Jharkhand High Court
Krishna Mohan Singh vs The State Of Jharkhand Through The ... on 9 February, 2024
Author: S.N. Pathak
Bench: S.N. Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1889 of 2021
Krishna Mohan Singh .... Petitioner
Versus
1. The State of Jharkhand through the Director General & Inspector
General of Police, Ranchi.
2. Deputy Inspector General of Police, South Chotanagpur Range,
Ranchi.
3. Senior Superintendent of Police, Ranchi. .... Respondents
WITH
W.P.(S) No. 1917 of 2021
Sanjeet Kumar .... Petitioner
Versus
1. The State of Jharkhand through the Director General & Inspector
General of Police, Ranchi.
2. Deputy Inspector General of Police, South Chotanagpur Range, Ranchi.
3. Senior Superintendent of Police, Ranchi. .... Respondents
WITH
W.P.(S) No. 1636 of 2021
Ravi Shankar Choubey .... Petitioner
Versus
1. The State of Jharkhand through the Director General & Inspector
General of Police, Ranchi.
2. Deputy Inspector General of Police, South Chotanagpur Range, Ranchi.
3. Senior Superintendent of Police, Ranchi. .... Respondents
WITH
W.P.(S) No. 1922 of 2021
Mukesh Kumar .... Petitioner
Versus
1. The State of Jharkhand through the Director General & Inspector
General of Police, Ranchi.
2. Deputy Inspector General of Police, South Chotanagpur Range, Ranchi.
3. Senior Superintendent of Police, Ranchi. .... Respondents
WITH
W.P.(S) No. 1924 of 2021
Anand Kumar Singh .... Petitioner
Versus
1. The State of Jharkhand through the Director General & Inspector
General of Police, Ranchi.
2. Deputy Inspector General of Police, South Chotanagpur Range, Ranchi.
3. Senior Superintendent of Police, Ranchi. .... Respondents
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CORAM : HON'BLE DR. JUSTICE S.N. PATHAK
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For the Petitioner : Mr. Manoj Tandon, Advocate
Ms. Neha Bhardwaj, Advocate
For the Respondents : Mr. K.K.,Singh, SC-VI
Mr. Gaurav Abhishek, AC to AG
Mr. Rahul Dev, AC to SC(L&C)-III
2
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6 / 09.02.2024 In all these writ petitions, common questions of law are involved and the facts are also almost similar, as such, they are heard together and are being decided by this common order with the consent of the parties.
2. Heard the parties.
Prayer
3. The petitioners have challenged their penalty orders, appellate orders and the revisional orders passed by the disciplinary authority, appellate authority and revisional authority respectively.
4. In W.P.(S) No. 1889 of 2021, the penalty order contained in District Order No. 4195/2019 dated 30.8.2019 (Annexure-6) is under challenge. The appellate order contained in Memo No. 1378 dated 27.4.2020 (Annexure-8) and the revisional order contained in Memo No. 242 dated 28.12.2020 (Annexure-10) are also under challenge.
5. In W.P.(S) No. 1917 of 2021, the penalty order contained in District Order No. 4195/2019 dated 30.8.2019 (Annexure-6), appellate order contained in Memo No. 1376 dated 27.4.2020 (Annexure-8) and the revisional order contained in Memo No. 229 dated 14.12.2020 (Annexure-10) are under challenge.
6. Similarly, in W.P.(S) No. 1636 of 2021, the penalty order contained in District Order No. 4193/2019 dated 30.8.2019 (Annexure-6), appellate order contained in Memo No. 1375 dated 27.4.2020 (Annexure-8) and the revisional order contained in Memo No. 243 dated 28.12.2020 (Annexure-10) are under challenge.
7. Further, in W.P.(S) No. 1922 of 2021, the penalty order contained in District Order No. 4196/2019 dated 30.8.2019 (Annexure-6), appellate order contained in Memo No. 1380 dated 27.4.2020 (Annexure-8) and the revisional order contained in Memo No. 231 dated 12.12.2020 (Annexure-10) are also under challenge.
8. In W.P.(S) No. 1924 of 2021, the penalty order contained in District Order No. 4192/2019 dated 30.8.2019 (Annexure-6) is under challenge. The petitioner has also challenged the appellate order contained in Memo No. 1379 dated 27.4.2020 (Annexure-8) and the revisional order contained in Memo No. 244 dated 28.12.2020 (Annexure-10). The Facts
9. For the purpose of convenience and to avoid repetition of details, 3 the facts of W.P.(S) 1889 of 2021 are only taken into consideration, as the facts of other cases are covered in this writ petition.
10. All the petitioners were appointed in Ranchi District Force as Constable in the year 2008-2015. They were proceeded departmentally by framing memo of charge on 20.12.2018. The charge against the petitioners is that on 8.12.2018 in the evening at 6.00 pm, two persons went to medical store, namely, Life Plus Medical Store' and demanded a cough syrup. Two more police personnel in police uniform and one person in civil dress came and disclosed to the staff of the said medical store that they are from Narcotics Department. They told that the shop was selling duplicate medicines and therefore, the staff should call the owner of the shop. All the persons were identified to be the police personnel in the footage of camera installed in the shop. In this way, Rs. 30,000/- was cheated, which led to lodging of FIR, being Sukhdeonagar P.S. Case No. 625 of 2018 dated 8.12.2018 for the offence under sections 452, 420, 386 / 34 of the Indian Penal Code. The charge further shows that in this way, the image of Ranchi Police was tarnished by the petitioners. Thereafter, departmental proceeding was initiated. The petitioners submitted their respective written statements of defence to the enquiry officer- cum-Assistant Superintendent of Police. The petitioners denied the charges so alleged. The defence taken is that the petitioners went to the said medical store to purchase medicine, but some altercations took place between the staff of the medical store and the petitioners and therefore, a concocted and manufactured story was cooked up, which led to lodging of the FIR and the departmental proceeding. Altogether four witnesses were examined during the departmental proceeding, namely, Ajit Kumar Vimal Dy. Superintendent of Police, Kotwali, Jay Prakash Paswan, Assistant Sub-Inspector, Police Kendra, Ranchi, Vinay Yadav, Gopneeya Pravachak and Sanjay Kumar, Inspector-cum-Officer in Charge, Sukhdeonagar Police Station. The informant Avinash Kumar Singh was examined in the departmental proceeding, but he tendered his written statement to the enquiry officer. The petitioners have pleaded that all these witnesses were examined behind the back of the petitioners. Even the date on which they were examined is also not known to the petitioners. Even the written statement of the complainant Avinash Kumar Singh who said to be tendered his written statements, the copy of the same was not supplied to the petitioners. It is further pleaded that the petitioners were not allowed to cross-
4examine the witnesses including Avinash Kumar Singh. After conclusion of the enquiry, the report was submitted by the enquiry officer on 31.5.2019 holding the petitioners guilty of the charges. The petitioners were issued notice before the penalty order. Such notice was issued by memo no. 5773 dated 3.7.2019. In turn, the petitioners submitted reply on 10.7.2019. Ultimately, the penalty of dismissal from service was imposed upon the petitioners on 30.8.2019 with the direction that the petitioners would not be entitled to get anything than what was paid to them during the period of suspension. The petitioners preferred their respective appeals which came to be rejected by the Deputy Inspector General of Police, South Chotanagpur Range, Ranchi on 27.4.2020. The memorials / revisions were preferred by the petitioners, but the same also resulted with same fate as it was rejected on 28.12.2020, 14.12.2020 and 12.12.2020 respectively.
Submissions of learned counsel for the Petitioners
11. Mr. Manoj Tandon, learned counsel assisted by Ms. Neha Bhardwaj, learned counsel appearing for the petitioners submits that the impugned orders are neither sustainable in law nor on facts. The facts revealed that four witnesses, namely, Ajit Kumar Vimal, Jay Prakash Paswan, Vinay Yadav and Sanjay Kumar were examined to support the charge. All the four witnesses were the Government officials. However, the petitioners were not given an opportunity to cross-examine them, as they were examined behind the back of the petitioners. Even the date of examination of such witnesses were not known to the petitioners. This resulted into miscarriage of principle of natural justice as the petitioners could not examine these witnesses to elicit truth from the mouth of these witnesses. Learned counsel further submits that Avinash Kumar Singh who was the informant of the criminal case was not examined as a witness. It is, however, said that he tendered written statement, but the copy thereof was never supplied to the petitioners. No independent witness or even the staff of medical store come forward to enrich the veracity of the charge. In this way, when the complainant was not examined and cross- examined, the charge against the petitioners could not be said to be proved. Moreover, learned counsel submits that this informant was not present at the place of occurrence, which is evident from the facts of the case itself. Even the staff with whom such altercations took place, namely, Satish Kumar was not also examined as a witness before the enquiry officer in the departmental 5 proceeding. Therefore, he submits that there is complete violation of the Rules whereby departmental proceeding is conducted in respect of a police personnel. He specially refers Rule 828 read with Appendix 49 of the Jharkhand Police Manual, which unequivocally stipulates that before awarding major punishment, adequate opportunity of defence has to be afforded to the delinquent. While referring to paragraph-1 of Appendix 49, he submits that the persons charged are entitled to cross-examine the witnesses. He submits that a full dressed procedure is laid down in Appendix 49 as to how the penalty has to be imposed, but this Rule has been violated in the present case. Referring to paragraph-12 of the said Appendix 49, learned counsel submits that non- compliance of instructions as stipulated therein renders the proceedings to be set aside on appeal or in revision.
12. Mr. Tandon further refers the enquiry report which is dated 31.5.2019. It is submitted that in the last but one paragraph, the enquiry officer has come to the conclusion that during the course of departmental proceeding, the owner of the shop has denied that there was any transaction of money, which is evident from the written report. Therefore, the contention is that it is a case of no evidence against the petitioners. He further argues that criminal case was also lodged in respect of the same event, but during the pendency of the criminal case, the penalty was imposed upon the petitioner without waiting for the result thereof. However, after conclusion of the criminal case, the judgment thereof was rendered by the learned Judicial Magistrate, 1 st Class, Ranchi in G.R. No. 305 of 2019 / Tr. No. 349 of 2021 on 2 nd December, 2021. Referring to this judgment, learned counsel submits that the petitioners have been acquitted by the Court of competent jurisdiction. He submits that as many as eight witnesses were examined in the criminal case, which includes the informant Avinash Kumar Singh, but the prosecution could not prove the charge beyond all reasonable doubts and hence, the judgment of acquittal was pronounced. Therefore, the submission has been advanced that neither in the departmental proceeding nor in the criminal case, the charge could not have been proved and hence, dismissing the petitioners from service cannot be said to be justified. Learned counsel lastly submits that assuming for the moment that some altercation took place at the medical shop, the same would not amount to such grave misconduct so as to dismiss the petitioners from service which is a capital punishment in service jurisprudence. The net submission 6 therefore is that the punishment imposed is disproportionate to the nature of misconduct and the materials on record of the departmental proceeding. In all these grounds, learned counsel submits that the impugned orders are fit to be quashed and set aside and the petitioners are entitled for reinstatement in service with all consequential benefits.
13. Learned counsel further submits that failure to examine material witness would vitiate the entire departmental proceeding, as the same would be in violation of the principles of natural justice. In support of his contention, learned counsel places heavy reliance upon the judgments of the Hon'ble Apex Court in the cases of Kuldeep Singh Vs. Commissioner of Police and Ors., reported in (1999) 2 SCC 10 and Hardwari Lal Vs. State of U.P. & Ors., reported in (1999) 8 SCC 582, Commissioner of Police, Delhi & Ors. Vs. Jai Bhagwan, reported in (2011) 6 SCC 376 and United Bank of India Vs. Biswanath Bhattacharjee, reported in 2022 SCC OnLine SC 108. Submissions of learned counsel for Respondents
14. On the other hand, apart from the factual aspects as averred in the counter affidavit, learned counsel appearing for the respondents submits that in a full-fledged departmental proceeding, this Court sitting under Article 226 of the Constitution of India would not re-appreciate the evidence on record. It is submitted by learned counsel for the State that the departmental proceeding was conducted in accordance with law and thereafter the enquiry report was submitted holding the petitioners guilty of the charges. The appellate authority has considered all these aspects in the appeal and thereafter, the same was rejected. Even the revisions preferred by the petitioners were also considered and the same were rejected. Learned counsel submits that the allegations are of such nature that the petitioners cannot be allowed to remain in service in a disciplined force. So far as acquittal in criminal case is concerned, learned counsel submits that it is true that the petitioners have been acquitted in the criminal case, but on that basis, their punishment cannot be said to be illegal. Learned counsel submits that it is well settled that the acquittal in a criminal case has no bearing or relevance on the disciplinary proceedings, as the standard of proof in both the cases are different and the proceedings operate in different fields and with different objects. Learned counsel places heavy reliance upon the judgment of the Hon'ble Apex Court delivered in the case of Samar Bahadur Vs. State of Uttar Pradesh & Ors, reported in (2011) 9 SCC 7 94 and submits that no case for interference is made out by the petitioners and as such, the writ petitions are fit to be dismissed.
Findings of the Court
15. Having heard rival submission of the parties across the Bar and the documents brought on record, it appears that the petitioners are claiming reinstatement into the services after quashment of penalty order affirmed up to the revisional authority. The grounds for interference, as argued by learned counsel for the petitioner is that several procedural laches and folly have been committed by the respondents and the main arguments advanced by learned counsel is that as the petitioners have been honourably acquitted, they are entitled for reinstatement after quashment of the impugned orders.
16. Now the following issues remains to be decided:
(i) Whether the petitioners have been honourably acquitted?
(ii) Whether the punishment inflicted shocks the judicial conscience and it is disproportionate to the charges levelled against the petitioners?
(iii) Whether it is a case of no evidence and sufficiency of evidence for proof of charges completely comes within the domain of administrative authorities and this Court cannot re-appreciate the evidence sitting under Article 226 of the Constitution?
17. In the instant case, from perusal of the order of acquittal, it is clear that since the witnesses have turned hostile, the benefits of doubt was given and that does not amount to clear acquittal. The petitioners were given ample opportunity before the enquiry officer as well as the appellate authority and the revisional authority. The Hon'ble Apex Court in the case of Union of India & Ors. Vs. P. Gunasekaran, reported in (2015) 2 SCC 610 has held that "no interference be made by the High Court in the case of concurrent findings of the authorities". Further, the Hon'ble Apex Court held in para-12 and 13 are as follows:-
12. 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, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the 8 High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 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.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(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.
18. Further, the Hon'ble Apex Court n the case of Union Territory Chandigarh Administration Vs. Pradeep Kumar, reported in (2018) 1 SCC 797 held as follows:-
10. The acquittal in a criminal case is not conclusive of the suitability of the candidates in the post concerned. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. What is honourable acquittal, was considered by this Court in Inspector General of Police v. S. Samuthiram [Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598 : (2013) 1 9 SCC (Cri) 566 : (2013) 1 SCC (L&S) 229] , in which this Court held as under: (SCC p. 609, para 24) "24. The meaning of the expression "honourable acquittal"
came up for consideration before this Court in RBI v. Bhopal Singh Panchal [RBI v. Bhopal Singh Panchal, (1994) 1 SCC 541 : 1994 SCC (L&S) 594] . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
19. The Hon'ble Apex Court in the case of Secretary, Managing Committee, BSM(PG) College, Roorkee Vs. Samrat Sharma and others, reported in (2019) 16 SCC 56 while dealing with the similar issue has observed as under:
12. We are in agreement with the contentions made by Mr Pundir that the High Court committed an error in re-appreciating evidence in coming to the conclusion that the charges against Respondent 1 were not established. It is well-settled law that it is the decision-making process and not the decision itself which can be the subject-matter of judicial review. Interference by the courts can only be in cases where there is no evidence.
Sufficiency of evidence for proof of the charges against delinquent officers is completely within the domain of the administrative authority. Courts cannot reappreciate the evidence to come to a different conclusion. We are afraid that the High Court has transgressed the permissible limits of judicial review in holding that the evidence on record did not warrant an order of termination. Interference with the penalty imposed on delinquent officers is permissible only when it shocks the conscience of the court. We are not dealing with any of the submissions made on behalf of the parties relating to the truth or otherwise of the allegations made against Respondent 1 as we have held that the procedure prescribed under the First Statutes was violated while conducting the departmental enquiry against Respondent 1. Accordingly, we affirm the judgment [Samrat Sharma v. State of Uttarakhand, 2017 SCC OnLine Utt 1931] of the High Court by which the order of termination of the services 10 of Respondent 1 was set aside. We also uphold the direction relating to the entitlement of Respondent 1 to claim salary for the period of his suspension. However, we are of the opinion that the appellant College should be permitted to conduct a fresh enquiry into the charges that have been communicated to Respondent 1, if they so wish."
20. Admittedly, the punishment order of dismissal is fully justified in peculiar facts and circumstances of the case and it can comfortable be inferred that the same does not shocks judicial conscience and does not warrant interference. Since the petitioners have been held guilty of charges and whatever allegations have been brought against them, have been proved by placing cogent materials on record, which go unrebutted. From the charge itself, it appears that the petitioners have been charged on the ground of negligence, dereliction of duty and unbecoming of a police officer which are proved in a departmental proceeding and appeared upto revisional authority and the same does not warrant any interference.
21. Similar issue fell for consideration before the Hon'ble Apex Court in the case of Samar Bahadur Singh Vs. State of UP and others, reported in (2011) 9 SCC 94 wherein the Hon'ble Apex Court held in paragraphs-7 and 8 as follows:-
"7. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit.
8. Now, the issue is whether punishment awarded to the appellant is disproportionate to the offence alleged. The appellant belongs to a disciplinary force and the members of such a force are required to maintain discipline and to act in a befitting manner in public. Instead of that, he was found under the influence of liquor and then indulged himself in an offence. Be that as it may, we are not inclined to interfere with the satisfaction arrived at by the disciplinary authority that in the present case punishment of dismissal from service is called for. The punishment awarded, in our considered opinion, cannot be said to be 11 shocking to our conscience and, therefore, the aforesaid punishment awarded does not call for any interference."
22. Admittedly petitioners belong to a disciplined force and were required to maintain discipline and to act in a befitting manner in public. The action of the petitioners was unbecoming of a police officer which has brought disrepute to the entire police force.
23. Fully agreeing with the findings of the enquiry officer and the punishment order, this Court is of the view that no any other opinion can be made than what has been observed by the highest authority of the State of the Police Department. Regarding the procedural laches, what has been argued, is not being substantiated by any cogent evidence. Petitioners have not thrown challenge to the enquiry report.
24. The punishment order passed by the disciplinary authority was tested up to the highest authority of the State Police Force which could not be questioned here sitting under Article 226 of the Constitution of India, when no folly in the departmental proceeding is pointed out.
25. As a sequitur to the aforesaid rules, regulations, guidelines and judicial pronouncements, I do not see any reason to interfere with the impugned penalty order dated 30.08.2019 affirmed upto the revisional authority, which requires no interference by this Court.
26. All the aforesaid writ petitions are accordingly dismissed.
(Dr. S.N. Pathak, J.) RC