Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 1081 (JHR)

Sanjay Kumar Singh v. State of Jharkhand

2009-08-05

AMARESHWAR SAHAY

body2009
JUDGMENT : Heard the parties. 2.The petitioner was a Police constable posted at Golmuri P.S., Jamshedpur. He is challenging his dismissal from service by the Disciplinary Authority after a departmental proceeding in which, the charges against him was found to be proved. 3.The facts in short are that the petitioner and one another Police Constable Vidyakant Upadhyay were, posted at Golmuri Police Station. On 02.05.2001, both the Constables came to the foreign Section of the Office of the Superintendent of Police, Jamshedpur and received three Passports applications, one of which was of one Amit Kumar. The petitioner and the other constable went to the house of said Amit Kumar and in the name of verification, realized Rs.800/-by way of illegal gratification from the mother of Amit Kumar namely Smt. Shila Singh. On the report of Shila Singh, one First Information Report was registered against both the Police Constables i.e. against the petitioner and Vidyakant Upadhyay. 4.After completion of investigation, chargesheet was submitted in the said criminal case. Simultaneously, a departmental proceeding was also initiated against the petitioner in which, the petitioner participated and after completion of inquiry, the inquiry report was submitted as contained in Annexure-3 in which, charges against the petitioner was found to be established. On the basis of such inquiry report, the Superintendent of Police – cum – Disciplinary Authority, on consideration of facts and materials on record, awarded the punishment of dismissal from service to the petitioner holding that such corrupt, indisciplined and disobedient Police Constables should not be restrained in the disciplined Police force. The said order of punishment was passed by the Superintendent of Police on 16.10.2002 vide Annexure-4 to the writ petition. 5.The petitioner filed a departmental appeal before the appellate forum against the order of dismissal from the service and during the pendency of the said appeal, he also filed the present writ petition before this Court. 6.It appears that during pendency of this writ petition, the appeal filed by the petitioner was also rejected by the appellate authority on 29.05.2004 and the said fact has been brought on record by way of Supplementary Affidavit and the appellate order has been made Annexure-1 to the said Supplementary Affidavit. 7.Dr. 6.It appears that during pendency of this writ petition, the appeal filed by the petitioner was also rejected by the appellate authority on 29.05.2004 and the said fact has been brought on record by way of Supplementary Affidavit and the appellate order has been made Annexure-1 to the said Supplementary Affidavit. 7.Dr. S.N. Pathak submitted that for the same set of charge and on the same facts and allegations, the criminal case which was instituted against the petitioner, ended in his acquittal by a competent Court of law and therefore, in view of the Judgment of the Supreme Court in the case of G.M. Tank Vs. State of Gujrat and others reported in (2006) 5 SCC 446 , the dismissal of the petitioner from the service is liable to be quashed. He further submitted that the enquiry officer wrongly and illegally relying on the hearsay evidence which is not admissible in evidence, has found the petitioner guilty in a departmental proceeding and, therefore, the same is not sustainable in law. Lastly he submitted that the punishment of dismissal awarded to the petitioner is disproportionate to the charge leveled against him. 8.The Judgment passed by the Criminal Court has been annexed as Annexure-2 to the writ petition. On perusal of the same, I find that the Judgment in the criminal case was passed on 10.03.2003 whereas, the departmental inquiry was concluded much prior to that. The inquiry report was submitted on 16.04.2002 and on the basis of the said enquiry report, the Disciplinary Authority passed the impugned order of dismissal of the petitioner from the service on 16.10.2002. Therefore, the fact of the present case is that firstly the departmental proceeding was concluded and punishment of dismissal was awarded in the year 2002 and thereafter, subsequently, on 10.03.2003, the petitioner was acquitted in the criminal case. 9.On perusal of the inquiry report, it appears that in course of departmental proceeding, Smt. Shila Singh i.e. the mother of Amit Kumar, was examined and she stated that her son Amit Kumar is a Software Engineer and had applied for a Passport since he had to go out of the country and in course of that, two Constables came to her quarter and asked for illegal gratification of Rs.800/-, which paid to them. She identified the petitioner when the Officer Incharge of the Police Station asked her to identify. She identified the petitioner when the Officer Incharge of the Police Station asked her to identify. 10.From perusal of the Judgment passed by the Trial Court, which has been annexed as Annexure-2 to the writ petition, I find that the learned Trial Court acquitted the petitioner considering the fact that Mrs. Shila Singh did not identify the petitioner in the Dock on the ground that much time has elapsed and she did not remember the face. 11.Therefore, from the facts stated above, it is clear that though the allegations in the departmental proceeding and in the criminal trial were same but the facts placed before the two forums i.e. in the disciplinary proceeding and in the criminal trial were not the same. In the departmental proceeding, Smt. Shila Singh made specific allegation of accepting illegal gratification by the petitioner and she identified him also, whereas, in Course of criminal Trial, she did not identify the petitioner. Therefore, it cannot be said that the facts and evidence in both the proceedings were the same. It is well established principles of law that the standard of proof in a criminal trial is completely different to that of standard of proof in a departmental proceeding. In a criminal trial, the charge has to be established and proved beyond all reasonable doubts whereas that is not so in the departmental proceeding. In a departmental proceeding, the charge can be published on preponderance of probability. 12.The Judgment of the Supreme Court on which the petitioner has placed reliance i.e. G.M. Tank Vs. State of Gujrat and others (Supra), is not applicable in the facts and circumstances of the case in view of the fact that in the said case before the Supreme Court, the departmental proceeding against the incumbent was still pending and during the pendency of the criminal trial, the Government servant was acquitted from the charges by the Trial Court and, therefore, in the given facts of that case, the Supreme Court held that the finding of the departmental proceeding was contrary to the findings recorded in the criminal trial and, therefore, the same was unjust and unfair. In the said case, the Supreme Court also noticed the fact that the facts and evidence in departmental as well as criminal proceedings were same without there being any iota of difference and, therefore, the dismissal of incumbent was set aside whereas, in the present case, the evidence of both the proceedings i.e. before the departmental proceeding and in the criminal trial, were not the same. The departmental inquiry was concluded much prior to the Judgment passed by the Criminal Court. Therefore, the case of G.M. Tank Vs. State of Gujrat and others (Supra) is not applicable in the facts in the circumstances of the present case. 13.The argument of Dr. S.N. Pathak that the enquiry officer relying on hearsay evidence has held the petitioner guilty, is also liable to be rejected in view of the fact that from the records, it appears that there is direct evidence of Smt. Shila Singh and she was not a hearsay witness. It was she who had paid illegal gratification to the petitioner and she identified the petitioner as the man who received the money. Therefore, there is no force in the arguments of learned counsel for the petitioner. 14.So far as the quantum of punishment is concerned, I do not find it to be disproportionate to the charge in view of the fact that the petitioner, being a Police Constable and member of the disciplined force, has to show high standard of discipline and conduct and, therefore, in my view, the disciplinary authority has rightly held that keeping such corrupt, indisciplined and disobedient Police Constables in the disciplined force shall adversely affect the other Policemen and would tarnish the image of Police force. No modification in the punishment is required. 15.Thus, on consideration of the facts stated above, I do not find it a fit case for any interference. Accordingly, having found no merit, this writ petition is dismissed.