Jharkhand High Court
Umeshwar Upadhyay vs State Of Jharkhand And Ors. on 29 April, 2004
Equivalent citations: [2004(3)JCR130(JHR)]
Author: Tapen Sen
Bench: Tapen Sen
JUDGMENT Tapen Sen, J.
1. In this writ petition, the petitioner prays for quashing the order dated 21.6.2002 (Annexure 10) by which the disciplinary authority (Superintendent of Police, Jamshedpur) discharged the petitioner from the post of police constable in pursuance of Departmental Proceeding No. 31 of 2002. The petitioner also prays for quashing the order dated 5.11.2002 (Annexure 1) passed by the respondent No. 2 (Deputy Inspector general of Police, South Chhotanagpur, Ranchi) by which, in exercise of powers under the appellate jurisdiction, dismissed the appeal filed by the petitioner. The petitioner also makes a prayer for issuance of a writ of mandamus commanding the respondents to pay his entire dues of salary from 20.1.2002 to 8.4.2002 (i.e. period of suspension) and from 21.6.2002 till date together with a consequential order that he should be posted at a suitable place on the post of a Constable.
2. The short facts which are necessary to be taken note of are that in the year 1980, the petitioner was appointed on the post of a Constable in the Bihar Police. In January 2002, while he was posted as a Constable in the Jamshedpur Civil Court, an accused namely Akhilesh Singh along with other accused persons were brought from jail custody for production in Court. On 18.1.2002 there was no posting of any Assistant Sub Inspector in the Jamshedpur Sadar Court save and except the petitioner who was the only Constable posted there along with one Laldeo Singh who was posted as a havildar in the Sadar Court and who was also incharge of the Court lockup.
3. The three accused persons including Akhilesh Singh were handed over to the petitioner for their production in the Court of the Chief Judicial Magistrate at Jamshedpur and the petitioner who was escorting them with handcuffs produced them in Court, but while returning Akhilesh Singh managed to remove the handcuffs and fled away. The petitioner who was holding the rope of other two accused persons started shouting and requested people present there to chase and catch the accused Akhilesh Singh as he was himself not in a position to do so as he was holding the rope of the other accused persons. The petitioner then came to the Court Lockup, reported the matter to Havildar Laldeo Singh and thereafter he rushed to chase the absconding accused but to no avail. Subsequently, Havildar Laldeo Singh informed this matter to his superior officers and also gave a written information to the Superintendent of Jail, Jamshedpur, whereafter the said Superintendent of Jail intimated the Officer-in-Charge, Bistupur Police Station and on the basis thereof Bistupur Police Station Case No. 19 of 2002 was instituted under Section 224 of the Indian Penal Code against only one accused namely Akhilesh Kumar Singh vide Annexure 1. The petitioner was not shown as an accused in the said first information report which was instituted on 18.1.2002 but two days thereafter i.e.. on 20.01.2002, the Investigating Officer filed a requisition praying addition of Section 225 and Section 120B of the Indian Penal Code which was allowed by the Chief Judicial Magistrate and thereafter the Investigating Officer arrested the petitioner and Havildar Laldeo Singh.
4. According to the petitioner, the Superintendent of Police, Jamshedpur (respondent No. 3) did not take any step to arrest the absconding accused and on the day when the petitioner was released from jail, i.e. 21.1.2002, suspended the petitioner and Laldeo Singh vide suspension Order No. 162 of 2002 (Annexure 3) and also ordered the initiation of a departmental proceeding appointing the Sergeant Major 2 as the conducting officer who was also directed to frame charges against them. In compliance of the directions made, the conducting officer (respondent No. 4) framed draft charges on the next day, i.e., 21.2.2002 against the petitioner alleging, that due to his carelessness and dereliction of duty, Akhilesh Singh had been able to escape from custody. The petitioner was directed to submit explanation to the draft charges contained in Annexure-4. The petitioner submitted his explanation on 4.2.2002 expressing innocence and prayed that till pendency of the criminal case, the departmental proceeding should be kept in abeyance. In spite of the aforesaid prayer, the conducting officer continued with the departmental proceeding which was registered as departmental proceeding No. 31 of 2002.
5. On 11.4.2002, the conducting officer submitted his report (vide Annexure-7) holding the petitioner guilty for the escape of Akhilesh Singh and upon receipt of the same, and on the same day, the disciplinary authority (respondent No. 3) issued a show cause notice to the petitioner on 11.4.2002 asking him to explain as to why he should not be dismissed from service. This show cause notice is Annexure-8. In reply, the petitioner filed his cause on 19.4.2002, but the disciplinary authority did not take any of the explanations into consideration and passed his order dated 21.6.2002 (Annexure 10) dismissing the petitioner from the service. Being aggrieved, the petitioner preferred an appeal before the respondent No. 2, but the appellate authority, by his order dated 5.11.2002 (Annexure 11), dismissed the appeal and confirmed the order of the disciplinary authority.
6. In the counter affidavit filed on behalf of the Superintendent of Police, Jamshedpur, it has been stated, inter alia, in paragraph 8 that it is true that while returning from the Court of the Chief Judicial Magistrate, the accused managed to remove the handcuffs and fled away. It has further been stated that accused Akhilesh Kumar Singh who was involved in the murder of the Jail Superintendent as also other serious criminal cases, was not tied by rope which allowed him to escape from custody. It has also been stated that the handcuffs and rope were provided to the petitioner so that all the three persons could be held together ensuring that no body escaped from police custody. The other two accused persons who were held together were not able to escape but because of the fact that the petitioner had neither tied nor handcuffed the said Akhilesh Singh (who was involved in the murder of the Jail Superintendent and, who was also involved in other serious crimes) managed to escape. According to them, the petitioner did not ensure the proper tying up and handcuffing of the said Akhilesh Singh. The petitioner has raised various contentions and one of his arguments is that in the departmental proceedings, the respondents examined irrelevant witnesses. They examined one Asfaque Hussain Khan who has himself stated at Annexure-6 that he was posted as a Deputy Superintendent of Police (PCR) on 14.2.2000 and therefore, his evidence should have been discarded as the date of occurrence was 18.1.2000, This argument cannot be accepted because it transpires from his evidence that Asfaque Hussain Khan supervised the investigation of Bistupur Police Station Case No. 19 of 2002 and whatever he could gather therein was disclosed by him in his evidence. Therefore, there was nothing wrong in taking the evidence of Asfaque Hussain Khan. The petitioner has further stated that similarly another irrelevant witness, namely, Mahesh Prasad Singh was taken only for purposes of fastening the responsibility upon the petitioner, but upon seeing the statements of Mahesh Prasad Singh, it appears that he was the person who had typed the order of suspension and the other witness namely Vasudeo Singh, proved the signature of the Superintendent of Police in the order of suspension.
7. It appears that these are the only three witnesses who were examined for purposes of bringing home the charge to the effect that the petitioner was negligent in his duties as a result of which accused Akhilesh Kumar Singh had managed to escape.
8. According to the petitioner, there was no witness to the occurrence and therefore by only taking into consideration the evidence of the aforementioned three witnesses, the authorities could not have found him guilty. This Court is unable to appreciate the arguments of Mr. R.S.P. Sinha, learned counsel appearing for the petitioner because it is evident upon reading the contents of the charge-sheet that the same were really charges to the effect that the petitioner had been negligent in his duties and that it was because of such negligence that a criminal had managed to escape from police custody. It was not the case in the charge-sheet that the petitioner was responsible in committing certain acts which was directly responsible in enabling the accused to escape. If this was the charge, then perhaps the argument of Mr. R.S.P. Sinha could have been relevant. A charge of negligence and/or dereliction of duty does not require direct evidence when the actual incident stands corroborated by the fact that it was the petitioner and the petitioner alone who had been given the necessary rope and handcuffs to properly secure and tie the accused persons and when one of the accused persons managed to escape, the charge of negligence and/or gross dereliction of duty becomes established and that too, when the inquiry officer notices the statement of Ashfaque Hussain Khan who disclosed that during the course of his supervision, it clearly transpired that accused Akhilesh Singh was being taken without being tied with a rope and without being handcuffed. In such a situation, circumstantial evidence becomes important and not an eye-witness.
9. The next argument of Mr. R.S.P. Sinha is that admittedly, there were three accused persons who were entrusted with the petitioner to produce them in Court and thereafter to bring them back to the Court Lockup. According to him under the provisions of Rule 557-A, if there were three persons, then two Constables are required as the strength of escorts, but in this case it was only he who was entrusted with three accused persons. This argument of Mr. R.S.P. Sinha is not acceptable to this Court because from his own statement made in paragraph 6, another police personnel, namely, Havildar Laldeo Singh was also posted in the Sadar Court and merely because two Constables were not deputed, it cannot be said that there was a gross lapse on the part of the respondents. Taking into consideration the nature of the incident that took place, i.e., the escape of criminal from police custody, it is obvious that there was lapse and/or negligence on the part of the petitioner. The organization of the police is supposed to be a disciplined force and merely because two Constables were not deputed does not mean that the petitioner can be allowed to escape from his own responsibility and that too when Havildar Laldeo Singh was also posted in the same Sadar Court being Incharge of the Court Lockup. The other argument of Mr. R.S.P. Sinha to the effect that the petitioner was not even named in the first information report becomes redundant in view of the fact that two days after instituting the case, the Investigating Officer filed a requisition with a prayer to add Section 225 and Section 120B of the Indian Penal Code which was allowed by the learned Chief Judicial Magistrate. Mr. R.S.P. Sinha, learned counsel for the petitioner places reliance on a judgment of this Court passed by an Hon'ble Judge in the case of Birendra Singh v. State of Bihar, reported in 2000 (4) PLJR 129 in support of his argument to the effect that the findings of the Inquiry Officer in this case is not based on any evidence. This argument is rejected because upon reading the Inquiry Report this Court finds that Asfaque Hussain Khan's report and/or evidence sufficiently established that the petitioner was grossly negligent in his duties. Mr. R.S.P. Sinha then placed reliance on the judgment of the Supreme Court in the case of Deo Singh v. Punjab Tourism Development Corporation Limited and Anr., reported in 2003 (8) SCC 9, in support of his argument to the effect that under Rule 824 the respondents could have imposed other lesser punishments, but instead of doing so they inflicted the most extreme punishment of dismissal from service.
10. This Court exercising powers of judicial review is not an appellate authority which will substitute its findings with the findings of fact unless this Court is of the opinion that these findings are either perverse or illegal. Moreover, and as has already been observed earlier, the institution and/or the organization of police is an organization where people repose faith and trust and expect that the officers of this organization shall exhibit complete responsibility and dedication towards the tasks that are assigned to them. In this case it was the duty and responsibility of the Constable to safely bring back a serious offender to the Court Lockup but because of his negligence and carelessness, which amounts to gross dereliction of duty, the said criminal managed to escape from the clutches of law. This cannot be viewed lightly and therefore, the conscience of this Court is not shocked at the punishment that has been inflicted.
For the foregoing reasons therefore, this Court comes to the opinion that there is neither any illegality nor any element of arbitrariness in the impugned orders nor can the punishment inflicted be said to be disproportionate.
For the foregoing reasons, this Court is not inclined to interfere with the impugned orders. Consequently, the writ petition fails and it is accordingly dismissed. There shall be no order as to costs.