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Jharkhand High Court · body

2009 DIGILAW 1200 (JHR)

Teni Ram v. State of Jharkhand

2009-08-27

D.G.R.PATNAIK

body2009
Judgment By Court Heard Ratna Prabha, learned counsel for the petitioner and J.C. to A.G. for the respondent State. 2. Petitioner in this writ application has prayed for issuance of a writ in the nature of certiorari quashing the entire departmental proceeding No. 32/03 including the chargesheet dated 09.08.2003 (Annexure-1) issued by the Commandant, Jharkhand Armed Police-1 (Respondent No. 2) and also for quashing the order vide Memo No. 581/secret dated 18.12.2003 (Annexure-5) issued by the Respondent No. 2 whereby the petitioner was punished by way of dismissal from service. Prayer has also been made for quashing the order dated 05.05.2004 (Annexure-7) whereby petitioner’s appeal against the order of his dismissal from service, has been rejected. A further prayer has been made for an order quashing the Memo No. 382/P dated 07.04.2005 whereby the petitioner’s prayer for reinstatement on the ground of his acquittal in the criminal proceeding, has been rejected. 3. The petitioner was employed as a Sweeper in the Jharkhand Armed Police-1. On the basis of a complaint/F.I.R. lodged on 30.07.2003 by one Meena Gautam, who was purportedly employed in the petitioner’s house as a domestic help, containing allegation that she was sexually exploited by the petitioner, a criminal case was instituted against him. On the same allegation, a chargesheet was served upon the petitioner in contemplation of a departmental proceeding and the petitioner, after being placed under suspension, was proceeded against departmentally. 4. While the criminal trial remained pending, the departmental proceeding continued and in due course, the enquiry was concluded. The Enquiry Officer found the charges against the petitioner proved and on the basis of the report submitted by him, the Disciplinary Authority proceeded to pass the impugned order (Annexure-5) of termination of the petitioner’s service albeit after serving a second show cause notice upon the petitioner along with a copy of the enquiry report. The petitioner thereafter preferred an appeal against the order of his termination before the Appellate Authority but the same was dismissed by the impugned order (Annexure-7). 5. It was after the passing of the impugned order by the Appellate Authority, the criminal trial against the petitioner concluded in his acquittal from the charges. The petitioner filed a representation before the concerned authorities for review of the earlier order of his dismissal and for his reinstatement in service on the ground of his acquittal in the criminal trial. 6. The petitioner filed a representation before the concerned authorities for review of the earlier order of his dismissal and for his reinstatement in service on the ground of his acquittal in the criminal trial. 6. The petitioner’s prayer for reinstatement was rejected by the impugned order (Annexure-9) by the concerned authority. Being aggrieved with the order of termination of his services and the order of dismissal of his appeal and also the order of rejection of his prayer for reinstatement, the petitioner has filed the present writ application for the reliefs mentioned above. 7. Learned counsel for the petitioner submits that from the facts even as admitted by the respondents, it would transpire that the charges in the criminal proceeding and the charges in the departmental proceeding were one and the same and the total set of witnesses in the criminal trial were the same in the departmental proceeding also. 8. Assailing the findings of the Enquiry Officer, learned counsel submits that such findings are totally perverse and as a matter of fact, based on conjectures and surmises, without there being any evidence whatsoever in support of the charges. Elaborating her argument, learned counsel explains that the charges were essentially related to the allegation that the petitioner had sexually exploited the complainant/informant Meena Gautam. In order to prove this charge, it was incumbent that the lady should have been examined at the enquiry. For reasons not assigned, the lady was not examined at the departmental enquiry at all. Rather, the prosecuting agency had remained content with examining some witnesses who had only given hear-say statements. The Enquiry Officer proceeded to rely upon such hear-say statements to record his findings of guilt against the petitioner. Learned counsel submits further that the purported victim lady was examined at the criminal trial and she has not supported to prosecution’s case at all in as much as, she has not made any allegation whatsoever in her deposition against the petitioner. It was in absence of required evidence to prove the charges against the petitioner, that the trial court had held the petitioner ‘not guilty’ of the charges and had acquitted the petitioner from the charges. It was in absence of required evidence to prove the charges against the petitioner, that the trial court had held the petitioner ‘not guilty’ of the charges and had acquitted the petitioner from the charges. Learned counsel adds further that the findings recorded by the Enquiry Officer has to be deemed as perverse and without any reliable evidence whatsoever on record and furthermore, the benefits of the findings recorded by the trial court in the criminal case should necessarily be given to the petitioner in view of the fact that the charges in both the proceedings namely the criminal trial and the departmental proceeding, were based on the same allegations. 9. To buttress her arguments, learned counsel would refer to the following judgements of the Supreme Court :- (i) G.M.Tank Vs. State of Gujarat and Others, 2006(5) Supreme Court Cases 446. (ii) Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, 1999(3) Supreme Court Cases 679. (iii) Roop Singh Negi Vs. Punjab National Bank and Others, 2009(2) Supreme Court Cases 570. (iv) Union of India and Others Vs. Prakash Kumar Tandon, 2009(2) Supreme Court Cases, 541. 10. A counter affidavit has been filed on behalf of the respondents wherein the stand taken is that on the basis of the allegations in the F.I.R. which reflected upon the misconduct of the petitioner, a departmental proceeding was initiated against him after service of the charges. The petitioner was provided ample opportunity to defend his case in the departmental proceeding. The petitioner was also given adequate opportunity to cross examine the witnesses who were examined at the departmental enquiry and it was on the basis of the evidence so recorded, that the Enquiry Officer has drawn a reasonable inference of guilt against the petitioner and has recorded his findings on such basis that the evidences were sufficient enough to prove the charges against the petitioner. It is further submitted that even before passing the impugned order of termination of service, the petitioner was given opportunity by way of a second show cause notice and by service of a copy of the enquiry report and it was only after considering the entire aspects that the Disciplinary Authority, while concurring with the findings of the Enquiry Officer, had passed the impugned order of termination of the petitioner’s services. It is further contended that the Appellate Authority has also discussed the evidences on record and after concurring with the findings of the Enquiry Officer and that of the Disciplinary Authority, and has rightly rejected the appeal of the petitioner. 11. With reference to the petitioner’s further ground on the plea of his acquittal by the trial court, learned counsel for the respondents submits that he has examined the records and would not hesitate to concede that the charges in the criminal proceeding and the charges in the departmental proceeding were based on one and the same facts and the witnesses in both the proceedings were more or less identical. Learned counsel acknowledges further that as it appears from the records, the victim lady was not examined at the departmental enquiry and the witnesses examined, have given the statements on the basis of what they have heard from others. However, a copy of the F.I.R. was adduced in evidence in the departmental proceeding. As regards the benefit of the acquittal by the trial court in the criminal proceeding, learned counsel submits that as has been laid down by the Supreme Court in the judgements referred to by the petitioner, the benefit of acquittal by the criminal court can be given only if such acquittal is a clean and honourable acquittal and not on the basis of benefit of doubt. Learned counsel submits further that it is well settled that the strict adherence to the provisions of the Evidence Act is not required to be made in the domestic/departmental enquiries and the proof of the charges are to be deduced from the evidences on the principle of preponderance of probabilities and not on the principle of proof beyond reasonable doubt as would be required in the criminal trial. 12. Learned counsel for the petitioner intervenes at this juncture to explain, by reference to the judgement of acquittal, that the judgement would declare that the order of acquittal was passed on the ground that there was no evidence to prove the charges against the petitioner. This, according to the learned counsel, would amply demonstrate that the acquittal was not on the ground of benefit of doubt. Rather, it is a case of clean and honourable acquittal. 13. This, according to the learned counsel, would amply demonstrate that the acquittal was not on the ground of benefit of doubt. Rather, it is a case of clean and honourable acquittal. 13. From the rival submissions, the indisputed facts which emerge are as follows :- (i) The charges in the departmental proceeding were essentially based on the allegations in the F.I.R. lodged by the complainant and the charges in the criminal trial was the same as the charges in the departmental proceeding. Not only this, the proof of the charges in the departmental proceeding depended upon the same set of witnesses who were declared as witnesses in the criminal trial. (ii) In the criminal trial, the complainant lady was examined and from the perusal of her deposition, a certified copy of which has been produced by the petitioner, it appears that she has not supported the prosecution’s case and has not made any allegation whatsoever to support the charges against the petitioner. This witness though was a material witness, was not examined in the departmental proceeding. (iii) The evidences recorded in the departmental proceeding was of witnesses other than the complainant and each of these witnesses, as explained by the learned counsel for the petitioner, had deposed on the basis of what they had purportedly heard. There is no direct evidence to support the allegation as mentioned in the charges, against the petitioner. 14. The contention of the learned counsel for the respondents that strict adherence to the provisions of the Evidence Act is not required in departmental proceeding even if accepted, yet such liberty would not extend to the total elimination of the basic principles of the Evidence Act which are based on the principles of equity and natural justice. It is one of the basic principles of evidence that a charge has to be proved by direct evidence or by some such evidence which has got a definite bearing and relevance upon the fact in issue. Reliance entirely on hear-say evidence cannot be made to draw any inference of guilt against the delinquent employee in the departmental proceeding on the ground that the Rules of Evidence Act does not need to be strictly adhered to in the departmental proceeding. 15. Reliance entirely on hear-say evidence cannot be made to draw any inference of guilt against the delinquent employee in the departmental proceeding on the ground that the Rules of Evidence Act does not need to be strictly adhered to in the departmental proceeding. 15. As it appears from the enquiry report, the Enquiry Officer has drawn inferences entirely on the basis of hear-say statements of witnesses and on the basis of conjectures and surmises. It has to be deemed therefore that the finding recorded by the Enquiry Officer is virtually based on no evidence and therefore is perverse and contrary to the weight of evidence on record. 16. It appears from the impugned order of the Disciplinary Authority and that of the Appellate Authority, that while passing the impugned orders, the concerned authorities have ignored these aspects in the enquiry report and have merely adopted the findings of the Enquiry Officer without application of judicial mind. 17. The claim of the petitioner that the non-examination of the complainant in the departmental proceeding has caused serious prejudice to him, finds support from the fact that such examination of the complainant at the criminal trial had accrued the benefit of acquittal to the petitioner in view of the fact that the complainant herself did not support the allegations on which the charge was based. 18. Considering the fact that the charges in both the proceedings were one and the same and the finding in the criminal trial had declared the acquittal of the petitioner from the charges, the benefit of such acquittal has necessarily to be given to the petitioner. Even though the final decision in the criminal trial came much later, i.e. after the orders passed in the departmental proceeding, yet, since the order is presently under challenge before this Court, the order of acquittal cannot be ignored in the light of the guidance given by the Supreme Court in the various judgements referred to by the learned counsel for the petitioner. 19. The authority who had passed the impugned order (Annexure-9) on the petitioner’s representation for review of the earlier decision of termination and for the petitioner’s reinstatement, has apparently not considered the grounds advanced by the petitioner in proper perspective particularly, the ground relating to the petitioner’s acquittal in the criminal trial on the same set of charges. 20. 19. The authority who had passed the impugned order (Annexure-9) on the petitioner’s representation for review of the earlier decision of termination and for the petitioner’s reinstatement, has apparently not considered the grounds advanced by the petitioner in proper perspective particularly, the ground relating to the petitioner’s acquittal in the criminal trial on the same set of charges. 20. For the reasons discussed above, I find merit in this writ application. Accordingly, the same is allowed. The impugned order of termination (Annexure-5) and the impugned order of dismissal of petitioner’s appeal (Annexure-7) as also the impugned order (Annexure-9) by which the petitioner’s representation for review of the earlier orders was rejected, are hereby quashed. The petitioner is entitled to his reinstatement in service. 21. Learned counsel for the petitioner prays for a further relief for back wages. This relief cannot be granted in view of the fact that there is no pleading on the part of the petitioner that during the entire period of his remaining out of service, he was not gainfully employed elsewhere. As such, no order is passed on the petitioner’s claim for back wages. However, the petitioner shall be treated to be in continuous service from the date of his termination till the date of his reinstatement. With these observations, this writ application is disposed of.