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2010 DIGILAW 568 (JHR)

Soni Devi v. State of Jharkhand

2010-05-05

D.G.R.PATNAIK

body2010
JUDGMENT : By Court.-Heard the learned counsel for the parties. 2. Challenge, in this writ application, is to the order dated 31.10.2001 (Annexure-3) passed by the petitioner's Disciplinary Authority, whereby the petitioner has been dismissed from service. Challenge also is to the order dated 9.12.2002 (Annexure-4), passed by the Appellate Authority, whereby the Appeal preferred by the petitioner against the impugned order of dismissal was rejected. 3. As per the admitted facts of the present case, the petitioner was appointed on the post of Constable in the State Police Service. In the appointment letter, it was stipulated that in the event, the testimonials relating 'to the educational qualification and other qualifications, if found incorrect, false or fake, the appointment is liable to be terminated even - without issuance of notice. 4. Be that as it may, though at the time of the petitioner’s appointment, no preliminary verification of the testimonials, given by her was made but she was allowed to discharge her duties. Some time in the year 1998, some complaints were received against the petitioner to the effect that the certificates in respect of the educational qualifications which she had submitted at the time of her appointment were take. A preliminary enquiry was conducted and thereafter, a departmental proceeding was initiated against her, A memorandum of charge was served upon the petitioner, calling upon her to offer here explanations. The explanations submitted, was not found satisfactory, and the departmental proceeding was commenced in the departmental proceedings several witnesses were examined by the prosecution and the petitioner was given opportunity to participate and to defend her case. As it appears, amongst witnesses examined by the prosecution, were two persons, who had admittedly held the post of the Principal of the School from where the petitioner had claimed to have obtained her School Leaving Certificate. The Enquiry Officer, after considering the evidences had recorded his finding that the charge against the petitioner was proved and had submitted his report on such findings. The Disciplinary Authority, on the basis of the enquiry report, issued a second show-cause notice to the petitioner offering her a copy of the enquiry report and thereafter, upon receiving her replies, proceeded to recorded the impugned order terminating the services of the petitioner. The petitioner, thereafter preferred an Appeal against the impugned order of her termination, which was dismissed by the Appellate Authority. 5. The petitioner, thereafter preferred an Appeal against the impugned order of her termination, which was dismissed by the Appellate Authority. 5. It may be relevant to note here that on identical charges, a criminal case was also instituted against the petitioner. The criminal case however, ended in the petitioner acquittal. 6. Assailing the impugned orders, learned counsel for the petitioner would raised the following grounds:- (i) The findings of the enquiry officer in the disciplinary proceedings are perverse inasmuch as, the enquiry officers has traveled beyond his jurisdiction while referring to and relying upon extraneous matters including the case diary, which was submitted in the criminal proceedings. Learn counsel would explain that the copy of the case diary on which the enquiry officer had relied upon, was never supplied to the petitioner, nor was she given an opportunity to examine the officer, who had recorded his findings in the case diary of the criminal case. In this context, learned counsel would refer to and rely upon the jugdment of the Supreme Court in the case of Roop Sing Negi vs. Punjab National Bank and others reported in (2009)2 SCC 570 and also an another jugdement in the case of Narinder Mohan Arya vs. United India Insurance Co. Ltd and others, reported in (2006)4 SCC 713 . (ii) The findings of the Enquiry Officer is perverse also in view of the fact such findings are against the weight of evidence on record. Learned counsel explains that though two persons, claiming themselves to be the Principals of the School, were examined, whereas, one of them has deposed that there was no document in the office of the School on the basis of which it could be confirmed as to whether the School Leaving Certificate produced by the petitioner was issued by the School at all. This evidence would amply demonstrate that there were no records available in the School in order to deny or dispute the petitioner’s claim that the School Leaving Certificate is genuine or otherwise. This evidence would amply demonstrate that there were no records available in the School in order to deny or dispute the petitioner’s claim that the School Leaving Certificate is genuine or otherwise. Yet, according to the learned counsel, the reliance placed by the Enquiry Officer on the statement of the other Principal that the records were available in the office of the School and such records did hot confirm the issuance of any such certificate as produced by the petitioner, is totally 'illegal in view of the fact that the Enquiry ,Officer appears to have suffered from' bias against the petitioner by accepting such ,evidence, which was against the petitioner and deliberately ignoring the evidence which was in favour of the petitioner. Such findings, according to the learned counsel, is in violation of the principles, of natural justice. (iii) The impugned, order of the Disciplinary Authority and that of the Appellate Authority are' also perverse and not in consonance with the requirements of the procedural law, inasmuch as both the Disciplinary Authority as also the Appellate Authority, have apparently adopted the findings of the Enquiry Officer without discussing the evidence on record and without recording their own observations and findings on the same. This, the learned counsel argues, is also in violation of the principles of natural justice. In support of his contention, learned counsel would refer to and rely upon the judgment of the Supreme Court in the case of G. Vallikumari Vs. Andhra Education Society reported in (2010) 2 SCC 497 . (iv) The Disciplinary Authority has grossly erred in failing to consider that upon identical charges, the petitioner was subjected to criminal prosecution but she was not convicted for any such charge. Rather, she has secured her acquittal from the criminal court. This, according to the learned counsel" ought to have been considered by the Disciplinary Authority. 7. (iv) The Disciplinary Authority has grossly erred in failing to consider that upon identical charges, the petitioner was subjected to criminal prosecution but she was not convicted for any such charge. Rather, she has secured her acquittal from the criminal court. This, according to the learned counsel" ought to have been considered by the Disciplinary Authority. 7. Refuting, and denying each of the grounds advanced by the petitioner, learned counsel for the Respondent would submit the following replies:- (i) In respect of the petitioner's contention that the Enquiry Officer and the Disciplinary Authority had relied upon extraneous matters, namely, the recordings in the case diary of the criminal proceedings, it is replied that the Enquiry Report as also the impugned order of the Disciplinary Authority would categorically demonstrate that though reference was made to the observations recorded in some portions of' the case diary pertaining to the criminal case, but such reference in itself,- did not constitute the ultimate findings on the charges against the petitioner. Reading out the relevant paragraphs of the Enquiry Report and the impugned order of the Disciplinary Authority, learned counsel would want to inform that the Enquiry Officer as also the Disciplinary Authority have considered the material evidences available on record and it is on the basis of such other evidences that the findings of guilt against the petitioner has been record. Learned counsel argues that the petitioner cannot say, therefore, that the findings have been exclusively influenced by the reference to the extraneous materials. (ii) Regarding the petitioner's contention that the Enquiry' Officer has committed a serious error in relying upon the evidence of one of the Principals of the School and has ignored the .evidence of the other, it is explained that the evidence of one of the Principals, who has stated that the documents were not available in the office of the School, could not throw any light on the relevant issue relating to the genuineness or otherwise of the School Leaving Certificate. On the other hand, the evidence of the other Principal, who 'has deposed on the basis of the documents ' available and produced, do have a little value, which could not possibly be ignored by the Enquiry Officer and therefore, the petitioner cannot find any fault on the reliance placed by the Enquiry Officer on the evidence of the other Principal. (iii) As regards the third ground that the Disciplinary Authority and the Appellate Authority have not applied their independent mind to the evidences collected in the disciplinary enquiry, learned counsel for the respondents informs by reading out the relevant portions of the impugned order of both the authorities, that the Disciplinary Authority has not only gone through the findings recorded by the Enquiry Officer but has also considered the evidences available on record and has recorded his observations that the evidences do confirm the proof of charge against the delinquent employee. (iv) As regards the last ground relating to the petitioner's acquittal in the criminal proceedings, learned counsel for the respondents would counter by explaining that the benefit of the acquittal in the criminal proceedings cannot be availed by the petitioner in view of the fact that such acquittal had to be passed by the criminal court in, absence of any evidence produced by the prosecution at all. Furthermore, the set of witnesses in the criminal prosecution and those in the departmental enquiry, were not the same. 8. I have heard the learned counsel for the parties and I have also gone through the documents available on record. 9. From perusal of the Enquiry Report, it appears that the Enquiry Officer has referred to the case diary recorded by the Investigating Officer in the criminal case, which was instituted against the Petitioner and has also noted down certain portions of the observations contained in the case diary, which was in substance, adverse to the petitioner. It also appears that besides" referring to the case diary, the Enquiry Officer has also considered the evidence of the witnesses, who were examined in the disciplinary proceedings. The findings of the Enquiry Officer, does not therefore, appear to be entirely or exclusively based on the observation's contained in the case diary of the criminal proceedings. Rather, such findings appear to have been based upon the evidence of the witnesses examined in the disciplinary enquiry. The plea of the petitioner that the findings of the Enquiry Officer, has been influenced by the reference to the extraneous materials, does not appear to be correct. In this view of the matter, the judgment relied upon by the petitioner in the case of Roop Singh Negi (supra) would not be applicable to the facts and circumstances of the present case. In this view of the matter, the judgment relied upon by the petitioner in the case of Roop Singh Negi (supra) would not be applicable to the facts and circumstances of the present case. As regards the petitioner's grievance that the Enquiry Officer has erred in ignoring the evidence of one of the Principals, I find that though one of the Principals has stated that no document was available in the office of the School, and that such evidence of the witness may suggest that there is no material to confirm the genuineness or otherwise of the disputed documents, but the evidence of the other witness, who is also admittedly, the Principal of the same School, does throw a significant light upon the issue, which was to be decided by the Enquiry Officer. The petitioner did have the occasion and opportunity to cross-examine the other Principal and to obtain evidence in her favour to deny or dispute the genuineness of the documents, which the witness has produced, while asserting the same to be the documents available in the office of the School. In absence of any material to suggest that the documents produced by the Principal on the basis of which, he was able to inform that no such certificate as was produced by the petitioner, was ever issued by the School, cannot be ignored and the Enquiry Officer cannot therefore, be faulted for having relied upon such testimony of the witness. As regards the third ground that the Disciplinary Authority and the Appellate Authority have not recorded their independent findings on the evidence on record, have gone through the impugned orders of the Disciplinary Authority and also that of the Appellate Authority and I find in the concluding Paragraph of the impugned order of the Disciplinary Authority, which was referred to, by the learned counsel for the respondents, that the Disciplinary Authority has• observed that he has gone through the evidences on record and he is' satisfied that the evidences are sufficient to prove the charge against the petitioner and therefore, he has concurred with the findings of the Enquiry Officer. 10. In the light of the facts and circumstances and the discussions made above, I do not find any merit in this writ application. Accordingly, this writ application is dismissed.