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2008 DIGILAW 985 (JHR)

Chaitan Soren v. State of Bihar, now Jharkhand

2008-08-22

JAYA ROY, M.Y.EQBAL

body2008
JUDGMENT: M.Y Eqbal, J.- Thisappeal under Clause 10 of the Letters Patent is directed against the judgment passed in CWJC No. 8818/98 whereby the learned Single Judge dismissed the writ petition and refused to interfere with the punishment 'imposed upon the appellant in a departmental proceeding. 2. The facts of the case lie in a narrow compass The appellant was posted on deputation as night guard alongwith others. F.I.R. was lodged on the basis of a Fardbeyan of one Hurni Devi wife of Jhabbu Rai of village Balthar of Manoharpur Police Station alleging therein that the appellant, while he was deputed alongwith Arms Guards, absconded from his duty and trespassed in the house of one Hurni Devi and caught her left hand with bad intention. She raised alarm on which the appellant was caught and he was brought by the villagers to the Police Station in drunken condition. On the basis of the said fardbeyan a criminal case was instituted being Manoharpur Police Station case no. 91 of 1989 for the offence under Sections 448 and 354 of the Indian Penal Code. 3. A departmental proceeding was initiated against the appellant. He was charged for escaping from duty on 2.6.1989 at 7.00 p.m. without permission. Further charge was that about 30-35 villagers brought the appellant to the police station at 1.00 a.m. in drunken condition who told that the appellant entered into the house of Hurni Devi and caught her hand with bad intention due to which she woke up and raised alarm. The charges of dereliction of duty and moral turpitude have been proved in the departmental proceeding and finally the disciplinary authority imposed punishment of dismissal from service. 4. The appellant then preferred departmental appeal which was dismissed by order dated 2.7.1996. The appellant thereafter filed revision and the Revisional Authority, after considering the points raised by the appellant, found no merit and dismissed the revision petition. The said orders were challenged by the appellant by filing the aforementioned writ petition. 5. Appellant's defence was that on 2.6.1989 he went to attend the call of nature after informing one Jamadar. While he was returning, he found that 7-8 persons were planning to commit crime. Petitioner-appellant challenged them. They caught the appellant and poured liquor forcefully in his mouth and brought him at the police station at 1.00 p.m. in the night. 5. Appellant's defence was that on 2.6.1989 he went to attend the call of nature after informing one Jamadar. While he was returning, he found that 7-8 persons were planning to commit crime. Petitioner-appellant challenged them. They caught the appellant and poured liquor forcefully in his mouth and brought him at the police station at 1.00 p.m. in the night. It is stated that the entire story was made with the connivance of one lady, Hurni Devi. 6. The learned Single Judge, after considering the facts of the case and the gravity of charges which have been proved, refused to interfere with the order of punishment passed in the departmental proceeding and dismissed the writ petition. Hence, this appeal. 7. Mr. J.P. Jha, learned Senior Counsel appearing on behalf of appellant, assailed the impugned order as being contrary to law and the principles laid down by the Supreme Court. Learned counsel mainly contended on the quantum of punishment. Learned counsel submitted that in the criminal case instituted against the appellant judgment of acquittal was passed but even then the disciplinary authority, without considering the judgment of acquittal, imposed punishment of dismissal from service. 8. Admittedly in the departmental proceeding six witnesses were examined including the prosecutrix, Hurni Devi, but the appellant did not cross-examine her and she was discharged. On the basis of the evidence adduced in the departmental proceeding charges were found proved by the Enquiry Officer. The enquiry report was accepted by the disciplinary authority and second show cause notice was issued to the appellant as to why he should not be dismissed from service. After considering the second show cause the disciplinary authority, finding the gravity of the charges of dereliction of duty and moral turpitude which tarnished the image of the Police Department, imposed punishment by way of dismissal from service. 9. On the other hand, in the criminal case no witnesses were examined from the prosecution side. Hence in absence of any evidence on record, the appellant was not found guilty for committing any offence and he was acquitted in the said case. 10. In the case of Pradeep. 9. On the other hand, in the criminal case no witnesses were examined from the prosecution side. Hence in absence of any evidence on record, the appellant was not found guilty for committing any offence and he was acquitted in the said case. 10. In the case of Pradeep. Kumar Singh vs. Bharat Coking Coal Ltd. and Others [2008(2) J.C.A. 25(Jhr.): 2008(2) JLJR 406 ] a Bench of this court had occasion to consider the effect of continuation of departmental proceeding and criminal cases on the same set of facts and after considering various decisions of the Supreme Court, it was observed as under:- 18. From the decisions referred to herein above, it can safely be concluded that there is no bar in conducting departmental proceeding and criminal case simultaneously. However, if the departmental proceeding and criminal case are based on identical and similar set of facts and the charges and the criminal case against the delinquent employee is not grave in nature. It is desirable to stay departmental proceeding till conclusion of the criminal case. In the services rules, if there is a provision for proceeding departmentally on the ground of misconduct leading to his conviction by a competent Court of law, then merely because of pendency of criminal appeal, the departmental proceeding cannot be stayed. It is also well settled that when there is serious charges of acceptance of illegal gratification, then it is desirable not to allow the delinquent to continue in service. It is equally well settled that if the employee has been acquitted of the charges, the same by itself could not be a ground not to initiate departmental proceeding against him or drop the same in the event an order of acquittal is passed. The yardstick and standard of proof in a criminal case is different from the departmental proceeding. The standard of proof in a criminal case is a proof beyond reasonable doubt, whereas the proof in a departmental proceeding is preponderance of probabilities. However, the facts remain that there cannot be straight jacket formula as to in which case departmental proceeding is to be stayed. All depends on the facts and circumstances of the case and the seriousness of the charges levelled against the employee which led to departmental proceeding and criminal proceeding." 11. However, the facts remain that there cannot be straight jacket formula as to in which case departmental proceeding is to be stayed. All depends on the facts and circumstances of the case and the seriousness of the charges levelled against the employee which led to departmental proceeding and criminal proceeding." 11. In the case of Hindustan Petroleum Corporation Limited and Others vs. Survesh Berry [2006(2) J.C.A. 341 (S.C.)] the Supreme Court, after discussing at length the principles laid down in Capt. M. Paul Anthony's case [ 1999(3) S.C.C. 679 ], observed as under:- "8. The purposes of departmental enquiry and of persecution' are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So, crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings mayor may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless charge in the criminal trial is of a grave nature involving complicated questions of facts and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act 1972 (in short "the Evidence Act"). Converse is the case of departmental enquiry. The enquiry in departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stand excluded is a settled legal position. Converse is the case of departmental enquiry. The enquiry in departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stand excluded is a settled legal position. Under these circumstances, what is required to be seen is whether departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances." 12. Mr. J.P. Jha learned counsel appearing for the appellant put reliance on the decision of the Supreme Court in the case of G.M. Tank VS. State of Gujarat and Others [ 2006(5) S.C.C. 446 ]. In our considered opinion the decision relied upon by Mr. Jha will not apply in the facts of the present case. In the case before the Supreme Court. there was not an iota of evidence against the appellant holding him guilty of the charges levelled against him. Moreover judicial pronouncement was made after regular trial and on hot contest. Their Lordships of the Supreme Court observed as under:- "20, It is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification, The respondent failed to prove the charges levelled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire moveable and immovable assets, No query what so ever was ever raised about the movable and immovable assets of the appellant. In fact the respondent did not produce any evidence in support of and/ or about the alleged charges levelled against the appellant. Likewise the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the P.C. Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (Verbatim) set of facts and evidence. Likewise the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the P.C. Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (Verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witnesses and, therefore the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice: 13. The decision rendered by this court in the case of Umeshwar Upadhyay vs. State of Jharkhand (2007(2) J.C.A. 221 (Jhr.)] will also not be applicable in the facts of the present case. In the instant case charges against the appellant in the departmental proceeding were proved by the evidence of six witnesses including the victim lady who deposed in the departmental proceeding and she was not even cross-examined by the appellant and was discharged. 14. Besides the above undoubtedly charges levelled against the appellant who was in service of Police Department tarnished the image of the police. The charge of moral turpitude is grave in nature. The delinquent is a police officer in the Police Department. On the proof of charge in the departmental proceeding punishment order of dismissal from service was passed. 15. Be that as it may the question arises as to whether order imposing punishment by the authority is subject to judicial review. This point has been considered by the Supreme Court in the case of Chairman and Managing Director, United Commercial Bank and Others vs. P.C Kakkar (2003 A.I.R. S.C.W. 944). In that case delinquent was a bank officer. He was charged for fabricating and manipulating documents which was of serious nature. Punishment of dismissal was passed in a departmental proceeding. The said order was challenged. The matter went up to the Supreme Court where their Lordships observed as follows:- "14. A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Punishment of dismissal was passed in a departmental proceeding. The said order was challenged. The matter went up to the Supreme Court where their Lordships observed as follows:- "14. A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this court in Disciplinary authority-cum-Regional Manager vs. Nikunja Bihari Patnaik, 1996(9) S.C.C. 69 . it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a bank is dependent upon each of its officers and officers acting and operating within there allotted sphere. Acting beyond, one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court. 15. It needs no emphasis that when a Court feels that the punishment is shockingly disproportionate it must record reasons for coming to such a conclusion. Mere expression that the punishment is shockingly disproportionate would not meet the requirement .of law. Even in respect of administrative orders Lord Denning M.R. in Breen vs. Amalgamated Engineering Union [1971 (1) All ER 1148] observed "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dedley) ltd. VS. Crabtres (1974 LCR 120), it was observed "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx". It can by its silence render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx". It can by its silence render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. But as noted above, the proceedings commenced in 1981. The employee was placed under suspension from 1983 to 1988 and has superannuated in 2002. Acquittal in the criminal case is not determinative of the commission of misconduct or othervise, and it is open to the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in criminal case. I per se would not entitle the employee to claim immunity from the proceedings. At the most the factum of acquittal may be a circumstance to be considered while awarding punishment. It would depend upon facts of each case and even that cannot have universal application. 16. It is equally well settled law that the Court, in cases where the charges have been proved and are serious in nature, should not interfere with the quantum of punishment. In the case of Union of India and Others vs. Narayan Singh (2002 AIR SCW 2172) their Lordships observed:- "9. As seen above, the Division Bench notes that the charges against the respondent are proved and that the charges are of serious nature. Once the court came to the conclusion that the charges were proved and that the charges were of the serious nature, it was not the function of the court to interfere with the quantum of punishment. The Division Bench was wrong in holding that factors viz. (a) the person is coming from which place (b) his family background, and (c) his service record etc. where to be kept in mind. In our view the Division Bench was also wrong in holding that if a poor person pleads guilty to the misconduct, then extreme penalty of dismissal is uncalled for. (a) the person is coming from which place (b) his family background, and (c) his service record etc. where to be kept in mind. In our view the Division Bench was also wrong in holding that if a poor person pleads guilty to the misconduct, then extreme penalty of dismissal is uncalled for. In our view, a court must not lightly interfere with sentences passed after a properly conducted enquiry where the guilt is proved. Reduction of sentence particularly in military, para-military or police services can have a demoralizing effect and would be a retrograde step so far as discipline of these services is concerned. In this case, the charges being of a serious nature the penalty was commensurate with the charges. Further the Division Bench has itself noted that this was the third time the respondent was punished." 17. Admittedly the charges against the appellant were grave and serious in nature which have been proved in the departmental proceedings. In our considered opinion, therefore, the order of dismissal from service imposed upon the appellant is not disproportionate to the charges. In that view of the matter the learned Single Judge rightly refused to interfere with the order of punishment imposed upon the appellant for the charges proved against him. 18. For the reasons aforesaid we find no merit in this appeal which is, accordingly, dismissed.