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2005 DIGILAW 101 (GAU)

Usharani Saikia v. State of Assam

2005-02-07

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. By this writ application, the Petitioner has challenged the order of dismissal from service passed against her. Shortly stated the facts which could be gathered on a conjoint reading of the pleadings exchanged by and between the parties are as follows: 2. The Petitioner who is an MA in Political Science, entered into the services of the Respondents as Woman Police Constable (UB) way back in 1988. At the time of her dismissal from service by the impugned order dated 31.12.2003, she was attached with the Bureau of Investigation (EO), Guwahati where she was entrusted with general office duty. The Petitioner had the occasion to file complaint case No. 2664/2001 against 4 accused persons including one Sri Ratul Kakati who were purportedly involved in an incident in her house. The said complaint case was filed in the Court of the Chief Judicial Magistrate, Kamrup and was registered under Section 380 / 420 IPC. For the purpose of decision in the instant case, the facts of that ease need not be referred to. Suffice is to say that it is the case of the Petitioner that consequent upon filing of the said complaint case against the accused persons, as a counter blast said Sri Ratul Kakati and his associates including his father falsely implicated the Petitioner in a criminal case about which mention has been made below. 3. After the aforesaid incident and lodging of the complaint case by the Petitioner, she went to Dergaon for training and on her return from training, she was picked up by the police at Guwahati. Thereafter, she was brought to Lakhimpur Police Station where she was arrested in connection with a police case registered on the basis of an FIR lodged by the father of said Sri Ratul Kakati alleging kidnapping of Ratul by the Petitioner on 10.10.2001. According to the Petitioner she was not aware of such lodging of FIR till she was brought to Lakhimpur Police Station. On the basis of the said FIR, a police case was registered under Section 365/420/506 IPC which was eventually registered as GR Case No. 1771/2001 in the Court of Sub-divisional Judicial Magistrate (S), North Lakhimpur. According to the Petitioner she was not aware of such lodging of FIR till she was brought to Lakhimpur Police Station. On the basis of the said FIR, a police case was registered under Section 365/420/506 IPC which was eventually registered as GR Case No. 1771/2001 in the Court of Sub-divisional Judicial Magistrate (S), North Lakhimpur. According to the story narrated in the FIR, the Petitioner had gone to the house of Ratul on 10.10.2001 at about 11 AM and requested Ratul to accompany her to North Lakhimpur Town helping her to board a bus to Guwahati. The request made by the Petitioner was acceded to by the father of said Sri Ratul and allowed Ratul to accompany her to the bus station at North Lakhimpur. However, when Ratul did not comeback, his father made an enquiry and could come to know that the Petitioner kidnapped his son. Such kidnapping of Ratul was allegedly by commanding Ratul to embark upon the bus under threat. 4. The trial Court convicted the Petitioner by judgment and order dated 22.10.2003 and sentenced her to undergo simple imprisonment for two years and also imposed a fine of Rs.2000/-, in default simple imprisonment for six months under Section 365 IPC. According to the findings recorded in the judgment, the husband of the Petitioner namely one Sri Bishnu is a surrendered militant and that the Petitioner applied her influence of being a police personnel towards kidnapping said Sri Ratul. Be that as it may, the Petitioner preferred an appeal against the judgment of the trial Court before in the Sessions Judge, Lakhimpur at North Lakhimpur which was registered and numbered as Criminal Appeal No. 15(4)/2003. The appeal has been allowed by judgment and order dated 17.2.2004 setting aside the order of conviction passed by the trial Court. 5. Amidst the aforesaid developments in the criminal case, the Petitioner was placed under suspension and by order dated 22.11.2002 a purported departmental proceeding was drawn up against her by way of issuance of a show cause notice dated 21.10.2002 charging the Petitioner in respect of same very charge in the criminal case. As per the show cause notice the offence committed by the Petitioner amounted to gross misconduct rendering the Petitioner unfit to continue as a member of the police force. As per the show cause notice the offence committed by the Petitioner amounted to gross misconduct rendering the Petitioner unfit to continue as a member of the police force. By the said show cause notice the Petitioner was directed to submit her written statement in defence within 10 days. The show cause notice was issued under Section 7of the Police Act read with Rule 66 of the Assam Police Manual, Part-III and Article 311 of the Constitution of India. In response to the show cause notice, the Petitioner submitted her show cause reply on 21.10.2002 denying the charge. Being not satisfied with the reply furnished by the Petitioner, the Superintendent of Police, Bureau of Investigation (EO) ordered for drawing up departmental proceeding against the Petitioner by order dated 22.11.2002. By the same order an Enquiry Officer was also appointed. 6. The departmental proceeding was registered as DP No. 3/2002. It appears that the statements of Sri Tilak Kakati who had lodged the FIR and his son Sri Kakati who was allegedly kidnapped by the Petitioner were recorded in presence of the Petitioner who in turn cross-examined them. Be it stated here that said two witnesses were also examined as prosecution witnesses in the criminal case as PW-1 and PW-2, apart from other three witnesses. The statements of the said two witnesses were recorded on 12.6.2003. In the meantime, the Petitioner was convicted by the trial Court by judgment and order dated 22.10.2003 against which she preferred the aforesaid appeal. The Appellate Court granted interim protection to the Petitioner by way of staying the judgment and order of the trial Court. Eventually the appeal was allowed by the aforesaid judgment and order dated 17.2.2004. 7. After the aforesaid conviction of the Petitioner in the criminal case, the Petitioner was imposed with the penalty of dismissal from service by order dated 31.12.2003. On perusal of the order it appears that certain findings were recorded in the DP No. 3/2002 against the Petitioner and the disciplinary authority agreed with the findings so recorded by the Enquiry Officer. In the order of dismissal itself, the disciplinary authority recorded its finding that since the Petitioner was convicted in a criminal case on the basis of which the departmental proceeding was drawn, the charge of gross misconduct levelled against her had been fully established rendering her unfit to continue as a member of the disciplined force. In the order of dismissal itself, the disciplinary authority recorded its finding that since the Petitioner was convicted in a criminal case on the basis of which the departmental proceeding was drawn, the charge of gross misconduct levelled against her had been fully established rendering her unfit to continue as a member of the disciplined force. Thus the penalty of dismissal was imposed under Section 7 of the Police Act, 1861. In the impugned order, it was further provided that the period of suspension from 25.6.2002 to 25.2.2003 would not count towards service and the pay and allowances already drawn by the Petitioner would only hold the field. 8. It is the definite case of the Petitioner that she was dismissed from service pursuant to her conviction on the criminal case. Since the order of conviction has been set aside by the Appellate Court, the prayer made in the writ petition is to set aside the order of dismissal dated 31.12.2003 and to reinstate her in service. However, the Respondents, in their affidavit, somewhat in vague terms have taken the plea of imposition of the order of penalty pursuant to initiation and completion of the departmental proceeding. 9. It is in the aforesaid backdrop the point for consideration is, whether the Petitioner has been imposed with the penalty of dismissal pursuant to the departmental proceeding or on the basis of her conviction in the criminal case. If the impugned order was passed on the basis of her conviction in the criminal case, same will have to be held to be nonest in view of her subsequent acquittal by the Appellate Court. However, if the order was based on the departmental proceeding, altogether a different consideration will have to be given. 10. I have heard Mr. R.P. Sarma, learned Sr. Counsel for the Petitioner assisted by Ms. R. Devi, learned Counsel for the Petitioner. Mr. K.C. Mahanta, learned Sr. Government Advocate argued on behalf of the Respondents. Mr. Mahanta also produced the relevant case records as was called for. 11. Mr. Sarma, learned Counsel for the Petitioner submitted that in view of the acquittal of the Petitioner from the criminal charge which was made the foundation towards issuance of the impugned order of dismissal, she is entitled to be reinstated in service upon setting aside the said order of dismissal. 11. Mr. Sarma, learned Counsel for the Petitioner submitted that in view of the acquittal of the Petitioner from the criminal charge which was made the foundation towards issuance of the impugned order of dismissal, she is entitled to be reinstated in service upon setting aside the said order of dismissal. He submitted that the departmental proceeding, although was initiated against the Petitioner but the same being based on the criminal case and even the impugned order being based on the conviction, same is liable to be set aside with order for reinstatement in service consequent upon setting aside of the order of conviction by the Appellate Court. He placed reliance on the decision of the Apex Court as reported in AIR 1999 SC 1416 (Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.) and the decision of this Court as reported in 2001 (2) GLT 335 (Bidhun Chandra Dey v. State of Tripura and Ors.) 12. Mr. K.C. Mahanta, learned Sr. Government Advocate during the course of his argument and in reference to the records produced by him fairly submitted that the Petitioner was imposed with the penalty of dismissal from service pursuant to her conviction in the criminal case and not on the basis of any independent findings arrived at in the departmental proceeding. He submitted that although, the departmental proceeding was initiated against the Petitioner, but before the same could be completed, the Petitioner was convicted in the criminal proceeding and as a consequence thereof the order of dismissal from service was passed in the departmental proceeding based on such conviction. However, he submitted that such order of dismissal passed in the departmental proceeding is permissible under Section 7 of the Police Act, 1861. 13. As regards the fact of criminal conviction of the Petitioner by the trial Court and subsequent setting aside of the same by the Appellate Court, there is no dispute. However, in view o f the controversy raised as to the imposition of the penalty by the impugned order dated 31.12.2003, whether the same is based solely on criminal conviction or on the basis of the findings arrived at in the departmental proceeding, the Respondents were directed to clarify their position which they did by filing a reply affidavit to the additional affidavit filed by the Petitioner. In the reply affidavit the fact of issuance of the show cause notice, furnishing the reply thereof by the Petitioner and recording the statements of the two witnesses have been narrated. In paragraph 9(i) of the reply affidavit the Respondents have admitted that the departmental proceeding being DP No. 3/2002 was initiated against the Petitioner consequent upon her arrest in the criminal case and that while the departmental proceeding was in progress the Petitioner was convicted in the criminal case. In paragraph 9(ii) of the reply affidavit it is the stand of the Respondents that as per Rule 65 of the Assam Police Manual Part- III, when a police officer is dismissed on the basis of a charge for which the officer has been already tried and convicted in a Court, it will be sufficient in the proceeding to give a copy of the judgment and that such proceeding shall be concluded immediately on the termination of the first trial by the lower Court. They have stated in the said paragraph that the Enquiry officer collected a certified copy of the judgment and order dated 22.10.2003 passed by the trial Court and on the basis of the said judgment and order the Enquiry officer submitted his finding to the disciplinary authority on 6.12.2003. It was on that basis the Petitioner was imposed with the penalty of dismissal from service by the impugned order dated 31.12.2003. 14. I have gone through the findings recorded in the departmental proceeding by the Enquiry Officer which has been annexed as Annexure-8. The report is entirely based on the criminal charge against the Petitioner and the statements of the said two witnesses. In the report three more witnesses namely Sri J.P. Choudhuiy, DSP, HQ, BIEO, Assam, Sri Noor Hussain, SI, BIEO, Assam and Sri L.R. Hazarika, I/c Naoboicha O.P., North Lakhimpur Police Station have been named whom he allegedly examined. Admittedly the Enquiry Officer examined the later three witnesses in absence of the Petitioner which fact is admitted in the reply affidavit according to which only two witnesses were examined in presence of the Petitioner. However, this aspect of the matter need not detain us in the matter in view of the finding recorded by the Enquiry Officer. The whole basis of holding the Petitioner guilty of the charge is her criminal conviction. However, this aspect of the matter need not detain us in the matter in view of the finding recorded by the Enquiry Officer. The whole basis of holding the Petitioner guilty of the charge is her criminal conviction. The relevant portion of the enquiry report is quoted below: Verdict of the Hon'ble Court: Received the certified copy of the judgment passed by the Hon'ble Court of the Sub-divisional Judicial Magistrate (Sadar) North Lakhimpur Sri M. Ahmed. The Hon'ble Court passed judgment as follows: The prosecution is fully able to bring home the guilt of the accused Under Section 365 IPC beyond all shadows of doubt. Hence she is found guilty and accordingly convicted. Heard the accused on the question of doubt. For reasons cited in the written judgment I declare to extend her to benefit under statutory provision Under Section 360 Code of Criminal Procedure. She is sentenced to S.I. for two years and a fine of Rs.2000/- (two thousand) I.D. S.I. for six month. The term of sentence shall be set off Under Section42.8 Code of Criminal Procedure with the period the accused had undergone as U.T.P. Conclusion: The enquiry of the D/P has been completed with the actions taken through enquiry as narrated above and after enquiry I have come to the conclusion that the delinquent Smt. Premalata Saikia @ Usharani Saikia has been found guilty of gross misconduct that tenders her unfit to continue as a member of police force; and as such, necessary disciplinary action may be taken against the delinquent Smt. Premalata Saikia (ci). Usharani Saikia under the provisions of Article 311 of the Constitution of India and under Section 7 of the police Act, 1861. 15. By the aforesaid conclusion recorded in the enquiry report, the Enquiry Officer recommended for taking necessary disciplinary action against the Petitioner under the provisions of Article 311 of the Constitution of India and under Section 7 of the Police Act, 1861. Once the Petitioner was held guilty of gross misconduct, there was no question o f taking further disciplinary action against her as was suggested by the Enquiry Officer. Once the Petitioner was held guilty of gross misconduct, there was no question o f taking further disciplinary action against her as was suggested by the Enquiry Officer. On a whole reading of the records pertaining to the disciplinary proceeding including the order of dismissal dated 31.12.2003, the enquiry report dated 6.12.2003 and the stand in the affidavits-in-opposition, it leads to only one conclusion that the Petitioner was imposed with the order of penalty solely on the basis of her conviction in the criminal case. 16. I have also gone through the records produced by Mr. Mahanta, learned Sr. Government Advocate. As per the said records the disciplinary authority passed the impugned order dated 31.12.2003 on two fold grounds of initiation of the departmental proceeding following the arrest of the Petitioner in the criminal case and her conviction in the same. The order of dismissal was not on the basis of any independent finding in the departmental proceeding establishing the charge and/or misconduct on the part of the Petitioner. If that be so, upon setting aside of the order of conviction by the Appellate Court, the very basis on which the order of dismissal was passed falls through. The circumstances, which were taken into consideration by the disciplinary authority, have been sufficiently set out in the impugned order dated 31.12.2003. They are the initiation of the departmental proceeding following her arrest in the criminal case and her conviction in the same. It was on that basis only and without any independent finding in the departmental proceeding the charge of gross misconduct levelled against the Petitioner was held to be established rendering her unfit to continue as a member of the disciplined force. Invoking the provision of Section 7 of the Police Act, 1861, the Petitioner was dismissed from service by the impugned order. 17. The Petitioner was issued with the show cause notice under Section 7 of the Police Act read with Rule 66 of the Assam Police Manual Part-III and Article 311 of the Constitution of India. Rule 66 provides for imposition of any of the penalties prescribed therein for good and sufficient reason which includes the major penalty of dismissal from service. The Petitioner was issued with the show cause notice under Section 7 of the Police Act read with Rule 66 of the Assam Police Manual Part-III and Article 311 of the Constitution of India. Rule 66 provides for imposition of any of the penalties prescribed therein for good and sufficient reason which includes the major penalty of dismissal from service. Rule 66 (III) provides that no order of major punishment shall be passed on a member of the-service (other than an order based on facts which have led to his conviction in a criminal Court) unless the member of the force has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. Detail procedure has been laid down for conducting the enquiry pertaining to the charge levelled against the incumbent. Section 7 of the Police Act empowers the competent authority to dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think, remiss or negligence in the discharge of his duty or unfit for the same. However, the provision is expressly subject to the provisions of Article 311 of the Constitution of India. 18. As to whether the alleged misconduct on the part of the Petitioner could have been a subject matter of disciplinary proceeding is not answered in this proceeding although the same merits consideration. In paragraph 9 (ii) of the reply affidavit, the Respondents have categorically stated about the course of action adopted against the Petitioner on the basis of Rule 65 of the Manual, although the departmental proceeding was initiated against the Petitioner under Section 7 of the Act read with Rule 66 of the Manual and Article 311 of the Constitution of India. Rule 65 of the Manual which is akin to the provisions of Article 311(2)(a) provides that when a police officer is dismissed or other departmental punishment is inflicted on the basis of a charge for which the officer has already been tried and convicted in a Court it will be sufficient in the proceedings to give a copy of the judgment, the reasons for inflicting departmental punishment and the previous character of the officer concerned. 19. 19. From the stand of the Respondents in their reply affidavit, the perusal of the records and the aforesaid provisions of the Act and the Rules on which the Respondents have placed reliance, they lead to the irresistible conclusion that the impugned order dated 31.12.2003 dismissing the Petitioner from service was passed solely on the basis of the conviction of the Petitioner in the criminal case which is also apparent on the face of the impugned order itself. The Petitioner was not imposed with the penalty on the basis of any independent finding in the departmental proceeding. 20. At the time of passing the impugned order, only progress made in the departmental proceeding was that two of the witnesses were examined on behalf of the disciplinary authority and the other three witnesses were examined behind the back of the Petitioner. There is no indication as to whether the evidence on behalf of the disciplinary authority was closed. Even if the same was closed, the next stage was to afford opportunity to the Petitioner to lead her evidence. However, admittedly she was not provided with that opportunity. Various other stages towards completion of the departmental proceeding were also required to be gone through, which, however, were admittedly not gone through. Even the copy of the enquiry report, which was prepared on the basis of the conviction of the Petitioner in the criminal case, was not furnished to her entitling her to make representation against the same. 21. Thus on the above infirmities also the departmental proceeding against the Petitioner is not sustainable, which, however, need not detain us in view of the clear revelation that the impugned order dated 31.12.2003 was not on the basis of any independent finding in the departmental proceeding, but was solely on the basis of the conviction of the Petitioner in the criminal case. Once the conviction has been set aside on appeal, as a natural consequence, the impugned order dated 31.12.2003 automatically falls through entitling the Petitioner to be reinstated in service. 22. The decision in Capt. Once the conviction has been set aside on appeal, as a natural consequence, the impugned order dated 31.12.2003 automatically falls through entitling the Petitioner to be reinstated in service. 22. The decision in Capt. M. Paul Anthony (supra) was pressed into service to buttress the argument that when the criminal case and the departmental proceeding were based on identical set of facts and the same very witnesses, on acquittal of the Petitioner by a judicial pronouncement, it would be unjust, unfair and rather oppressive to allow the findings recorded in the departmental proceeding holding the Petitioner to be guilty of the charge to stand. In the case of Bidhan Chandra Dey (Supra), this Court under similar circumstances ordered for reinstatement of the Petitioner who was a Rifleman of Tripura State Rifles whose conviction as in the instant case was set aside by the Appellate Court. As in the instant case, in that case also, the order of dismissal passed against the Petitioner was not on any independent action in a departmental proceeding, but was as a follow up action on his conviction in the criminal case. 23. For the foregoing reasons, I have no hesitation to hold that the impugned order of dismissal dated 31.12.2003 is not sustainable and accordingly the same stands set aside and quashed. The Petitioner shall be reinstated in service forthwith. She will be entitled to all consequential service benefits except the back wages. As has been observed by the Apex Court in the case of State of U.P. and Anr. v. Vedpal Singh and Anr. as reported in (1997) 3 SCC 483 and in the case of Krishnakant Raghunath Bibhavnekar v. State of Maharastra and Ors. as reported in (1997) 3 SCC 636 , upon reinstatement of an incumbent in service consequent upon setting aside the order of conviction, payment of back wages cannot be ordered as a matter of course. Similarly the Petitioner will also not be entitled to any further salary than what she had drawn as subsistence allowances during the period of her suspension, as the order placing her under suspension in view of her arrest in the criminal case cannot be said to be wholly unjustified. The Petitioner has been acquitted in the criminal case by the Appellate Court on benefit of doubt. The Petitioner has been acquitted in the criminal case by the Appellate Court on benefit of doubt. In this connection, the observation of the Apex Court in the aforesaid case of Krishnakant Raghunath Bibhavnekar is quoted below: Every Act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the Petitioner and taking punitive action against him was his conduct that led to his prosecution for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges whether the government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits. In our considered view this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course on his acquittal. 24. The writ petition stands allowed to the extent indicated above. There shall be no order as to costs. Appeal allowed.