Jharkhand High Court
Bidya Kant Upadhyay vs State Of Jharkhand & Ors. on 3 May, 2013
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1.
W. P. (S) No. 5412 of 2003
[In the matter of an application under Article 227 of the Constitution of India]
Bidya Kant Upadhyay ... ... Petitioner
Versus
1. The State of Jharkhand
2. Inspector General of Police, Jharkhand, Ranchi
3. Deputy Inspector General of Police,
South Chhotanagpur Range, Ranchi
4. Superintendent of Police, East Singhbhum,
Jamshedpur ... ... ... Respondents
For the Petitioner : Mr. A.K. Sahani, Advocate
For the State : Ms. Shiwani Verma, J.C. to A.G.
P R E S E N T
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
By Court: Challenging the order of penalty dated 16.10.2002 and the
appellate order dated 16.06.2003, whereby the appeal against the said penalty order was dismissed, the petitioner has approached this Court by filing the present writ petition.
2. The brief facts of this case are that, the petitioner was appointed as a Constable on 03.07.1979 and in the year 1987 he was granted first time bound promotion. During the relevant time, the petitioner was posted at Golmuri police station, East Singhbhum. An F.I.R. being Golmuri P.S. Case No.129 of 2001 was registered on 26.06.2001 under Sections 420, 465, 467 and 34 IPC. The petitioner was put under suspension on 28.07.2001. On 20.08.2001 a chargememo was served upon the petitioner on the allegation that when he was posted at Golmuri police station, he 2. along with another Constable namely, Sanjay Kumar Singh posed themselves to be the Passport Verification Officer and received money from one Sheela Singh. On 17.10.2001, the petitioner submitted his explanation denying the charges. He specifically stated that on 13.05.2001 he had gone to Bhagalpur in connection with the order of attachment and he joined his duty only on 21.05.2001, which he contended is a matter of record, as it is recorded in the station diary of the police station. He also made a grievance that a copy of the preliminary report was not given to him. On 06.05.2002, a second showcause notice was issued to the petitioner and on 22.05.2002, he submitted his reply to the proposed order of punishment for dismissal from service. However, on 16.10.2002 the order of dismissal from service was passed and therefore, the petitioner preferred the appeal which was dismissed on 16.06.2003. In the meantime, by judgment and order dated 10.03.2003, the learned SubDivisional Judicial Magistrate, Jamshedpur acquitted the petitioner of the charge levelled against him. In view of the order dated 10.03.2003 and the fact that the complainant namely, Sheela Singh had refused to identify the petitioner before the criminal court, the petitioner in his Appeal Memo therefore, specifically raised such a plea. However, as noticed above his appeal was dismissed.
3. A counteraffidavit has been filed stating that the petitioner along with another Constable namely, Sanjay Kumar Singh posed 3. themselves as Passport Verification Officers and received illegal gratification. During the enquiry, the charge against the petitioner was found proved and in the departmental proceeding the petitioner was afforded reasonable opportunity to defend himself and therefore, no interference is required by this Court in this matter.
4. Heard counsel appearing for both the parties and perused the documents on record.
5. Mr. A.K. Sahani, learned counsel appearing for the petitioner has submitted that the charge levelled against the petitioner is not proved. The petitioner had gone to Bhagalpur on official duty between 13.05.2001 and 21.05.2001, whereas on the 'parpatra', the dates written are 15.05.2001 and 18.05.2001 on which dates he was admittedly not at Jamshedpur and therefore, he could not have signed the verification papers. The complainant namely, Sheela Singh has identified Sanjay Kumar Singh and she has admitted that Sanjay Kumar Singh returned the money to her. During the trial of the criminal case, the said Sheela Singh failed to identify the petitioner as the person, who had asked for illegal gratification and therefore, the charge against the petitioner must fail. Moreover, he has contended that the specific plea raised by the petitioner in his Appeal Memo has not been considered by the appellate authority and his appeal has been dismissed in a mechanical manner.
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6. On the other hand, Ms. Shiwani Verma, learned counsel appearing for the Respondents has contended that in the departmental enquiry, statement of said Sheela Singh was recorded in presence of the petitioner, however, the petitioner did not choose to crossexamine her. She has further contended that since the nature of proceedings in the departmental enquiry and in the criminal trial is different, the finding recorded by the criminal court is not binding on the proceeding initiated against the petitioner by the Department. She has further submitted that the conduct of the petitioner in taking illegal gratification is unbecoming of a police Constable and the charge against him was found proved during the enquiry and therefore, the order of dismissal from service was passed against the petitioner.
7. Controverting the contention of the counsel for the Respondents, Mr. A.K. Sahani, learned counsel appearing for the petitioner has submitted that since the complainant namely, Sheela Singh has not named the petitioner as the person, who had asked for illegal gratification, there was no need for the petitioner to crossexamine her. The complainant failed to identify the petitioner during the trial of the criminal case. He has further submitted that neither a copy of the preliminary enquiry report nor the enquiry report on conclusion of the departmental enquiry, was furnished to the petitioner and straightway a second showcause 5. notice was issued to the petitioner and therefore, serious prejudice has been caused to the petitioner.
8. From the record of the case, I find that in the counter affidavit filed on behalf of the Respondents, this has not been denied that a copy of preliminary enquiry report and the enquiry report which was submitted on conclusion of departmental proceeding, were not furnished to the petitioner. The specific plea of the petitioner that between 13.05.2001 and 21.05.2001, he had gone to Bhagalpur in connection with the order of attachment and he joined duties only on 21.05.2001, which can be verified from the station diary entry, has not been considered either by the disciplinary authority or by the appellate authority. The plea of the petitioner that on 05.05.2001 between 17.00 hrs. and 22.00 hrs, he was on petrolling duty with one Ramji Singh, which can be verified from the official record, has also not been denied or dealt with by the disciplinary authority or the appellate authority. The appellate authority has also failed to consider the plea of the petitioner that in view of the fact that he has been acquitted of the charges levelled against him in the criminal case and the complainant namely, Sheela Singh has failed to identify him in the Court, are fatal to the case of the Department and therefore, the order of penalty of dismissal from service is not justified.
9. In "Narinder Mohan Arya Vs. United India Insurance Co. Ltd. & Ors.", reported in (2006) 4 SCC 713, the Hon'ble Supreme Court 6. has held that the evidence adduced on behalf of the management must have nexus with the charges. The enquiry officer cannot base his findings on mere hypothesis. Mere ipse dixit on his part cannot be substitute of evidence.
10. In view of nonsupply of the preliminary enquiry report and the enquiry report dated 06.05.2002, serious prejudice has caused to the petitioner and the petitioner has been deprived of an opportunity to meet the adverse findings recorded against him during the departmental enquiry.
11. In "State of Uttar Pradesh Vs. Mohd. Sharif", reported in (1982) 2 SCC 376, where the statements recorded during the preenquiry stage were not supplied to the delinquent officer, the Hon'ble Supreme Court held that the person was denied reasonable opportunity to defend himself in the disciplinary enquiry. Again, in "Kashinath Dikshita Vs. Union of India and Others", reported in (1986) 3 SCC 229, the Hon'ble Supreme Court took a similar view when it was found that the officer was not supplied with a copy of statements recorded at preenquiry stage and such statements were relied upon by the department in support of the charges framed against the employee. The Hon'ble Supreme Court found as under;
12. "Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done 7. so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself ........."
12. In the case of "Punjab National Bank and others Vs. K.K. Verma", reported in (2010) 13 SCC 494, the Hon'ble Supreme Court was examining the case of a Bank Manager, who was neither supplied with enquiry report nor the report of disciplinary authority differing with enquiry officer was supplied to the Bank Manager, the Hon'ble Supreme Court has observed as under: "12. Now, what is material to note is, that the respondent was not furnished with a copy of the enquiry report, and the disciplinary authority straightforward passed the order of removal which has been quoted earlier. The report of the enquiry officer and the detailed order of the disciplinary authority became available to the respondent only along with the order of removal, and he did not have any opportunity to make his submissions on that report to defend the charges anytime prior to the punishment of removal being decided and imposed.
30. This being the position, in the instant case it is clear that the appellant had not followed their own Regulations which clearly require the disciplinary authority to record the reasons where it differed from the enquiry officer. The Regulations also clearly lay down that a copy of the enquiry report and the order of disagreement are to be provided to the employee. In the present case, we are concerned with the stage where the disciplinary authority differs with the enquiry officer on his findings. This is prior to arriving at the guilt of the employee. His right to receive the report and defend at that stage before the guilt is established is very much recognised as seen above. The counsel for the appellant submitted that the Constitution Bench has held in Union of India v. Tulsiram Patel that after the 42nd Amendment, the employees are not entitled in law to be heard in the matter of penalty.
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31. In Karunakar case, another Constitution Bench has referred to Tulsiram Patel in para 13 and then explained the legal position in this behalf in para 25 as follows:
"25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz. before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Fortysecond Amendment."
32. Thus the right to represent against the findings in the enquiry report to prove one's innocence is distinct from the right to represent against the proposed penalty. It is only the second right to represent against the proposed penalty which is taken away by the 42nd Amendment. The right to represent against the findings in the report is not disturbed in any way. In fact, any denial thereof will make the final order vulnerable."
13. A Constitution Bench of the Hon'ble Supreme Court in the case of "Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors.", reported in (1993) 4 SCC 727 has held,
26. "The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would 9. influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it."
14. After considering the judgment in the case of "B. Karunakar", the Hon'ble Supreme Court in the case of "Punjab National Bank & Ors. Vs. Kunj Behari Misra" reported in (1998) 7 SCC 84 has held as under,
17. "These observations are clearly in tune with the observations in Bimal Kumar Pandit case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the 10. delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority."
15. In view of the aforesaid discussion it is clear that nonsupply of the copy of the preliminary report and the enquiry report to the petitioner would vitiate the entire departmental proceeding initiated against the petitioner. Further, the specific plea raised by the petitioner has not been denied or even explained by the disciplinary authority. Moreover, the order passed by the appellate authority suffers from nonapplication of mind. The acquittal of the petitioner by the criminal Court and the fact that the complainant namely, Sheela Singh failed to identify the petitioner in the Court are important subsequent developments, which should have also been considered by the appellate authority. The impugned orders therefore, cannot be sustained in law and are liable to be quashed. Now, the question would be whether this Court can interfere with the quantum of punishment.
16. In "Ranjeet Thakur Vs. Union of India & Ors." reported in (1987) 4 SCC 611, the Hon'ble Supreme Court has held, "Judicial review generally speaking, is not directed against a decision, but is directed against the "decisionmaking process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the courtmartial. But the sentence 11. has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even an aspect which is, otherwise, within the exclusive province of the courtmartial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."
17. In "B.C. Chaturvedi Vs. Union of India", reported in (1995) 6 SCC 749, the Hon'ble Supreme Court has held that the Court will not interfere with the order of punishment unless the punishment awarded is one which shocks the conscience of the Court. A similar view has been expressed by the Hon'ble Supreme Court in "M.P. Electricity Board Vs. Jagdish Chandra Sharma", reported in (2005) 3 SCC 401 and several other cases.
18. In "Apparel Export Promotion Council Vs. A.K. Chopra", reported in (1999) 1 SCC 759, the Hon'ble Supreme Court has held,
16. ".....Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable........ Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not 12. normally substitute its own opinion and impose some other punishment or penalty."
19. In the present case, more than 11 years have passed since the order of dismissal from service was passed against the petitioner and by that time the petitioner had already put in 23 years of service and therefore, it would not be appropriate to remand the matter for fresh consideration by the departmental authorities.
20. In "Hussaini Vs. Hon. Chief Justice of High Court of Judicature at Allahabad & Ors.", reported in (1985) 1 SCC 120, the Hon'ble Supreme Court has converted the order of punishment of dismissal into order of compulsory retirement on compassionate ground.
21. In "Harjit Singh & Anr. Vs. State of Punjab & Anr.", reported in (2007) 9 SCC 582, the Hon'ble Supreme Court interfered with the order of dismissal from service and imposed the punishment of compulsory retirement observing as under,
15. "In the aforementioned situation, ordinarily, we would have asked the disciplinary authority to consider the matter afresh, but the occurrence had taken place in the year 1984. The appellants and the said Parminder Singh had worked only for a few years, one of them is dead. In the aforementioned situation, we are of the opinion that we would be justified to fix the quantum of punishment. We are of the opinion that in the facts and circumstances of this case and in particular having regard to the passage of time, punishment of compulsory retirement will meet the ends of justice. If otherwise eligible, the delinquents would be entitled to retiral benefits. The appeal is allowed to the aforementioned extent."
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22. In "Surendra Prasad Shukla Vs. State of Jharkhand & Ors.", reported in (2011) 8 SCC 536, a Head Constable in State Police, who had served for 34 years, was dismissed from service as a stolen car was recovered from the government quarters occupied by the delinquent employee. However, as no charge of abetting or aiding the offence under Section 392 I.P.C., for which his son was charged, was framed against him, the Hon'ble Supreme Court held that the punishment of dismissal from service, which would deprive the employee of his pension also, was shockingly disproportionate to negligence proved against him. The Hon'ble Supreme Court partly allowed the appeal and modified the punishment of dismissal from service to compulsory retirement.
23. In "State Bank of Bikaner & Jaipur Vs. Nemi Chand Nalwaya", reported in AIR 2011 SC 1931, a case in which the delinquent employee without verification, instructed his colleague to transfer a dormant account into operative category at the request of an unknown person visiting the bank and claiming to be account holder, which turned out to be false, the Hon'ble Supreme Court has held as under,
11. "However having regard to the fact that the proven charge did not involve either misappropriation or fraudulent conduct and the other circumstances of the case, we are of the view that the punishment of dismissal should be substituted by compulsory retirement, which does not involve reinstatement.
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12. We, accordingly, allow the appeal and set aside the judgment of the High Court. We uphold the finding of guilt recorded by the disciplinary authority, but modify the punishment from 'dismissal' to 'compulsory retirement'. There is therefore no question of grant of any backwages."
24. In view of the peculiar facts of the case and the law as discussed hereinabove, I am of the view that it would meet the ends of justice, if the order of dismissal from service is converted into an order of "compulsory retirement".
25. The impugned orders dated 16.10.2002 and 16.06.2003 are quashed and the order of dismissal from service is converted into the order of "compulsory retirement". Needless to say, the petitioner would be entitled for all the retiral benefits, if admissible in law.
(Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated: 3rd May, 2013 R.K./ A.F.R.