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2015 DIGILAW 1365 (JHR)

Harendra Prasad Singh v. State of Jharkhand

2015-10-30

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. Both the writ petitions have been taken up together, as common issues are involved in both the writ petitions and with the consent of both the parties are heard together and are being disposed of by this common order. 2. In W.P. (S) No. 6212 of 2009, the petitioner has inter alia prayed for quashing memo no. 4482 dated 10.12.2007 whereby the petitioner was awarded punishment of dismissal from services and also for quashing of appellate order dated 23.03.2011, whereby the order passed by the disciplinary authority has been confirmed. 3. The petitioner, in W.P. (S) No. 6313 of 2009, has inter alia prayed for quashing memo no. 4483 dated 10.12.2007 whereby the petitioner was awarded punishment of dismissal from services. 4. Sans details, the facts as described in W.P. (S) No. 6212 of 2009, in a nutshell is that the petitioner was initially appointed as constable in the year 1977. Thereafter, the petitioner continued to discharge his duties to the utmost satisfaction of the respondents-authorities. While continuing as such, the petitioner was put under suspension vide memo no. 609 dated 17.05.2005 on the charge of committing unnatural work with one Rajiv Kumar. On the basis of said allegation, a charge-sheet dated 21.06.2005 was served upon the petitioner and the petitioner was asked to submit his explanation by 05.07.2005. It has further been submitted that after receiving charge-sheet, the petitioner vide letter dated 28.06.2005 asked for relevant documents including the written complaint of victim-Rajiv Kumar and his medical examination report, which was not supplied to him, however, the petitioner submitted his explanation denying the charges levelled against him enclosing some letters written by the staff of Poraiyahat Police Station mentioning therein that as the petitioner has some dispute with Officer-in-Charge of Police Station, such false allegation has been leveled against him. It has further been submitted that thereafter, departmental proceeding no. 06/05 was initiated against the petitioner, in which, the Inquiry Officer conducted the inquiry in most illegal and arbitrary manner as he himself acted as presenting officer. Thereafter, the disciplinary authority relying upon the enquiry report issued memo no. 4482 dated 10.12.2007 whereby the petitioner was awarded punishment of dismissal from services. Being aggrieved, the petitioner preferred appeal before the appellate authority, which was rejected vide order dated 23.03.2011. 5. Thereafter, the disciplinary authority relying upon the enquiry report issued memo no. 4482 dated 10.12.2007 whereby the petitioner was awarded punishment of dismissal from services. Being aggrieved, the petitioner preferred appeal before the appellate authority, which was rejected vide order dated 23.03.2011. 5. In W.P. (S) No. 6313 of 2009, the petitioner has made out a case that while continuing on the post of constable, the petitioner was put under suspension on 14.12.2006 on the charge of committing unnatural work with one Fantus Mehtar. Thereupon, charge-sheet was served upon the petitioner on 20.12.2006 and a departmental proceeding no. 39 of 2006 was initiated in the same manner and fashion, as indicated in W.P. (S) No. 6212 of 2009 and finally the disciplinary authority relying upon the enquiry report issued memo no. 4483 dated 10.12.2007 whereby the petitioner was awarded punishment of dismissal from services. 6. Being aggrieved by the impugned order of dismissal dated 10.12.2007 and order of appellate authority, the petitioner having no alternative, efficacious and speedy remedy has approached this Court invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of his grievances. 7. Per contra, counter affidavit has been filed on behalf of respondents controverting the averments made in the writ applications. In the counter affidavit filed in W.P. (S) No. 6212 of 2009, it has been submitted on 14.05.2005, one Rajiv Kumar, came along with his father Ashok Prasad at Poraiyahat Police Station, where the victim boy-Rajiv Kumar made a statement that on 01.10.2005 at about 12.05 p.m. while he was crossing the premises of police station, one staff of Poraiyahat Police Station took the victim boy into the room and began to kiss him and rub his thigh and also put off his paint to satisfy his unnatural sexual lust, but, finding an opportunity, he fled away to his lodge, where by narrated the story to his lodge-mates, who 24-25 in number came and made complaint to the authorities, and the victim boy identified the petitioner. At that time other police personnels, who were present there, supported the allegations before the superintendent of police, Godda. On the basis of said allegation, explanation was sought from the petitioner, which was found unsatisfactory, hence, it was rejected. It has further been contended that the petitioner failed to prove the enmity with O/C of Poraiyahat Police Station. At that time other police personnels, who were present there, supported the allegations before the superintendent of police, Godda. On the basis of said allegation, explanation was sought from the petitioner, which was found unsatisfactory, hence, it was rejected. It has further been contended that the petitioner failed to prove the enmity with O/C of Poraiyahat Police Station. It has been submitted that so far the enquiry is concerend, it has been conducted in accordance with law and after supplying all the record and affording sufficient opportunity to the petitioner for filing explanation and doing cross-examination of the petitioner, the petitioner was dismissed from services vide memo no. 4482 dated 10.12.2007, which has upheld in appeal preferred vide order dated 23.03.2011. 8. Learned counsel for the respondent further submitted that the petitioner after this incident again tried to have unnatural sex with another child, namely, Fantush Mandal on 08.12.2010, against which another departmental proceeding no. 39 of 2006 was conducted, which too culminated in dismissal of the petitioner vide memo no. 4483 dated 10.12.2007, which is subject matter of W.P. (S) No. 6313 of 2009. 9. Heard Dr. S.N. Pathak, learned senior counsel for the petitioner and J.C. to A.G. for the respondents-State. 10. Learned senior counsel for the petitioner has strenuously urged that the entire proceeding is vitiated on the ground of no evidence and apart from that, enquiry report has not been served upon the petitioner nor the opportunity of second show cause has been given to the petitioner prior to infliction of major punishment, thereby, Rule 826 of the Police Manual has been given a complete go by. The whole enquiry has been conducted in a most illegal and arbitrary manner as the Enquiry Officer himself acted as presenting officer. All the witnesses except the victim-Rajiv Kumar has deposed in favour of the petitioner and without giving any opportunity to cross-examine the said Rajiv Kumar, the petitioner has been made guilty of the charges. Learned senior counsel further submitted that the petitioner has been penalized on the basis of false and frivolous allegation. Learned senior counsel further submitted that the petitioner has unblemished service career of 30 years and petitioner has become the victim of conspiracy and on the basis of concocted and false story, departmental proceeding has been initiated and even F.I.R has not been lodged by the victim. Learned senior counsel further submitted that the petitioner has unblemished service career of 30 years and petitioner has become the victim of conspiracy and on the basis of concocted and false story, departmental proceeding has been initiated and even F.I.R has not been lodged by the victim. It is quite inconceivable as to how the veracity of the allegations was proved in a departmental proceeding without any clear-cut finding in the enquiry report. Learned senior counsel further submitted that assuming that incident occurred on 10.05.2005 but as it appears till 14.05.2005 neither complaint was lodged and delay raises serious doubt regarding genuinity of allegation nor the victim was subjected to medical examination, so as to ascertain the veracity of the allegations. Learned senior counsel submitted in the same manner, departmental proceeding no. 39 of 2006 was initiated, which also culminated to dismissal from service from service vide memo no 4483 dated 10.12.2007. 11. As against this, learned counsel for the respondents-State submitted that the charges are so grave that it is unbecoming on the part of the police officer to be retained in service and the proceeding has been conducted in a fair manner and accordingly, just punishment has been inflicted, which has been confirmed by the appellate authorities. 12. After having heard learned senior counsel for the petitioner and learned counsel for the respondents-State and on perusal of the record, I am of the considered view that the impugned order of punishment of dismissal from services and the appellate order are not legally sustainable for the following facts and reasons: (i) On perusal of the records, it is quite evident that apart from the departmental proceeding neither any criminal case was lodged against the petitioner nor the victim boy was sent for medical examination so as to ascertain the veracity of the incident. (ii) In the departmental proceeding, the enquiry officer has not found the petitioner guilty of the charges and no official witness has deposed against the petitioner and entire proceeding is based on surmises and conjectures. (iii) In the proceeding, the enquiry report has not been supplied to the petitioner prior to infliction of punishment, which has caused gross prejudice to the petitioner. (iii) In the proceeding, the enquiry report has not been supplied to the petitioner prior to infliction of punishment, which has caused gross prejudice to the petitioner. Moreover, prior to infliction of major punishment second cause notice was not given, which has also vitiated the entire proceeding, thereby rendering the impugned order of punishment of dismissal from services as well as the order of appellate authority negatory. (iv) Apart from violation of principles of natural justice, the impugned order of punishment appears to be grossly disproportionate to the alleged charges and punishment is hit by principles of proportionality. In the instant case, it appears that the impugned order of dismissal from services is grossly disproportionate to the alleged charge and, therefore, the petitioner has made out a case on the ground of doctrine of proportionality also. Therefore, on both counts, the impugned orders fail to stand and are not legally sustainable. 13. On cumulative effects of the aforesaid facts and reasons, the impugned order of dismissal dated 10.12.2007 issued vide Memo No. 4482 and appellate order dated 23.03.2011 which are subject matter of W.P. (S) No. 6212 of 2009 and Memo No. 4483 dated 10.12.2007, which is subject matter of W.P. (S) No. 6313 of 2009, are hereby quashed. 14. Since, it is the exclusive domain of the disciplinary authority to award punishment as per the charges and the delinquency, the matter is remitted back to the respondents-authorities to consider the case of the petitioner on the question of quantum of punishment considering the three decades unblemished service career of petitioner as well as taking into accounts the observations made by this Court and take a fresh decision within a reasonable period preferably with a period of three months from the date of receipt/production of copy of this period. With the aforesaid observations and directions, the writ petitions stand disposed of.