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2012 DIGILAW 344 (JHR)

Md. Harun Rasid v. State of Jharkhand

2012-03-06

P.P.BHATT

body2012
Judgment: P.P. Bhatt, J. Heard the learned counsel for the petitioner as well as the learned counsel for the respondent-State and perused the materials on record. 2. Petitioner, by way of filing this writ petition, under Article 226 of the Constitution of India, has prayed for quashing/setting aside the District Order No.1991/02, dated 26.10.2002, passed by the Superintendent of Police, Dhanbad, whereby the increment for two years of the petitioner has been stopped and it has been directed that during the period of suspension the petitioner will not be entitled for anything save and except which is payable in the period of suspension, as contained in Annexure-6. It is further prayed for setting aside the order of Deputy Inspector General of Police, Koyala Chetra, Bokaro, as contained in Memo No.1087, dated 1.8.2003, whereby the appeal preferred by the petitioner has been rejected, as contained in Annexure-8. 3. The facts of the case, leading to the present writ petition, in short, are that while the petitioner was posted in Govindpur (Barwadda) police station and on the duty of patrolling on 15.9.2000, in course of duty, being discharged by the petitioner, an FIR was lodged against the petitioner and five others being Govindpur (Barwadda) P.S. Case No.260/2000 dated 16.9.2000 under Section 302 of the Indian Penal Code, wherein it was alleged that one Tek Lal Mahto, driver of Tanker No.BHO-5830 along with khalasi (informant) was going from his village to Kaowa Banda. As soon as the alleged vehicle reached at G.R. Road, the police patrolling party gave signal to stop his vehicle but the driver of the vehicle did not stop his vehicle rather he speeded up. Thereafter the patrolling party chased the vehicle and got the same stopped at Jorapipar in front of G.T. Road. The patrolling party pulled the driver down on the road and started assaulting him with the butt of the rifle and boots. An officer was also sitting on the patrolling jeep and he was provocating to kill the driver as he did not stop the vehicle for Rs.50/-. Thereafter it is said that the police patrolling party brutally assaulted the driver as a result whereof he died on the spot. Thereafter the petitioner was suspended on 16.9.2000 by District Order bearing No.3100/2000. Consequently, memo of charges was also issued to the petitioner on 9.3.2001 on the same set of allegation, as alleged in the aforesaid FIR. Thereafter it is said that the police patrolling party brutally assaulted the driver as a result whereof he died on the spot. Thereafter the petitioner was suspended on 16.9.2000 by District Order bearing No.3100/2000. Consequently, memo of charges was also issued to the petitioner on 9.3.2001 on the same set of allegation, as alleged in the aforesaid FIR. Thereafter in pursuance of the aforesaid FIR, a full fledged trial was conducted by the competent criminal court, in which the petitioner was finally acquitted by judgment and order dated 3.5.2002, passed in Sessions Trial No.100/2002. Simultaneously, departmental proceeding was also conducted against the petitioner. Enquiry officer submitted his enquiry report, whereby petitioner was found guilty of the charges levelled against him as per enquiry report dated 30.6.2002. On the basis of the said enquiry report (Annexure-5), the Superintendent of Police, Dhanbad, being the disciplinary authority, vide its order dated 26.10.2002, has stopped two increments of the petitioner, which is equivalent to 3 Black mark, as also that the petitioner will not be entitled for anything save and except what was paid to him during the period of suspension, namely, subsistence allowance (Annexure-6). Being dissatisfied and aggrieved by the said order, petitioner preferred departmental appeal before the Deputy Inspector General of Police, Koyla Chetra, Bokaro. The appellate authority i.e. the Deputy Inspector General of Police, rejected the appeal vide its order dated 1.8.2003 (Annexure-8). Thereafter, being aggrieved and dissatisfied with the aforesaid orders, petitioner has preferred the present petition mainly on the following grounds: (i) that the entire departmental proceeding including the order of the disciplinary authority as also the appellate authority were passed in clear contravention of principles of natural justice; (ii) that there were two witnesses examined in course of departmental proceeding and the petitioner was not given an opportunity to cross-examine the witness, namely, Tinku alias Shamim, who incidentally was one of the P.Ws before the competent criminal court and informant in that case and it has seriously prejudiced the case of the petitioner; (iii) that the penalty, imposed by the impugned orders, is excessive and disproportionate to the charges levelled against him, as also the materials available on record. This is so because if the depositions of two witnesses, as deposed before the enquiry officer, are perused, it would be evident that it did not at all support the charges levelled against the petitioner. This is so because if the depositions of two witnesses, as deposed before the enquiry officer, are perused, it would be evident that it did not at all support the charges levelled against the petitioner. Tinku alias Shamim stated before the enquiry officer, while he was examined, that the driver of the tanker was in a complete drunken state, which resulted into death of the driver; (iv) that exactly for the same set of allegation, a full fledged trial was conducted by the competent criminal court and once the petitioner has been given clean chit in the said criminal case by judgment of acquittal dated 3.5.2002, it was all the more necessary for the disciplinary authority not to take different view, in the facts ad circumstances of the case. 4. In support of the aforesaid various grounds, the learned counsel for the petitioner submitted that it is settled principle of law that disciplinary proceeding and criminal case stand at two different footings and once a person has been acquitted in a criminal case, on those grounds he cannot be exonerated from the departmental proceeding. However, it is also a settled principle of law that if the allegation levelled in the criminal case as also in the departmental proceeding, witnesses examined in the criminal case and the departmental proceeding and all the materials in both the proceeding were exactly same and identical, the disciplinary authority should restrain itself to punish the delinquent, if he has been finally acquitted in the criminal case. It is submitted that the disciplinary authority as well as the appellate authority have failed to consider this very material aspect of law. It is also submitted that the present petitioner has raised all these issues before the appellate authority in his appeal memo but the appellate authority without assigning any reason rejected the appeal and therefore, the orders, passed by the disciplinary authority as well as the appellate authority, are required to be quashed and set aside by this Court. 5. As against that, the learned counsel appearing for the respondent-State, while referring counter-affidavit filed by the respondent Nos. 2 & 3, submitted that the appellate authority, after going through the entire records of the departmental proceeding, has rejected the appeal of the petitioner and as such, the contention raised by the petitioner is disputed and therefore denied. 5. As against that, the learned counsel appearing for the respondent-State, while referring counter-affidavit filed by the respondent Nos. 2 & 3, submitted that the appellate authority, after going through the entire records of the departmental proceeding, has rejected the appeal of the petitioner and as such, the contention raised by the petitioner is disputed and therefore denied. It is further submitted that the petitioner has been given sufficient opportunity to defend his case and as such, there is no violation of the principles of natural justice. It is also submitted that from the enquiry report itself, it appears that a notice has also been given to the petitioner for cross-examination of these two witnesses but in spite of the said notice, the petitioner has not cross-examined the concerned witnesses. It is further submitted that the enquiry officer, after thorough enquiry, found the petitioner guilty of all the charges levelled against him. It is also submitted that it is a settled law that even in a case of acquittal departmental proceeding can be initiated because both are separate proceedings and not co-related to each other and it is also submitted that the charges levelled against the petitioner in the departmental proceeding are quite different from the charges levelled against him in the criminal case, because as per the memo of charge it appears that the departmental proceeding was initiated for the charges of indiscipline, dereliction of duties, carelessness and unbecoming of a disciplined Armed Force, whereas the First Information Report in the said criminal case was registered under Section 302 of the Indian Penal Code. Therefore, it is lastly submitted that there is no merit in this writ petition filed by the petitioner and this Court while exercising power under Section 226 of the Constitution of India should not entertain such writ petition, as the scope of judicial review is very narrow in the light of principle laid down by the Hon’ble Apex Court in this regard as there are concurrent findings of fact. 6. 6. Considering the aforesaid rival submissions and on perusal of the records, it appears that the petitioner, by way of filing the present petition, has challenged the order, passed by the disciplinary authority, imposing penalty for stoppage of two increments, for the period of two years, as also the order, passed by the appellate authority, which has confirmed the order, passed by the disciplinary authority, while rejecting the appeal filed by the present petitioner, mainly on the ground, referred to hereinabove, i.e. (i) violation of principles of natural justice (ii) factum of acquittal in a criminal case has not been considered by the disciplinary authority as well as the appellate authority and (iii) penalty imposed by the authority is disproportionate to the charges levelled against him. 7. I find substance in the argument advanced by the learned counsel appearing for the State that scope of judicial review in such matter is very narrow and in fact, there are concurrent findings of fact recorded by the disciplinary authority as well as the appellate authority; however, on perusal of the order, passed by the appellate authority, it appears that the appellate authority, while dealing with the appeal, filed by the present petitioner, recorded the submissions on the basis of appeal memo submitted by the present petitioner and thereafter, by stating in one line, that on receiving the para-wise remarks from the Superintendent of Police, Dhanbad and on perusal of the departmental enquiry report and order passed by the disciplinary authority, it was found that there is no substance in the appeal and the conduct of the officer is not befitting to the personnel of police force, passed the order rejecting the appeal preferred by the present petitioner. 8. The submission made by the learned counsel for the petitioner regarding non-consideration of findings recorded in the order for acquittal by the disciplinary as well as appellate authority though the charge and material was the same in both the proceedings cannot be accepted as the charge in departmental proceeding was different than the criminal case. Moreover, both the proceedings are independent proceedings and it cannot be co-related simplicitor. 9. Moreover, both the proceedings are independent proceedings and it cannot be co-related simplicitor. 9. On perusal of the orders, passed by the disciplinary authority as well as the appellate authority, it transpires that various contentions raised by the petitioner have been taken note of and dealt with by the disciplinary authority as well as the appellate authority and upon careful consideration of the order with regard to stoppage of two increments for a period of two years passed by the disciplinary authority, the said order has been affirmed by the appellate authority while rejecting the appeal. I find substance in the argument advanced by the learned counsel for the State that the departmental proceeding and the proceeding in criminal case are two different and distinct proceedings and therefore, the same cannot be correlated to each other and it is pertinent to mention here that the charges, levelled against the petitioner in the departmental proceeding are quite different from the charges levelled against him in the criminal case, because as per the memo of charge it appears that the departmental proceeding was initiated for the charges of indiscipline, dereliction of duties, carelessness and unbecoming of a disciplined Armed Force, whereas the First Information Report in the said criminal case was registered under Section 302 of the Indian Penal Code. 10. Considering the scope of judicial review, as discussed in various judgments of the Hon’ble Apex Court, including the judgment, reported in (1995) 6 Supreme Court Cases 749, where the findings of disciplinary authority/appellate authority are based on some evidence, this Court cannot re-appreciate the evidence and substitute its own finding and cannot interfere with the findings of fact based on evidence and substitute its own independent finding. 11. Having regard to the facts and circumstances of the present case, this writ petition is deserved to be rejected. Accordingly, it is dismissed.