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2013 DIGILAW 962 (JHR)

Ashok Kumar Chourasia v. State of Jharkhand

2013-08-12

APARESH KUMAR SINGH

body2013
ORDER 1. Heard learned counsel for the parties. 2. The present petitioner was proceeded against departmentally in charge-sheet dated 14th November, 2005 (Annexure-1) to the writ application, under which A.S.I. Raj Kumar Prasad and other police constables namely, Praffula Kumar Jha, Bahadur Sah and Sanjay Kumar Singh were also proceeded. 3. The allegation under the said charge-sheet, according to the petitioner, was that Additional Superintendent of Police, Jamshedpur in course of search of the M.G.M. Police Station Mobile Van found the vehicle on National Highway 33 in between Dimna Lake to Balajudi, and parked near Balajudi Kali Mandir. He saw A.S.I. Raj Kumar Prasad was standing behind the mobile jeep while constables, Praffula Kumar Jha and Ashok Kumar Chourasia (petitioner) were collecting money from the drivers of the truck. The other two constables, namely, Bahadur Sah and Sanjay Kumar Singh were also standing nearby. He alleged that these persons were not assigned the work of vehicle checking rather they were assigned the work of conducting investigation in respect of a case at Uria Basti. 4. The A.S.I., Jamshedpur submitted a written complaint on 13th November, 2005 to the Superintendent of Police, Jamshedpur and all these persons including this petitioner were asked to submit their show cause in response to the charges. On being dissatisfied with their reply, the departmental proceeding was initiated against them. 5. On the basis of two witnesses, Sri Sudhir Kumar Jha, Additional Superintendent of Police, Jamshedpur and one Gopniya Prawachak, Police Superintendent Office, Jamshedpur, the Inquiry Officer concluded the proceeding holding the petitioner guilty of the charges in the inquiry report which is Annexure-4 to the writ application. The Inquiry Officer also observed that the ASI, Raj Kumar Prasad was found standing behind the jeep. Constable Prafful Kumar Jha and constable Ashok Kumar Chaurasia (petitioner) were found to be collecting money from the drivers of the truck. The other two constables were also found standing there. Thereafter the petitioner was issued second show cause notice to which a reply was furnished on 31st July, 2006 (Annexure-5) showing his innocence. The Disciplinary Authority thereafter has passed the order of punishment of dismissal from service, which is communicated vide Annexure-6 dated 24th August, 2006. The appeal has also been rejected vide order dated 26th November, 2006 which is communicated vide Annexure-7. The Disciplinary Authority thereafter has passed the order of punishment of dismissal from service, which is communicated vide Annexure-6 dated 24th August, 2006. The appeal has also been rejected vide order dated 26th November, 2006 which is communicated vide Annexure-7. The petitioner also filed appeal before the respondent no.2, the Director General of Police, Jharkhand, Ranchi, which has also been rejected vide order dated 14th September, 2007 (Annexure-8). 6. Learned counsel for the petitioner, however, has sought to rely upon the judgment rendered in the case of Prafulla Kumar Jha (WP(S) No. 140 of 2007 and Sanjay Kumar Singh (WP(S)No. 218 of 2007), who were proceeded under the same charge-sheet dated 14th November, 2005 (Annexure-1). The said judgment dated 26th March, 2010 passed in W.P.(S) No. 140 of 2007 with W.P.(S) No. 218 of 2007 has been annexed to the Interlocutory Application no. 5761 of 2013 by the present petitioner. 7. It is the contention of the petitioner that for the same set of charges and the same findings, the dismissal of the said petitioners have been quashed by this Court by a detailed judgment holding that the disciplinary authority and the appellate authority both have accepted the findings of the Inquiry Officer in a mechanical manner without application of mind to the relevant issues raised by the petitioners in their respective show causes replies/explanations in absence of a definite and conclusive proof of the allegations that the petitioners had stopped the vehicles and had realized money from the truck drivers. 8. The learned Single Judge, according to him, found that if the alleged misconduct applied to all police constables constituting the patrolling party including the group leader namely, the ASI and the constables attached with him of having committed dereliction of duty and yet the ASI has been exonerated from the charges and the other constable has been given a lesser punishment, there is no reason why a different treatment should be given to the said petitioners in the matter of punishment. 9. In such circumstance, the dismissal of the petitioner was found to be highly disproportionate to the nature of charges levelled against them. The impugned orders of punishment were accordingly quashed and the matter was remitted to the Disciplinary Authority for reconsideration on the quantum of punishment other than dismissal from service, to the same extent as awarded to other constables. In such circumstance, the dismissal of the petitioner was found to be highly disproportionate to the nature of charges levelled against them. The impugned orders of punishment were accordingly quashed and the matter was remitted to the Disciplinary Authority for reconsideration on the quantum of punishment other than dismissal from service, to the same extent as awarded to other constables. In such circumstance learned counsel for the petitioner submits that when on the same set of facts and allegations in respect of dismissal of other two persons have been quashed by this Court, therefore, the petitioner should also be granted parity of treatment. 10. Learned counsel for the Respondents-State, on being asked, is not able to dispute that the present petitioner along with other two persons, Prafulla Kumar Jha and Sanjay Kumar Singh were jointly proceeded under the said charge-sheet dated 14th November, 2005 (Annexure-1). The allegation imposed against this petitioner was also of collecting money from the drivers of the truck while in presence of one ASI, Raj Kumar Prasad who was standing behind the jeep. 11. In these circumstances, it appears that in the matter of two other persons, Prafulla Kumar Jha and Sanjay Kumar Singh, this court in its judgment dated 26th March 2010 in W.P.(S) No. 140 of 2007 with W.P.(S) No. 218 of 2007 has passed the order of dismissal and remanded the matter for reconsideration on quantum of punishment by the Disciplinary Authority. 12. The relevant extract of the said judgment which are based upon the common allegations against the present petitioner, and has also been decided on same set of facts and charges, which are applicable to the present petitioner, are being reproduced hereunder: “10. Upon hearing the counsel for the parties and considering the specific ground of the petitioners that the findings of the Inquiry Officer are perverse and based on hearsay evidence, I have gone through the Enquiry Report and the evidence of the witness. The gist of the statement of the witness is that on 12.11.2005, upon receiving telephonic instructions from the Superintendent of Police, he went in search of the MGM Patrolling Jeep on a private vehicle and he found the Patrolling jeep parked near the temple. He saw a few trucks parked by the side of the road. The gist of the statement of the witness is that on 12.11.2005, upon receiving telephonic instructions from the Superintendent of Police, he went in search of the MGM Patrolling Jeep on a private vehicle and he found the Patrolling jeep parked near the temple. He saw a few trucks parked by the side of the road. He claims to have seen the present petitioner Prafulla Kumar Jha and Constable Sanjay Kumar Singh collecting money from the truck drivers. Thereafter, he followed the patrolling jeep to the police station and made inquiries from the ASI and recorded his statement. Beyond the above statement, this witness has not informed the name or identity of any of the truck drivers from whom money was claimed to have been realized by the petitioners, nor the registration number of the trucks which were allegedly stopped by the petitioners. He is not able to inform as to why he has not obtained any written or oral complaint from any of the truck drivers. He is not able to inform as to what amount did the petitioners realize from any of the truck drivers. He is not able to inform as to why, he being the senior police officer of the rank of Additional Superintendent of Police, he did not take prompt action against the petitioners at the spot. He does not inform as to why no money was seized from the possession of the petitioners if they had realized any money from any of the truck drivers. If the senior police officer was at all present at the spot and had seen what he has claimed to have seen, then it was a logical and reasonable expectation of him that in exercise of his authority he would immediately arrest the delinquent police personnel and detain them, recover the extorted money from their possession, record a complaint of the truck drivers from whom money was allegedly extorted, note down their names and identity and also the registration numbers of the vehicles. The fact that he has not done any of such acts and has not offered any reasonable explanation for his failure to do so, would certainly lead to a reasonable inference that he was not present at the spot and if at all, he had seen from a distance some trucks parked by the roadside and the petitioners present near the trucks, he has inferred on the basis of conjectures and surmises that the police personnel were realizing money from the truck drivers. The cryptic evidence of the witness needs much to be answered and could not have been more vague in the context of the charges framed against the petitioners. Such evidence cannot be deemed sufficient by any stretch of inferences, except on the basis of conjectures and surmises, to hold that the petitioners had unauthorizedly stopped the vehicles on the road and were illegally realizing money from the truck drivers. The only inference which could be drawn on the basis of the evidence of this witness is that the escort party comprising of the constables including the present petitioners and headed by the ASI of Police, had committed acts of dereliction of duty in as much as, instead of proceeding to attend the assigned duty of investigation at Uuria Basti, they were found present at a totally different place for which they had not offered any explanation. The liability for such acts of dereliction of duty would therefore extend not only to the present petitioners, but to the entire team including the team leader ASI of Police and the other two constables. 11. The Inquiring Officer appears to have allowed himself to be persuaded by the statement of the senior police officer attaching undue weight to his evidence without considering the fact that even going by the entire evidence of the witness, no conclusive inference could be drawn that the petitioners had stopped any vehicle and had illegally realized money from any truck driver. There appears just and sufficient ground to hold that the findings of the Inquiry Officer are perverse, misconceived and not based upon unbiased and reasonable appreciation of evidence on record. 12. It is established principle of law that in the departmental proceeding, even though, the provisions of the Indian Evidence Act may not be called for strict application, but the basic principles of natural justice cannot be ignored. 12. It is established principle of law that in the departmental proceeding, even though, the provisions of the Indian Evidence Act may not be called for strict application, but the basic principles of natural justice cannot be ignored. It is one of the basic principles of evidence that the charge has to be proved by direct evidence or such evidence which has a definite bearing and relevance to the facts and issue. It is also a Rule of law relating to proof of charge in the departmental proceeding the suspicion howsoever high, cannot be substitute for legal proof. The departmental proceeding is a quasi judicial proceeding and the Inquiry Officer performs a quasi judicial function. The Inquiry Officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties and the findings in respect of guilt or otherwise of the charges, should be recorded on the basis of the weight of evidence on record. 13. It appears from the impugned order of the Disciplinary Authority, as also that of the Appellate Authority that both the officers have accepted the findings of the Inquiry Officer in a mechanical manner without application of mind to the relevant issues raised by the petitioners in their respective showcause replies/explanations that in absence of a definite and conclusive proof of the allegations that the petitioners had stopped vehicles and had realized money from the truck drivers, the findings of the Enquiry Officer are misconceived. The only act of misconduct which, even if taken into consideration and which if commonly applied to all the police personnel constituting the patrolling party including the group leader namely, the ASI and the constables attached with him is that they had committed dereliction of duty. If the acceptable portion of the evidence is to commonly apply to each and every member of the patrolling party and yet, the ASI can be exonerated from the charges and the other constable be given a lesser punishment, there was no reason why a different treatment should be given to the petitioners in the matter of punishment. 14. Considering the facts and circumstances of the case and in the light of the discussions made above, in my view, the punishment of dismissal of the petitioners from service is highly disproportionate to the nature of charges levelled against them and is harsh. 14. Considering the facts and circumstances of the case and in the light of the discussions made above, in my view, the punishment of dismissal of the petitioners from service is highly disproportionate to the nature of charges levelled against them and is harsh. The impugned orders of punishment as passed against the petitioners by the Disciplinary Authority and the impugned order passed by the Appellate Authority, are therefore hereby quashed”. 13. I have heard learned counsel for the parties, in the present facts and circumstance of the case, it also appears that there are no distinguishing feature which are present in the case of Prafulla Kumar Jha and Sanjay Kumar Singh, who were also proceeded under the charge-sheet dated 14th November, 2005(Annexure-1) by the respondent for the alleged misconduct. This petitioner along with Prafulla Kumar Jha were alleged to be collecting money from the drivers of the truck while in course of their duties. However, after discussing rival case of the parties, this court in the judgment of Prafulla Kumar Jha and Sanjay Kumar Singh has found the quantum of punishment as highly disproportionate to the nature of charges levelled against them. 14. In the facts and circumstances and the reasons discussed herein and the judgments, which have been quoted hereinabove, the impugned order of punishment passed against the petitioner by the Disciplinary Authority dated 24th August, 2006, contained in Annexure-6, the appellate order dated 26th November, 2006, contained at Annexure-7 as also the order rejecting the appeal memorial dated 14th September (Annexure-8), are accordingly quashed. The matter is remanded to the Disciplinary Authority for reconsideration on the quantum of punishment as may be proportionate to the established misconduct and has been awarded in case of other similarly situated persons. As has been ordered in the case of similarly placed persons in the judgment referred hereinabove, the period between the date of his termination from service and the date of his reinstatement, shall be deemed as period spent on duty, for the purpose of computing his pension and other retirement benefits. However, the petitioner should not be entitled to claim back wages for the entire period he remained out of duty. The petitioner shall be entitled to be reinstated in service consequent to the quashing of the impugned orders. 15. Accordingly the writ petition stands allowed in the aforesaid terms. However, the petitioner should not be entitled to claim back wages for the entire period he remained out of duty. The petitioner shall be entitled to be reinstated in service consequent to the quashing of the impugned orders. 15. Accordingly the writ petition stands allowed in the aforesaid terms. Consequently, I.A No. 5761 of 2013 also stands disposed of. Petition allowed.