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2013 DIGILAW 1202 (JHR)

Prem Prakash v. State of Jharkhand

2013-11-11

SHREE CHANDRASHEKHAR

body2013
ORDER Challenging the penalty order dated 31.10.2012 and the appellate order dated 01.04.2013, the petitioner has approached this Court by filing the present writ petition. 2. The brief facts of the case are that, on 13.05.2005 the petitioner was appointed as a Constable. The petitioner was awarded Presidential Gallantry Award and thereafter he was granted out of turn promotion and was promoted on the post of Assistant Sub-Inspector of Police. On 27.03.2012, the petitioner was put under suspension. A charge-memo dated 17.04.2012 was served to the petitioner to which he submitted his reply however, it was found not satisfactory and therefore, a departmental enquiry was initiated in which three witnesses were examined by the department. The enquiry report dated 30.07.2012 was submitted holding the charge proved against the petitioner. By order dated 31.10.2012 penalty of forfeiture of increment for one year was passed by the disciplinary authority. The appeal preferred by the petitioner has been dismissed by order dated 01.04.2013. 3. A counter-affidavit has been filed on behalf of respondent no. 4 stating as under:- 23. “With reference to the statement made in paragraph 6 of the writ application under reply it is stated and submitted that the statement made therein is a matter of record. It is further stated that the Deputy Superintendent of Police -Cum-Police Station Officer-In-Charge (Thana Prabhari) submitted a report to the Superintendent of Police, Khunti against the petitioner stating inter alia therein that the petitioner demanded a sum of Rs. 10,000/-from one Dinesh Jaisawal and released the truck loaded with illegal stones by taking a sum of Rs. 5,000/-. 24. With reference to the Statement made in paragraph 7 of the writ application under reply it is stated and submitted that the statement made therein is a matter of record. It is further stated that the show cause filed by the petitioner was found unsatisfactory and hence it was rejected. 25. With reference to the statement made in paragraph 8 of the writ application under reply it is stated and submitted that a departmental proceeding was initiated against the petitioner by finding the show cause of the petitioner unsatisfactory and the said departmental proceeding was completed by the Deputy Superintendent of Police (Mu), Khunti. 26. With reference to the statement made in paragraph 9 of the writ application under reply it is stated and submitted that statement made therein is a matter of record. 26. With reference to the statement made in paragraph 9 of the writ application under reply it is stated and submitted that statement made therein is a matter of record. It is further stated that the charges levelled against the petitioner was proved by the enquiry officer during the course of departmental proceeding. There is no provision of sympathy against an employee who is involved in a case of corruption. 27. With reference to the statement made in paragraph 10 of the writ application under reply it is stated and submitted that statement made therein is a matter of record. It is further stated that after finding the show cause of the petitioner unsatisfactory and after proving of the charges levelled as against the petitioner, the order dated 31.10.2012 as contained in Annexure-5 to the writ application has been passed by the concerned respondent. 28. With reference to the Statement made in paragraph 11 of the writ application under reply it is stated and submitted that all the matters have been mentioned in the first show cause of the petitioner. Second show cause was submitted on 17.06.2012 to the enquiry officer. In both the show causes same matter has been mentioned. During the course of the departmental proceeding no request has been made by the petitioner of taking the statement of said Dinesh Jaisawal. 29. With reference to the statement made in paragraph 12 of the writ application under reply it is stated and submitted that the statement made therein is a matter of record. It is further stated that thereafter the petitioner preferred an appeal before the Deputy Inspector General of Police, South Chhotanagpur Range, Ranchi i.e. respondent no. 3 on 28.01.2013 against the said order dated 31.10.2012 passed by the respondent no. 4. 30. With reference to the statement made in paragraph 13 of the writ application under reply it is stated and submitted that the statement made therein is a matter of record. It is further stated that the Deputy Inspector General of Police, South Chhotanagpur Range, Ranchi after perusing the memo of appeal preferred on behalf of the petitioner, charges levelled as against the petitioner including the order dated 31.10.2012 and taking into consideration all the materials on records has been pleased to dismiss the appeal by an order dated 01.04.2013 as contained in Annexure-7 to the writ application. 31. 31. With reference to the statement made in paragraph 14 of the writ application under reply it is stated and submitted that it is wrong to state that the entire departmental proceeding and findings of the enquiry report has been based on hearsay evidences. After proving of the charges levelled as against the petitioner the order dated 31.10.2012 has been passed. 32. With reference to the statement made in paragraph 15 of the writ application under reply it is stated and submitted that a written report has been submitted by the Deputy Superintendent of Police -Cum-Police Station Officer-In-Charge (Thana Prabhari) after making enquiry from said Dinesh Jaisawal and after confirmation of the charges of forcibly realizing the money by the petitioner from said Dinesh Jaiswal.” 4. Heard learned counsel appearing for the parties and perused the documents on record. 5. Dr. S. N. Pathak, learned Senior counsel appearing for the petitioner submits that the order of penalty dated 31.10.2012 as affirmed by the appellate order dated 01.04.2013 cannot be sustained in law as the case against the petitioner is based on 'no evidence'. He has submitted that since the charge against the petitioner is of taking illegal gratification merely on suspicion, the petitioner could not have been punished in the present case. He has further submitted that since the complainant has not come forward, the charge could not have been framed and the enquiry should not have been initiated against the petitioner merely on the basis of suspicion. He has further submitted that no second show-cause was issued to the petitioner in the matter and therefore, the order of penalty as affirmed by the appellate order are liable to be quashed. He has relied on decisions reported in (1999) 7 SCC 409 , (2006) 4 SCC 713 , (2011) 6 SCC 376 . 6. As against the above, the learned counsel appearing for the respondents has submitted that since a specific charge was framed against the petitioner and the person who has received the phone call from the complainant namely, Dinesh Jaisawal has affirmed the charges levelled against the petitioner during the departmental enquiry, it cannot be said that the case against the petitioner is based on 'no evidence'. He further submits that, it is wrong to contend that the order of penalty has been passed against the petitioner only on suspicion and on surmises and conjectures. 7. He further submits that, it is wrong to contend that the order of penalty has been passed against the petitioner only on suspicion and on surmises and conjectures. 7. A perusal of the documents on record particularly, the charge-memo dated 17.04.2012, would disclose that the specific charge of demanding illegal gratification of Rs. 10000/-was levelled against the petitioner. It is further stated in the charge-memo that the complainant namely, Dinesh Jaiswal under fear paid Rs. 5000/-. A preliminary enquiry was conducted and an enquiry report dated 22.03.2012 was submitted in which the charge against the petitioner was prima facie, found true and therefore, the petitioner was suspended by order dated 27.03.2012. Thereafter, a charge-memo dated 17.04.2012 was issued to the petitioner and a departmental enquiry was conducted into the matter in which three witnesses were examined by the department. I find that Sri Deepak Kumar Sharma, the Deputy Superintendent of Police (Training) who was the Officer-In-Charge at the relevant time has stated during the departmental enquiry that he received a phone call from the complainant namely, Dinesh Jaiswal who narrated the incident to him based on which the charge has been framed against the petitioner. From the enquiry report, it appears that the petitioner has not cross-examined P.W.1 with respect to his statement of receiving the phone call from the complainant, Dinesh Jaiswal. Infact, on all material aspects the statement given by P.W.1 has been accepted by the petitioner during the departmental enquiry. The petitioner has not cross-examined other two witnesses and therefore, I am of the view that it cannot be said that the case against the petitioner is based on 'no evidence'. I further find that since there is no eye-witness to the occurrence and the complainant namely, Dinesh Jaiswal has not been examined by the department, it would not materially effect the case of the department. The evidence led during the departmental enquiry by the department, has remained unshaken, as the petitioner has failed to cross-examine or elicit any material contradiction from the witnesses during the departmental enquiry. During the departmental enquiry, the petitioner never insisted on examining the complainant namely, Dinesh Jaiswal and he reiterated the same stand in all his reply filed during the departmental proceeding. During the departmental enquiry, the petitioner never insisted on examining the complainant namely, Dinesh Jaiswal and he reiterated the same stand in all his reply filed during the departmental proceeding. He has not denied that a copy of the enquiry report was furnished to him and therefore, it was open to him to file his objection to the adverse findings recorded in the enquiry. In these circumstances, I hold that even if second show-cause was not given to him, it has not caused any prejudice to him. 8. In “Commissioner of Police Delhi and Others Vs. Jai Bhagwan” reported in (2011) 6 SCC 376 , the Hon'ble Supreme Court has found that in absence of a clear proof supporting the case against the delinquent, it was difficult to record a finding of guilt. In the present case, P.W.1 has specifically stated during the departmental enquiry that the complainant informed him the incident over the mobile phone and the statement of P.W. 1 has remained unshaken as the petitioner has failed to cross examine P.W. 1 on all material aspects. I further find that a preliminary enquiry was conducted and the charge was prima-facie found true. The enquiry officer has also recorded the finding that the charge against the petitioner is proved and therefore, I find that there is sufficient evidence on record to hold that the order of penalty as affirmed by the appellate order, does not suffer from any legal infirmity. Other judgments relied upon by the learned counsel for the petitioner are not relevant. 9. I find no merit in this case and accordingly, it is dismissed.