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2013 DIGILAW 1332 (JHR)

Arun Kumar Singh v. State of Jharkhand

2013-12-06

APARESH KUMAR SINGH, R.BANUMATHI

body2013
ORDER Heard learned senior counsel for the appellant and learned counsel appearing on behalf of the State-Respondent. The instant appeal is directed against the judgment dated 18.9.2012 passed in W.P.(S) No. 2078 of 2012, whereby the writ petition was dismissed. 2. The writ petitioner i.e., appellant herein had impugned the order dated 27.8.2007 (Annexure-9) passed by the Disciplinary Authority cum Superintendent of Police, Rail, Dhanbad imposing the punishment of compulsory retirement upon him. The statutory appeal preferred by him was also dismissed vide order dated 21.1.2012 (Annexure-10) passed by the Deputy Inspector General of Police, Rail, Jharkhand. The appellant under the charge-sheet dated 9.9.2003(Annexure-3) was proceeded against for having indulged in unnatural sex with a 12 year old boy – 'A'(name concealed, hereinafter mentioned as boy 'A'), while he was posted as constable under the Rail Police, Dhanbad in a departmental proceeding No. 110 of 2003. The charge-sheet also alleged that the allegation against the writ petitioner were found to be true in the supervision report conducted in connection with the criminal case instituted for the same incident being Koderma(Rail) P.S. Case No. 11 of 2003 and it amounted to violation of Rule 5 of the Police Manual. The charge-sheet further alleged that after having been placed under suspension vide District Order No. 933/03 dated 18.6.2003 the appellant did not submit his joining in the Headquarters till 14.8.2003 and remained absconding from duty which amounted to gross indiscipline on his part. The aforesaid conduct of the appellant had lowered the image of the police department and was likely to change the mindset of the society in respect of police personnel. It is stated that the incident was said to have occurred on the night of 27/28.5.2003. It is alleged by the appellant that the F.I.R being Koderma(Rail) P.S Case No. 11 of 2003 was registered only on 26.6.2003 under the relevant provision of Section 377 of the I.P.C against him on the self statement of the Officer In-charge of the Police Station. It however appears that on 30.6.2003 the victim boy 'A' appeared before the Judicial Magistrate, Dhanbad and gave his statement under Section 164 of the Cr.P.C. As per the said statement the incidence took place around 3 in the night of 28.5.2003, while he was sleeping at platform no. 4. It however appears that on 30.6.2003 the victim boy 'A' appeared before the Judicial Magistrate, Dhanbad and gave his statement under Section 164 of the Cr.P.C. As per the said statement the incidence took place around 3 in the night of 28.5.2003, while he was sleeping at platform no. 4. The appellant woke him up and took him into the guard bogie of goods train which was standing and after threatening him with use of force committed unnatural offence with him, inspite of the fact that the victim boy was repeatedly pleading against doing such act. The victim boy told about the incident to the Cabin Man. He also deposed before the learned Judicial Magistrate that his father had died and he had not told about the said incident to his mother. 3. The Inquiry Officer, after conclusion of the inquiry, submitted his report holding the appellant guilty of the aforesaid misconduct. The Inquiry Officer took into account the statement made by the victim under Section 164 of the Cr.P.C as also the supervision report of the Dy.S.P.(Rail) in the aforesaid Koderma (Rail) P.S. Case No. 11 of 2003 and found the charges to be established against him. The appellant participated in the said inquiry and also cross examined the witnesses adduced on behalf of the prosecution including the Officer-In-charge of the Rail P.S. The inquiry report was submitted on 12.6.2007. The appellant was asked to furnish reply to the show cause along with the copy of the inquiry report vide memo no. 528 dated 20.6.2007. The Disciplinary Authority cum Superintendent of Police(Rail) after having considered the materials adduced during the course of inquiry, the exhibits, report of the Inquiry Officer as well as the show cause reply submitted by the appellant on 30.7.2007 found the appellant guilty of grave misconduct in having indulged in committing unnatural offence upon the minor boy. The Disciplinary Authority found the charges against the appellant fully established and also observed that appellant deserved to be punished by dismissal from service. However, keeping in view that he had remained in service for 17 years and otherwise would be denied the pensionary benefits on account of such dismissal decided to impose the punishment of compulsory retirement upon him vide order dated 27.8.2007(Annexure-9), which was impugned in the writ petition. However, keeping in view that he had remained in service for 17 years and otherwise would be denied the pensionary benefits on account of such dismissal decided to impose the punishment of compulsory retirement upon him vide order dated 27.8.2007(Annexure-9), which was impugned in the writ petition. The writ petitioner preferred an appeal, which however was rejected and the original order of punishment was confirmed by the order dated 21.1.2012 passed by the Deputy Inspector General of Police, Jharkhand cum Appellate Authority. 4. Learned Single Judge while passing the judgment took into account the statement of the victim boy 'A' recorded under section 164 Cr.P.C, which clearly showed the commission of unnatural offence upon the minor boy aged about 12 years. Learned Single Judge also took into account the submission of the learned counsel for the writ petitioner that he had been acquitted in the criminal case under Section 377 of the I.P.C by the competent Criminal Court and that the victim boy 'A' had not supported the prosecution story while appearing in the witness box. However it was observed that the conduct of the petitioner cannot justify his continuation in service in the disciplined force. Learned Single Judge also observed that it seems that later on the victim boy 'A' under the influence or fear of petitioner-police constable did not support the incident and there was nothing on record to suggest any enmity or reason for the 12 years boy to implicate the petitioner in his statement under Section 164 Cr.P.C. Learned Single Judge, therefore, found that the conduct of the petitioner justifies the imposition of major punishment of compulsory retirement from service. Accordingly, the writ petition was dismissed. 5. Learned senior counsel appearing on behalf of the petitioner while assailing the impugned judgment has submitted inter-alia (a) that the incident took place in the night of 27/28.5.2003 but the F.I.R was recorded on 26.6.2003 by the Officer In-charge on his self statement and the boy 'A' , alleged to be victim of the incident had disappeared after the incident;(b) it is further submitted that the victim boy while deposing in the departmental proceeding on 27.4.2007 clearly denied any such wrongful act committed upon him by the appellant. He in fact alleges that the Officer In-charge of the Koderma(Rail) Police Station had forced him to make such statement in Court;(c) It is further submitted that the appellant has been acquitted of the criminal charges under Section 377 of the I.P.C by the competent Court of Railway Judicial Magistrate 1st Class, Dhanbad vide judgment dated 2.6.2005 passed in G.R.Case No. 106 of 2003 / T.R. No. 2334 of 2005. It is submitted that the two persons namely Ravindra Kumar Singh and Awadh Kishore Mahto, who were said to be present at the relevant point of time in the fateful night completely failed to identify the victim boy 'A' during the course of the criminal trial. Even the victim boy 'A' denied of any such incident having taken place against him during the trial and was declared hostile. In the wake of such clear denial by the victim boy and other witnesses, alleged to be present at the place of occurrence at the fateful night, learned Trial Court acquitted the appellant of the charges. In these circumstances, learned counsel for the appellant submits that the appellant was framed by the Officer In-charge, who deliberately implicated him by instituting the aforesaid F.I.R being Koderma (Rail)P.S. Case no. 11 of 2003 after a long delay of 28 days on 26.6.2003 in relation to the said incident. Hence, the imposition of punishment upon the appellant on wholly false charges is actuated by malafide and is wholly improper and unjustified in the eye of law. Learned counsel for the appellant has relied upon a judgment rendered by the Hon'ble Supreme Court in the case of Krushnakant B. Parmar Vrs. Union of India & another reported in 2012(3) SCC 178 , para 20 thereof, wherein it has been held that the Inquiry Officer performs a quasi-judicial function and should act in an objective and fair manner taking into account as to whether the alleged charges are at all sustainable on the basis of materials adduced during the inquiry by the yardstick of preponderance of probabilities or not. 6. Learned counsel for the respondent-State on the other hand seriously contested the submission made by learned counsel for the appellant. It is submitted by learned counsel for the respondent-State that criminal proceeding and disciplinary proceeding are two separate proceedings. 6. Learned counsel for the respondent-State on the other hand seriously contested the submission made by learned counsel for the appellant. It is submitted by learned counsel for the respondent-State that criminal proceeding and disciplinary proceeding are two separate proceedings. In the criminal proceeding the appellant has been acquitted only on the ground that the prosecution had failed to establish the charges against him beyond all shadow of reasonable doubts in the wake of prosecution witnesses having turned hostile. It is submitted that the victim boy was only 12 years of age at the relevant time in May, 2003 and had gone out for work to Delhi, thereafter, and after 4 years of incident has deposed in the departmental proceeding and the criminal case under the influence or fear of the petitioner who was a police constable. It is submitted that the victim boy 'A' on 30.6.2003 had made statement under Section 164 Cr.P.C. before the learned Judicial Magistrate, Dhanbad clearly showing the commission of unnatural offence against him by the writ petitioner / appellant herein. The incident took place in the premises of Railway Station in a guard bogie of a goods train standing at the platform. The appellant being police constable seems to have resorted to all means to ensure the victim boy never come forward to support the said incident. As a matter of fact, for the delay in lodging the F.I.R and the lapses committed by the Officer In-charge of the Rail Police station in the investigation, the said Officer In-charge was imposed with punishment of warning by District Order No. 9 of 2003 issued by then Railway Superintendent of Police. It is submitted that in the aforesaid background after due opportunity to the writ petitioner / appellant herein after framing of charges and by allowing him to cross examine all the witnesses adduced during the course of inquiry as also giving opportunity to file his reply on the submission of the inquiry report, the Disciplinary Authority has found the conduct of the appellant wholly shameful and the misconduct was fully established i.e. of having committed unnatural offence against a minor boy which has lowered the image of the police force in the eye of people at large. However, the Disciplinary Authority showed leniency in awarding punishment of compulsory retirement instead of dismissal from service so that the appellant could avail of the pensionary benefits. However, the Disciplinary Authority showed leniency in awarding punishment of compulsory retirement instead of dismissal from service so that the appellant could avail of the pensionary benefits. The Appellate Authority also considered the ground raised by the appellant and did not find any reason to interfere with the order of punishment and, accordingly, confirmed the order of punishment passed by the Disciplinary Authority. It is submitted that the learned Single Judge also found that the statement made by the victim boy 'A' under Section 164 Cr.P.C established the alleged commission of unnatural offence upon the victim boy which stood proved in the departmental proceeding. The later retraction of the victim boy 'A' could have been out of fear or influence of the writ petitioner who is a police constable. As such the conduct of the appellant justifies the imposition of major punishment of compulsory retirement and has rightly not been interfered by the learned Single Judge. Learned counsel for the respondent-State has relies upon judgment rendered by the Hon'ble Supreme Court in the case of Divisional Controller, Karnataka State Road Transport Corporation Vrs. M.G. Vittal Rao reported in 2012(1) SCC 442 as also in the case of Samar Bahadur Singh Vrs. State of Uttar Pradesh and others reported in 2011(9) SCC 94 , para 7 thereof. Learned counsel for the respondent-State submits that acquittal in a criminal case does not entitle the appellant to be exonerated of the charges in a disciplinary proceeding where the guilt of the appellant has been found to be completely established and has led to a serious loss of confidence of the employer in the delinquent employee. In such circumstances, no interference is required in the impugned judgment. 7. We have heard learned counsel for the parties at length and gone through the relevant materials on record including the impugned judgment. From the facts which are borne on records and from the submissions of the counsel for the parties, it appears that the incident took place in the night of 27/28.5.2003 at 3 a.m. in the premises of railway station Koderma. From the facts which are borne on records and from the submissions of the counsel for the parties, it appears that the incident took place in the night of 27/28.5.2003 at 3 a.m. in the premises of railway station Koderma. The victim boy 'A' in his statement recorded under Section 164 Cr.P.C before the learned Judicial Magistrate, Dhanbad on 30.6.2003 itself gave a graphic detail of the alleged incident where he stated that at around 3.00 in the night of 28.5.2003 while he was sleeping at platform no.4, the appellant woke him up and took him inside the guard bogie of a goods train standing there and after threatening of assault and use of force, the appellant forced him into unnatural offence inside the said bogie despite repeated request made by him not to do so. After the incident the Cabin Man found him weeping and on being asked the victim boy narrated the incident. He also told in his statement that his father had died and that he has not told about the said incidence to his mother. Though the incident is said to have occurred in the fateful night of 27/28.5.2003, however the Officer In-charge of the koderma Rail P.S lodged F.I.R only on 26.6.2003 inter-alia taking a plea that the victim boy 'A' had become untraceable after the incident. However, it also appears that the Officer In-charge was imposed with the punishment of warning by the Superintendent of Police, Rail vide District Order no.933/03 dated 18.6.2003 for his lapses and apathetic attitude in investigation of the said case and also delay in lodging the F.I.R. The victim boy, as per the statement made in the departmental proceeding on 27.4.2007, appears to have left the place and gone to Delhi in search of livelihood and was doing manual labour. There is nothing on record to suggest enmity or reason for the 12 year boy to implicate the petitioner in his statement under Section 164 Cr.P.C. However, it appears that after 4 years of incident when he deposed in the departmental proceeding as also in the criminal trial, he denied the incident apparently under influence or fear of the petitioner who was a police constable. The state of mind of a minor boy, who had been abused at the age of 12 and who had still not attained majority, can easily be judged when he is said to have retracted from his statement made u/s 164 Cr.P.C in the criminal trial or in the departmental proceeding which has held after 4 years of the occurrence. However, his retraction is not sufficient to discredit the gravity of the allegation made by him just 1 month after the incidence i.e, on 30.6.2003 recorded under Section 164 Cr.P.C. It, appears from perusal of the judgment passed by the learned Judicial Magistrate, Dhanbad that the appellant was acquitted on the ground that the prosecution had clearly failed to prove the incident beyond all shadow of reasonable doubt, more so, for the reason that those persons who were said to be present at the place of occurrence at the railway platform in the fateful night when the victim boy narrated about the said incident had turned hostile. In any case, in the departmental proceeding, the charges against the appellant stood proved on the basis of the statement under Section 164 Cr.P.C by the victim boy 'A'. Learned Single Judge also observed that that the victim boy 'A' under the influence or fear of the petitioner who was police constable might not have supported the incident while appearing in the witness box after 4 years, thereafter. But there was nothing on record to suggest enmity or any reason to implicate the petitioner for the alleged commission of unnatural offence in his statement under Section 164 Cr.P.C. The charges against the petitioner was found established and are so serious in nature that any employer is justified in losing confidence in such a delinquent employee. In the aforesaid circumstance, the Disciplinary Authority had all the reasons to take an independent decision on the basis of establishment of guilt of such misconduct against the appellant. The Disciplinary Authority, however seems to have taken a lenient view by not imposing the punishment of dismissal from service which could deny him the pensionary benefits. In such circumstances, the Disciplinary Authority, keeping into account the 17 years of service rendered by the petitioner, inflicted the punishment of compulsory retirement. The Disciplinary Authority, however seems to have taken a lenient view by not imposing the punishment of dismissal from service which could deny him the pensionary benefits. In such circumstances, the Disciplinary Authority, keeping into account the 17 years of service rendered by the petitioner, inflicted the punishment of compulsory retirement. In the aforesaid facts and circumstances, the learned Single Judge rightly refused to interfere with the order of punishment passed against the writ petitioner / appellant herein considering the rival submission of the parties and also relevant materials on record, which have been indicated herein above as well. 8. In that view of the matter, we do not find any merit in this appeal. Accordingly, the instant L.P.A is dismissed.