Jharkhand High Court
Ram Gobind Sharma vs State Of Jharkhand & Ors. on 13 July, 2016
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5454 of 2004
Ram Gobind Sharma son of Late Surajdeo Sharma, resident of Barwada,
Police Station Barwada, District-Dhanbad. ..... ..... Petitioner
Versus
1. The State of Jharkhand through the Director General cum Inspector
General of Police, Jharkhand, Ranchi.
2. D.I.G. of Police, Coal Range, Bokaro.
3. Superintendent of Police, Dhanbad.
4. Inspector General of Police, Nirsa Anchal, Dhanbad.
..... .... Respondents
---------
CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
----------
For the Petitioner : Mr. S.N. Tiwary, Adv.
For the Respondents : M/s Bhawesh Kumar, S.C.II & Ravi Kumar.
-----------
th
Dated:13 July, 2016
Per Pramath Patnaik, J.:
1. In the instant writ application, the petitioner has prayed for quashing
of the order dated 22.06.2004 passed by the appellate authority against the
order of dismissal from service of A.S.I of Police and the order dated
06.08.2003passed by the respondent no.3 the disciplinary authority.
2. The facts, as has been disclosed in the writ application, in a nutshell, is that initially the petitioner was appointed as constable in the year 1964 and he was promoted to the post of A.S.I in the year 1979 on the basis of his unblemished service record. In the year 1984, while the petitioner was posted in the district of Dhanbad as A.S.I of Police, he was falsely entangled in a criminal case under Section 302/34 of the Indian Penal Code and under Section 27 of the Indian Arms Act being Kurtha P.S. Case No.169 of 1984. On the basis of criminal case, a departmental proceeding was initiated against the petitioner being Dhanbad departmental proceeding No.39 of 1986. In the criminal case, the petitioner was ultimately acquitted vide judgment dated 21.08.1998 as per Annexure-2 to the writ application. It has been averred in the writ application that the departmental proceeding which was initiated in the year 1986, was ultimately dropped in the year 2000, in view of the judgment dated 21.08.1998 passed by the Addl. Sessions Judge, Jahanabad, but the respondent no.3 in utter violation of 2 principles of natural justice recommended dismissal of the petitioner vide order dated 06.08.2003 (Annexure-3 to the writ application). Thereafter, being aggrieved and dissatisfied by the impugned order of dismissal, the petitioner preferred appeal, which was rejected by the appellate authority vide order dated 22.06.2004 affirming the order of disciplinary authority.
3. Mr. S.N. Tiwary, learned counsel appearing for the petitioner submitted that the respondent no.3 in a very cavalier fashion reopened the departmental proceeding and passed the impugned order of dismissal in Dhanbad departmental proceeding No.39 of 1986, which was disposed of in the year 2000 that too after 17 years from the initiation of the said proceeding. Learned counsel for the petitioner further submitted that the petitioner has been acquitted in the criminal case and the departmental proceeding was an offshoot of the criminal case. In view of the honourable acquittal of the criminal case, the action of the respondent no.3, the disciplinary authority, is not justified in imposing the order of punishment of dismissal from services on the concocted plea that the original record of the departmental proceeding has been managed to be misplaced by the petitioner, though the petitioner was not the custodian of the said record. Learned counsel for the petitioner further submits that the impugned order of punishment of dismissal by disciplinary authority being affirmed by the appellate authority, have been passed in derogation of provision of Bihar Police Manual Rule 828(B) as contained in Appendix 49 of the said Rule.
4. Mr. Bhavesh Kumar, S.C.II appearing for respondents has reiterated the submissions made in the counter affidavit. Learned counsel for the respondents submitted that the main file of the departmental proceeding initiated against the petitioner after having been received from the office of the respondent no.2 was untraceable and it was difficult to know the progress of the said departmental proceeding against the petitioner. The petitioner probably has destroyed the main file in conspiracy with some persons in the concerned office. Learned counsel for the respondents further submits that the inquiry officer after conducting the enquiry gave a finding about the guilt of the petitioner of the charges levelled against him and the order of dismissal of the petitioner from services has been passed by the disciplinary authority, which has been confirmed by the appellate 3 authority, therefore, there is absolutely no procedural irregularities to warrant interference in the disciplinary proceeding.
5. After hearing learned counsel for the respective parties and on perusal of the record, I am of the considered view that the impugned order of punishment of dismissal from services dated 06.08.2003 being affirmed by the appellate authority dated 22.06.2004 are not legally sustainable, in view of the reasons stated hereinbelow:
(I) Admittedly, the departmental proceeding No.39 of 1986 was initiated against the petitioner on the ground of criminal case lodged against the petitioner vide Kurtha P.S. Case No.169 of 1984 under Section 302/34 of the Indian Penal Code and under Section 27 of the Indian Arms Act. The petitioner and others were arrayed as accused in the criminal case, but ultimately by the learned Additional Sessions Judge vide order dated 21.08.1998 the petitioner and others were acquitted in the criminal case. Even after about five years from the acquittal of the criminal case, the petitioner has been inflicted with the punishment of dismissal from service, which has been affirmed by the appellate authority. The punishment inflicted on the petitioner with the major punishment of dismissal requires reconsideration afresh, in view of the acquittal of the petitioner in the criminal case as evident from Annexure-2 to the writ application, since departmental proceeding was an offshoot of criminal proceeding. Of course, there is no gainsaying of fact, standard of proof in both the proceeding are preponderance of probability and proof beyond reasonable doubt.
(II) So far as order passed by the appellate authority is concerned, the same appears to be non-speaking and cryptic. The grounds taken in appeal have not been considered by the appellate authority. The Hon'ble Apex Court in case of Chairman, Life Insurance Corporation of India and Ors. vs. A. Masilamani reported in 2013 (1) JCR 188 (SC) and (2013) 6 SCC 530, at paragraph 19 has been pleased to hold:
"19. The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to 4 regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider"
postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar and Bhikhubhai Vithalabhai Patel v. State of Gujarat)."
(III) In the case in hand the appellate authority has failed to appreciate the relevant provisions of the Police Manual Rules and the order has been passed against the petitioner after acquittal in the criminal case.
6. In view of the reasons stated in the foregoing paragraphs, the impugned order of punishment of dismissal from services dated 06.08.2003 and the order of the appellate authority dated 22.06.2004 being unsustainable are quashed and set aside and the matter is remitted to the respondents to pass the appropriate order on the quantum of punishment, taking into consideration the factum of acquittal of the petitioner in the criminal case within a period of twelve weeks from the date of receipt of a copy of this order.
7. With the aforesaid directions, the writ petition stands, disposed of.
(Pramath Patnaik, J.) Saket/-