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2014 DIGILAW 852 (GAU)

Samsul Ali v. State of Assam

2014-09-05

A.K.GOSWAMI

body2014
JUDGMENT Arup Kumar Goswami, J. 1. This writ petition is directed against the order dated 19.09.2006 whereby, the petitioner, who was a Constable, was dismissed from service with immediate effect pursuant to a departmental enquiry held. 2. Following a selection process, the writ petitioner was appointed as a Constable in the month of March, 2001 and was posted at 10th Assam Police Battalion at Kahilipara. He along with five others, four of whom were also constables, were arrested in connection with Dispur Police Station Case No. 1192/2005 under Section 395 IPC (G.R. Case No. 4036/05). 3. By a memo dated 07.12.2005, the petitioner was asked to show cause under Section 7 of Police Act, 1861 read with Rule 66 of Assam Police Manual (Part-III) and Article 311 of the Constitution of India as to why any of the penalties mentioned therein should not be inflicted upon him on the charges based on the allegation that he was found unauthorisedly absent from duty w.e.f. 08.10.2005 and that during such absence, he was found involved in a criminal case being Dispur P.S. Case No. 1192/05 under Section 395 IPC. 4. The petitioner submitted show cause denying the allegation and stating that during the period, as he was suffering from illness, he could not attend to his duty. Being not satisfied with the reply submitted by the petitioner, by an order dated 09.09.2006, an Enquiry Officer was appointed to conduct the departmental enquiry against the petitioner. 5. Subsequently, Sessions Case No. 322(K)/2005 under Section 395 IPC was registered in the Court of Sessions Judge, Kamrup in connection with Dispur Police Station Case No. 1192/2005. By a Judgment and Order dated 25.07.2006, the petitioner and the other accused persons were acquitted in Sessions Case No. 322(K)/05. 6. In the departmental inquiry, 7 witnesses were examined on behalf of the prosecution including Pinky Nath, the informant of Dispur Police Station Case No. 1192/2005 as PW 3. In her statement, she had made many allegations against the petitioner relating to the incident of 08.10.2005, which she did not depose in the criminal case. 7. PW-4, PW-5, PW-6 and PW-7 in the departmental proceedings were the Personal Security Officers of the Superintendent of Police (OPS) City and they were prosecuted along with the petitioner in the criminal case. They acknowledge their presence along with the petitioner in the house of Pinky Nath. 7. PW-4, PW-5, PW-6 and PW-7 in the departmental proceedings were the Personal Security Officers of the Superintendent of Police (OPS) City and they were prosecuted along with the petitioner in the criminal case. They acknowledge their presence along with the petitioner in the house of Pinky Nath. PW-4, PW-5 and PW-7 also stated about the petitioner taking a trunk from the house of PW-3. PW-2, the Platoon Commander had deposed that there was no trace of the petitioner on 08.10.2005 after morning roll call and accordingly, he had informed the matter to his superior. The petitioner declined to cross-examine the witnesses except PW-3 Pinky Nath. He also did not adduce any defence evidence. 8. On the basis of the evidence on record, the Enquiry Officer recorded a finding that the delinquent being a member of the disciplined police force, displayed highly deplorable conduct, by indulging in criminal act and remaining unauthorisedly absent to achieve his objective and played the role of kingpin in motivating the other police personnel and held the charges to be proved. 9. Thereafter, second show cause notice was issued to the petitioner along with the copy of the findings of the Enquiry Officer. The petitioner submitted his reply. But being not satisfied with the reply, he was dismissed from service by an order dated 19.09.2006. 10. Being aggrieved, the petitioner preferred an appeal before the Deputy Inspector General and as the appeal was not disposed, he submitted appeal(s) to the same authority on 28.02.2008, 03.12.2008 and 28.07.2009. But as the appeals were not disposed of, the petitioner had approached this court. 11. The Respondent No. 6 had filed an affidavit stating that 5 other persons arrested along with the petitioner did not belong to 10th Assam Police Battalion. It is stated that charge leveled against the petitioner in the departmental proceeding was proved and the departmental proceeding was conducted in accordance with law. With regard to the appeal filed by the petitioner, it is stated that the appellate authority, i.e., Deputy Inspector General (AP) received the appeal petition on 27.07.2009 after about 3 years of passing of the order dated 19.09.2006, which was beyond the period of 6 months provided for filing appeal under Rule 66 of Assam Police Manual and therefore, the appeal was not considered. 12. 12. In the reply-affidavit filed by the petitioner, it is stated that in respect of other persons arrested along with the petitioner, belonging to the police department, no disciplinary proceeding was initiated against them and disciplinary proceeding was initiated only against the petitioner. It is further averred that those police personnel were cited as witnesses in the departmental proceeding and were also examined by the department, which is not permissible in law. 13. Mr. R. Baruah, learned counsel for the petitioner has submitted that charge against the petitioner in the criminal case and the departmental proceeding being same and the petitioner having been acquitted in the criminal case, the respondent authorities acted illegally and arbitrarily in holding that the charge framed against the petitioner was proved. It is further submitted by him that the petitioner was sought to be victimised and he is discriminated as no departmental proceeding was initiated against the police personnel who were charged along with the petitioner in the criminal case. Learned counsel submits that the disciplinary authority acted illegally and arbitrarily in relying upon the evidence of the police personnel who were arrested along with the petitioner. He has relied on the decision of the Supreme Court rendered in the case of Captain M. Paul Anthony vs. Bharat Gold Mines Limited and Another, reported in AIR 1999 SC 1416 , with particular reference to paragraph 34. 14. Ms. P. Gogoi, learned State Counsel has produced the record of the enquiry proceeding. She has submitted that there is no allegation in the writ petition that there was any procedural infirmity in the departmental proceeding or that the petitioner was denied reasonable opportunity, thereby violating the principles of natural justice. Learned State counsel submits that the charge against the petitioner and the other accused persons in the criminal case is not based on the same set of facts on which the foundation of the departmental proceeding is rested. That apart, standard of proof in a criminal proceeding and the departmental proceeding is different, she submits. Learned State counsel submits that only because the other police personnel were not proceeded with departmentally cannot be a ground to set aside the order of dismissal, when the charge is found to be established. It is also submitted that examination of the said accused persons in disciplinary proceeding will not vitiate the departmental proceeding. Learned State counsel submits that only because the other police personnel were not proceeded with departmentally cannot be a ground to set aside the order of dismissal, when the charge is found to be established. It is also submitted that examination of the said accused persons in disciplinary proceeding will not vitiate the departmental proceeding. She has relied on Ram Saran vs. I.G. of Police, CRPF and Others, reported in AIR 2006 SC 3530 and Union of India and Others, vs. Ram Phal, reported in (1996) 7 SCC 546 . 15. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. I have also perused the record relating to departmental proceeding. 16. In M. Paul Anthony (Supra), criminal case was launched on the basis that the Superintendent of Police had raided the residential premises of the appellant and had recovered a mining sponge gold ball weighing 4.5 grams and 1276 grams of "gold bearing chain" and on the same set of facts, departmental proceeding was initiated against the appellant as the "recovery" was treated to be a misconduct. Same set of witnesses were examined both in the criminal case as well as in the departmental proceeding and in the criminal case, the prosecution case was not accepted and the appellant was acquitted. In the aforesaid background, the Supreme Court had held that it will be oppressive to accept the conclusion arrived at in the departmental proceeding that charges were established against the appellant. 17. Vide Ext. 8 dated 24.10.2005, the Senior Superintendent of Police (City) informed the Deputy Inspector of Police (CID) that during investigation in connection with the said Dispur Police Station Case No. 1192/2005, it was found that Champak Kalita, Santosh Swargiary, Yekub Ali and Deepak Basumatary were involved along with the petitioner. Copy of the said communication was also given to the Commandant, 10th Assam Police Battalion and thus, the disciplinary authority was aware that the said police personnel were also implicated with the petitioner. May be, the Commandant, 10th Assam Police Battalion was not the disciplinary authority in respect of the said four police personnel. But fact remains that no disciplinary proceeding was initiated against the said four police personnel by their disciplinary authority and in the disciplinary proceeding against the petitioner, they were cited as witnesses though they were accomplices of the petitioner. May be, the Commandant, 10th Assam Police Battalion was not the disciplinary authority in respect of the said four police personnel. But fact remains that no disciplinary proceeding was initiated against the said four police personnel by their disciplinary authority and in the disciplinary proceeding against the petitioner, they were cited as witnesses though they were accomplices of the petitioner. The involvement of the petitioner in Dispur Police Station Case was sought to be established through the informant of the Dispur Police Station Case No. 1192/2005 and the said four police personnel, who were examined as PW 4, PW 5, PW 6 and PW 7 in the departmental proceeding. 18. This Court finds that the Enquiry Officer had also relied on Ext. 8, wherein petitioner's involvement in the criminal act is duly reflected, in coming to the conclusion that the charge No. 2 was proved. The disciplinary authority, in its order dated 19.9.2006, with regard to the second charge, had observed:- "In course of enquiry, the Enquiry Officer had examined seven prosecution witnesses in presence of the delinquent constable who was given the opportunity to cross-examine the witness. The delinquent constable Samsul Ali declined to do so except on one case, i.e. PW No. 3 Pinky Nath. Here also the delinquent questioned her about the amount of money which was stolen from her. In the FIR it was mentioned as Rs. 15000/- only but now it was increased. But the delinquent could not refute the charge. In case of other witnesses the delinquent just kept mum though he was given the opportunity to cross-examine the PWs and defend his position. This indicates that he has agreed with their statements and indirectly accepted his involvement in the commission of the crime." 19. From the judgment of the trial court passed in Sessions Case No. 322(K)/5, it appears that the informant, during trial, had deposed that accused persons were not involved in the crime and they be acquitted. Though in the ejahar, it was alleged that Rs. 15,000/- in cash, gold chain etc. were taken away, in her evidence she stated that no such incident had taken place. In the light of the evidence brought on record, the learned trial court held that prosecution had failed to prove the charge against the accused persons and accordingly, had acquitted them. 20. 15,000/- in cash, gold chain etc. were taken away, in her evidence she stated that no such incident had taken place. In the light of the evidence brought on record, the learned trial court held that prosecution had failed to prove the charge against the accused persons and accordingly, had acquitted them. 20. The learned Sessions Judge in his judgment, had also recorded as follows:- "As already discussed in the foregoing paragraphs that the inmates of the house, i.e., PW 1, PW 2 and PW 3 have specifically stated that the accused persons were not involved in the crime and they may be acquitted." 21. The petitioner and said four police personnel were prosecuted together in a criminal trial and were acquitted. Once acquitted, safely ensconced by the fact that there is no disciplinary proceeding looming over their heads, PW 4, PW 5, PW 6 and PW 7 come and depose in the disciplinary proceeding implicating the petitioner, in the process also injecting incriminating evidence against themselves. Even though there is no cross-examination of PW 4, PW 5, PW 6 and PW 7, it is beyond comprehension how evidence of PW 4, PW 5, PW 6 and PW 7 implicating the petitioner in the Dispur Police Station Case No. 1192/2005 can be taken note of in view of the judgment of the learned Sessions Judge acquitting all of them. Same is the position with regard to the evidence of PW 3, Pinky Nath, i.e., the informant of Dispur Police Station Case No. 1192/2005. In view of the acquittal of the petitioner and the PW 4, PW 5, PW 6 and PW 7 by the learned Sessions Judge, the conclusion of the disciplinary authority that the petitioner indirectly accepted his involvement in the commission of the crime is not sustainable. 22. Though the petitioner stood trial in connection with Dispur Police Station Case No. 1192/2005, in view of his acquittal by the learned Sessions Judge with the finding, in his words, that "the prosecution failed to bring home the charge against the accused persons and they deserve acquittal", it will be oppressive to record a finding in a departmental proceeding that the petitioner was involved in Dispur Police Station case No. 1192/2005, that, too, on the basis of the statements of the co-accused. 23. 23. So far as the first charge is concerned, in the show cause reply, though a plea was taken by the petitioner that he could not attend his duty as he was suffering from illness, during the disciplinary proceeding, he neither examined himself nor examined any witness with regard to his stand in the show cause reply that he was unwell. Evidence of PW 1 and PW 2 makes it clear that the petitioner was not present after the roll call. By the stand taken in the show cause reply, the petitioner had himself admitted that he was absent, but justified such absence due to illness. As he failed to adduce any evidence regarding his sickness, it stands established that the petitioner was unauthorisedly absent from duty. 24. In Ram Saran, the Apex Court had upheld the order of dismissal from service holding that no leniency can be shown as it would be akin to giving premium to a person who admittedly committed forgery at the time of his appointment by making alteration in his school certificate, though the employee had rendered twenty seven years of service. In Ram Phal, the constable remained absent from duty for a long period and his dismissal from service was passed not because of the misconduct of absence without leave was proved but because his further continuance was considered undesirable in exercise of power conferred by Section 11 of the Border Security Force Act, 1968. The cases cited by Ms Gogoi, apparently, have got no application to the facts of the case. 25. The appointing authority dismissed the petitioner holding that both the charges are proved. This Court has now recorded a finding that the charge relating to his involvement in Dispur Police Station Case No. 1192/2005 was not established. This Court will not hazard a guess as to how far and to what extent the individual charges weighed upon and influenced the disciplinary authority in coming to the conclusion with regard to imposition of penalty by way of dismissal from service. Now that only charge relating to absence from duty has been held to be proved, it will be only appropriate for the Commandant, 10th Assam Police Battalion to pass a fresh order imposing penalty as may be considered just and proper for the charge established against the petitioner. 26. Now that only charge relating to absence from duty has been held to be proved, it will be only appropriate for the Commandant, 10th Assam Police Battalion to pass a fresh order imposing penalty as may be considered just and proper for the charge established against the petitioner. 26. Accordingly, a Writ of Mandamus is issued to the Commandant, 10th Assam Police Battalion to pass a fresh order imposing penalty upon the petitioner, which has been held to be established, within a period of one month from the date of receipt of a certified copy of this order. With the passing of the fresh order of penalty, the present order imposing penalty by way of dismissal will stand obliterated. Having regard to the nature of the case as also the challenge made by the petitioner before this Court by way of the instant writ petition after about four years of the passing of the order of dismissal, this Court considers it just and expedient to pass an order to the effect that in the event of the disciplinary authority imposing any penalty which may have the effect of taking back the petitioner in service, the petitioner will not be entitled to any pay and allowances from the date of his dismissal to the eventual order imposing penalty now to be passed. However, it is also provided that, in such an event the period will be reckoned for the purpose of computation of pensionary benefits. Needless to say, if the petitioner is aggrieved by the fresh order imposing penalty, he will be free to pursue his remedies in accordance with law. 27. The writ petition is allowed to the extent indicated above. No cost. 28. The petitioner is permitted to produce a certified copy of this order before the Commandant, 10th Assam Police Battalion for doing his needful. Petition Partly allowed.