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2013 DIGILAW 936 (JHR)

Anil Kumar Pandey v. State of Jharkhand

2013-08-03

SHREE CHANDRASHEKHAR

body2013
ORDER By Court: The petitioner has challenged the penalty order dated 08.12.2003, the appellate order dated 29.04.2004 and the revisional order dated 08.10.2005. 2. The brief facts of the case are that, the petitioner was appointed as a Constable in Bihar Military Police and at the relevant time in the year, 2003, he was posted as Constable Driver with Jharkhand Armed Police at Hazaribagh. On 05.07.2003 and 18.07.2003 one Raj Kumar Verma submitted a complaint against the petitioner and on such complaint, a charge memo dated 16.08.2003 was served upon the petitioner on the allegation that he had offered to purchase the Ambassador Car bearing no. BRN/6516 belonging to the complainant Raj Kumar Verma for Rs. 50,000/-. He gave an advance of Rs. 101/- and promised to pay the balance amount. However, after much effort he paid Rs. 20,000/- to the complainant and refused to pay the balance amount of Rs. 30,000/-, and therefore, he committed cheating and unauthorisedly retained the car with himself and thus, committed misconduct. Along with the charge memo the complaint dated 05.07.2003 and 18.07.2003 of the said Raj Kumar Verma, a copy of the inquiry report dated 11.08.2003 conducted by one Sri Alok, Deputy Superintendent of Police and the statement of Raj Kumar Verma, were supplied to the petitioner. In support of its case, the department proposed to examine as witnesses Raj Kumar Verma, Upen Singh and Brajesh Singh. An inquiry was conducted and the inquiry report was submitted whereunder the inquiry officer opined that in view of the materials on record the allegation against the petitioner becomes doubtful and therefore, the benefit of doubt can be given to the petitioner. However, by an order dated 08.12.2003, the disciplinary authority held that the charges against the petitioner are proved and therefore, he inflicted the punishment of dismissal from service. The appeal as well as the revision petition preferred by the petitioner were also dismissed by orders dated 29.04.2004 and 08.10.2005 and therefore, the petitioner approached this Court by filing the present application. 3. A counter affidavit has been filed stating as under: 6. “That at the outset it is stated that while the petitioner i.e. constable 1154 Driver Anil Kumar Pandey was posted at JAP-7, Hazaribagh, he made an offer to one Raj Kumar Verma of Mahabir Chowk, Hazaribagh to purchase his Ambassador Car bearing No. B.R.N. 6515 at the cost of Rs. A counter affidavit has been filed stating as under: 6. “That at the outset it is stated that while the petitioner i.e. constable 1154 Driver Anil Kumar Pandey was posted at JAP-7, Hazaribagh, he made an offer to one Raj Kumar Verma of Mahabir Chowk, Hazaribagh to purchase his Ambassador Car bearing No. B.R.N. 6515 at the cost of Rs. 50,000/- and after giving advance of Rs. 101/- he took away the car and assured to make payment of balance amount. At that time one of the friend of the petitioner who is presently posted in JAP-9, Sahebganj was also present. After taking over of the ambassador car, the petitioner did not turn up nor make payment. After much request and persuasion made by the owner of the car namely Raj Kumar Verma, the petitioner paid only Rs. 20,000/- and rest balance amount has not been paid till date. The petitioner being member of disciplined force, kept the car forcibly without making payment of the same by playing fraud and such conduct on his part is indicative of indiscipline, misconduct and doubtful character. 7. That for the aforesaid allegations, departmental proceeding no. 29/2003 was initiated against the petitioner. During the course of conduction of the departmental proceeding, the car owner namely Raj Kumar Verma appeared and stated that on account of marriage of his daughter, he was in need of money and therefore, he decided to sale the car and in this process, constable no. 1154 Anil Kumar Pandey who is friend of his younger brother, showed his willingness to purchase the car. Since petitioner, Anil Kumar Pandey, was the friend of his younger brother, and hence, after taking Rs. 101/- as advance, he (Raj Kumar Verma) handed over the key of the car to the petitioner with stipulation that he will pay Rs. 50,000/ i.e. the cost of the vehicle. After taking of the car, the petitioner did not make payment of the amount for a long time and thereafter the said Raj Kumar Verma met the petitioner in the premises of JAP-7, Hazaribagh and after much request, the petitioner has made payment of Rs. 10,000/- (Ten Thousand only) and the petitioner asked said Raj Kumar Verma that rest amount will be paid only after he (Raj Kumar Verma) will sign the sale letter. 10,000/- (Ten Thousand only) and the petitioner asked said Raj Kumar Verma that rest amount will be paid only after he (Raj Kumar Verma) will sign the sale letter. Since constable Anil Kumar Pandey was friend of his younger brother, therefore, in good faith, he signed on the sale letter. He further stated that he was making his demand for payment of rest amount and the petitioner has paid further Rs. 8,000/- and 2,000/- respectively. This way, the petitioner has paid only Rs. 20,000/- out of Rs. 50,000/-. In the meantime, the petitioner, Anil Kumar Pandey was transferred from JAP-7, Hazaribagh to JAP-1, Ranchi. Due to nonpayment of balance amount of the car, he (Raj Kumar Verma) made an application to the Commandant, JAP-1, Ranchi and in light of the application made by the car owner, the Commandant, JAP-1, Ranchi directed the then Deputy Superintendent of Police Shri Alok to make inquiry who after making enquiry submitted his report stating therein that Driver constable no. 1154 Anil Kumar Pandey has kept the car of Raj Kumar Verma forcibly by playing fraud. 8. That during course of departmental proceeding, the petitioner submitted his reply. Since the charges levelled against the petitioner was proved, therefore, the petitioner was issued second show cause against the proposed punishment of dismissal from service. Copy of the enquiry report was also enclosed with the said show cause. 9. That in order to linger the matter, the petitioner made an application on 04.12.2003 praying therein to grant further time for filing second show cause and the said application of the petitioner was rejected on the same date and communicated to him vide Memo No. 556 dated 04.12.2003.” 4. A supplementary affidavit dated 04.05.2010 has also been filed by the respondent no. 4 stating as under: 10. “That it is further stated and submitted that it clearly reveals from the service book/record of Anil Kumar Pandey that in 11 years of service, he has faced 13 minor and 4 major punishments for his indisciplined behaviour, fraud nature and dubious character. It is further stated and submitted that from these records, it apparently explains that the petitioner is of criminal nature, who used to show the power of uniform and indulge in illegal and indisciplined activities. It is further stated and submitted that from these records, it apparently explains that the petitioner is of criminal nature, who used to show the power of uniform and indulge in illegal and indisciplined activities. Although department gave him several times opportunity to improve himself but still there was no change in his behaviours and character and same cannot be expected from him in future. His negative personality could affect the department's reputation and could also send negative vibes among others. Therefore, the only alternative was to dismiss him from the service.” 5. Heard learned counsel appearing for the parties and perused the documents on record. 6. The learned Senior counsel appearing for the petitioner has submitted that since the charge levelled against the petitioner is cheating the complainant by not paying him the balance amount of Rs. 30,000/- and retaining the car unauthorisedly, the test in the departmental proceeding should not be the preponderance of probability rather, as held by the Hon'ble Supreme Court in “Union of India Vs. Gyan Chand Chattar”, reported in (2009) 12 SCC 78 it should be beyond all reasonable doubts and since the inquiry officer himself has recorded his opinion that the petitioner can be granted benefit of doubt and as the disciplinary authority has failed to record any reason how the charges against the petitioner are proved, the order of penalty and the subsequent orders rejecting the appeal as well as the revision preferred by the petitioner are liable to be quashed. He has further submitted that in view of the specific provision under Rule 826 of the Jharkhand Police Manual and the specific defence taken by the petitioner, the penalty imposed upon the petitioner is liable to be quashed. Rule 826 of the Jharkhand Police Manual reads as under: “Rule 826: Discrimination necessary in awarding punishments. The punishment awarded should be in conformity with the gravity of offence with which the officer is charged and offences involving moral turpitude shall be carefully discriminated from smaller wrong doings. It should also be borne in mind that the previous record of service of the officer concerned, if it is not already included in the charge of the proceeding shall not be taken into account for determining the quantum of punishment. It should also be borne in mind that the previous record of service of the officer concerned, if it is not already included in the charge of the proceeding shall not be taken into account for determining the quantum of punishment. The objective of awarding punishment is firstly to keep a record of the wrong doings of the officer and secondly as a measure of correction to alert him to improve his work and conduct. Several punishments awarded in one lot such as during inspections which do not provide an opportunity to the delinquent officer to improve himself are not likely to be helpful. In any case, the punishment cannot be awarded without carefully considering the defence of the delinquent officer. Before issuing orders of minor punishment, it is necessary to apprise the delinquent of the substance of the charges against him and he should be given adequate opportunity for defence. After this has been ensured, the punishment can be awarded. However in the case of major punishments (see Rule 828) formal proceedings in P.M. Form no. 178 will have to be drawn up.” 7. The learned Senior counsel has relied on the decisions of the Hon'ble Supreme Court in “Narinder Mohan Arya Vs. United India Insurance Company Ltd.”, reported in (2006) 4 SCC 713 , “Roop Singh Negi Vs. Punjab National Bank & Ors.”, reported in (2009) 2 SCC 570 and “Bhagat Ram Vs. State of Himachal Pradesh and Others”, reported in (1983) 2 SCC 442 . In “Roop Singh Negi” (supra) Hon'ble Supreme Court has held as under. “23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 8.As against the above, Mr. Saket Upadhyay, learned counsel appearing for the respondents has submitted that there are witnesses to the transaction and those witnesses namely, Upen Singh and Brajesh Singh have categorically stated before the inquiry officer the factum of the transaction and therefore, the transaction stands admitted. Nowhere the petitioner has declined the transaction himself and thus, this is an admitted case that the petitioner has failed to pay Rs. 30,000/-. He has committed misconduct and he has been accordingly found guilty of the said misconduct and therefore, the penalty imposed upon him is just and proper. The order of the appellate authority does not suffer from non-application of mind and the revisional authority has also dismissed the revision petition and therefore, this is not a matter which requires interference by this Court in exercise of jurisdiction under Article 226 of Constitution of India. The learned counsel in support of his contention relies on the judgments in the case of “Maan Singh Vs. Union of India & Ors.”, reported in (2003) 3 SCC 464 , “Union of India & Ors. Vs. Bishamber Das Dogra”, reported in (2009) 13 SCC 102 and “State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya”, reported in (2011) 4 SCC 584 . In “State Bank of Bikaner and Jaipur” (supra) Hon'ble Supreme Court has held as under. “7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. In “State Bank of Bikaner and Jaipur” (supra) Hon'ble Supreme Court has held as under. “7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental inquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.” 9. Adverting to the contentions raised on behalf of the petitioner, I find that the charge against the petitioner is of cheating and retaining the car without making payment of Rs. 30,000/- to the complainant namely, Raj Kumar Verma. Before the inquiry officer, the witnesses namely Upen Singh as well as Brajesh Singh both have expressed their ignorance about the consideration amount for which the car was purchased. The petitioner took a specific defence before the inquiry officer that while driving the car it had broken down and the petitioner had to leave the car at Koderma Police Station. He has specifically put a defence that a faulty car was sold and handed over to him. The inquiry officer himself recorded the finding that since there is no evidence regarding transaction and evidences brought on record do not establish conclusively nonpayment of the balance amount, if any, to the complainant, the allegation levelled against the petitioner becomes doubtful, and therefore, the benefit of doubt can be given to the petitioner. I further find that except reciting the charges against the petitioner, the disciplinary authority has not given any reason for recording a finding that the charges against the petitioner are proved. I further find that except reciting the charges against the petitioner, the disciplinary authority has not given any reason for recording a finding that the charges against the petitioner are proved. The disciplinary authority has failed to consider or even refer to the findings recorded by the inquiry officer and without considering the defence of the petitioner and without assigning any reason the penalty order dated 08.12.2003 has been passed. The disciplinary authority has merely recorded that since the petitioner failed to submit his reply to the second showcause notice, it is presumed that he has nothing to say in his defence; I find that an erroneous approach was adopted by the disciplinary authority, as the law requires the disciplinary authority to consider the findings recorded by the inquiry officer and to give reasons while disagreeing with the conclusion recorded by the inquiry officer which admittedly has not been done in the present case. 10. Moreover, the fact that the petitioner paid an amount of Rs. 20,000/- goes to indicate that he had initially no intention of not paying the consideration amount and thus, cheating the complainant, and therefore, the finding recorded by the disciplinary authority that the charge of cheating and forcefully retaining the car against the petitioner stood proved, is definitely not supported by the evidence brought on record. Further, in “Union of India Vs. Gyan Chand Chattar”, reported in (2009) 12 SCC 78 , it has been clearly held by the Hon'ble Supreme court that in cases of criminal nature, test which should be adopted is proof beyond reasonable doubt. It has been held: 20. “So far as Charge 6 i.e. asking for 1% commission for making the payment of pay allowances is concerned, the learned Single Judge has appreciated the evidence of all the witnesses examined in this regard and came to the conclusion that not a single person had deposed before the enquiry officer that the respondent employee had asked any person to pay 1% commission for making payment of their allowances. It was based on hearsay statements. All the witnesses stated that this could be the motive/reason for not making the payment. 21. Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. It was based on hearsay statements. All the witnesses stated that this could be the motive/reason for not making the payment. 21. Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities.” 13. Now coming to the contentions raised by the learned counsel appearing for the respondent, I find that there was no charge against the petitioner having committed misconduct previously nor the incidents of previous misconduct have been put to the notice of the petitioner either during the inquiry or at the stage of the second showcause. It is settled law that if the previous misconduct of a delinquent employee is to be considered before imposing the penalty, it must be put to the notice of the delinquent employee which admittedly has not been done in the present case, and therefore, the supplementary affidavit dated 04.05.2010 filed by the respondent no. 4 cannot be considered by this Court. In “Mohd. Yunus Khan Vs. State of Uttar Pradesh & Ors.”, reported in (2010) 10 SCC 539 , the Hon'ble Supreme Court has held as under, “34. The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the chargesheet should contain such an article or at least he should be informed of the same at the stage of the showcause notice, before imposing the punishment.” 14. On a consideration of the materials on record, it is quite evident that there is no evidence except the evidence given by the complainant namely, Raj Kumar Verma to prove that the total consideration amount was Rs. 50,000/-. The inquiry officer has recorded his opinion that allegation levelled by the complainant against the petitioner is doubtful. However, the disciplinary authority without recording any reason, has held that the charges against the petitioner are proved which definitely cannot be sustained in law. 50,000/-. The inquiry officer has recorded his opinion that allegation levelled by the complainant against the petitioner is doubtful. However, the disciplinary authority without recording any reason, has held that the charges against the petitioner are proved which definitely cannot be sustained in law. Neither the defence taken by the petitioner has been discussed by the disciplinary authority nor the findings recorded by the inquiry officer has been adverted to and discussed by the disciplinary authority. The charge against the petitioner cannot be said to have been proved beyond doubt. Further, the provision of Rule 826 of the Jharkhand Police Manual which mandates careful consideration of the defence of the delinquent officer has not been followed by the disciplinary authority. By filing a supplementary counter affidavit, the respondents have tried to justify the orders passed against the petitioner by bringing on record the previous incidence of misconduct which in view of the settled law, as noticed above, cannot be permitted. 15. In view of the aforesaid, the writ petition is allowed. The impugned orders are quashed. The respondent no. 4 is directed to pass a fresh order after considering the materials on record within a period of 12 weeks from the date when a copy of this order is produced before him. 16. This writ petition is allowed in the aforesaid terms.