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2014 DIGILAW 1263 (JHR)

Jokhan Choudhary v. State of Jharkhand

2014-12-15

SUJIT NARAYAN PRASAD

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ORDER : Petitioner inter-alia has prayed for following reliefs: (a) For quashing the order dated 29.2.2012 passed by the Superintendent of Police, Bokaro and order dated 3.10.2012 passed by the Deputy Inspector General of Police, Koilanchal, Bokaro. (b) Direction upon the respondents to reinstate the petitioner will all consequential benefits. 2. It has been submitted on behalf of petitioner that after following due procedure he was appointed as Constable in District Police, Bokaro in the year 2000. All of a sudden a memorandum of charge served upon him in which it was alleged that he had attended office in drunken stage and absented from parade and also used abusive words. Further charge is that he fled away from the jeep when he was carrying out towards hospital for medical treatment. 3. The petitioner has submitted a detailed reply to the show cause denying entire allegations levelled against him. On being not satisfied with the reply given by the petitioner a departmental proceeding no. 89 of 2011 was initiated and the petitioner was directed to appear before the Inquiry officer. The Inquiry officer on the basis of the scrutiny of the documents and examining the witnesses has found the charges proved against him. The disciplinary authority after accepting the report of inquiry officer had passed an order of dismissal from service on 29.2.2012. Thereafter, the petitioner preferred an appeal before the appellate authority but the same was also rejected without giving adequate and sufficient opportunity of being heard. Neither any witnesses supporting the defence reply given by the petitioner nor any documents had been placed before the inquiry officer. It has further been submitted that no cogent evidence had come before the inquiry officer in support of the charge of taking liquor because no sample of blood or urine had been taken for its examination by the expert as such, the inquiry officer in a very perfunctory manner had proved the charges. The disciplinary authority had accepted the same while the petitioner had also tried to satisfy him but no consideration has been given. Even, the appellate authority had not considered the entire aspect of the matter and upheld the order of dismissal. 4. On the other hand, counsel appearing on behalf of respondents has submitted that the nature of allegation levelled against the petitioner is very serious. Even, the appellate authority had not considered the entire aspect of the matter and upheld the order of dismissal. 4. On the other hand, counsel appearing on behalf of respondents has submitted that the nature of allegation levelled against the petitioner is very serious. It is not expected from a member of disciplined Force to come in drunken stage in office. It has further been submitted that the petitioner had even used abusive language and fled away from the jeep while he was carrying out by other personnel towards hospital for his medical examination and as such, he has committed gross misconduct. 5. It has further been submitted that the petitioner had been given adequate and sufficient opportunity to put his defence before the inquiry officer as also before the disciplinary authority but, the authority had come to the concurrent finding that the conduct of the petitioner is very bad and as such, he can not be retained in service like service of disciplined Force. Hence, it has been submitted that order needs no interference. 6. Heard the parties. 7. The nature of allegation against the petitioner is that he in drunken stage had attended the office and when he was questioned he used abusive language and also when he was being carried to the hospital for medical examination he fled away from the jeep for the purpose of avoiding any medical examination. 8. The petitioner admittedly is a member of police force. The allegation with respect to taking liquor on duty is very serious. 9. The arguments advanced on behalf of petitioner that blood or urine sample was not taken cannot help him as the authorities have taken steps for carrying him to hospital but it was the petitioner who fled away from the jeep which itself suggest that in order to avoid his medical examination the petitioner had fled away hence, the inquiry officer had come to the conclusion that the petitioner was in drunken stage. It is settled that in a disciplinary inquiry the proof beyond doubt has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. In this regard a judgment has been rendered by Hon'ble Apex Court in the case of High Court of Judicature at Bombay Vs. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. In this regard a judgment has been rendered by Hon'ble Apex Court in the case of High Court of Judicature at Bombay Vs. Uday Singh and others [ 1997(5) SCC 129 ] at Para 10 which reads as under:- “--------the doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct-------.” 10. In view of above basing upon the preponderance of probability the enquiry officer had come to the conclusion and passed the order impugned on the basis of evidences of the witnesses who have deposed before inquiry officer substantiating charge. 11. The other charges i.e. using abusive language and fleeing away from the jeep had also been proved by the enquiry officer. The petitioner had been provided all opportunity of being heard before the authorities concerned. 12. It is settled legal proposition that judicial review is not akin to adjudication on merits by re-appreciating the evidences as an appellate authority. The only consideration the Court/Tribunal has in its judicial review, is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. 13. In the instant case the inquiry officer had come to the conclusion that the petitioner was in drunken stage and the same is being corroborated from his conduct that he fled away from the jeep, avoiding his medical examination. If a person is avoiding to give a proof to the authorities concerned for coming to rightful and logical conclusion in later stage, the said delinquent employee can not take advantage. In this case the authorities have tried their level best to produce the petitioner before the expert but it is the petitioner who had fled away from the jeep in order to avoid his medical examination. 14. Considering the nature of allegation and also considering the concurrent finding of the authorities relying upon the judgment rendered by the Hon'ble Apex Court in the case of Nirmala J. Jhala Vs. State of Gujrat and another [ 2013(4) SCC 301 ] at para 22 which is being quoted hereinbelow. “22. 14. Considering the nature of allegation and also considering the concurrent finding of the authorities relying upon the judgment rendered by the Hon'ble Apex Court in the case of Nirmala J. Jhala Vs. State of Gujrat and another [ 2013(4) SCC 301 ] at para 22 which is being quoted hereinbelow. “22. It is settled legal proposition that judicial review is not akin to adjudication on merits by re-appreciating the evidence as an appellate authority. The only consideration the Court/Tribunal has in its judicial review, is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. The adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings (Vide State of T.N. v. S. Subramaniam, R.S. Saini V. State of Punjab and Govt. of A.P. v. Mohd. Nasrullah Khan)” 15. In that view of the matter I find no reason to interfere with the impugned order. Accordingly, the writ petition is dismissed being devoid of merit.