Jharkhand High Court
Kalika Kumar & Ors vs State Of Jharkhand & Ors on 5 April, 2012
Author: P.P. Bhatt
Bench: P.P. Bhatt
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 7179 of 2005
Kalika Kumar ... Petitioner
Versus
1. The State of Jharkhand, through the Director General of
Police, Ranchi, Jharkhand;
2. The Superintendent of Police (SP) East Singhbhum,
Jamshedpur Tata.
3. The D.S.P., East Singhbhum, Jamshedpur, Tata;
4. Police Inspector-cum-Enquiry Officer, Ghatshila, Circle
Ghatshila, District East Singhbhum. ...Respondents
With
W.P.(S) No. 7412 of 2006
Kailash Pd. Singh ... Petitioner
Versus
1. The State of Jharkhand, through the Director General of
Police, Ranchi, Jharkhand;
2. The Inspector General of Police (Human Right), Jharkhand,
Ranchi.
3. The Superintendent of Police (SP) East Singhbhum,
Jamshedpur Tata.
4. The D.S.P., East Singhbhum, Jamshedpur, Tata;
5. Police Inspector-cum-Enquiry Officer, Ghatshila, Circle
Ghatshila, District East Singhbhum. ...Respondents
With
W.P.(S) No. 5670 of 2002
1. Kalika Kumar
2. Kailash Prasad Singh ... Petitioners
Versus
1. The State of Jharkhand;
2. The Director General & Inspector General of Police, Bihar,
Patna now Jharkhand, Ranchi;
3. The Superintendent of Police (SP) East Singhbhum,
Jamshedpur Tata.
4. The D.S.P., East Singhbhum, Jamshedpur, Tata;
5. Police Inspector-cum-Enquiry Officer, Ghatshila, Circle
Ghatshila, District East Singhbhum. ...Respondents
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Coram: THE HON'BLE MR JUSTICE P.P. BHATT
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For the Petitioners : M/s. Bhaiya Vishwajit Kr. &
Manoj Kr. Mishra, Advocates
For the Respondents : M/s. Rishi Pallav, J.C. to A.G. &
Abir Chatterjee, J.C. to Sr.SC.-I
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3/05.04.2012: Heard the learned counsel for the petitioners as well as the learned counsel for the respondents.
2. Since in all the writ petitions common facts are involved, all the writ petitions are taken up together and are being disposed of by this common order. The W.P.(S) No. 7179 of 2005 and W.P.(S) No. 7412 of 2006 preferred against the order of dismissal and W.P.(S) No. 5670 of 2002 preferred against the order of suspension during pendency of inquiry.
3. Petitioner by way of filing the writ petition under Article 226 of the Constitution of India has prayed for quashing and setting aside the order of dismissal from the service as police constable, passed by S.P., East Singhbhum, Jamshedpur vide his memo No.4693 dated 21.8.2004 (Annexure-7) as also for quashing the order dated 20.12.2004, passed by D.I.G. Singhbhum (Kolahan) Area, Chaibasa vide his memo No.796 (Annexure-8) rejecting the appeal filed by the petitioner and thereby, confirming the order of S.P. East Singhbhum, Jamshedpur.
4. It is the case of the petitioner that he was appointed as a constable at Jamshedpur and after completion of his training, his service book was being prepared on 23.6.2000. It is alleged that the photographs of the petitioner affixed on the application form did not tally with the physical appearance of the petitioner and therefore, a criminal case being Golmuri P.S. Case No. 103/2000 dated 23.6.2000 under Sections 467, 468 and 420 of the Indian Penal Code was registered and the petitioner was taken into custody along with other co-accused. Simultaneously the petitioner was placed under suspension and departmental inquiry was also ordered. Subsequently, petitioner was released on bail by the order of the then Patna High Court, Ranchi Bench, as per its order passed in Cr. Misc. No.6308 of 2000(R). Thereafter above criminal case was transferred to the Court of SDJM, Jamshedpur for trial after submission of charge and the learned SDJM was pleased to frame charges against the petitioner along with one Kailash Prasad Singh under Sections 467, 468 and 420 of the Indian Penal Code. Petitioner denied the charges levelled against him and the case was tried by the Judicial Magistrate, 1st Class, Jamshedpur, whereby the petitioner was acquitted from all the charges levelled against him on 22.01.2005. It is further submitted that during investigation of Golmuri P.S. Case No. 103 of 2000, inquiry was made for verification by the Assistant Police Inspector, who had gone confidentially to the native place of the accused and had made confidential inquiry and submitted his report, which has been mentioned in para-34 of the case diary. In the said report, it is mentioned that the petitioner is the person, who has been appointed as constable at Jamshedpur and his name, village, address, parentage came to be genuine and correct. Necessary inquiry was also made from the Pramukh of the village Panchayat and other villagers. It is submitted that in a criminal case the prosecution failed to prove the charges levelled against the petitioner and therefore, the petitioner was ordered to be acquitted by the Court of Judicial Magistrate, 1st Class. It is further submitted that departmental proceedings were initiated against the petitioner on the same charges as well as on the charge of unauthorized absence. Therefore, the petitioner requested the authorities concerned not to proceed further till the outcome of the criminal case, but the inquiry officer as well as the disciplinary authority did not await till the outcome of the criminal case and proceeded further with the departmental proceedings and passed the order of dismissal from the service. It is further submitted that being aggrieved and dissatisfied with the said order, petitioner preferred an appeal before the appellate authority but the appellate authority, without considering the various grounds raised before it, dismissed the appeal preferred by the petitioner. Learned counsel for the petitioner submitted that inquiry officer in his report gave findings in respect of charge pertaining to unauthorized absence and did not express any opinion about the first charge as the criminal case was pending; however, the disciplinary authority decided to impose penalty considering both the charges levelled against the delinquent-petitioner. It is further submitted that the order passed by the disciplinary authority is in clear contravention of settled legal position. It is also submitted that the respondent authority while passing an order of placing the petitioner under suspension as well as initiation of departmental proceeding were predetermined and bent upon for removal/ dismissal of the petitioner from the service and accordingly instructions were issued vide letter dated 7.7.2000 (Annexure-7) of W.P.(S) No. 5670 of 2002.
5. Learned counsel for the petitioner has referred to and relied upon the judgment of the Apex Court in the case of "Capt. M. Paul Anthony versus Bharat Gold Mines Ltd. and another, reported in AIR 1999 Supreme Court 1416" and another judgment in the case of "Divisional Controller, Karnataka State Road Transport Corporation versus M.G. Vittal Rao, reported in (2012) 1 Supreme Court Cases 442".
6. Learned counsel for the petitioner submitted that the decision rendered in the case of Capt. M. Paul Anthony (supra) has not been disturbed by the Hon'ble Apex Court while considering the subsequent judgment in the case of Divisional Controller, Karnataka State Road Transport Corporation (supra).
7. As against that, learned counsel for the respondent-State submitted that the disciplinary authority has not committed any error in passing the order of dismissal. It is further submitted that the disciplinary authority has passed an order of dismissal on the basis of findings recorded by the inquiry officer in respect of second charge regarding unauthorized absence. It is further submitted that so far as first charge is concerned, inquiry officer has stated in his report that since the criminal case is pending and the matter is sub-judice, it would not be appropriate to record any finding in respect of first charge levelled against the delinquent. It is further submitted that the disciplinary authority while passing the order, mentioned about the two charges levelled against the petitioner but so far findings recorded by the disciplinary authority is concerned, it was only in respect of second charge and therefore, the disciplinary authority has not committed any illegality as alleged by the petitioner. It is further submitted that the appellate authority has also passed the order after careful consideration of the various grounds submitted before it and thereby, dismissed the appeal preferred by the petitioner and confirmed the order of the disciplinary authority. Learned counsel for the State further submitted that the charges levelled against the petitioner in a criminal case vis-à-vis disciplinary proceedings are not the same; over and above, charge No.1 another charge with regard to unauthorized absence were also served upon the petitioner and the inquiry officer as well as disciplinary authority have proceeded further with regard to second charge levelled against the petitioner. It is further submitted that these two proceedings are independent to each other, therefore, inquiry officer as well as disciplinary authority have not committed any error in proceeding further in the departmental proceedings.
8. Learned counsel for the State has also placed reliance in the case of "Divisional Controller, Karnataka State Road Transport Corporation versus M.G. Vittal Rao, reported in (2012) 1 Supreme Court Cases 442" and submitted that in a criminal trial, standard of proof is different as the case is to be proved beyond reasonable doubt but in the departmental proceeding, such a strict proof of misconduct is not required. Learned counsel for the State, while referring para-24 & 25 of the said judgment, submitted that in view of the ratio laid down by the Hon'ble Apex Court and as the employer- respondent has lost the confidence in the employee-petitioner, principle enumerated in the above-referred judgment is applicable in the present case and therefore, the writ petition is deserved to be dismissed.
9. Considering the aforesaid rival submissions and on perusal of the materials on record and more particularly, on perusal of the charge No.1 of the departmental proceedings and the charge levelled against the petitioner in a criminal case is similar. It appears that the second charge of unauthorized absence arisen due to non-availability of the petitioner during the period of arrest and subsequent thereto on account of non-fixing on headquarter during suspension by the respondent-authority. Moreover, on perusal of the report submitted by the inquiry officer, it appears that the inquiry officer has dealt with charge No.2 regarding unauthorized absence of the petitioner and proceeded further. So far as charge No.1 is concerned, the inquiry officer has not dealt with the said charge by mentioning that since the criminal case is pending and the matter is sub-judice, it would not be appropriate to record any finding in respect of first charge levelled against the delinquent. On perusal of the order passed by the disciplinary authority (Annexure-7), it appears that the disciplinary authority while passing the order recorded two charges levelled against the petitioner and thereafter, considering the materials on record as also considering the explanation rendered by the petitioner, passed the order of dismissal. Disciplinary authority while passing the order has recorded its finding that the explanation given by the delinquent in respect of charges levelled against him is found to be unsatisfactory and therefore, decided to inflict punishment of dismissal considering the gravity of charges; meaning thereby, disciplinary authority has proceeded on the basis that both the charges levelled against the petitioner were of grave in nature for which the punishment of dismissal is adequate. It also appears that the appellate authority has also proceeded further on the basis of the findings recorded by the inquiry officer as well as disciplinary authority in respect of charges levelled against the delinquent. The grounds agitated by the petitioner were not found to be satisfactory by the appellate authority and thereby dismissed the appeal considering both charges. Moreover, it also appears that petitioner requested the inquiry officer as well as disciplinary authority that since the criminal case is pending against him, inquiry proceeding may not be proceeded further till outcome of the criminal case, as one of the charges levelled against him was similar to that of criminal case. However, it appears that the inquiry officer, disciplinary authority as well as appellate authority without awaiting for the outcome of criminal case, proceeded further and reached to the conclusion that the charges levelled against the delinquent are proved and passed the order of dismissal, which appears to be very harsh in nature. On perusal of the order, passed by the disciplinary authority, it appears that the various factors, which are required to be considered before inflicting such harsh punishment, have not been properly dealt with by the said authority. Moreover, there appears to be substance in the arguments advanced by the learned counsel for the petitioner that the authorities were predetermined to remove/ dismiss the petitioner as it reflects from the letter dated 7.7.2000 vide Annexure 7 of W.P.(S) No. 5670 of 2002. There was no need to express any opinion at the time of ordering inquiry. It also appears that during investigation of criminal case, an Assistant Police Inspector was deputed for the purpose of verification of certain facts and as per the report submitted by the said officer,which is part of the case diary, the allegations levelled against the petitioner were not found to be true. It appears that in a criminal case, prosecution has failed to prove the charge levelled against the petitioner beyond reasonable doubt and therefore, the petitioner was ordered to be acquitted by the Court of Judicial Magistrate, 1st Class. The findings recorded in the judgment delivered in criminal case is reproduced below:
"Reasons.
1. The prosecution has not filed the documents which have been seized as per exhibit 3 during the trial.
2. The PW's who went for verification have also denied seeing the documents.
3. The prosecution has not filed the alleged photo graphs which are claimed to be forged.
4. The cheating if any by the accused's also not proved on that count.
5. The identification of the accused's is not material as all the witnesses may have seen then during prolonged training.
6. The lack of documents and there no expert evidence has changed the case of prosecution.
7. Thus the offences u/s 467 I.P.C. is not proved beyond doubt.
8. The offences u/s 468, 420 I.P.C. is also not proved beyond doubt.
In the facts and circumstances of the case the accused's are found not guilty of the offences charged in trial. The bail bonds of accused is discharged."
10. Looking to the similarity of the charges in criminal case as well as departmental proceeding, propriety demands that the disciplinary authority ought to have awaited till the outcome of the criminal case, but in the instant case, disciplinary authority proceeded further and passed an order of dismissal from the service without awaiting the outcome of the criminal case. Judgment cited by the learned counsel for the petitioner in the case of "Capt. M. Paul Anthony versus Bharat Gold Mines Ltd. and another, reported in AIR 1999 Supreme Court 1416" is applicable to the facts and circumstances of the present case. Principles enumerated by the Apex Court in para-34, 35 and 36 of the said judgment are relevant for deciding the present case, which read as under:
"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set o facts namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles therefrom.' The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the 'raid and recovery' at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings, to stand.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.
36. For the reasons stated above, the appeal is allowed, the impugned judgment passed by the Division Bench of the High Court is set aside and that of the learned single Judge, in so far as it purports to allow the writ petition, is upheld. The learned single Judge has also given liberty to the respondents to initiate fresh disciplinary proceedings. In the peculiar circumstances of the case, specially having regard to the fact that the appellant is undergoing this agony since, 1985 despite having been acquitted by the criminal court in 1987, we would not direct any fresh departmental inquiry to be instituted against him on the same set of facts. The appellant shall be reinstated forth-with on the post of Security Officer and shall also be plaid entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, within three months. The appellant would also be entitled to his cost which is quantified as Rs. 15,000/-."
11. On perusal of judgment, in the case of "Divisional Controller, Karnataka State Road Transport Corporation versus M.G. Vittal Rao, reported in (2012) 1 Supreme Court Cases 442", which is also cited by the learned counsel for the respondent-State, it appears that ratio laid down in the case of "Capt. M. Paul Anthony versus Bharat Gold Mines Ltd. and another, reported in AIR 1999 Supreme Court 1416" has not been disturbed by the Apex Court while deciding the Divisional Controller, Karnataka State Road Transport Corporation case (supra).
12. Having regard to the aforesaid facts and circumstances of the matter as also in the light of the ratio laid down by the Hon'ble Apex Court in the above-referred judgments, this Court is of the view that order passed by the disciplinary authority as well as appellate authority is deserved to be quashed and set aside. Accordingly, both the orders are set aside and the petitioner is ordered to be reinstated in service without any back wages within a period of two months from the date of receipt /production of a copy of this order. Respondent-authorities are at liberty to start de novo inquiry in the case so as to find out as to whether the physical appearance of the petitioner tally with the photographs affixed on the application form. For this purpose, physical verification exercise be also undertaken to find out the truth. The authorities concerned shall also consider the findings recorded in the judgment delivered in a criminal case so far as it relates to charge No.1 and shall conduct fair inquiry and shall pass appropriate order as may be deemed fit and proper on the basis of material available on record.
13. These writ petitions are allowed, accordingly.
(P.P. Bhatt, J.) S.B.