Madhya Pradesh High Court
Vinod Kumar Shukla vs The State Of Madhya Pradesh on 27 November, 2012
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 14939 of 2006(S)
Vinod Kumar Shukla
- V/s -
State of MP and others
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri A.P. Singh, counsel for the petitioner.
Shri B.P. Pandey, Deputy Government Advocate,
Counsel for the respondents.
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Whether approved for reporting: Yes / No.
ORDER
27/11/2012 Challenging the orders passed by the competent disciplinary authority - respondent No.4 on 6.12.2004 dismissing the petitioner from service; order-dated 15.1.2005 passed by respondent No.3 - appellate authority, rejecting the appeal of the petitioner; and, orders-dated 31.3.2005 and 1.7.2006, passed by respondent Nos. 2 and 1, rejecting the revision petition and the mercy appeal of the petitioner, this writ petition has been filed.
2- Petitioner was holding the post of 'Constable' in the Police Department. On 4.4.2004, in the night, the Deputy Inspector General (hereinafter referred to as 'DIG') of Police went on a round in the area and while inspecting the area it was found that petitioner and one Jitendra Singh, Constable, were indulging in certain illegal activities. It was found that a large number of trucks were stopped and checking and verification of trucks were going on. Petitioner and Jitendra Singh were found standing there. However, petitioner was not wearing his 2 Writ Petition No : 14939 of 2006(S) Vinod Kumar Shukla Vs. State of Madhya Pradesh and others.
identification card and name plate and Jitendra Singh was without his official cap. When the DIG summoned both of them, Jitendra Singh ran away and on inquiry from the petitioner it was revealed that both petitioner and Jitendra Singh were making recovery of `50/- each from the trucks and at the instance of the DIG, petitioner handed over to him `200/- i.e.... four notes of `50/- denomination. The DIG took the said amount, went into the Police Station a Roznamcha was prepared. Based on the same, a charge-sheet was issued to both the petitioner and Jitendra Singh and on the basis of the departmental inquiry, two charges which were framed, which were found to be established in the departmental inquiry and the impugned action taken.
3- The charges framed against the petitioner and Jitendra Singh were that on 4.4.2004 while posted in Police Station Parvalia, Bhopal, they were found illegally recovering `50/- each in the night from various truck drivers/owners; and, the second allegation was that the act of the petitioner and Jitendra Singh has tarnished the reputation of the department and it was found that they are ineligible to continue in police service. The Enquiry Officer submitted a report holding the first charge to be partly proved and the second charge fully proved and the impugned action is taken.
4- Challenge to the impugned action in this writ petition is made mainly on two counts. The first ground is that the findings of the Enquiry Officer with regard to charge No.1 is a perverse finding, which is not supported by any evidence and, therefore, the same cannot be accepted. The second allegation is that in the case of co-employee Jitendra Singh, his appeal has been allowed and he has been reinstated in service and a punishment of 'stoppage of one increment' has been imposed upon him whereas in the case of the petitioner, he has been discriminated in as much as the harshest punishment of dismissal from service has been imposed on him. That apart, it was stated that the DIG, who was the main witness, was not examined and the appeal also was decided by the said DIG and, therefore, the said procedural infirmity vitiates the entire action. It is also argued that the DIG acted as a 3 Writ Petition No : 14939 of 2006(S) Vinod Kumar Shukla Vs. State of Madhya Pradesh and others.
complainant and the appellate authority and, therefore, the entire action is illegal.
5- Shri A.P. Singh, learned counsel for the petitioner, took me through the documents available on record and the findings of the Enquiry Officer, and emphasized that on the grounds canvassed as indicated hereinabove, the action taken is unsustainable and, therefore, interference should be made.
6- Shri B.P. Pandey, learned Panel Lawyer, refuted the aforesaid and by taking me through the findings of the Enquiry Officer, tried to emphasize that a reasonable finding recorded in a properly conducted departmental inquiry does not call for any interference and the petition be dismissed. As far as discrimination in the matter of imposition of punishment between the petitioner and Jitendra Singh is concerned, Shri Pandey took me through the service record of the petitioner as contained in Annexure R/1 and R/2, and submitted that petitioner is habitual in conducting misconduct. In the past he was terminated from service for molestation of a woman on one occasion, but with a view to give him one more opportunity to improve his conduct, he was reinstated. Even after reinstatement as he did not improve his conduct, the impugned action is taken. Accordingly, it is stated that on this count also, no case for interference is made out. 7- I have heard learned counsel for the parties at length and perused the records.
8- As far as the procedure followed and the conduct of the departmental inquiry is concerned, nothing is brought to the notice of this Court on the basis of which the conduct of the departmental inquiry can be said to be illegal. The only ground canvassed is that the findings are perverse, the punishment is imposed in a discriminatory manner and the DIG had heard the appeal, who was a witness to the entire incident. As far as perversity in the departmental inquiry is concerned, the proceedings of the inquiry - Annexure P/5 indicates that in the inquiry on behalf of the prosecution more than five witnesses were examined. The first witness was PW/1 Pramod Sinha, SDO(P), Bairagarh. This 4 Writ Petition No : 14939 of 2006(S) Vinod Kumar Shukla Vs. State of Madhya Pradesh and others.
witness had conducted the preliminary inquiry and had recorded the statement of various witnesses in the inquiry so also submitted a report based on the Roznamcha available in the police station. In the report he has stated that the facts as indicated in the charge-sheet are established. The second witness examined was PW/2 Shiv Pal Singh Kushwaha, who has testified to the effect that he was on duty at that point of time, both petitioner and Jitendra Singh were not on duty and he admits the fact about the DIG inspecting the spot and Jitendra Singh running away and the discussion that took place between the petitioner and the DIG, and the fact of the DIG depositing `200/- and making an entry in this regard in the Roznamcha. Similar is the statement of other witnesses namely PW/3 Shri Rudra Prakash Pandey; PW/4 Shyam Charan; and, PW/5 Shri Ramji Lal Pachauri.
9- Petitioner was also examined and he admitted the fact about visit of the DIG, running away of Jitendra Singh, but he only said that amount of `200/- given by him was his personal amount and he has not made any recovery from the truck drivers.
10- After evaluating the entire evidence, the learned Enquiry Officer has come to the conclusion that even though there is no direct evidence to show that the amount of `50/- has been recovered from which truck driver and which truck number, but the circumstantial evidence and the recovery made by the DIG does indicate that the petitioner and Jitendra Singh were making illegal recovery from the truck drivers and the truck owners on the date of the incident. Accordingly, after recording such a finding, the Enquiry Officer has held that charge No.1 is partly proved.
11- As far as charge No.2 is concerned, it is held that petitioner was found indulging in illegal activities and, therefore, he has tarnished the reputation of the Police Department. If the finding recorded by the Enquiry Officer is evaluated in the backdrop of the evidence that has come on record, it would be clear that it is a reasonable finding, recorded after due appreciation of the material available on record and a prudent man approach has been adopted by the Enquiry Officer in recording the 5 Writ Petition No : 14939 of 2006(S) Vinod Kumar Shukla Vs. State of Madhya Pradesh and others.
same. Merely because there is no complaint from any truck driver or the statement of the DIG is not recorded, an inference cannot be drawn that the finding recorded is perverse. The evidence available on record does show that the petitioner was present on the spot, large number of trucks were parked and there was complaint with regard to illegal recovery, Jitendra Singh ran away from the spot and the petitioner on inquiry by the DIG handed over the amount said to have been recovered by him. To that effect a Roznamcha has been prepared by the DIG. Normally, the DIG - a senior officer, would not record such a statement incorrectly, until and unless he has some personal bias or prejudice against the petitioner. It is not the case of the petitioner that the DIG was personally annoyed with the petitioner or has tried to falsely implicate him. In the absence of any material to show that the DIG has personal bias or prejudice against the petitioner, the action taken by the DIG and the Roznamcha prepared could not be disbelieved and the Enquiry Officer having accepted the same, this Court now in exercise of its limited jurisdiction in a petition under Article 226 of the Constitution cannot sit over the findings of the Enquiry Officer as if it is exercising further appellate jurisdiction.
12- A reasonable finding recorded by the Enquiry Officer based on due appreciation of the evidence that came on record can be interfered with by this Court only if the material available on record goes to show that the findings arrived is wholly perverse, without any evidence and does not meet the test of a prudent or reasonable man's approach. In this regard, the scope of judicial review into a decision making process undertaken in a departmental inquiry and the principle to be followed for appreciating a finding of the Enquiry Officer is laid down in the case of B.C. Chaturvedi Vs. Union of India, 1995(6) SCC 749; Union of India Vs. B.K. Shrivastava, AIR 1998 SC 300; and, Apparel Export Promotion Council Vs. A.K. Chopra, 1991 (1) LLJ 962, may be taken note of. It has been consistently held by the Supreme Court in various cases that a finding of guilt based on due appreciation of the evidence cannot be interfered with until 6 Writ Petition No : 14939 of 2006(S) Vinod Kumar Shukla Vs. State of Madhya Pradesh and others.
and unless the finding is shown to be wholly perverse, contrary to the evidence adduced and recorded in such a manner that no reasonable person would record such a finding in the given set of circumstances.
13- In the present case, the findings recorded by the Enquiry Officer does not fall in the category of perversity to such an extent as indicated hereinabove. That being so, I am not inclined to accept the contention of Shri A.P. Singh to the effect that the findings recorded by the Enquiry Officer is perverse. On the contrary, it is a reasonable finding and is based on evidence and material that came on record and the evidence does show that the petitioner was found unauthorizedly present at the place and the circumstances do establish that he was indulging in certain illegal activities as indicated in the charge-sheet. Accordingly, the first ground with regard to perversity does not call for any consideration, as it is devoid of merits.
14- As far as the ground with regard to the DIG being a witness and the appellate authority is concerned, even though the DIG was person at whose instance the entire proceeding was initiated and he may have rejected the appeal. The action was initiated by the Superintendent of Police, the findings of the Enquiry Officer was appreciated by the Superintendent of Police and it is the Superintendent of Police who decided the question of imposing punishment on the petitioner. Thereafter, when the DIG rejected the appeal, the matter again travelled to the Director General of Police and again to the State Government and these two authorities reviewed the entire matter and upheld the order passed by the Superintendent of Police. That being so, even if the DIG has decided the appeal, but as the action is taken at the instance of the Superintendent of Police and the said action is again reviewed by the Director General of Police and the State Government, I am of the considered view that in the absence of prejudice being shown to have been established on the DIG having decided the appeal, interference into the matter on such consideration is not called for, particularly when there is no personal allegation of bias or malafide against the DIG.
7Writ Petition No : 14939 of 2006(S) Vinod Kumar Shukla Vs. State of Madhya Pradesh and others.
15- As far as the ground of discrimination is concerned, it is seen that in the case of Jitendra Singh, he was a recently recruited employee and this was the first time that misconduct was found to have been committed by him. That apart, there was no recovery of amount from him and the only allegation against him is that he ran away when the DIG came to the spot. Taking note of this in comparison to the petitioner, who had a bad record of service, the question of punishment has been decided. Initially, on the ground of molestation of a woman, petitioner was dismissed from service. However, on an appeal being filed, a sympathetic view was taken and he was reinstated. Thereafter, records indicate that the petitioner has been consistently punished, he has been imposed with punishment of censure, warnings and he was given various opportunities to improve himself. Apart from the aforesaid, petitioner has been imposed with various punishments in the year 1993, 1994, 1995, 1996, thereafter in the year 2000, and again in the year 2001. Taking note of all these factors, the authorities had come to the conclusion that the case of the petitioner does not call for any further sympathetic consideration, as consistently petitioner has been committing misconducts and inspite of granting opportunity, as he has not improved, the impugned action is taken. In doing so, I am of the considered view that the respondents cannot be held guilty of having practiced discrimination. Case of each individual for punishment has to be evaluated on the basis of the service record of an individual and if based on the past service record of the petitioner, action is taken, the same will not fall in the category of discrimination, as petitioner was proceeded against and the impugned action taken after evaluation of his entire service record.
16- Accordingly, finding no case for interference on the grounds canvassed, this petition is dismissed.
( RAJENDRA MENON ) JUDGE Aks/-