Jharkhand High Court
Ram Khelawan Paswan vs State Of Jharkhand And Ors. on 11 April, 2008
Equivalent citations: [2008(2)JCR736(JHR)]
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
1. Petitioner has sought for issuance of a writ of certiorari for quashing the order dated 2.8.2004 (An-nexure-6) passed by the respondent No. 3 and the order dated 18.10.2004 (Annexure-7) passed by the respondent No. 2, by which he was dismissed from service.
2. Petitioner was posted as Assistant Sub-Inspector of Police. A complaint was filed by one Vivek Chakraborty against the petitioner, alleging therein that on 10.8.1999 the petitioner had made illegal raid in his jewellery shop and had illegally seized gold biscuits from the shop on the charge that the same was smuggled goods and had also taken away a sum of Rs. 1.30 lakhs belonging to the complainant kept in the shop. On the basis of the complaint, FIR was registered and the matter was investigated and on the basis of the charge-sheet submitted therein, the petitioner was put on trial.
On the basis of the same complaint and on the same set of facts, a departmental proceeding was also initiated against the petitioner. Charge in the departmental proceeding was that on 10.8.1999 the petitioner had made an illegal raid in the complainant's Jewellery shop without prior intimation or permission of his superior officer and that, he had seized gold biscuits suspecting it to be a smuggled goods besides a sum of Rs. 1.30 lakhs, from the shop of the complainant and had not prepared any seizure list and neither had he registered any FIR relating to the seizure of the articles and, further, that he had intimated the complainant Vivek Chakraborty threatening to lodge a case against him and had obtained the complainant's signature on four blank papers and lastly that, he had criminally misappropriated the seized gold biscuits and a sum of Rs. 1.30 lakhs and he had thereby committed gross misconduct and dereliction of duty.
3. In the inquiry report submitted by the inquiry officer, it was held that the charges were proved against the petitioner. Second show-cause notice was served on the petitioner by the Disciplinary Authority and in response thereto, the petitioner while submitting his replies, had requested to stay the final decision in the departmental proceeding on the ground that a criminal case was pending against him on the same set of facts. However, the Disciplinary Authority proceeded to award punishment on the basis of the findings of the inquiry officer and by his impugned order dated 2.8.2004, dismissed the petitioner from service.
4. Against the order of dismissal, the petitioner preferred an appeal before the respondent No. 2 bringing to the notice of the appellate authority that on the same set of facts, a criminal proceeding was pending against him in the Court of Judicial Magistrate. He had also pleaded that in the departmental inquiry, the material witnesses including the complainant Vivek Chakraborty, was not examined at all and the complainant's purported statement recorded by the Inspector of Police was filed in evidence and proved through a formal witness without examining the Superintendent of Police either.
5. It was also urged by the petitioner that the petitioner was not afforded an opportunity to cross-examine the witness examined in the inquiry and even otherwise, the evidence of the witnesses so examined, could not have been relied upon since none of the witnesses gave any direct evidence and their testimonies was essentially based on hearsay. However, the appellate authority (respondent No. 2} dismissed the appeal and affirmed the order of dismissal passed by the respondent No. 3.
6. The petitioner has challenged the order of dismissal primarily on the following grounds:
1. That the Disciplinary Authority had not served a copy of the inquiry report upon the petitioner when a second show-cause notice was issued against him, thereby causing serious prejudice to the petitioner.
2. Since on the same set of facts involved in the departmental proceeding, a criminal proceeding was also pending, as such, the departmental proceeding should have been stayed.
3. That the finding of the inquiry officer was based on no evidence in as much as, the complainant on whose complaint departmental proceeding was initiated, was not examined at all and the report of the preliminary inquiry conducted by the Superintendent of Police was not legally proved in evidence since the officer conducting the preliminary inquiry was not examined. Moreover, the inquiry officer had based his findings only on the statements of witnesses whose testimony was hearsay.
4. Since the petitioner was acquitted from the charges in the criminal trial on the same set of facts, he should not have been punished in the departmental proceeding.
7. As against this, learned Counsel for the respondent would argue that the finding of the inquiry officer was based on evidences of the witnesses and, the report of preliminary investigation conducted by the Superintendent of Police was also proved through the reader in whose presence the statement of the petitioner and other witnesses was recorded by the Superintendent of Police. It is further submitted that the plea of prejudice to the petitioner for alleged non-supply of a copy of the inquiry report, is also incorrect and misleading since in his reply to the second show-cause notice, the petitioner had elaborately dealt with each and every aspect of the inquiry report byway of his defence in order to explain his grounds of defence.
8. As regards the first ground, it is seen that in reply to the second show cause notice served upon him by the Disciplinary Authority, the petitioner has referred to the details of the inquiry report mentioning therein the evidence of the witnesses recorded at the inquiry and the reasons as to why evidences of such witnesses should not have been accepted. It cannot therefore be stated that the petitioner was not afforded a reasonable opportunity to represent before the Disciplinary Authority against the findings of the Inquiry officer.
9. As regards the second point, the charges In the criminal proceeding related to the criminal offences under Sections 386 and 447/34 of the IPC, which was based primarily on the FIR of the complainant Vivek Chakraborty. In the departmental proceeding, the charges were that the petitioner, by his alleged acts and deeds, committed dereliction of duty and gross misconduct. Therefore, there could be nothing wrong in continuing with the departmental proceeding despite pendency of the criminal trial.
10. The next ground of the petitioner is that the finding of the inquiry officer was based on no evidence. It transpires from the inquiry report that the complainant Vivek Chakraborty was not examined at all and instead, his purported previous statements made before the Superintendent of Police was introduced in evidence through a formal witness.
11. It is basic principle of evidence that if previous statement of a person is sought to be used, then that person should be produced and tendered for cross-examination. In absence of production of the witness and an opportunity to cross-examine him, his previous statement becomes inadmissible. It also appears that the testimony of the witnesses on whose evidence the inquiry officer had relied upon was hearsay in nature as they were not the direct witnesses. A finding of guilt on the basis of hearsay testimony cannot be legally sustained in the eyes of law.
12. The other ground of the petitioner is that since he was acquitted in the criminal proceeding he should not have been punished in the departmental proceeding on the charges on the same set of facts.
13. As a general principle of law, mere acquittal by the criminal Court cannot be taken to be a ground to hold that the findings recorded by the inquiry officer on the basis of materials before him, is invalid.
14. In the present case however, two features stand out conspicuously. First, both the proceedings were based on the same set of facts namely, the complaint lodged by the complainant Vivek Chakraborty and the evidence to prove the charges were dependent on the same set of witnesses. In such a case whether acquittal in the criminal proceeding would have any effect on the departmental proceeding, is the question. An identical question came for consideration before the Supreme Court in the case of Captain M. Pal Anthony v. Bharat Gold Mines Limited , and the Supreme Court while considering the identical situation, had observed that since the appellant was acquitted in the criminal case, with categorical finding that the prosecution failed to establish its case and since the evidence and facts in the departmental as well as in the criminal proceeding were the same, the findings recorded against the appellant in the departmental inquiry could not be sustained. Applying the same standard, the punishment imposed against the petitioner by the Disciplinary Authority should have been recalled by the Appellate Authority.
15. Moreover, the finding of the inquiry officer itself is perverse because there is virtually no evidence available on record against the petitioner in respect of the charges framed against him. As observed above, the material witnesses including the complainant were not examined, nor was the petitioner afforded any opportunity to cross-examine the witnesses. Furthermore, the inquiry officer has committed error by placing reliance upon the statement of hearsay witnesses. The statement of the witness Jawed Ahmad could not be relied upon as admittedly, he was not a witness to the alleged raid and seizure made in the shop of the complainant. He has merely stated that he has examined the complainant and other witnesses, but none of those witnesses were examined in the departmental proceeding. Under such circumstances, statement of Jawed Ahmad could not be taken as conclusive proof with reference to the charge levelled against the petitioner.
16. I find merit in this application. Accordingly, the same is allowed. The order dated 2.8.2004 (Annexure-6) passed by the respondent No. 3, as also the order dated 18.10.2004 (Annexure-7) passed by the respondent No. 2, is hereby quashed. Respondents are directed to reinstate the petitioner from the date of his dismissal with all consequently benefits, in accordance with law.