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2014 DIGILAW 1205 (JHR)

Md. Aslam v. State of Jharkhand

2014-12-03

SUJIT NARAYAN PRASAD

body2014
ORDER : In this writ petition, the petitioner has prayed for quashing the order dated 27.2.2011, passed by the disciplinary authority, whereby he has been terminated from service. The petitioner has also prayed for quashing the orders dated 17.10.2011 and 30.4.2012, whereby the order of termination has been upheld by the appellate authority as well as by the revisional authority. 2. The brief facts, as has been argued on behalf of the petitioner, is that the petitioner was appointed to the post of Police Constable after following due procedures of selection and posted at Baliapur P.S in the district of Dhanbad in the year 2010. He was deputed on duty in “Shrawani Mela” at Deoghar in the year 2010 for which he was relieved on 22.7.2010 from Dhanbad. But he was suspended on 23.8.2010 on the allegation of demanding illegal gratification. A departmental proceeding was initiated against the petitioner and the charge sheet was submitted alleging therein that the petitioner had demanded illegal gratification from the driver of the truck bearing Registration No. JH02J 5160, which was seized by the patrolling Police party. On the said allegation, a criminal case being Barwada P.S Case No. 320/2010 had also been instituted against the petitioner under Sections 419/420 IPC. The petitioner had appeared before the enquiry officer. But the enquiry officer, without any cogent evidence and without providing an opportunity to cross-examine the witnesses, found the charge proved against the petitioner. The said finding of the enquiry officer has been accepted by the disciplinary authority. Thereafter, the punishment of dismissal from service has been imposed on the petitioner. Against the said order, the petitioner had filed appeal as also revision, but the appellate authority as well as the revisional authority has also not considered the facts, which had been brought to their notice and in mechanical manner they have upheld the decision taken by the disciplinary authority. 3. Learned counsel for the petitioner submitted that the petitioner had not been provided an opportunity of defending himself, which is violation of the principle of natural justice, as such the impugned order of dismissal is not sustainable in the eye of law. Learned counsel further submitted that the enquiry officer merely on the basis of the evidence of one witness has come to the opinion with respect to proving of the charge against the petitioner. 4. Learned counsel further submitted that the enquiry officer merely on the basis of the evidence of one witness has come to the opinion with respect to proving of the charge against the petitioner. 4. Learned counsel for the respondents has submitted by filing counter affidavit that the petitioner had committed gross misconduct by demanding illegal gratification by impersonating himself as the bodyguard of the Superintendent of Police, Dhanabd. On the said allegation, departmental as well as judicial proceeding has been initiated. The petitioner has been provided an opportunity of hearing and after considering the deposition of the witnesses, the enquiry officer has found the charge proved against the petitioner. The report of the enquiry officer was also accepted by the disciplinary authority and he has passed a reasoned order dismissing the petitioner from service. Considering the gravity of the allegation, the authorities have come to the conclusion that the petitioner is not fit to serve in the Police Force, as such the decision has been taken to separate him from the service of the Police Force. 5. Heard the parties, perused the record. 6. The allegation against the petitioner as per the memorandum of charge is as follows: “One Driver, Ramdev Kumar of a truck bearing No. JH02J 5160, while on the way from going towards Jhumari Telaiya, was intercepted by the Mobile Inspector and the vehicle was seized on account of over-loading and the said vehicle was brought to “Bazar Samiti” Barwada, for its safety on 17.08.2010. On 20.08.2010, at 11.00 a.m., a person on Motorcycle, written in-front of the Motorcycle as “POLICE” and A/F on the back side, who told the Driver of the vehicle to get it released saying himself to be the body guard of the S.P, Dhanbad and for that purpose demanded Rs. 12,000/-. Upon which the Driver gave Rs. 5,000/-on 20.08.2010 and the person returned along with the money and did not come back by the evening of that day, then the suspicion arose and on 21.08.2010, the said person again came and the Driver seeing him told about the releases of the vehicle, whereupon he told that the vehicle would be released after getting the remaining amount. Thereafter, some altercation took place between the Driver and the person who impersonated himself as the Bodyguard of the S. P and taken Rs. 5,000/-from the Driver. Thereafter, some altercation took place between the Driver and the person who impersonated himself as the Bodyguard of the S. P and taken Rs. 5,000/-from the Driver. Then the people assembled there and caught him and brought him to the Barwada Police Station, where the said person who was brought by the people disclosed his name as Aslam, Constable-1233, posted at Baliapur Police station, during that period he was deputed in “Shrawani Mela Deoghar” and absented himself from there unauthorizedly.” 7. The allegation against the petitioner is of demanding illegal gratification from the driver, whose vehicle had been seized by the patrolling Police party, by impersonating himself as the bodyguard of the Superintendent of Police, Dhanbad. On the said allegation, a regular departmental proceeding was initiated against the petitioner by appointing an enquiry officer. The enquiry officer had recorded the evidence of the witness -Sub-Inspector of Police-Byas Ram of Barwada P.S. The said witness had substantiated the allegation levelled against the petitioner and had prepared a report on the basis of which the petitioner was suspended. The said witness had confirmed his report before the enquiry officer corroborating the allegation levelled against the petitioner. The enquiry officer had also recorded the evidence of another witness -Sub-Inspector of Police -Samshul Haque Khan, who had stated that the order of suspension dated 23.8.2010 had been passed on the allegation levelled against the petitioner. 8. It appears from the enquiry report that the petitioner had been provided an opportunity of hearing and the enquiry officer had considered the defence of the petitioner, but the petitioner failed to satisfy the enquiry officer as to why he absented himself from duty while he was deputed at “Shrawani Mela” at Deoghar and also failed to satisfy the authorities regarding the allegation of demanding illegal gratification from the driver of the truck, as such the charge was found to be proved against the petitioner. 9. 9. From perusal of the impugned order passed by the disciplinary authority, it is apparent that the disciplinary authority has considered all aspects of the matter and after perusing the documents on record and also the enquiry report, vide Memo No. 547 dated 31.1.2011, the petitioner had been asked to give his reply to the second show cause notice by enclosing the finding of the enquiry officer and by sending the same through a special messenger to serve the same on the petitioner after his release on bail from the judicial custody. Thereafter, other efforts had also been taken by the disciplinary authority so that the copy of the enquiry report and the second show cause notice may be served upon the petitioner, but he had not submitted any reply. Thereafter, the disciplinary authority has come to the conclusion that the petitioner was on deputation in “Shrawani Mela” at Deoghar, but without any information / permission / leave, he fled away from the duty and had demanded illegal gratification from the truck driver, which is gross misconduct and indiscipline on his part. Hence, the decision has been taken to dismiss him from service. The petitioner had been provided an opportunity of hearing before the enquiry officer and the disciplinary authority. However, the petitioner had not availed the opportunity, which had been given by the disciplinary authority and thereafter the impugned order of dismissal has been passed. The case of the petitioner has been considered even by the appellate authority as well as by the revisional authority, who has also found the allegation as serious and thereafter they affirmed the order passed by the disciplinary authority. There is concrete finding of disciplinary authority, as such sitting under Article 226 of the Constitution of India, this Court cannot reappraise the evidence and disturb the fact finding which has been arrived at by four authorities in view of the settled proposition of law, as has been dealt with by the Hon’ble Supreme Court in the case of State Bank of Hyderabad Vs. P. Kata Rao, reported in (2008) 15 SCC 657 at Paragraph 18 as follows : "18. There cannot be any doubt whatsoever that the jurisdiction of superior Courts in interfering with a finding of fact arrived at by the enquiry officer is limited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment. ..................." 10. There cannot be any doubt whatsoever that the jurisdiction of superior Courts in interfering with a finding of fact arrived at by the enquiry officer is limited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment. ..................." 10. In the facts and circumstances stated herein above and for the reasons aforementioned, I find no reason to interfere with the impugned orders. 4. This writ petition is dismissed being devoid of merit.