाने िगे। समझाने बुझाने के बािजू द दोनों पुलिस उदण्डतापूितक उपयुतक्त पुलिस पदालधकारी एिं पुलिसकमी के साथ पेश आये एिं दु व्यतिहार तथा धक्का-मु क्की लकया।
पुलिस 170 कमिे श दु बे के साथ में रायफि रहने एिं उदण्डतापूितक पेश आने के कारण थाना प्रभारी, महे शपुर द्वारा शराब सेिन का लचलकत्सक जााँ च नहीं कराया गया।
उपयुतक्त रिैये के लिए धाना प्रभारी, महे शपुर का ज्ञा. 1316/05 लदनां क 29-11-05 द्वारा प्रलतिेदन समलपतत लकया गया। लजस पर पुलिस 162 गुणाधर लसहं को अनु शासनहीनता, कर्त्त व्यहीनता, उदण्डता, आदे शोल्लं घन एिं एक अयोग्य पुलिसकमी होने के लिए तात्कालिक प्रभाि से लजिादे श सं. 709/05 द्वारा लनिं लबत लकया गया।"
35. The enquiry commenced. The punishment of dismissal was passed on 07.05.2007. The dismissal order was challenged by filing writ petition being W.P.(S) No. 3517 of 2008 by taking the ground of violation of principle of natural justice. The order of dismissal was quashed by remitting the matter to pass a fresh order after supplying the second Enquiry report to the appellant. In the enquiry report dated 21.12.2006, the consideration has been given by the Enquiry Officer with respect to the charge in entirety by calling upon the witnesses.
36. The finding of enquiry officer having been accepted by the disciplinary authority and accordingly the appellant has been inflicted with the punishment of dismissal from service vide order dated 01.06.2016.
Page 14 L.P.A. No.55 of 2023
37. The appeal has been preferred wherein the order of dismissal has been refused to be interfered with. Thereafter, writ petition being W.P.(S) No.329 of 2017 has been filed but the learned Single Judge has refused to interfere with the administrative decision passed after conclusion of the departmental proceeding by assigning the reason that strict rule of evidence is not applicable in the departmental proceeding. However, the punishment is to be imposed after some material has come in evidence before the Enquiry Officer so as to come to the conclusion that the charges levelled against the delinquent employee stand proved. The principle in the departmental proceeding is based upon preponderance of probability.
38. The learned Single Judge, considering the nature of conduct having been committed by the member of the disciplined force, has refused to interfere with the order of punishment which is the subject matter of the present appeal.
39. It is, thus, evident that in the memorandum of charge, allegations are based upon the place of occurrence. The first place is near the cinema hall and the second place is in the premises of police station.
40. The argument has been advanced on behalf of the appellant by referring to testimony of Polo Ghosh and Lalu Rai that what they have deposed in the examination-in-
Page 15 L.P.A. No.55 of 2023 chief, they have not supported the same in the cross- examination.
41. Learned counsel for the appellant based upon the same, has tried to impress upon the Court that it is a case of no evidence.
42. This Court, in order to appreciate the said argument, deems it fit and proper to refer the testimony of witnesses upon which reliance has been placed, for ready reference the same is being referred hereunder as :-
"bl foHkkxh; dk;ZokbZ ds lapkyu ds nkSjku xzkeh.k is0&Lo0 fojsu ukFk ?kks"k ,oa ykyq jk; is0 ukekyqe nksuksa lk0$Fkkuk&egs'kiqj cktkj ft0&ikdqM+ dk O;ku fnukad&20@03@06 dks vius dk;kZy; d{k esa fy;kA bu nksuksa xzkeh.k mifLFkr gksdj crk, fd iq0&170 deys'k nqcs ,oa iq0&162 xq.kk/kj flag nksuksa fnukad&28@11@05 ds la/;k esa egs'kiqj flusek gkWy ds ikl iksyks ?kks"k ds HkkbZ vyksd dq0 ?kks"k dks fcuk dkj.k xkyh xykSt dj ekjihV djus yxsA nksuksa iqfyl dkQh u'ks dh gkyr esa FksA bl ckr dh lwpuk tc iksyks ?kks"k egs'kiqj Fkkuk esa tkdj fn, rks cM+k ckcq ,oa Fkkuk ds vU; ink0 nksuksa iqfyl dks lkFk ysdj Fkkuk vk,A Fkkuk esa Hkh iqfyl xq.kk/kj flag ,oa deys'k nqcs gkFk esa jkbZQy ysdj Fkkuk ifjlj esa mifLFkr egs'kiqj cktkj ds LFkkuh; yksxksa ds lkFk ,oa Fkkuk esa inkLFkkfir iqfyl ink0@deZpkjh ds lkFk Hkh dkQh mn.Mrk iwoZd O;ogkj djus ds lkFk gkFk esa jkbZQy rkudj xksyh pykus ij mrk: gks x,A ftlls ogk¡ ij mifLFkr yksxksa ds chp vQjk&rQjh ep xbZA mifLFkr lHkh yksx rFkk ;s nksuksa Hkh ogk¡ ls gV x,A ;s vkxs crk, fd geyksxksa ds gV tkus ds ckn lqus fd nksuksa esa ls ,d iqfyl xq.kk/kj flag }kjk gkFk esa fy, jkbZQy ls Fkkuk ifjlj esa xksyh pykbZ xbZ gSA bu nksuksa dk O;ku i`"V la0&22 ,oa 26 ij d`I;k voyksdukFkZA iqu% lapkyu ds Øe esa lapkyu inkfèkdkjh iså&Loå ohjsUæ ukFk ?kks"k] lkå$Fkkå&egs'kiqj] ftyk&ikdqM+ ls fnukad&21- 12-06 dks vkjksfir dk çfrç'u djk;k x;k gSA çfrç'u ds Øe esa vkjksfir dk ç'u ,oa lk{kh dk mRrj fuEu çdkj ls gS%& ç'u%& D;k vki egs'kiqj flusek g‚y ds ikl eq>s ?kVuk ds fnu ns[ks Fks \ mRrj& ml le; eSa ogka ugÈ x;k FkkA egs'kiqj Fkkuk ij x;k FkkA Page 16 L.P.A. No.55 of 2023 ç'u%& tc vki egs'kiqj Fkkuk ij x, Fks rks eq>s fdlh ds lkFk èkDdk eqDdh ;k vHkæ O;ogkj djrs Fkkuk esa ns[ks Fks \ mRrj& pwfa d egs'kiqj Fkkuk esa cgqr vkneh x;s FksA eSa Fkkuk ds uhps Fkk] ftl dkj.k iqfyl deys'k nwcs dks èkDdk eqDdh djrs ugÈ ns[kk FkkA ç'u%& tc vki Fkkuk ij x, Fks rks esjs gkFk esa jk;Qy ns[ks Fks \ mRrj&ml le; Fkkuk ij eSa vkids gkFk esa jk;Qy ugh ns[kk FkkA ] iså&Loå 'kaHkq çå jk;] lkå$Fkkuk&egs'kiqj] ftyk&ikdqM+ ls fnukad&21-12-06 dks vkjksfir dk çfrç'u djk;k x;k gSA çfrç'u ds Øe esa vkjksfir dk ç'u ,oa lk{kh dk mRrj fuEu çdkj ls gS%& ç'u%& vki eq>s flusek g‚y ds ikl eq>s ns[ks Fkk \ mRrj& eSa flusek g‚y egs'kiqj ds ikl ?kVuk ds fnu ugh Fkk vkSj eSa ?kVuk ds lacèa k esa dqN ugh tkurk gw¡A ç'u% Fkkuk çHkkjh egs'kiqj }kjk crk;k x;k gS fd vki Fkkuk ij tkdj nksuksa iqfyldÆe;ksa ds fo:) dkjZokà djus dh ekax dj jgs FksA D;k ;g lgh gS \ mRrj& eSa egs'kiqj Fkkuk ij ugÈ x;k FkkA eq>s tkudkjh ugÈ gSA ç'u%& tc vki ?kVuk ds lacaèk esa tkurs gh ugh gS rks vkidk uke dSls fn;k x;k\ mRrj& egs'kiqj Fkkuk }kjk eq>s lwpuk fn;k x;k rc eSa xokgh nsus vk;kA blls igys ?kVuk ds lacaèk esa dksà tkudkjh ugÈ gSA"
43. This Court, after considering the testimony of the witnesses, particularly, by weighing the testimonies as has been made in the examination-in-chief and cross- examination of Polo Ghosh and Lalu Rai, has found that whatever has been said by the witnesses, they have not supported the same in the cross-examination. The said testimony is with respect to the place of occurrence which had occurred near the cinema hall as well as the premises of the police station where also the appellant has committed misconduct of coming out from the barrack and Page 17 L.P.A. No.55 of 2023 misbehaved with the local people who were at the police station.
44. But there are evidence against the appellant made by the Officer-in-Charge, Maheshpur Police Station namely, Anand Kumar Singh, for ready reference his testimony is being referred hereunder as :-
"bl foHkkxh; dk;ZokbZ ds lapkyu ds nkSjku dk O;ku fnukad&20@03@06 dks vius dk;kZy; d{k esa fy;kA bUgksuas vius O;ku esa crk, fd ;s viuk Lofyf[kr izfrosnu fnukad&29@11@05 dks iqfyl v/kh{kd egksn; ikdqM+ ds ikl lefiZr fd, FksA bl izfrosnu dks ;s igpkudj ekdZ&1 fpfUgr fd;sA bUgksusa vius izfrosnu esa iq0&170 deys'k nqcs ds fo:) ,d mnaM ,oa vuq'kklughu iqfyldehZ gksus dh ckr fy[ks gSaA ;s vkxs crk, fd fnukad&28@11@05 dks tc ;s Fkkuk ij Fks rks bUgsa lwpuk feyh dh egs'kiqj Fkkuk ds nks iqfyl dehZ LFkkuh; flusek gkWy ds ikl djhc 50&60 yksxksa ds lkeus ,d xzkeh.k dks vdkj.k ekj&ihV jgs gSaA bl vk'k; dk ,d lugk Fkkuk nSfudh esa vafdr dj ;s rFkk buds lkFk v0 fu0 feuk{kh fdLdw] goynkj lqn'kZu nqcs] pkSdhnkj fnfyi jktoa'kh lHkh Fkkuk egs'kiqj ds lkFk cktkj fLFkr flusek gkWy igq¡ps rks ns[ks fd iq0&170 deys'k nqcs ogk¡ ls Hkkx jgs gSa vkSj iq0&162 xq.kk/kj flag ,d LFkkuh; O;fDr dks xkyh&xykSt dj ekjihV dj jgs gSaA rFkk ogk¡ ij djhc 50&60 LFkkuh; yksx vkØks'k esa [kM+s FksA bUgksuas LFkkuh; yksxksa dks le>k cq>k dj iq0&162 xq.kk/kj flag dks lkFk ysdj Fkkuk vk,A bUgksusa vkxs crk, fd mlh le; djhc 50&60 dh la[;k esa LFkkuh; yksx Hkh Fkkuk ij vk x, vkSj nksuksa iq0 dfeZ;ksa ds fo:) dk;ZokbZ djus dh ek¡x djus yxsA ;s crk, fd Fkkuk esa iq0&170 deys'k nqcs Hkkx dj igq¡p x,A nksuksa iqfyldehZ bu yksxksa ds fo:) dk;ZokbZ djus dh ek¡x dh ckr dks lqudj Fkkuk ij vk, yksxksa ds lkFk mn.Mrk iwoZd my{k x,A ,oa xkyh xykSt djus yxs rFkk ekj ihV djus ij Hkh mrk: gks x,A ftlls LFkkuh; yksx dkQh vkØksf'kr gks x,A Fkkuk esa inkLFkkfir vU; inkf/kdkfj;ksa ,oa deZpkfj;ksa }kjk dkQh le>kus cq>kus ds okotwn Hkh iq0&170 deys'k nqcs ,oa iq0&162 xq.kk/kj flag dkQh mn.Mrk iwoZd O;ogkj djrs jgs vkSj LFkkuh; yksxksa ds lkeus vuq'kklughu gks x,A bUgksus vkxs crk;k fd fdlh rjg bu nksuksa iqfyldfeZ;ksa dks egs'kiqj Fkkuk ds cSjsd esa can fd;k x;k fQj Hkh nksuksa cSjd ds njokts ds ckgjh dqaMh dks rksM+ dj ¼[kksydj½ fdlh rjg /kDdk nsdj njoktk dks [kksydj vius vkius gkFkksa esa jkbZQy Page 18 L.P.A. No.55 of 2023 ysdj fudy vk,A iq0&170 deys'k nqcs ,oa iq0&162 xq.kk/kj flag 'kjkc fi, gq, yx jgs Fks ,oa nksuksa iqfyl jkbZQy rkudj LFkkuh; yksxksa ds lkFk&lkFk Fkkuk esa inkLFkkfir goynkj lqn'kZu nqcs ,oa iqfyl d`".kk jke ds lkFk Hkh xkyh xykSt vkSj /kDdk eqDdh djus yxsA nksuksa iqfyl dehZ }kjk mxzrk dh gkyr esa jkbZQy rkuus ds dkj.k Fkkuk ij vk, gq, LFkkuh; yksx rhrj&chrj gks x,A bUgksusa vkxs crk, fd iq0&162 xq.kk/kj flag gkFkksa esa fy, jkbZQy ls nsj 'kke xksyh pyk fn, tks egs'kiqj Fkkuk ds cjken ds Nr esa tkdj yxhA xksyh pyus ds dkj.k fdlh izdkj dk tku&eky dk uqdlku ugha gks ik;kA bUgksuas vkxs crk, fd iqfyl&170 deys'k nqcs ,d mn.M] vuq'kklughu] drZo;ghu ,oa ,d v;ksX; iqfyl dehZ gSA budk O;ku i`"B la[;k&23 ist ij d`I;k voyksdukFkZA"
45. It is evident from the said testimony that the alleged occurrence, particularly, at the police station has been substantiated by Anand Kumar Singh, the Officer-in- Charge of Maheshpur Police Station and he fully corroborated the alleged occurrence in his cross- examination, for ready reference the statement given in the cross-examination is being quoted hereunder as:-
"
ls fnukad& 21-12-06 dks vkjksfir dk çfrç'u djk;k x;k gSA çfrç'u ds Øe esa vkjksfir dk ç'u ,oa lk{kh dk mRrj fuEu çdkj ls gS& ç'u& xzkeh.kksa }kjk nwjHkk"k ls lwpuk feyus ij vki egs'kiqj flusek g‚y ds ikl igq¡ps rks D;k vki eq>s ogka ik;s \ mRrj%& vki eq>s ogka ugÈ feysA xzkeh.kksa }kjk crk;k x;k fd deys'k nwcs ogka ls Hkkx x;sA ç'u& tc vki egs'kiqj cktkj ls okil Fkkuk vk;s rks eq>s Fkkuk ij mifLFkr ;k vuqifLFkr ik;s \ mRrj%& vki Fkkuk mifLFkr ik;s x;sA ç'u%& tc eSa 'kjkc fi;k Fkk rks D;k esjk fpfdRlh; tk¡p djk;k x;k Fkk\ mRrj%& vki jkÃQy fy;s gq, Fks vkSj mRrsftr gkyr esa Fks blfy, vkidk] fpfdRlh; t‚p djkuk laHko ugÈ FkkA ç'u%& vkids }kjk tks lk{kh gS mudk uke ykyw jk; ;k ykyw ;kno gS D;ksfa d mudk iwjk irk vafdr ugh gS\ Page 19 L.P.A. No.55 of 2023 mRrj& ml le; ykyw ;kno uke dh tkudkjh feyh Fkh] ykyw ;kno egs'kiqj dk jgus okyk gSA mlds firk ds uke dh tkudkjh ugh FkhA ç'u% lk{kh ykyw ;kno ;k ykyw jk; dk uke ,oa firk dk uke ugh tkudkjh FkhA blfy, eq>s fo'okl gS fd vkids }kjk eux<ar vkjksi yxk;k x;k \ mRrj%& esjs }kjk vkids fo:) yxk;k x;k vkjksi lgh gSA ç'u%& vki tc egs'kiqj cktkj igq¡ps rks D;k iqfyl 162 xq.kkèkj Çlg ds gkFk esa jk;Qy Fkk ;k ugÈ Fkk \ vxj ogka jk;Qy] mlds ikl ugh Fkk rks ogka ls mldk fpfdRlh; t‚p D;ksa ugh djk;k x;k \ ;g loky blfy, dj jgk gw¡ fd ;g vkjksi nksuksa ij xfBr gqvk gSA mRrj& lwpuk feyus ij tc eSa egs'kiqj cktkj fLFkr flusek g‚y ds ikl igq¡pk rks lM+d ij 50&60 dh la[;k esa LFkkuh; yksx [kM+s Fks rFkk ogka iqfyl 162 xq.kkèkj Çlg ik;s x;sA nksuksa i{kksa ds chp cd>d gks jgh FksA muds gkFk ml le; jkÃQy ugh FkkA ,slh fLFkfr iqfyl 162 xq.kkèkj Çlg dks lqjf{kr Fkkuk ykuk mfpr le>k x;k rFkk ekeys dh Nkuchu ds ckn gh vfxze dkjZokà djuk mfpr le>kA"
46. The issue which requires consideration herein is that the charge which has been levelled has to be taken into consideration in entirety and not in piecemeal. If in the present facts and circumstances of the case, as has been argued that the occurrence which took place near the cinema hall which is a public place, has not been supported by the witnesses in the cross-examination. Even accepting the same to be correct, then also the alleged occurrence which has taken place in the premised of police station has fully been substantiated by the Officer-in- Charge of Mahespur Police Station.
47. In view of the aforesaid factual aspect, the Enquiry Officer, by taking the entire testimony together, has come out with the finding by proving the charge, as, such, this Page 20 L.P.A. No.55 of 2023 Court is of the view that it cannot be said that it is a case of no evidence. The case of no evidence will be said to be a case of no evidence if the witnesses have either not supported what they have said in the examination-in-chief. But the same is not available herein so far as the issue of misconduct/misbehavior which has been committed by the appellant along with other delinquent employee within the premises of the police station, as would be evident from the testimony of the witnesses.
48. The judgment has been relied upon by the learned counsel for the appellant rendered in the case of United Bank of India v. Biswanath Bhattacharjee, (2022) 13 SCC 329. In the said Judgment the respondent employee was initially appointed as a cashier-cum-clerk by the appellant and he served as Branch Manager of the Bank's Chandabila Branch from 14-12-1988 to 30-5-1990 and disciplinary proceedings were initiated against the employee pertained to the period when he was posted as Manager in the said Chandabila Branch.
A charge-sheet dated 23-10-1997 alleging his complicity in five major charges was issued by the Bank. The charge-sheet alleged that he disbursed loan in favour of twelve fictitious persons in connection with the Integrated Rural Development Project (hereafter called "IRDP") introduced by the Central Government. By an Page 21 L.P.A. No.55 of 2023 order dated 7-10-2002, the disciplinary authority, accepted the report, and, relying on the past conduct of the respondent, terminated his employment.
The employee appealed this order; the appellate authority, however, dismissed the appeal by order dated 28-4-2003. The aggrieved employee approached the Calcutta High Court, under Article 226 of the Constitution of India but writ petition was rejected. The employee then filed an appeal and the Division Bench allowed that appeal, and set aside the orders of the appellate and disciplinary authorities.
The appellant bank preferred the SLP wherein the Hon'ble Apex Court taken in to consideration that it is the case of no evidence further taken in to consideration that the delinquent had been charged after seven years of the alleged incident has dismissed the appeal of the appellant bank.
49. It is evident from the facts of the aforesaid case that there is case of no evidence and delinquent was charged after seven years of the alleged incident but in the instant case the in-charge of concern police station where alleged incident happened has categorically substantiated the alleged incident, thus the aforesaid case upon which reliance has been placed by the learned counsel for the appellant is not applicable herein.
Page 22 L.P.A. No.55 of 2023
50. Learned counsel for the appellant has further placed reliance upon the judgment rendered by the Hon'ble Apex Court in Ram Kishan v. Union of India and Others, (1995) 6 SCC 157. In the said case the appellant, while working as constable was charged with two fold grave misconduct: (i) while he was in charge of the sub-jail (naib court) he facilitated one, under trial prisoner, to drink alcohol before being taken to the Court; and (ii) he had abused the superior officer and created an ugly scene in their presence.
The inquiry officer in his report dated 20-7-1985 found that the second charge was partly proved and the first charge had not been proved. The disciplinary authority, viz., Additional Deputy Commissioner, disagreeing with the conclusions reached by the inquiry officer, issued a show- cause notice on 16-8-1985 as to why both the charges should not be taken to have been proved. The appellant submitted his explanation and thereon by order dated 6-9-1986, the Additional Deputy Commissioner dismissed him from service.
After unsuccessful appeal and revision, he approached the Central Administrative Tribunal in May 1986. The Tribunal in its order dated 17-9-1990 dismissed the OA. Thus, the appeal has been preferred before the Hon'ble Apex Court.
Page 23 L.P.A. No.55 of 2023 The Hon'ble Apex Court taken in to consideration that when abusive language is used by anybody against a superior, it must be understood in the environment in which that person is situated and the circumstances surrounding the event that led to the use of abusive language and no strait-jacket formula could be evolved in adjudging whether the abusive language in the given circumstances would warrant dismissal from service. Each case has to be considered on its own facts.
51. Thus, it is evident that in the aforesaid cases the Hon'ble Apex Court has taken in to consideration the facts and circumstances of the particular case, and since the charge was partly proved, it has been observed the imposition of punishment of dismissal from service is harsh and disproportionate to the gravity of charge. But in the instant case from perusal of charge it appears that by the conduct of appellant employee the question of law and order arose and enquiry officer found the charges fully proved against the appellant thus, the aforesaid Judgment of the Hon'ble Apex Court is also not applicable in fact of the instant case.
52. Further, it is settled proposition of law that the applicability of the judgment depends upon the facts and circumstances of each and every case and there cannot be any universal application of the judgment rather each Page 24 L.P.A. No.55 of 2023 judgment is to be decided on the basis of fact of each case. Reference in this regard may be taken from the judgment rendered by the Hon'ble Apex Court in the case of Dr. Subramanian Swamy vs. State of Tamil Nadu & Ors reported in (2014) 5 SCC 75 wherein at paragraph 47 of the Hon'ble Apex Court has observed as under:
47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
53. There is no dispute about the legal position that if there is no evidence, there cannot be any punishment on conclusion of the departmental proceeding.
54. We, on consideration of the testimonies of the witnesses as has been discussed hereinabove, have come to the conclusion that it cannot be said to be case of no evidence if the testimony of witnesses will be taken into consideration together.
55. The question which has been raised on behalf of the appellant that the learned Single Judge has dismissed the writ petition only on the ground that High Court exercising the power under Article 226 of the Constitution of India is having no jurisdiction to exercise the power of judicial review.
Page 25 L.P.A. No.55 of 2023
56. This Court, on consideration of the judgment passed by the learned Single Judge, has found that the learned Single Judge has come to the conclusion that the Enquiry Officer is to prove the charge if some material has come in course of evidence and in that view of the matter, since the rule of evidence is not strictly applicable based upon the reason that the punishment is to be imposed on principle of preponderance of probability.
57. The law is well settled in this regard that in the departmental proceeding, even on the basis of preponderance of probability, the charge is to be proved. But it is not that, only on the basis of preponderance of probability, the charge is to be proved, rather, even in order to come to the conclusion to prove the charge on the basis of the principle of preponderance of probability, some cogent evidence is to be there, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Karnataka and Anr. vs. Umesh, reported in (2022) 6 SCC 563, wherein, at paragraphs- 18 & 19 it has been held that mere on probabilities, no punishment can be imposed in the departmental proceeding. For ready reference, the same is being referred as under:-
"18. In the course of the submissions, the respondents placed reliance on the decision in Union of India v. Gyan Chand Chattar [Union of India v.
Page 26 L.P.A. No.55 of 2023 Gyan Chand Chattar, (2009) 12 SCC 78]. In that case, six charges were framed against the respondent. One of the charges was that he demanded a commission of 1% for paying the railway staff. The enquiry officer found all the six charges proved. The disciplinary authority agreed with those findings and imposed the punishment of reversion to a lower rank. Allowing the petition under Article 226 of the Constitution, the High Court observed that there was no evidence to hold that he was guilty of the charge of bribery since the witnesses only said that the motive/reason for not making the payment could be the expectation of a commission amount. The respondent placed reliance on the following passages from the decision : (SCC pp. 85 & 87, paras 21 & 31) "21. Such a serious charge of corruption requires to be proved to the hilt as it brings both civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi-
criminal nature was required to be proved beyond the shadow of doubt and to the hilt. It cannot be proved on mere probabilities.
31. ... wherein it has been held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences."
19. The observations in para 21 of Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78] are not the ratio decidendi of the case. These observations were made while Page 27 L.P.A. No.55 of 2023 discussing the judgment [Union of India v. Gyan Chand Chattar, 2002 SCC OnLine Guj 548] of the High Court. The ratio of the judgment emerges in the subsequent passages of the judgment, where the test of relevant material and compliance with natural justice as laid down in Rattan Singh [State of Haryana v. Rattan Singh, (1977) 2 SCC 491] was reiterated : (Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78] , SCC p. 88, paras 35-36) "35. ... an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.
36. In fact, initiation of the enquiry against the respondent appears to be the outcome of anguish of superior officers as there had been an agitation by the railway staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the railway station. The enquiry officer has taken into consideration the nonexisting material and failed to consider the relevant material and finding of all facts recorded by him cannot be sustained in the eye of the law." (emphasis Page 28 L.P.A. No.55 of 2023 supplied) On the charge of corruption, the Court observed in the above decision that there was no relevant material to sustain the conviction of the respondent since there was only hearsay evidence where the witnesses assumed that the motive for not paying the railway staff "could be" corruption. Therefore, the standard that was applied by the Court for determining the validity of the departmental proceedings was whether (i) there was relevant material for arriving at the finding; and (ii) the principles of natural justice were complied with."
58. Further, in the case of High Court of Judicature at Bombay Vs. Uday Singh and others, reported in (1997) 5 SCC 129, the law has been laid down that in the departmental proceeding the cogent evidence is required to be there for inflicting punishment. For ready reference, paragraph-10 is being referred as under:
"-------- the doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct-------."
59. So far as power of judicial review is concerned, the Hon'ble Apex Court has laid down the guidelines and parameters for showing interference in the matter of decision taken by the administrative disciplinary authority as would appear from the judgment rendered by Hon'ble Apex Court in the case of Union of India vs. P. Gunasekaran reported in AIR 2015 SC 545 wherein at Page 29 L.P.A. No.55 of 2023 paragraph 13 thereof, the following guidelines has been laid down for showing interference in the decision taken by the disciplinary authority and not to interfere with the decision which reads hereunder as :-
"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
Page 30 L.P.A. No.55 of 2023
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience."
60. The Hon'ble Apex Court in the case of Central Industrial Security Force and Ors. vs. Abrar Ali reported in AIR (2017) SC 200, wherein the following guidelines have been laid down, showing interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, the same extract of para 8 thereof, is referred hereinbelow:-
"8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to re- appreciation of evidence. It is settled law that re- appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), this Court held as follows:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings Page 31 L.P.A. No.55 of 2023 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"
61. It is, thus, evident that there is no absolute rule that the High Court in exercise of power conferred under Article 226 of the Constitution of India has got no power to interfere with the order passed by the disciplinary authority, rather, the same is to be tested depending upon the facts and circumstances governing the case, as per the guidelines formulated in the judgment referred hereinabove, i.e Union of India vs. P. Gunasekaran (Supra).
62. This Court, judging on the basis of aforesaid proposition of law and again coming back to the testimonies of witnesses with respect to the occurrence by taking together the first place, i.e., near cinema hall, and the second place, i.e., within the premises of the police station, is of the view that it is not correct in taking the ground that it is a case of no evidence since the Officer-in-
Page 32 L.P.A. No.55 of 2023 Charge, Maheshpur Police Station has categorically stated in his deposition that both the delinquent employees including the appellant were sent to barrack from where they came out forcefully and took the rifle in his hand. Further, he has stated that the appellant has created nuisance and misbehaved with the local people within the premises of the police station.
63. This Court, after having discussed the aforesaid fact, is of the view that if the learned Single Judge has taken a view showing no interference with the impugned order in the context of a case which pertains to the member of the disciplined force, which according to our considered view, cannot be said to suffer from an error.
64. Accordingly, this Court is of the view that the instant appeal deserves to be dismissed.
65. Accordingly, the instant appeal fails and is dismissed.
(Sujit Narayan Prasad, J.) I agree (Arun Kumar Rai, J.) (Arun Kumar Rai, J.) Birendra/ A.F.R. Page 33 L.P.A. No.55 of 2023