Jharkhand High Court
Police 233 vs The Secretary Of Jharkhand on 23 July, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 209 of 2024
Police 233, Gomash Murmu aged about 45 years son of Rabhan Murmu, Resident
of Village- Sathibad, P.O. Chapuwadih, P.S. Bengabad, District- Giridih
(Jharkhand). ..... Appellant/Appellant
Versus
1.The Secretary of Jharkhand
2. Secretary, Department of Home, Government of Jharkhand, having its office at
Project Bhawan, Dhruwa, P.O. & P.S. Dhruwa, District- Ranchi (Jharkhand).
3. The Director General of Police-Cum-Inspector General of Police, Jharkhand,
Ranchi, Police Headquarter, Government of Jharkhand having its office at Project
Bhawan, Dhruwa, P.O. & P.S. Dhruwa, District- Ranchi (Jharkhand).
4. The Inspector General of Police (Training) office at Project Bhawan, HEC
Building, Dhurwa, P.O. and P.S. Dhruwa, District- Ranchi (Jharkhand).
5. The Commandant, Jharkhand Armed Police (JAP) 5 Deoghar P.O. and P.S. &
District- Deoghar (Jharkhand).
6. The Deputy Inspector General of Police, Jharkhand Armed Police at HEC
Building, Sector-2, P.O. and P.S. Jagarnthpur, District- Ranchi (Jharkhand).
7. The The Inspector General of Police, Jharkhand Armed Police at Nepal House,
Raja-Rani Kothi, P.O. and P.S. Doranda, District- Ranchi (Jharkhand).
..... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mr. Satish Prasad, Advocate
For the Respondent s : Mr. Chandan Tiwari, AC to GA-I
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rd 05/Dated: 23 July, 2024 Per Sujit Narayan Prasad, A.C.J.
1. The instant appeal under clause 10 the Letters Patent Appeal is directed against the order/judgment dated 19.02.2024 passed by the learned Single Judge of this Court in W.P.(S) No. 7764 of 2017, whereby and whereunder the order dated 28.06.2016 by which the petitioner was dismissed from his service has not been interfered with by dismissing the writ petition. Factual Matrix of the Case:
2. The brief facts of the case as per the pleading made which requires to be enumerated reads herein as under:
3. The appellant was appointed as Police Constable and joined the service on 01.06.2006. In the year 2016 the departmental 1 proceeding was initiated against the petitioner on the charge of bigamy by considering the charge of bigamy as misconduct under the rule 707 of the Police Manual.
4. The appellant participated in the departmental proceeding and appeared before enquiry Officer as also cross-examined the witnesses. The charges were found proved by the enquiry Officer.
5. The disciplinary authority had accepted the findings of the enquiry Officer and passed the order of dismissal of the appellant from the service vide order dated 28.06.2016, which has also been affirmed by the appellate authority vide order dated 10.11.2016. The said order of dismissal was further affirmed by the revisional authority vide order dated 30.08.2017.
6. Being aggrieved with the aforesaid orders, the appellant preferred writ petition being W.P.(S) No. 7764 of 2017 wherein the order dated 10.11.2016 passed by appellate authority and order dated 30.08.2017 passed by the revisional authority has been challenged.
7. The learned Single Judge had dismissed the writ petition vide order dated 19.02.2024 by taking into consideration the scope for judicial review so far as the decision taken by the administrative disciplinary authority is concern, as also considering the substance found by the enquiry Officer regarding the commission of offence of solemnization of second marriage.
8. Hence, the appellant being aggrieved has preferred the instant intra court appeal.
9. It is evident from the factual aspects that the appellant/writ petitioner was working as Police Constable and during service a departmental proceeding was initiated against him on the charge of bigamy in the year 2016, considering the charge of bigamy as misconduct under the Rule 707 of the Police Manual as well as in conduct rule.
10. It is further evident that the appellant participated in the departmental proceeding wherein the charges were found proved by the enquiry Officer. Accordingly, the disciplinary authority had 2 accepted the findings of the enquiry Officer and passed the order of dismissal of the appellant from the service vide order dated 28.06.2016, which has also been affirmed by the appellate authority as well as by the revisional authority vide order dated 10.11.2016 and 30.08.2017 respectively.
11.Being aggrieved with the aforesaid orders, the appellant preferred writ petition being W.P.(S) No. 7764 of 2017 but the same was dismissed by the learned Single Judge vide order dated 19.02.2024 by taking into consideration the scope for judicial review so far as the decision taken by the administrative disciplinary authority is concern, as also considering the substance found by the enquiry Officer regarding the commission of offence of solemnization of second marriage.
12.Hence, the appellant being aggrieved has filed the instant intra court appeal.
Argument on behalf of learned counsel for the appellant:
13.Mr. Satish Prasad, learned counsel appearing for the appellant while assailing the impugned order has taken the following grounds:
(i) The writ Court has not appreciated the factual aspect that the appellant was subjected to the principle of double jeopardy, since, according to the learned counsel for the appellant for the same set of charges the punishment has already been inflicted against the appellant and subsequent thereto the memorandum of charge was issued on almost the identical charges, basis of upon which the order of the writ petition has been passed.
(ii) Further contention has been made that punishment has already been imposed with respect to the identical charges and such it was not available for the disciplinary authority to again impose the punishment i.e the major punishment of dismissal from service on the basis of the identical charges, as such, the decision taken by the disciplinary authority is not sustainable in the eyes of 3 law, but this aspect of the matter has not been taken into consideration by the learned Single Judge.
Hence, learned counsel has drawn the attention of this Court on both the charges in order to fortify his argument that both the charges are identical.
(iii) The argument has also been advanced that the finding as recorded by the enquiry officer is perverse, since, there is no evidence to prove the alleged charges but even then the major punishment has been imposed by the disciplinary authority.
(iv) The disciplinary authority while inflicting the punishment of dismissal has not taken into consideration the non availability of the cogent evidence and merely relied upon the principal of preponderance of probability.
(v) The learned counsel based upon the aforesaid ground has submitted that the order passed by the learned Single Judge suffers from an error, hence not sustainable in the eyes of law. It has also been argued that the punishment cannot be said to be commensurate to the charges leveled, if any.
Argument on behalf of learned counsel for the respondents:
14. Mr. Chandan Tiwari, learned AC to GA-I while defending the impugned order passed by the disciplinary authority and the judgment passed by learned Single Judge, has taken the following grounds: -
(i) The learned Single Judge since has taken into consideration the jurisdiction of the writ Court while exercising the power under Article 226 of the Constitution of India wherein power of judicial review is very limited which only can exercise if the enquiry suffers from perversity or the finding recorded by the enquiry officer is in violation of Principle of Natural Justice.
(ii) The learned counsel in rebuttal to the argument advanced on behalf of the learned counsel appearing for the appellant that the punishment of dismissal is not permissible since for the 4 same set of charges the punishment has already been imposed, has seriously been objected by raising the submission particularly by referring both the charges available on record and emphatically, it has been submitted that both the charges are not identical rather both the charges are different and hence, the disciplinary authority while considering the nature of allegation i.e. of bigamy which is misconduct as per the conduct rule and the charges were found proved by the enquiry officer, has passed the order of dismissal on the premise that by committing such offence, the appellant cannot be said to be fit for becoming a good Government servant. Hence, the impugned order cannot be said to suffer from an error.
(iii) So far as the argument advanced on behalf of the appellant with respect to issue of quantum of punishment is concerned, it has been submitted by the learned counsel for the state that since the appellant is a member of discipline force and hence, the gravity of offence is to be seen and solemnizing second marriage during the survival of the first wife has been considered to be the major misconduct and as such punishment cannot be reduced on ground of sympathy.
Analysis:
15.This Court has heard the learned counsel for the parties, gone across the finding recorded by the learned Single Judge in the impugned order and also perused the record particularly the enquiry report.
16.This Court in order to consider the proprietary of the decision taken by the disciplinary authority as also the judgment passed by the learned Single Judge, thinks fit and proper to refer the said two charges in order to assess as to whether the punishment of dismissal is based upon the charges upon which the order of punishment has already been passed.
17. The first charge as per the argument advanced on behalf of the appellant is at page 186(Annexure-A) to the paper book which is dated 18.03.2014 wherein the charge has been leveled against the 5 appellant that a complaint was made by one Manisha Soren, the wife of appellant with whom he has solemnized the marriage 8-9 months ago.
18. She had complaint of misbehaving and mishandling. In addition to that the charge of desertion has also been leveled against the appellant, for ready reference, the charge dated 18.03.2014, although, the same is in Hindi is being referred herein.
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19. Another charge said to be second charge which is dated 09.01.2016 has been issued alleging therein misbehaving with the 6 wife as also having illicit relationship with another lady.
20. It has been alleged, based upon the enquiry report of one Sub- Inspector, namely, Rameswar Singh that the appellant was living with the second wife since 2011, without any court marriage or the marriage set to be solemnized by local rituals. The reference has also been made from service book of the appellant from which it has become evident that the wife of the appellant namely, Parvati Soren, sons Robin Soren and Rupesh Murmu are being referred in the service book but there is no reference to the name of Manisha Soren being the second wife in the service book. For needy reference in the memorandum of charge dated 09.01.2016 is being referred herein.
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21. The argument which has been advanced on behalf of the appellant that punishment cannot be imposed if on the identical charges the delinquent employee has already been punished.
22. There is no dispute in the settled position of law that there cannot be any punishment if anybody has been punished either in the disciplinary proceeding or in the judicial proceeding if the charges are identical, otherwise the same became violative of the principal of double jeopardy and contrary to the mandate of the Article 20(2) of the constitution of India.
23. The question herein is as to whether both the charges can be said to be identical or not. It is evident from the first charge which is dated 18.03.2014 wherein the allegation is based upon the complaint made by wife Manisha Soren who appears to be the second wife, the same is being referred herein based upon the imputation of charge as available in the memorandum of charge dated 09.01.2016 wherein the name of the wife whose name mentioned in the service book has been referred as Parvati Soren having two sons, Robin Soren and Rupesh Murmu.
24.Therefore, the first charge dated 18.03.2014 is based upon the allegation levelled by the wife, namely, Manisha Soren who has been alleged to be the second wife of the writ petitioner.
25. The second charge which was issued on 09.01.2016 is based upon the Enquiry Report of Rameshwar Singh who has found corroboration that the second wife namely Manisha Soren found to be living with the writ petitioner/appellant since 2011, even though, the name of Manisha Soren, the second wife, has not been referred in the service book rather the reference of the first wife has been made in the service book i.e. of Parvati Soren along 8 with two sons, namely, Robin Soren and Rupesh Murmu.
26. Further, it is evident from the comparative assessment of both the charges that in the charge dated 18.03.2014, the allegation is with respect to the commission of offence of misbehaving with the alleged second wife namely Manisha Soren, while in the second charge, the allegation is of solemnizing the second marriage with Manisha Soren even though, there was no reference of the name of the Manisha Soren is made in the service record.
27. Thus, contention of the learned counsel for the appellant that both the charges are identical in nature is misconceive as both the charges are not identical.
28. This Court, therefore, on the basis of the discussion made hereinabove is of the considered view that the argument of the applicability of the principle of double jeopardy, therefore is not applicable.
29. The second argument which has been advanced that the consideration may be made for the quantum of punishment. The question of quantum of punishment is one of the grounds to show interference with the decision taken by the disciplinary authority but the learned counsel for the appellant has also argued by raising the issue of perversity in the enquiry report.
30. There is no dispute about the settled position of law that if the enquiry report is found to be perverse then any fall of action based upon the enquiry report will be said to be nullity in the eyes of law.
31. At this juncture this Court would like to discuss the meaning of perversity consideration which are very much relevant in addressing the issues as raised by the learned counsel for the appellant.
32.The definition of perversity has been taken note of in the judgment rendered in Arulvelu and Another v. State represented by the Public Prosecutor and Another [(2009) 10 SCC 206] at paragraph 27, which is quoted hereunder :-
927. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn. "Perverse.--Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable."
2. Longman Dictionary of Contemporary English, International Edn. Perverse.--Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English, 1998 Edn. Perverse.--
Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.) Perverse.--Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.
"Perverse.--A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence."
33. Further, the Hon'ble Apex Court in yet another judgment rendered in Kuldeep Singh v. Commissioner of Police and Others [(1999) 2 SCC 10] has held under paragraph 10 which reads as under :-
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
34.Further, the meaning of "perverse" has been examined in H.B. Gandhi, Excise and Taxation Officer-cum Assessing Authority, Karnal and Others v. M/s Gopi Nath & Sons and Others [1992 Supp (2) SCC 312] wherein, at paragraph 7, the Hon‟ble Apex 10 Court has observed as under :
"7. ------. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
35.Thus, it is evident that the perversity means if a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.
36.This Court in order to examine the issue of perversity has considered the enquiry report. It is evident from the enquiry report that the said Manisha Soren has been examined in course of the enquiry proceeding wherein she claimed herself to be the second wife but very surprisingly, the appellant even though had been given an opportunity to cross-examine her, but she has not been cross-examined.
37. The question is that when the lady who claims to be second wife has disclosed this to enquiry officer that she is the second wife and there is no rebuttal to that deposition then how the enquiry Report can be said to be perverse.
38. This Court by going through the entire enquiry report has found that the witnesses have disclosed about the status of the lady Manisha Soren either of live-in- relationship or the lady herself has claimed to be second wife of the petitioner. The enquiry officer on the basis of such testimonies has found the charges were proved.
39. Therefore, it is not a case that the deposition of the witnesses has wrongly been considered therefore, this Court is of the view that enquiry report cannot be said to be perverse.
40. Further, the law is well settled, so far as the interference to be 11 shown by the High Court in exercise of power conferred under Article 226 of the Constitution of India, as per which, there is limited scope of judicial review in the order passed by the disciplinary authority, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Union of India v. P. Gunasekaran, (2015) 2 SCC 610. At paragraphs-12 and 13 thereof, the following guidelines have been laid down for showing interference in the decision taken by the disciplinary authority and not to interfere with the decision, which reads as under:
"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 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;12
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 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;
(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."
41. Further, in Central Industrial Security Force v. Abrar Ali [(2017) 4 SCC 507], following guidelines have been laid down by the Apex Court for interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding. The extract of relevant passages, i.e., para 13 and 14, are referred hereinbelow:
"13. 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 reappreciation of evidence. It is settled law that re-appreciation of evidence is not 13 permissible in the exercise of jurisdiction under Article 226 of the Constitution of India.
14. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, [(2011) 4 SCC 584], 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 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."
42.It is evident from the aforesaid judgments that the 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.
43. So far as the position of law regarding interference on the quantum of punishment is concerned, the law is well settled in the quantum, the High court in exercise of power conferred under Article 226 of the Constitution of India, can interfere but if the punishment so imposed shocks the conscience of the Court, it will be bounded duty of the Court to assign the reason as to what led the Court in shocking the conscience. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Director General, RPF v. Ch. Sai Babu, (2003) 4 SCC 331, wherein, it has been held at paragraph- 6 as under:--
14"6. As is evident from the order of the learned Single Judge, there has been no consideration of the facts and circumstances of the case including as to the nature of charges held proved against the respondent to say that penalty of removal from service imposed on the respondent was extreme. Merely because it was felt that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer. The learned Single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. It is not that in every case of imposing a punishment of removal or dismissal from service a High Court can modify such punishment merely by saying that it is shockingly disproportionate. Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works."
Conclusion
44.This Court, on consideration of the aforesaid position of law and now coming back to the fact of the instant case. Here, the allegation against the appellant who is the member of discipline force, as per the memorandum of charge dated 09.01.2016 is that he was found to living with another lady who claims herself to be the second wife since 2011.
45. Further, the reference of the name of the first wife namely Parvati Soren along with two sons which was born from wedlock of the appellant and Parvati Soren, namely, Robin soren and Rupesh Murmu find mentioned in the service record of the appellant.
46.This Court based upon the position of law and adverting to the factual aspect as also the order passed by the learned Single Judge 15 and taking into consideration the discussion made hereinabove is of the view that if the learned Single Judge has declined to interfere with the impugned order, the same according to our considered view cannot be said to suffer from an error.
47. Hence, the instant Appeal is hereby dismissed.
48. Pending interlocutory application, if any, also disposed of.
(Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) Abhishek Suman/-
N.A.F.R. 16