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2010 DIGILAW 381 (JHR)

Prafulla Kumar Jha v. State of Jharkhand

2010-03-26

DABBIRU GANESHRAO PATNAIK

body2010
JUDGMENT D.G.R. Patnaik, J. 1. Both these writ applications based on identical facts and common grounds, are taken up together for disposal. 2. Heard counsel for the petitioners and the counsel for the respondents. 3. The petitioner Prafulla Kumar Jha in WPS No. 140 of 2007 has prayed for quashing the order dated 24.7.2006 (Annexure-7), passed by the Disciplinary Authority whereby, the petitioner was terminated from service. Further prayer has also been made for quashing the order dated 14.11.2006 (Annexure-5), passed by the Appellate Authority whereby, the appeal preferred by the petitioner against the impugned order of the Disciplinary Authority, was dismissed. The petitioner Sanjay Kumar Singh in WPS No. 218 of 2007 has challenged the order dated 19.6.2006 passed by the Disciplinary Authority whereby, the petitioner's service was terminated. Challenge is also made to the order dated 12.9.2006 passed by the Appellate Authority whereby, the appeal preferred by the petitioner against the impugned order of the Disciplinary Authority, was dismissed. 4. Facts of the case of the petitioners in brief is as follows: Both the petitioners were posted as constables in the district of East Singhbhum at MGM Police Station at Jamshedpur. A departmental proceeding was initiated against them upon certain charges and on the accusation that on 12.11.2005, the Additional Superintendent of Police, Jamshedpur, in course of his search of the MGM Police Station Mobile Van on National Highway-33, in between Dimna-Belajudi, found the Mobile Van parked near Belajudi Kali Temple. The Additional Superintendent of Police saw ASI Ram Kumar Prasad standing behind the Mobile Jeep while Constables Prafulla Kumar Jha (Petitioner) and Ashok Kumar Chourasia were collecting money from drivers of trucks. Two other constables namely, constable Bahadur Singh and constable Sanjay Kumar Singh (Petitioner) were also standing nearby. It was alleged that though, these police personnel were assigned the duty of conducting investigation in respect of a case at Uuria Basti, but without being assigned any duty for checking vehicles, these petitioners along with the two other constables and the ASI were found stopping trucks and realizing money from the truck drivers. With these allegations, the Additional Superintendent of Police submitted a written complaint on 13.11.2005 to the Superintendent of Police. 5. The petitioners submitted their respective show-cause replies in response to the charges, but being not satisfied with the same, the departmental proceeding was initiated against them. With these allegations, the Additional Superintendent of Police submitted a written complaint on 13.11.2005 to the Superintendent of Police. 5. The petitioners submitted their respective show-cause replies in response to the charges, but being not satisfied with the same, the departmental proceeding was initiated against them. In the departmental proceeding, the statement of the complainant Sudhir Kumar Jha, Additional Superintendent of Police, was recorded upon his examination by the prosecution and cross-examination on behalf of the proceedees. 6. On the basis of the statements of the solitary witness, the Enquiry Officer recorded his findings that the charge stood proved against the proceedees. On the basis of the inquiry report, the Superintendent of Police being the Disciplinary Authority, issued second show-cause notice upon the petitioners to which, they responded by filing their show-cause replies, but being not satisfied with the same, the Disciplinary Authority by his impugned order, recorded the punishment of dismissal of the present petitioners from service. 7. The appeal preferred by the petitioners against the impugned order of their dismissal, was dismissed by the Appellate Authority by his order impugned. The impugned order of dismissal passed by the Disciplinary Authority and that of the Appellate Authority, have been challenged by the petitioners on the following grounds: i. The findings of the Inquiry Officer are perverse and based on conjectures and surmises and entirely on hearsay evidence and is also against the weight of evidence on record. ii. The Disciplinary Authority and the Appellate Authority have passed the impugned orders without application of mind in a most mechanical manner. iii. The punishment of dismissal from service is highly disproportionate to the charges and is also discriminatory in as much as, the other police constable namely, Mahendra Rai who was also found guilty of the charges, has been awarded a lesser punishment and the ASI, who is the superior officer with whom the petitioners were attached at the relevant time, has been left scot free. iv. Material witnesses including the drivers of the trucks from whom money was realized, have not been examined, nor has any complaint been filed by any such driver and neither the names of any driver, nor registration number of any truck which were allegedly stopped, was disclosed. 8. iv. Material witnesses including the drivers of the trucks from whom money was realized, have not been examined, nor has any complaint been filed by any such driver and neither the names of any driver, nor registration number of any truck which were allegedly stopped, was disclosed. 8. Elaborating the grounds, learned Counsel for the petitioners would submit that though, the Additional Superintendent of Police, on whose complaint the departmental proceeding was initiated, was examined but his evidence is entirely vague and unspecific. His statement does not confirm as to from whom did the petitioners realize money and what was the amount realized, if any and neither does he inform as to why, if he had at all seen the petitioners indulging in such acts of misconduct, did he not take any prompt action if he was present at the spot. No explanation has been offered by the witness as to why no written complaint was received or even oral complaint was obtained and recorded by him at the spot. Learned Counsel adds further that even as per the allegations, the petitioners were attached to the ASI as members of the patrolling party and the entire responsibility of the patrolling party was on the ASI who is supposed to be the immediate controlling authority of the petitioners and if the patrolling party had unauthorizedly indulged in acts which were not assigned as part of their duty, the entire responsibility was on the Assistant Sub Inspector. There is no reason assigned as to why the Assistant Sub Inspector has been totally exonerated from the charges. Likewise, there is no explanation as to why the other constable namely, Mahendra Rai, who is alleged to be present at the spot during the checking of the vehicles, has been left with a minor punishment of black mark. 9. Counsel for the respondents State, on the other hand, would refute the entire grounds advanced by the petitioners and submit that the inquiry against the petitioners was conducted in a fair and just manner and in which the petitioners were given reasonable and adequate opportunity of defending their cases. The finding of guilt against the present petitioners, as recorded by the Inquiry Officer, is based on the evidences of Senior Police Officer who is an eyewitness to the acts of misconduct of the petitioners. 10. The finding of guilt against the present petitioners, as recorded by the Inquiry Officer, is based on the evidences of Senior Police Officer who is an eyewitness to the acts of misconduct of the petitioners. 10. Upon hearing the counsel for the parties and considering the specific ground of the petitioners that the findings of the Inquiry Officer are perverse and based on hearsay evidence, I have gone through the Enquiry Report and the evidence of the witness. The gist of the statement of the witness is that on 12.11.2005, upon receiving telephonic instructions from the Superintendent of Police, he went in search of the MGM Patrolling Jeep on a private vehicle and he found the Patrolling jeep parked near the temple. He saw a few trucks parked by the side of the road. He claims to have seen the present petitioner Prafulla Kumar Jha and Constable Sanjay Kumar Singh collecting money from the truck drivers. Thereafter, he followed the patrolling jeep to the police station and made inquiries from the ASI and recorded his statement. Beyond the above statement, this witness has not informed the name or identity of any of the truck drivers from whom money was claimed to have been realized by the petitioners, nor the registration number of the trucks which were allegedly stopped by the petitioners. He is not able to inform as to why he has not obtained any written or oral complaint from any of the truck drivers. He is not able to inform as to what amount did the petitioners realize from any of the truck drivers. He is not able to inform as to why, he being the senior police officer of the rank of Additional Superintendent of Police, he did not take prompt action against the petitioners at the spot. He does not inform as to why no money was seized from the possession of the petitioners if they had realized any money from any of the truck drivers. He does not inform as to why no money was seized from the possession of the petitioners if they had realized any money from any of the truck drivers. If the senior police officer was at all present at the spot and had seen what he has claimed to have seen, then it was a logical and reasonable expectation of him that in exercise of his authority he would immediately arrest the delinquent police personnel and detain them, recover the extorted money from their possession, record a complaint of the truck drivers from whom money was allegedly extorted, note down their names and identity and also the registration numbers of the vehicles. The fact that he has not done any of such acts and has not offered any reasonable explanation for his failure to do so, would certainly lead to a reasonable inference that he was not present at the spot and if at all, he had seen from a distance some trucks parked by the roadside and the petitioners present near the trucks, he has inferred on the basis of conjectures and surmises that the police personnel were realizing money from the truck drivers. The cryptic evidence of the witness needs much to be answered and could not have been more vague in the context of the charges framed against the petitioners. Such evidence cannot be deemed sufficient by any stretch of inferences, except on the basis of conjectures and surmises, to hold that the petitioners had unauthorizedly stopped the vehicles on the road and were illegally realizing money from the truck drivers. The only inference which could be drawn on the basis of the evidence of this witness is that the escort party comprising of the constables including the present petitioners and headed by the ASI of Police, had committed acts of dereliction of duty in as much as, instead of proceeding to attend the assigned duty of investigation at Uuria Basti, they were found present at a totally different place for which they had not offered any explanation. The liability for such acts of dereliction of duty would therefore extend not only to the present petitioners, but to the entire team including the team leader ASI of Police and the other two constables. 11. The liability for such acts of dereliction of duty would therefore extend not only to the present petitioners, but to the entire team including the team leader ASI of Police and the other two constables. 11. The Inquiring Officer appears to have allowed himself to be persuaded by the statement of the senior police officer attaching undue weight to his evidence without considering the fact that even going by the entire evidence of the witness, no conclusive inference could be drawn that the petitioners had stopped any vehicle and had illegally realized money from any truck driver. There appears just and sufficient ground to hold that the findings of the Inquiry Officer are perverse, misconceived and not based upon unbiased and reasonable appreciation of evidence on record. 12. It is established principle of law that in the departmental proceeding, even though, the provisions of the Indian Evidence Act may not be called for strict application, but the basic principles of natural justice cannot be ignored. It is one of the basic principles of evidence that the charge has to be proved by direct evidence or such evidence which has a definite bearing and relevance to the facts and issue. It is also a Rule of law relating to proof of charge in the departmental proceeding the suspicion howsoever high, cannot be substitute for legal proof. The departmental proceeding is a quasi judicial proceeding and the Inquiry Officer performs a quasi judicial function. The Inquiry Officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties and the findings in respect of guilt or otherwise of the charges, should be recorded on the basis of the weight of evidence on record. 13. It appears from the impugned order of the Disciplinary Authority, as also that of the Appellate Authority that both the officers have accepted the findings of the Inquiry Officer in a mechanical manner without application of mind to the relevant issues raised by the petitioners in their respective show-cause replies / explanations that in absence of a definite and conclusive proof of the allegations that the petitioners had stopped vehicles and had realized money from the truck drivers, the findings of the Enquiry Officer are misconceived. The only act of misconduct which, even if taken into consideration and which if commonly applied to all the police personnel constituting the patrolling party including the group leader namely, the ASI and the constables attached with him is that they had committed dereliction of duty. If the acceptable portion of the evidence is to commonly apply to each and every member of the patrolling party and yet, the ASI can be exonerated from the charges and the other constable be given a lesser punishment, there was no reason why a different treatment should be given to the petitioners in the matter of punishment. 14. Considering the facts and circumstances of the case and in the light of the discussions made above, in my view, the punishment of dismissal of the petitioners from service is highly disproportionate to the nature of charges levelled against them and is harsh. The impugned orders of punishment as passed against the petitioners by the Disciplinary Authority and the impugned order passed by the Appellate Authority, are therefore hereby quashed. The matter is remitted back to the Disciplinary Authority for reconsideration on the quantum of punishment other than dismissal from service, to the same extent as awarded to the other constable namely, Mahendra Rai. Both the petitioners shall be entitled to be reinstated in service forthwith. The period between the date of their termination from service and the date of their reinstatement, shall be deemed as period spent on duty, for the purpose of computing their pension and other retiral benefits. However, in absence of any specific pleading that during this entire period they were not gainfully employed, the petitioners shall not be entitled to claim back wages. Both these writ applications are disposed of accordingly. Applications disposed of.