Jharkhand High Court
Krishna Mohan Singh vs The State Of Jharkhand Through The ... on 7 August, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 275 of 2024
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Krishna Mohan Singh, aged about 34 years, son of Late Indrasan Singh, resident of village Bhikhampur, Deoria, Post Bikhampura, Police Station Rampur, District Deoria (Uttar Pradesh).
... ... Petitioner/Appellant Versus
1. The State of Jharkhand through the Director General & Inspector General of Police having office at Police Headquarters, Dhurwa, Post Dhurwa, Police Station Dhurwa, District Ranchi.
2. The Deputy Inspector General of Police, South Chotanagpur Range having office at Doranda, Post Doranda, Police Station Doranda, District Ranchi.
3. The Senior Superintendent of Police having office at Circular Road, Post Lalpur, Police Station Lalpur, District Ranchi.
... ... Respondents/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 : Mrs. Ritu Kumar, Advocate
Mr. Samavesh Bhanj Deo, Advocate
Mrs. Satakshi, Advocate
For the Respondents : Mr. Kishore Kr. Singh, SC-V
Mr. Krishna Prajapati, AC to SC-V
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07/Dated: 07th August, 2024
Per Sujit Narayan Prasad, A.C.J.:
Prayer:
1. The instant appeal under Clause 10 of the letters patent is directed against the order dated 09.02.2024 passed by learned Single Judge of this Court in W.P. (S) No. 1889 of 2021, whereby and whereunder, the writ petition has been dismissed by declining to interfere with the order of punishment of dismissal from service.
Page 1 L.P.A. No. 275 of 2024Facts:
2. The brief facts of the case, as per the pleadings in the writ petition reads as under.
The petitioner was appointed in Ranchi District Force as Constable in the year 2008. He was proceeded departmentally by framing memo of charge on 20.12.2018. The charge against the petitioner is that on 8.12.2018 in the evening at 6.00 pm, he along with others went to medical store, namely, 'Life Plus Medical Store' and demanded a cough syrup. Two more police personnel in police uniform and one person in civil dress came and disclosed to the staff of the said medical store that they are from Narcotics Department. They told that the shop was selling duplicate medicines and therefore, the staff should call the owner of the shop. All the persons were identified to be the police personnel in the footage of camera installed in the shop. In this way, Rs. 30,000/- was cheated, which led to lodging of FIR, being Sukhdeonagar P.S. Case No. 625 of 2018 dated 8.12.2018 for the offence under sections 452, 420, 386 / 34 of the Indian Penal Code. The charge further shows that in this way, the image of Ranchi Police was tarnished by the petitioner. Thereafter, departmental proceeding was initiated. The petitioner submitted his written statement of defence to the enquiry officer-cum-Assistant Superintendent of Police. The petitioner denied the charges so alleged. The defence taken is that the petitioners went to the said medical store to purchase medicine, but some altercations took place between the staff of the medical store and the petitioner and therefore, a concocted and manufactured story was cooked up, which led to lodging of the FIR and the departmental proceeding. Altogether four witnesses were examined during the departmental proceeding, namely, Ajit Kumar Vimal Dy. Superintendent of Police, Kotwali, Jay Prakash Paswan, Assistant Sub- Inspector, Police Kendra, Ranchi, Vinay Yadav, Gopneeya Pravachak and Sanjay Kumar, Inspector-cum-Officer in Charge, Sukhdeonagar Police Station. The informant Avinash Kumar Singh was not examined in the departmental proceeding, but he tendered his written statement to the enquiry officer. The petitioners have pleaded that all these witnesses Page 2 L.P.A. No. 275 of 2024 were examined behind the back of the petitioners. Even the date on which they were examined is also not known to the petitioner. Even the written statement of the complainant Avinash Kumar Singh who said to be tendered his written statements, the copy of the same was not supplied to the petitioner. It is further pleaded that the petitioner was not allowed to cross-examine the witnesses including Avinash Kumar Singh. After conclusion of the enquiry, the report was submitted by the enquiry officer on 31.5.2019 holding the petitioners guilty of the charges. The petitioner was issued notice before the penalty order. Such notice was issued by memo no. 5773 dated 03.07.2019. In turn, the petitioner submitted reply on 10.07.2019. Ultimately, the penalty of dismissal from service was imposed upon the petitioner on 30.8.2019 with the direction that the petitioner would not be entitled to get anything than what was paid to them during the period of suspension. The petitioner preferred his appeal which came to be rejected by the Deputy Inspector General of Police, South Chotanagpur Range, Ranchi on 27.4.2020. The memorial/revision was preferred by the petitioner, but the same also resulted with same fate as it was rejected on 28.12.2020.
3. It is evident from the facts as referred hereinabove that the writ petitioner while working as Constable has been proceeded departmentally on the basis of institution of one FIR being Sukhdeonagar P.S. Case No. 625 of 2018 dated 08.12.2018 registered under sections 452, 420, 386 / 34 of the Indian Penal Code. The appellant-writ petitioner was directed to participate in the enquiry before the enquiry officer. The appellant-writ petitioner denied the allegation. Thereafter, the enquiry officer has found the charges proved and based upon the same, the disciplinary authority has imposed the punishment of dismissal from service which has been affirmed by the appellate as also by revisional authority vide orders dated 27.04.2020 and 07.07.2020 respectively.
The appellant-writ petitioner, being aggrieved with the said orders passed by the administrative authorities at different stages, preferred a writ petition being W.P.(S) No. 1889 of 2021. The learned writ court has refused to interfere with the impugned orders on the Page 3 L.P.A. No. 275 of 2024 observation given to judgment of the Hon'ble Apex Court that the acquittal in criminal case cannot be said to be clean acquittal.
The appellant-writ petitioner, being aggrieved with the order of learned writ court, has preferred the instant appeal.
Argument on behalf of the Appellant-Writ Petitioner:
4. Learned counsel for the appellant-writ petitioner has taken the following grounds in assailing the impugned order passed by the learned Single Judge as also the administrative authorities:
(i) The learned Single Judge has not appreciated the fact that the acquittal in the criminal case which has been considered to be not a clean acquittal, is not based upon the material placed before the competent court of criminal jurisdiction since in the criminal case, the complainant has not identified the appellant-writ petitioner and as such, the very foundation of the prosecution story has collapsed, in consequence thereof, the appellant-writ petitioner has been acquitted from the criminal case.
(ii) The memorandum of charge is based upon the First Information Report but the moment the appellant-writ petitioner has been acquitted from the criminal liability, the implied meaning of the same will be that the same is not in existence in the eyes of law which said to involve the appellant-writ petitioner in any criminal liability.
(iii) The ground has been taken that the moment the FIR is no more in existence, the very foundation of the charge itself has gone and as such, the entire departmental proceeding including the order of punishment will also be vitiated in the eyes of law.
(iv) The ground has been taken that the complainant, namely, Avinash Kumar Singh has not been brought for his examination before the enquiry officer and as such, the cardinal principles of natural justice has been denied by not allowing the appellant-writ petitioner to examine the complainant.Page 4 L.P.A. No. 275 of 2024
(v) Further, the complainant, namely, Avinash Kumar Singh was the informant in the FIR being Sukhdeonagar P.S. Case No. 625 of 2018 who was examined but has not identified the appellant-writ petitioner and even no efforts has been taken by the enquiry officer to secure his appearance before the enquiry since is in violation of the principles of natural justice, as such, the entire departmental proceeding will be said to be vitiated in the eyes of law.
5. The learned counsel for the appellant-writ petitioner, based upon the aforesaid ground, has submitted that the learned Single Judge since has not considered the aforesaid aspect of the matter, hence, the order impugned needs to be interfered with.
Argument on behalf of the Respondents:
6. Per contra, Mr. Kishore Kr. Singh, learned SC-V appearing for the respondents has taken the following grounds in defending the order impugned:
(i) It has been submitted that there is no infirmity in the order passed by the learned Single Judge since the learned Single Judge has taken into consideration the fundamental principle that the acquittal in the criminal case will not govern the fate of the departmental proceeding since both the criminal as well as departmental proceeding is to run parallel having no bearing to each other.
(ii) The acquittal in the criminal case as has been taken as a ground for dismissal of the appellant-writ petitioner has rightly been considered to be a ground by the learned Single Judge reason being that the acquittal cannot be said to be on merit rather the witnesses have been declared to be hostile, as such, the outcome of the criminal case will have no bearing in the departmental proceeding.
(iii) The departmental proceeding is to run independently and the charge since has been framed with respect to the conduct of the appellant-writ petitioner who has been found to be not fit to retain the post since the image of the police has been put at stake.Page 5 L.P.A. No. 275 of 2024
7. Learned counsel for the respondents, based upon the aforesaid ground, has submitted that the impugned order therefore, suffers from no infirmity, as such, needs no interference and the instant appeal is fit to be dismissed.
Analysis:
8. We have heard learned counsel for the parties, gone across the findings recorded by the learned Single Judge in the impugned order as also the factual aspect/pleadings made in the memo of appeal/writ petition.
9. The undisputed fact in this case is that the appellant-writ petitioner was proceeded departmentally based upon the institution of FIR being Sukhdeonagar P.S. Case No. 625 of 2018 which has been instituted by one Avinash Kumar Singh, the informant. The appellant-writ petitioner was taken into custody, however, was subsequently released on bail.
The appellant-writ petitioner was also proceeded departmentally after conducting preliminary enquiry wherein the fact has come about the complicity of the appellant-writ petitioner in going to the shop of the informant/complainant, namely, Avinash Kumar Singh and impersonated himself to be a Narcotics Officer and has demanded money for the purpose of allowing the complainant to run the medicine shop.
The appellant-writ petitioner had been asked to participate in the enquiry proceeding. However, prior to issuance of the memorandum of charge, he has admitted the charge partially, i.e., of going to the medicine shop but he has denied the commission of any offence of impersonating himself as a Narcotics Officer for the purpose of demanding money from the shopkeeper, i.e., the complainant/informant.
The charge was framed and in consequence thereof, the appellant-writ petitioner has participated in the enquiry wherein the appellant-writ petitioner has denied the allegation. The enquiry officer has recorded the statement of the police witnesses but has not issued any communication to the complainant, namely, Avinash Kumar Singh, for Page 6 L.P.A. No. 275 of 2024 his examination who was complainant based upon that the FIR was also instituted and the preliminary enquiry was also conducted.
The disciplinary authority has accepted the enquiry report and has passed the order of dismissal from service which has been admitted by the appellate as also the revisional authority. The order of dismissal has been challenged before this Court by filing writ petition being W.P.(S) No. 1889 of 2021 which has been dismissed, hence, the present appeal.
10. The issue which has been raised on behalf of the appellant-writ petitioner are as follows:
(i) The complainant has not been allowed to be examined rather no endeavour has been taken by the enquiry officer to secure his appearance.
(ii) The complainant who was examined in the criminal case has not identified the appellant-writ petitioner as per the allegation that he was found to be there on the basis of the CCTV Footage.
(iii) In the criminal case, the appellant-writ petitioner has been acquitted based upon the FIR only. The fact finding enquiry has been committed considering the informant of the criminal case to be the complainant.
11. All these issues are the issue which have been highlighted for the purpose of demonstrating that the cardinal principles of natural justice has not been followed. Further the complainant has refused to identify the appellant-writ petitioner before the competent court of criminal jurisdiction in which he has been acquitted based upon the aforesaid testimony of the complainant.
12. It needs to refer herein that the appellant-writ petitioner is a member of the discipline force working as Constable at the time when he was proceeded departmentally. Reference of the same is being given as the appellant-writ petitioner is a member of a discipline force and the Court is to consider the issue of discipline of the member of the discipline force Page 7 L.P.A. No. 275 of 2024 in its strict adherence but it also needs to refer herein that even though the delinquent is the member of discipline force then also the principle has been laid down for the purpose of following the procedure in the departmental proceeding is mandatorily to be followed and only then any order of punishment can be passed upon the members of the discipline force.
13. The issue of power of judicial review also needs to be referred herein so far as it relates to interfere with the order passed by the administrative authority in exercising the same under Article 226 of the Constitution of India. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Union of India Vs. P. Gunasekaran, AIR 2015 SC 545, in particular to paragraph 13, laying down following guidelines which are self-explanatory:
"13. 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, re-appreciating 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;
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.
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;Page 8 L.P.A. No. 275 of 2024
(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."
The Hon'ble Apex Court in Management of State Bank of India vs. Smita Sharad Deshmukh and Anr., (2017) 4 SCC 75, has laid down that it is equally settled position of law that the High Court sitting under Article 226 of the Constitution of India can certainly interfere with the quantum of punishment, if it is found disproportionate to the gravity of offence.
The Hon'ble Apex Court in Central Industrial Security Force and Ors. vs. Abrar Ali, AIR (2017) SC 200, has laid down following guidelines at paragraph 8 for interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, which is quoted herein below:
"8. 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 permissible in the exercise of jurisdiction under Article 226 of the Constitution of India.
In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), 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 Page 9 L.P.A. No. 275 of 2024 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.
In Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 this Court held as follows:
"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 inquiry officer. The finding on Charge I 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 re- appreciation of the evidence. The High Court can only see whether:
(a) the inquiry is held by a competent authority;
(b) the inquiry 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;
(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 inquiry, 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."
It is evident from the aforesaid judgments that the law has been laid down that in which circumstances, the power of judicial review is to be exercised and in which circumstances, it is not to be exercised.
Page 10 L.P.A. No. 275 of 202414. Reference of the judgment rendered by the Hon'ble Apex Court in the case of M. Paul. Anthony v. Bharat Gold Mines Ltd., reported in (1999) 3 SCC 679 is also required to be made in which one of the grounds had been taken of the acquittal in the criminal case. Law is well settled as has been settled in the said case that the departmental and judicial proceeding are on two different pedestal having no bearing to each other but the question is of complex nature then the departmental proceeding is to await outcome of the criminal case. Relevant paragraph of the said judgment is being referred as under:
"22. The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v.) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
15. Further necessity of making reference of the judgment is that the examination of the complainant is fundamental in order to follow the principles of natural justice. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in State of Madhya Pradesh vs. Chintaman Sadashiva Waishampayan, 1060 SCC OnLine SC 82 wherein at paragraph-11 it has been observed which reads as under:
Page 11 L.P.A. No. 275 of 2024"11. ... As Venkatarama Aiyar, J. has observed in Union of India v. T.R. Varma [(1958) SCR 499 at p. 507] "stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them". It is hardly necessary to emphasise that the right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice. That is the view taken by the High Court, and in the present appeal which has been brought to this Court under Article 136 we see no justification for interfering with it. In this connection it would be relevant to refer to the decision of this Court in Khem Chand v. Union of India [(1958) SCR 1080 at p. 1096] where this Court has emphasised the importance of giving an opportunity to the public officer defend himself by cross-examining the witnesses produced against him."
16. Adverting to the facts of the present case, the appellant-writ petitioner as initially involved in the criminal case being Sukhdeonagar P.S. Case No. 625 of 2018 registered under sections 452, 420, 386 / 34 of the Indian Penal Code on the ground of allegation that he had gone to the shop of the complainant and has impersonated himself to be a narcotics officer and demanded money. The disciplinary authority based upon the aforesaid FIR has decided to initiate a departmental proceeding and a fact finding committee was constituted. The fact finding committee has found the allegation prima facie to be true and as such, before issuance of memorandum of charge, an opportunity was given to the appellant-writ petitioner to explain as to why a departmental proceeding be not initiated. The appellant-writ petitioner has submitted his reply wherein he accepted the charge partially, i.e., of going to the medicine shop but denied the allegation of demanding money by impersonating himself as a Narcotics Officer.
The enquiry proceeded and simultaneously the criminal case was proceeding. The departmental proceeding, prior to conclusion of the criminal case, had concluded by proving the charge upon the appellant- writ petitioner which ultimately culminated into the order of dismissal from service, affirmed in the appeal as also in the revision.
Page 12 L.P.A. No. 275 of 2024The appellant-writ petitioner thereafter, has agitated the grievance after his acquittal in the criminal case on the basis of the testimony of the informant who has not identified the appellant-writ petitioner before the competent court of criminal jurisdiction. The judgment of acquittal is appended to the paperbook.
17. This Court has gone through the said judgment wherein it is evident that the informant, namely, Avinash Kumar Singh, has declined to identify the appellant-writ petitioner.
18. This Court has directed the learned counsel for the State to come with the original record. The State counsel, in compliance of the order dated 31.07.2024 has come with the record and this Court has posed a pin pointed question put to him as to whether the complainant has been allowed to be examined in the departmental proceeding or not?
19. It has been submitted by the learned State counsel that the complainant has not appeared before the enquiry officer rather his examination has been taken through an application.
20. This Court has further put a question as to whether any endeavour had been taken by the enquiry officer for securing his appearance.
21. The learned State counsel after going through the original record has submitted that no such endeavour has been taken.
22. It is, thus, evident that the complainant has not been allowed to be cross- examined. Non-examination of the complainant is having more bearing in the present scenario wherein the complainant has not identified the appellant-writ petitioner in the criminal proceeding. Law is well settled as has been settled in the case of Madhya Pradesh vs. Chintaman Sadashiva Waishampayan (supra) that non-examination of the complainant amounts to violation of principles of natural justice.
23. Further, we have found after going through the procedure of the departmental proceeding that what would be the implication of the acquittal in the criminal case if the departmental proceeding is totally based upon the institution of FIR, in such circumstances, can it be said Page 13 L.P.A. No. 275 of 2024 that the charge is surviving after no existence of the FIR in consequence of the acquittal in the criminal case.
24. The matter would have been different if the departmental proceeding would have been initiated independent to the FIR but that is not the fact herein since the memorandum of charge refers the reference of the FIR being Sukhdeonagar P.S. Case No. 625 of 2018. In the enquiry report also, the enquiry officer has given reliance upon the institution of the FIR, meaning thereby, the very basis of conducting the preliminary enquiry and framing of charge is the institution of the FIR.
25. The acquittal of the petitioner from the criminal case, according to our considered view, will be said that the charges levelled against the petitioner itself will have no meaning.
26. Further, this Court is of the view that so far as the procedural lapses are concerned, the complainant has not been allowed to be examined and as per the settled position of law, the complainant has to be examined and in case of his non-examination, the same will be lead to violation of cardinal principle of natural justice and in that circumstances, the entire departmental proceeding will be vitiated.
27. Herein, the factual aspect of the present case is that against the appellant- writ petitioner, the departmental proceeding has been initiated but prior to that the criminal case has been instituted. The informant of the criminal case is also the complainant since on the basis of the imputation so made by the informant the preliminary enquiry has been conducted in which the charge as per the version of the informant has been found to be true which led the disciplinary authority to issue show cause before framing of charge. The reply having found to be not satisfactory, as such, memorandum of charge was issued.
28. The question herein is that the informant of the criminal case has been examined as the prosecting witness and in course thereof, he has refused to identify the appellant-writ petitioner which has been taken into consideration by the competent court of criminal jurisdiction and in consequence thereof, the judgment of acquittal has been passed, meaning thereby, the FIR which has been instituted followed by the investigation Page 14 L.P.A. No. 275 of 2024 leading to submission of charge sheet as under Section 173(2) of Cr.P.C. which ultimately culmination into judgment of acquittal.
29. The question therefore, is that when the judgment of acquittal has been passed by the competent court of criminal jurisdiction then what would be the sanctity of FIR which is the basis of the formation of charge since the memorandum of charge although is on the basis of the conduct of appellant-writ petitioner by which the allegation has been levelled that due to his conduct the image of the police in people has been shaken.
30. The complainant admittedly has not been produced in the enquiry proceeding since his written version has been placed before the enquiry officer. The enquiry officer has considered the written version but very surprisingly and utter disregard to the principle of natural justice the complainant has not been asked to appear in the enquiry proceeding which has deprived the right to the appellant-writ petitioner to cross- examine the complainant in the enquiry proceeding.
The informant when has not identified the appellant-writ petitioner in the criminal proceeding due to his non-examination having not been allowed by the enquiry officer since the appearance of the complainant has not been secured even no notice has been issued for his appearance which according to our considered view led in violation of principle of natural justice.
The law is well settled that so far as the disciplinary proceeding is concerned, the adequate and sufficient opportunity is to be given followed by the relevant documents upon which the reliance has been placed. The adequate and sufficient opportunity means that effective opportunity and not merely by issuance of show cause rather the adequate and sufficient opportunity will be said to be complied with in the disciplinary proceeding only then the witnesses have been directed to appear in order to support the charge and vis-à-vis allowing the delinquent to cross-examine.
31. We have gone through the enquiry report and have found therefrom that the complainant has not appeared before the enquiry officer and even on Page 15 L.P.A. No. 275 of 2024 the basis of the record pertaining to the disciplinary proceeding no notice has been issued by the enquiry officer to secure his appearance, as such, the vital opportunity of cross-examining the complainant has been denied to the appellant-writ petitioner.
32. The learned Single Judge has considered one aspect of the matter that acquittal in the criminal case will not come in the way of the departmental proceeding, in which, on its conclusion the order of punishment has been passed.
33. We are not in dispute to this settled position of law that the departmental proceeding and judicial proceeding is to run parallel.
But, here the factual aspect is to be tested on the basis of the fact of the present case wherein the very basis of initiation of departmental proceeding is the institution of the FIR by the informant who is the complainant based upon that the preliminary enquiry has been conducted for the purpose of fact finding.
34. This being an admitted position clearly suggests that the departmental proceeding is based upon the criminal case. The writ petitioner has been acquitted in the criminal case due to non-identification by the informant and as per the allegation either in the First Information Report or in the memorandum of charge that the appellant-writ petitioner has gone to the medicine shop of the complainant/informant, namely, Avinash Kumar Singh which has also been captured in the CCTV footage but the complainant in course of the examination in the judicial proceeding has not identified.
Therefore, the very basis of the institution of the criminal case has been considered by the competent court of criminal jurisdiction to have no foundation. Equally, in the departmental proceeding since the examination of the other witnesses of the police personnel has been taken as also the enquiry officer has considered the written complaint of the complainant but he has not been asked to appear for his cross- examination.
Page 16 L.P.A. No. 275 of 2024As such, the fact herein is not to that of that the departmental proceeding and the criminal case is to be considered independent rather it is overlapping and hence, as per the ratio laid by the Hon'ble Apex Court in the case of M. Paul. Anthony v. Bharat Gold Mines Ltd. (supra) wherein the law has been laid down that where the question is of complex nature, the departmental proceeding is to await outcome of the criminal case.
Herein also, both the departmental and criminal case are, on facts, overlapping due to the reason that the informant of the criminal case and the complainant in the departmental proceeding are the same, as such, when the informant has not identified the appellant-writ petitioner in the criminal proceeding and due to his non-examination in the departmental proceeding how can the order of punishment be said to be justified.
35. The argument has been advanced that the punishment has been passed on the basis of the applicability of principle of preponderance of probability. We are not disputing that the parameter of adjudging the allegation in the departmental proceeding and the judicial proceeding are different since in the criminal case the principle applicable is that the charge is to be proved beyond all reasonable doubt while on the other hand, in the departmental proceeding, the charge as per the memorandum of charge is to be based upon the preponderance of probability but, it is settled position of law that merely on the basis of the preponderance of probability no order of punishment can be passed rather even in order to apply the principle of preponderance of probability some cogent evidence is to be there.
36. The law is well settled in this regard that in the departmental proceeding, even on the basis of preponderance of probability, the charge is to be proved. But it is not that, only on the basis of preponderance of probability, the charge is to be proved, rather, even in order to come to the conclusion to prove the charge on the basis of the principle of preponderance of probability, some cogent evidence is to be there, reference in this regard may be made to the judgment rendered by the Page 17 L.P.A. No. 275 of 2024 Hon'ble Apex Court in the case of State of Karnataka and Anr. vs. Umesh, reported in (2022) 6 SCC 563, wherein, at paragraphs- 18 & 19 it has been held that mere on probabilities, no punishment can be imposed in the departmental proceeding. For ready reference, the same is being referred as under:-
"18. In the course of the submissions, the respondents placed reliance on the decision in Union of India v. Gyan Chand Chattar [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78]. In that case, six charges were framed against the respondent. One of the charges was that he demanded a commission of 1% for paying the railway staff. The enquiry officer found all the six charges proved. The disciplinary authority agreed with those findings and imposed the punishment of reversion to a lower rank. Allowing the petition under Article 226 of the Constitution, the High Court observed that there was no evidence to hold that he was guilty of the charge of bribery since the witnesses only said that the motive/reason for not making the payment could be the expectation of a commission amount. The respondent placed reliance on the following passages from the decision : (SCC pp. 85 & 87, paras 21 & 31) "21. Such a serious charge of corruption requires to be proved to the hilt as it brings both civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasicriminal nature was required to be proved beyond the shadow of doubt and to the hilt. It cannot be proved on mere probabilities.
31. ... wherein it has been held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences."
19. The observations in para 21 of Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78] are not the ratio decidendi of the case. These observations were made while discussing the judgment [Union of India v. Gyan Chand Chattar, 2002 SCC OnLine Guj 548] of the High Court. The ratio of the judgment emerges in the subsequent passages of the judgment, where the test of relevant material and compliance with natural justice as laid down in Rattan Singh [State of Haryana v. Rattan Singh, (1977) 2 SCC 491] was reiterated : (Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78] , SCC p. 88, paras 35-36) "35. ... an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for Page 18 L.P.A. No. 275 of 2024 arriving at the finding of fact in the context of the statute defining the misconduct.
36. In fact, initiation of the enquiry against the respondent appears to be the outcome of anguish of superior officers as there had been an agitation by the railway staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the railway station. The enquiry officer has taken into consideration the nonexisting material and failed to consider the relevant material and finding of all facts recorded by him cannot be sustained in the eye of the law." (emphasis supplied) On the charge of corruption, the Court observed in the above decision that there was no relevant material to sustain the conviction of the respondent since there was only hearsay evidence where the witnesses assumed that the motive for not paying the railway staff "could be" corruption. Therefore, the standard that was applied by the Court for determining the validity of the departmental proceedings was whether (i) there was relevant material for arriving at the finding; and (ii) the principles of natural justice were complied with."
37. Further, in the case of High Court of Judicature at Bombay Vs. Uday Singh and others, reported in (1997) 5 SCC 129, the law has been laid down that in the departmental proceeding the cogent evidence is required to be there for inflicting punishment. For ready reference, paragraph-10 is being referred as under:
"-------- the doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct-------."
38. We have scrutinized the enquiry report wherefrom it is evident that there is no consideration of the evidence said to be cogent for the purpose of coming to the conclusion in applying the principle of preponderance of probability which can easily be arrived at that the complainant has not been allowed to be cross-examined since he has not been asked to appear before the enquiry officer while on the other hand, in the criminal proceeding he has not identified the appellant-writ petitioner.
39. This Court, after having discussed the aforesaid factual as well as legal issue and coming to the order passed by the learned Single Judge, has found that the learned Single Judge has framed the following three issues:
"(i) Whether the petitioners have been honourably acquitted?Page 19 L.P.A. No. 275 of 2024
(ii) Whether the punishment inflicted shocks the judicial conscience and it is disproportionate to the charges levelled against the petitioners?
(iii) Whether it is a case of no evidence and sufficiency of evidence for proof of charges completely comes within the domain of administrative authorities and this Court cannot re-appreciate the evidence sitting under Article 226 of the Constitution?"
40. The learned Single Judge by taking note of the judgment passed by the Hon'ble Apex Court in Union of India & Ors. Vs. P. Gunasekaran, reported in (2015) 2 SCC 610; Union Territory Chandigarh Administration Vs. Pradeep Kumar, reported in (2018) 1 SCC 797; Secretary, Managing Committee, BSM(PG) College, Roorkee Vs. Samrat Sharma and others, reported in (2019) 16 SCC 56 and; Samar Bahadur Singh Vs. State of UP and others, reported in (2011) 9 SCC 94, has answered the said issues against the appellant-writ petitioner for the reason that the High Court exercising power under Article 226 of the Constatation of India is only to interfere in case there is any procedure laches, but, the same has not been found to be available.
Further reason has been assigned that the order of punishment passed by the disciplinary authority has been tested up to highest authority of the State Police Force which could not be question sitting under Article 226 of the Constatation of India when no folly in the departmental proceeding is pointed out.
41. We have considered the judgment rendered by the Hon'ble Apex Court in the Union of India Vs. P. Gunasekaran (supra) wherein guidelines have been provided as to in which case the interference is to be made by the High Court in exercise of power conferred under Article 226/227 of the Constitution of India wherein it is evident that in case there is violation of principles of natural justice in conducting the proceeding and the second ground is that finding of the act is based on no evidence which according to our considered view, is available in the present case since the parameter has also been fixed that in which case such interference is not to be made, i.e., not to re-appreciate the evidence; not to interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; not to go into the adequacy of the evidence; not to Page 20 L.P.A. No. 275 of 2024 go into the reliability of the evidence; not to interfere, if there be some legal evidence on which findings can be based; not to correct the error of fact however grave it may appear to be; and not go into the proportionality of punishment unless it shocks its conscience.
42. This Court, after considering the aforesaid aspect, is of the view that the non-examination of the complainant violates the principles of natural justice as per the position of law as has been held by the Hon'ble Apex Court in Madhya Pradesh vs. Chintaman Sadashiva Waishampayan (supra).
43. Further, due to non-examination of the complainant in the department proceeding while the complainant/informant who has been examined in the judicial proceeding has failed to identify the appellant-writ petitioner and as such, this Court is of the view that it is a case where the principles of natural justice has been violated as also the finding of fact is based on no evidence.
44. Another ground has been observed by the learned Single Judge as under
paragraph-24 that since the punishment order passed by the disciplinary authority has been tested up to the highest authority of the State Police Force which could not be questioned here under Article 226 of the Constitution of India, when no folly in the departmental proceeding is pointed out.
Conclusion:
45. With respect to the same, this Court is of the considered view that merely because the order has been tested up to the highest authority of the State Police Force, the order is not to be interfered with if no folly in the departmental proceeding is pointed out, but, we on the basis of the discussion made hereinabove is of the view that the departmental proceeding has not been initiated and concluded in strict sense of compliance of the principles of natural justice by denial of the appellant- writ petitioner's right to cross-examine the complainant and hence, it is incorrect to say that there is no error in conducting the departmental proceeding.
Page 21 L.P.A. No. 275 of 202446. This Court, therefore, is of the view based upon the discussion made hereinabove that the impugned order needs to be interfered with.
47. Accordingly, the impugned order dated 09.02.2024 passed in W.P. (S) No. 1889 of 2021 is hereby, quashed and set aside.
48. In consequence thereof, the writ petition being W.P.(S) No. 1889 of 2021 stands allowed, as such, the penalty/punishment order contained in District Order no.4195/2019 dated 30.08.2019; appellate order contained in Memo No. 1378 dated 27.04.2020 and; the revisional order contained in Memo No. 242 dated 28.12.2020 are also hereby quashed and set aside.
49. At this juncture, learned counsel for the State has submitted that if there is violation of principles of natural justice, the matter may be remitted before the authority for initiating a proceeding afresh and in order to strengthen his argument, he has relied upon a judgment rendered by the Hon'ble Apex Court in State of Uttar Pradesh and Ors. vs. Rajit Singh, (2022) 15 SCC 254.
50. Learned counsel for the appellant-writ petitioner has seriously contested the aforesaid ground by advancing her argument that if the settled position of law has not been followed by the disciplinary authority which is nothing but the error committed by the disciplinary authority which will be attributed to the disciplinary authority only and if any wrong committed by the disciplinary authority for which the appellant-writ petitioner may not be made to suffer.
51. We on appreciation of the aforesaid rival submission, are of the view as per the position of law, that on technicality, no can be allowed to take advantage but the applicability of the said principle is to be tested on the basis of the facts governing the case.
52. Herein, the disciplinary authority is fully conscious with the fact that the complainant is required to be cross-examined by the appellant-writ petitioner but no endeavour has been taken by issuing notice by the enquiry officer for the purpose of securing his appearance so that he may be cross-examined rather only on the basis of the written complaint the finding has been recorded.
Page 22 L.P.A. No. 275 of 202453. The same, according to our considered view, is serious error in conducting the enquiry proceeding by the enquiry officer.
54. This Court, therefore, is of the view that when the fundamental of the departmental proceeding of providing adequate and sufficient opportunity has not been provided even though under the conduct rules the specific stipulation has been made to that effect that sufficient and adequate opportunity is to be provided to delinquent employee then the question is that why due to the wrong committed by the disciplinary authority the delinquent employee is to suffer.
55. The reference is required to be made of the relevant provision of the conduct rules wherein the word 'adequate and sufficient opportunity' has been referred. The meaning of adequate and sufficient opportunity is not simple that merely a show cause notice will be issued for the purpose of following the principles of natural justice, the adequate and sufficient opportunity will be said to be provided rather adequate and sufficient opportunity will be said to be observed if all effective opportunity to defend the case is being provided to the delinquent employee, as such, observance of the adequate and sufficient opportunity is not a mere formality and also not merely that a coram has been fulfilled rather all effective opportunity is to be provided.
56. The issue of such adequate and sufficient opportunity has been dealt with by the Hon'ble Apex Court in the case of Government of Andhra Pradesh and others vs. A. Venkata Raidu, (2007) 1 SCC 338, wherein their lordships has been pleased to hold at para-9, which is being quoted herein below:-
"9. xxx xxx It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held, In Charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc. but that was not done. Copies of the said GOs or directions of the Government wee not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his Page 23 L.P.A. No. 275 of 2024 predecessors, Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged."
Further, in the case of State of Uttar Pradesh and others vs. Saroj Kumar Sinha, (2010) 2 SCC 772, wherein it has been laid down at paras-29 and 30 that it is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal /removal from service.
57. Further on the issue of remand, the Hon'ble Apex Court in the case of Punjab National Bank & Ors v. Kunj Behari Misra, [(1998) 7 SCC 84] as under paragraph-19 has been pleased to hold that if the laches is at attributable to the delinquent or the pensioner the matter is not to be remitted before the authority for the purpose of putting the delinquent or the pensioner to face the rigour of pending departmental proceeding or any proceeding. Quote "19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
58. The judgment rendered in the case of State of Uttar Pradesh and Ors. vs. Rajit Singh (supra) wherein the learned counsel for the State has relied upon. The factual aspect of the said case needs to be referred herein which has been discussed at paragraph-2 wherein the employee was serving as a Junior Engineer. An enquiry was conducted and it was found Page 24 L.P.A. No. 275 of 2024 that he had committed financial irregularities causing loss to the Government. The disciplinary proceedings were initiated against the respondent and others. The enquiry officer held the charges alleged against the respondent employee as proved. The disciplinary authority concurred with the findings recorded by the enquiry officer and passed an order of recovery of government loss of Rs 22,48,964.42 as per the rules from the salary. The matter went to the Tribunal wherein the order of recovery has been quashed and set aside which was affirmed by the High Court and thereby the matter travelled to the Hon'ble Apex Court.
The respondent-State of Uttar Pradesh has taken the ground therein that if there is violation of principles of natural justice based upon the aforesaid ground if the Tribunal has quashed and set aside then the enquiry ought to have been remanded to initiate from the stage of the enquiry.
The Hon'ble Apex Court while discussing the factual aspect as under pargraph-10 has made an observation that the order of punishment could not have been set aside by the Tribunal and the High Court reason being that the doctrine of equality ought not to have been applied when the enquiry officer and the disciplinary authority held the charges proved against the delinquent officer. The Tribunal and the High Court have interfered with the order of punishment by taking into consideration the fact that other officer involved in the incident were exonerated, the Hon'ble Apex Court in that pretext has observed in the said paragraph that merely because some other officers involved in the incident are exonerated and/or no action is taken against other officers cannot be a ground to set aside the order of punishment when the charges against the individual concerned - delinquent officer are held to be proved in a departmental enquiry. There cannot be any claim of negative equality in such cases. The Hon'ble Apex Court in that pretext, has quashed and set aside the order passed by the Tribunal and the High Court as also the punishment imposed by the disciplinary authority, however, as the enquiry is found to be vitiated and is found to be in violation of the principles of natural justice inasmuch as it is alleged that the relevant Page 25 L.P.A. No. 275 of 2024 documents mentioned in the charge-sheet were not supplied to the delinquent officer, the Hon'ble Apex Court remanded the matter to the disciplinary authority to conduct a fresh enquiry from the stage it stood vitiated i.e. after the issuance of the charge-sheet and to proceed further with the enquiry after furnishing all the necessary documents mentioned in the charge-sheet and after following due principles of natural justice.
59. Adverting to the factual aspect of the present case, it is not the case that the relevant document has not been supplied rather the case herein is of not providing adequate and sufficient opportunity. The aforesaid opportunity has been denied to the appellant-writ petitioner due to non- examination of the complainant by the enquiry officer since his appearance has not been secured by issuing notice which was to be issued at the end of the enquiry officer.
60. The question of remand could have been considered but herein the admitted fact is that the complainant while giving his evidence in the criminal proceeding has not identified the delinquent employee then the question would be that when in the judicial proceeding which is to be govern on the basis of the principle that the charge is to be proved beyond all reasonable doubt and if the matter will be remitted then the complainant may appear due to the efforts to be taken by the disciplinary authority but how can he support his version when he has denied to identify the appellant-writ petitioner in the judicial proceeding.
61. Therefore, this Court is of the view that the matter would have been different if the informant who is also the complainant in the disciplinary proceeding would have identified the appellant-writ petitioner but the fact herein is otherwise.
62. This Court, therefore, is of the view that even if the matter will be remitted there will be no chance of proving the charge even though the complainant will be called upon to give his evidence and if, for any reason whatsoever, he supports the version, then the question would be that how and why the said version is to be believed when he has not identified the appellant-writ petitioner in the judicial proceeding.
Page 26 L.P.A. No. 275 of 202463. Therefore, this Court is of the view that on fact of the present case the judgment upon which reliance is being placed by the respondent, is not applicable.
64. This Court in the entirety of the facts and circumstances, is of the view that it is not a fit case where the matter is to be remitted.
65. In view thereof, the appellant-writ petitioner is directed to be reinstated in service with all consequential benefits.
66. Accordingly, the instant appeal stands allowed, as such, disposed of.
67. Pending Interlocutory Application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) Saurabh/ A.F.R. Page 27 L.P.A. No. 275 of 2024