Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 1567 (JHR)

Nawal Kishore v. State of Jharkhand

2012-11-01

JAYA ROY, PRAKASH TATIA

body2012
Order Heard learned counsel for the parties. 2. L.P.A. No. 208 of 2010 has been preferred by the State of Jharkhand to challenge the impugned Judgment of learned Single Judge dated 02.12.2009, passed in W.P.(S) No. 3878 of 2004, by which the learned Single Judge has set aside the order of dismissal of the petitioner dated 4.5.2003, annexure-13 to the writ petition. However, the learned Single Judge has not allowed the back wages to the writ petitioner. L.P.A. No.235 of 2012 has been preferred by the writ petitioner as learned Single Judge has denied back wages to the writ petitioner and, therefore, by this L.P.A., seeking for back wages. 3. The brief facts of the case are that the petitioner was posted as In-charge of Ramgarh Police Town Hall Post. On 11.08.2001, he received a written report submitted at the Ramgarh Police Project Town Hall by one Santosh Vishwakarma containing certain allegations against one Priya Ranjan Pandey. The petitioner forwarded the said written report to the Ramgarh Police Station for registration of a case and he himself assumed charge to investigate into the said case. The case was registered as Ramgarh P.S. Case No. 227 of 2001, dated 12.08.2001 for the offence under Sections 341, 323 and 379/34 of Indian Penal Code. The petitioner proceeded to investigate into the matter and arrested the accused and recorded the statements of witnesses and after completing the investigation, he submitted charge-sheet. The cognizance was taken by the Chief Judicial Magistrate, Hazaribagh on the basis of the said charge-sheet and case was transferred to the Trial Court for trial. Subsequent to that, on 21.09.2001, the Superintendent of Police, Hazaribagh directed for further investigation and a further Police Report was submitted in the said case on 31.01.2002, declaring that the case was false. Finding this situation, accused submitted an application before the Trial Court for acceptance of the final report in view of the subsequent investigation report dated 31.01.2002. However, the Trial Magistrate rejected the said application on the ground that further investigation was conducted without prior permission of the Court. Aggrieved against the order of the Trial Court, a revision petition was preferred before the Sessions Judge, Hazaribagth which was dismissed by the learned Sessions Judge vide order dated 28.09.2002. 4. However, the Trial Magistrate rejected the said application on the ground that further investigation was conducted without prior permission of the Court. Aggrieved against the order of the Trial Court, a revision petition was preferred before the Sessions Judge, Hazaribagth which was dismissed by the learned Sessions Judge vide order dated 28.09.2002. 4. Accused Priya Ranjan Pandey filed a case against the petitioner which was registered as Sadar P.S. Case No. 402 of 2002 for the offence under Sections 323, 325, 341 and 379/34 of Indian Penal Code. Upon investigation, the said case was found to be false and a Final Report was submitted accordingly. Accused Priya Ranjan Pandey thereafter, filed several complaints against the petitioner which, however, were found to be false and it was observed that those complaints were filed only to harass the petitioner and to implicate him falsely. 5. Meanwhile, soon after the petitioner had submitted the charge-sheet in Ramgarh P.S. Case No.227 of 2001, the then Superintendent of Police, Hazaribagh, by his impugned order dated 15.08.2001, served a charge sheet upon the petitioner with order of suspension. The matter before us is the order of punishment passed in the Departmental Proceedings of dismissal of the petitioner from service in the above facts of the case. 6. The allegations levelled against the petitioner were that because of inimical relation of the accused with petitioner's son,Ramgarh P.S. case no. 227 of 2001 was registered by the petitioner and in one day only, investigation was completed and challan was submitted by the petitioner without following the Departmental procedure of taking assistance for arresting the accused who is living within territorial jurisdiction of other police station. The petitioner arrested the accused of the said case thereby the petitioner acted revengefully and exceeded his authority. The allegation is that he assumed charge of investigation of the case despite the fact that his son had inimical relation with the accused. On the basis of the above allegations, the Departmental proceeding was initiated against the petitioner and an enquiry was conducted wherein witnesses were examined. However, the petitioner did not choose to appear in the said proceedings, therefore, he could not get the opportunity of hearing and to cross-examine the witnesses. The enquiry report was submitted before the Disciplinary Authority/Appointing Authority i.e., D.I.G., Police. However, the petitioner did not choose to appear in the said proceedings, therefore, he could not get the opportunity of hearing and to cross-examine the witnesses. The enquiry report was submitted before the Disciplinary Authority/Appointing Authority i.e., D.I.G., Police. The D.I.G. Police, by his order dated 28.01.2002, set aside the enquiry and directed for conducting a de novo enquiry. Undisputedly, no de novo enquiry was conducted but according to the learned counsel for the State, de novo enquiry was not conducted because of the reason that the said direction of the Disciplinary Authority of de novo enquiry was not approved by the superior officer, i.e., Additional D.G., Police and, therefore, there was no question of any de novo enquiry. In view of the above, original enquiry was acted upon and the Disciplinary Authority issued a show-cause notice to the petitioner as to why the petitioner may not be dismissed from the service on the basis of the findings recorded in the enquiry report. The petitioner submitted reply to the show-cause notice. After careful consideration of reply of the petitioner, the order of dismissal of service was passed by the Disciplinary Authority. 7. Being aggrieved against the order of Disciplinary Authority dated 04.5.2003, the petitioner preferred a statutory appeal before the Appellate Authority. The Appellate Authority instead of considering the material on record, directed for further enquiry by the D.I.G., Police(Wireless). The D.I.G., Police-(Wireless), gave the report in favour of the petitioner. However, the D.I.G., Police directed another officer, the Additional D.G., Police to make further inquiry. The Additional D.G., Police reported against the present petitioner. The Appellate Authority accepted the report of the Additional D.G., Police and dismissed the appeal preferred by the petitioner-appellant. Hence, the petitioner, being aggrieved against the order passed in the Departmental proceeding of his dismissal as well as of his suspension, preferred the writ petition which has been allowed by the judgment of learned Single Judge dated 02.12.2009. 8. According to learned counsel for the State Mr. A. Allam, the charges, levelled against the petitioner, are of grave nature. It is submitted that petitioner's son had inimical relation with the accused Priya Ranjan Pandey. In spite of this fact, the petitioner obtained the false report from complainant Santosh Vishwakarma and sent the said report to Ramgarh Police Station where the case was registered being Ramgarh P.S. Case No. 227 of 2001 on 12.8.2001. It is submitted that petitioner's son had inimical relation with the accused Priya Ranjan Pandey. In spite of this fact, the petitioner obtained the false report from complainant Santosh Vishwakarma and sent the said report to Ramgarh Police Station where the case was registered being Ramgarh P.S. Case No. 227 of 2001 on 12.8.2001. The petitioner, knowing it well that his son had inimical relation with the accused, took the charge of investigation, arrested the accused of case no. 227 of 2001 and completed the investigation in one day. This fact cannot be denied by the petitioner that he, without informing his superior and to the concerned Police Station of the area where accused was found, completed the investigation in one day and submitted charge-sheet against the accused. The said case was found to be false in subsequent investigation and police report was submitted before the Trial Court on 31.01.2002. It is also not in dispute that the petitioner arrested the accused of the Ramgarh P.S. Case No. 227 of 2001 by going into territorial jurisdiction of another police station and without informing the higher authority and without taking help of local police of that area which clearly indicates that the petitioner has acted mala-fidely and abused the power and authority both. In these facts and circumstances, the writ Court should not have interfered in the Disciplinary proceeding as well as in the punishment imposing dismissal from service. 9. Learned counsel for the State Mr. A. allam, relied upon a Judgment of Hon'ble Supreme Court delivered in the case of State of Meghalaya and others Vrs. Mecken Singh N. Marak reported in (2008) 7 SCC 580 wherein the scope of judicial review has been considered in the matter of disciplinary proceeding. Learned counsel for the State also submitted that the learned Single Judge has rightly applied the principle of 'no work no pay' in the facts of the case and rightly denied the back wages to the petitioner. 10. Learned senior counsel for the petitioner, Shri P.K. Sinha, vehemently submitted that none of the findings recorded by the learned Single Judge with grave violation of principle of natural justice have been specifically assailed by the State in the present L.P.A. Rather to say, all the findings recorded by the learned Single Judge stand admitted and if not stand admitted, then stand fully proved from the facts of the case. It is submitted that the principle of 'no work no pay' cannot be applied to the facts of this case in view of the statutory rule i.e., Rule 97 of Jharkhand Service Code, 2001 wherein in sub-rule (2) it has been specifically provided that where the authority mentioned in sub-rule (1), is of opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified; the Government servant shall be given full pay and allowance to which he would have been entitled has he not been dismissed, removed or suspended, as the case may be. It is also submitted that a Constitutional Bench of Hon'ble Supreme Court in the case of Arjun Chaubey Vrs. Union of India and others reported in (1984) 2 SCC 578 has held that full back wages to the delinquent officer can be allowed upon finding that order of punishment cannot be sustained. The senior counsel for the petitioner also relied upon a judgment delivered in the case of Devendra Pratap Narain Rai Sharma Vrs. State of Uttar Pradesh and others reported in AIR 1962 SC 1334 in support of the said contention. 11. We considered the submissions of the learned senior counsel for the parties and perused the facts of the case. It is not in dispute that the Ramgarh P.S. case no. 227 of 2001 was registered on the information given by the complainant Santosh Vishwakarma against one Priya Ranjan Pandey. This information was submitted at Ramgarh Police Project Town Hall P.S. which was under the Ramgarh P.S. Petitioner forwarded this written information to Ramgarh Police Station which was registered as Ramgarh P.S. Case No. 227 of 2001 on 12.8.2001 for the commission of offence under Sections 341, 323 and 379/34 of Indian Penal Code. The contention of the learned counsel for the State was in different way when he stated that the petitioner assumed charge of investigation whereas admittedly, the officer-in-charge of Ramgarh P.S. endorsed the investigation of the case to the petitioner. The petitioner completed investigation and submitted a charge-sheet before the Trial Court, who took cognizance and as per the fact stated and taken note in the impugned judgment itself, the Trial Court proceeded and recorded the statement of the informant Santosh Vishwakarma and another witness Sudhir Kumar. The petitioner completed investigation and submitted a charge-sheet before the Trial Court, who took cognizance and as per the fact stated and taken note in the impugned judgment itself, the Trial Court proceeded and recorded the statement of the informant Santosh Vishwakarma and another witness Sudhir Kumar. Without waiting any decision in the said case and even after rejection of further investigation report and rejection of dropping of criminal case by the Trial Court and rejection of the revision petition against the said Trial Court's order rejecting prayer of dropping the criminal case, the Departmental proceeding was initiated against the petitioner. Another fact which goes to the root of the matter is that enquiry was conducted wherein admittedly, the petitioner did not choose to appear but when the enquiry report was submitted before the Disciplinary Authority, the Disciplinary Authority vide its order dated 28.1.2002 set aside the enquiry report and directed for de novo enquiry. Admittedly, de novo enquiry was not conducted and, therefore, there is substance in the plea of the petitioner that if there would have been second enquiry, the petitioner would have been given the opportunity of hearing and to cross-examine the witnesses which he could not get in earlier enquiry. Once, the enquiry report was set aside by the Disciplinary Authority it could not have been set at naught by any higher authority as such power is not to even the higher authority in Department. Learned Single Judge, therefore, was right in holding that in view of setting aside the first enquiry report, when no second enquiry was conducted, then the principle of natural justice was fully violated, In addition of the above, we are of the considered opinion that after setting aside the enquiry report by the Disciplinary Authority vide order dated 28.01.2002, there was no enquiry report in the eye of law and, therefore, on this ground alone, the petitioner could not have been punished without any enquiry. 12. In addition to above, the Appellate Authority committed grave error of law and started for fresh enquiry and proceeded to enquire the matter afresh by assigning enquiry to the D.I.G. Police(Wireless). When this report came in favour of the petitioner, he adopted another strange procedure of obtaining another report from Additional D.G., Police who submitted report against the writ petitioner. In addition to above, the Appellate Authority committed grave error of law and started for fresh enquiry and proceeded to enquire the matter afresh by assigning enquiry to the D.I.G. Police(Wireless). When this report came in favour of the petitioner, he adopted another strange procedure of obtaining another report from Additional D.G., Police who submitted report against the writ petitioner. Then, the Appellate Authority committed further error of law and rejected the report of the D.I.G., Police which was in favour of the writ petitioner without assigning any reason and accepted the adverse report submitted by Additional D.G., Police. In addition to above illegality, the appellate Authority also passed a non-speaking order of rejection of appeal. 13. There is further ground of the petitioner that the petitioner was not given opportunity of hearing by the Appellate Authority for which learned counsel for the State has submitted that neither the petitioner demanded for further hearing nor he raised such ground which he could have raised in further appeal in the statutory provision applicable to the petitioner for Departmental proceeding. 14. We are of the considered view that even if we would not consider the ground taken by the writ petitioner of opportunity of hearing by Appellate Authority even then the appellate order cannot be sustained for the reasons mentioned above which have also been considered carefully by learned Single Judge in detail. In view of the above reasons, we are of the considered opinion that there was no option but to set aside the order of the dismissal of the petitioner from service and rightly so has been done by the learned Single Judge. 15. So far as the judgment of Hon'ble Supreme Court delivered in the case of State of Meghalaya and others Vrs. Mecken Singh N. Marak is concerned, there is no quarrel with ratio laid down by the Hon'ble Supreme Court pointing out limitation within which only the Court can interfere in the order passed in the Disciplinary proceeding and writ Court cannot as Appellate Court over the Disciplinary Authority. However, in this case, there was no procedure followed and there was no enquiry in the eye of law on the basis of which the petitioner could have been punished. There was grave violation of natural justice in Departmental enquiry as well as by the Appellate Authority. However, in this case, there was no procedure followed and there was no enquiry in the eye of law on the basis of which the petitioner could have been punished. There was grave violation of natural justice in Departmental enquiry as well as by the Appellate Authority. In view of the above, we are of the considered opinion that there is no merit in this L.P.A. preferred by the State. 16. In the facts of the case, we are of the considered opinion that principle of 'no work no pay' cannot be applied in the fact situation where the petitioner being a Government servant holding public post was denied the work of the post because of the act of the respondent and in view of Rule 97 (2) of Jharkhand Service Code, 2001 as well as in view of the judgment of Hon'ble Supreme Court delivered in the case of Devendra Pratap Narain Rai Sharma Vrs. State of Uttar Pradesh and others (supra) and in the case of Arjun Chaubey Vrs. Union of India and others(supra), we are of the considered opinion that the petitioner is not only entitled to the reinstatement but also to full back pay on the basis of the salary last drawn by him without taking into account the increments which he might have earned subsequent to that date but if there is pay revision then that pay revision will be allowed. The petitioner shall also be entitled to all other consequential benefits. The respondents are directed to reinstate the petitioner without any delay. The arrears of payment may be calculated and be paid to the petitioner within a period of three months from the date of receipt of a copy of this order. 17. Accordingly, L.P.A. No. 208 of 2010 preferred by the State is dismissed and L.P.A. No.235 of 2012 preferred by the petitioner is allowed. However, no order as to costs.