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2015 DIGILAW 1421 (JHR)

Samarjeet Pandey v. State of Jharkhand

2015-11-06

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter-alia prayed for issuance of a writ of certiorari for quashing the order dated 26.07.2010 passed by the Superintendent of Police, Dhanbad, whereby the Disciplinary Authority i.e. Superintendent of Police, Dhanbad passed the order of dismissal and for quashing the order dated 04.03.2011 passed by the Director General of Police, Jharkhand affirming the order dated 07.09.2010 passed by the Deputy Inspector General of Police, Coal Range, Bokaro and also for issuance of writ/direction in the nature of mandamus commanding the respondents to reinstate the petitioner in services with all consequential benefits. 2. Sans details, the facts as emanated from the averments of the writ application in short, is that initially the petitioner was appointed as a Constable in Dhanbad and joined his duty on 24.04.2005 and continued till 2009. The petitioner was transferred to Ranchi on deputation in S.T.F. where he continued till December, 2010. During his posting in the district of Dhanbad, allegation was levelled against the petitioner for absence of duty from 22.07.2008 to 30.07.2008 and charges were framed thereafter, the petitioner was proceeded departmentally and the enquiry officer found the petitioner guilty of the charges. On the findings of the Inquiry Officer, the Superintendent of Police, Dhanbad issued a show cause notice on the proposed order of punishment of dismissal from the services. In response thereto, the petitioner submitted his reply denying the charges. Without considering the show cause reply in proper prospective, the Disciplinary Authority passed the order of dismissal vide order dated 26.07.2010 vide Annexure-4 to the writ application. Against the order of Disciplinary Authority, the petitioner preferred an appeal before the Appellate Authority and the Appellate Authority affirmed the order of the Disciplinary Authority by order dated 07.09.2010 vide Annexure-6 to the writ application. Against the order of the Appellate Authority, the petitioner preferred revision before the Revisional Authority and Revisional Authority i.e. Director General of Police, Jharkhand rejected the revision petition filed by the petitioner and affirmed the order of the Appellate Authority by order dated 04.03.2011, vide Annexure-8 to the writ application. Against the order of the Appellate Authority, the petitioner preferred revision before the Revisional Authority and Revisional Authority i.e. Director General of Police, Jharkhand rejected the revision petition filed by the petitioner and affirmed the order of the Appellate Authority by order dated 04.03.2011, vide Annexure-8 to the writ application. Being aggrieved by the order of the Disciplinary Authority, Appellate Authority as well as the Revisional Authority, the petitioner left with no other alternative, efficacious and speedy remedy, has approached this Court invoking extra-ordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances. 3. Per-contra a counter-affidavit has been filed by the respondent nos. 2 to 4 controverting the averments made in the writ application. In the counter-affidavit, it has been inter alia submitted that the departmental proceeding bearing Dhanbad District Departmental Proceeding no.45 of 2008 was initiated against the petitioner and the charges against the petitioner was that while posted at Hariharpur Police Station with reserve guard of STF, without giving any information absconded from duty and subsequently appeared on 30.07.2008. The petitioner was ordered to give his joining at Police Line, Dhanbad. Further, a news item was published in local daily Hindustan in which snatching of Rs.17,000/-from a passenger on Railway station, also came to light. The petitioner was suspended and departmental proceeding was initiated. The departmental proceeding was conducted by the Inspector of Jorapokhar, who after conducting the enquiry found him guilty of the charges and also found him indulging in indisciplined conduct etc., copy of the departmental proceeding dated 10.06.2010 has been annexed as Annexure-A to the counter-affidavit. It has further been submitted that the conducting officer found during the course of enquiry that the petitioner on 28.07.2008 snatched Rs.17,000/- from a passenger namely Md. Mumtiaz and this matter was published in newspaper (Hindustan) on 29.07.2008. The conducting officer has also found during the course of enquiry that the petitioner absconded from duty for 7 days without any information. The Superintendent of Police, Dhanbad after minutely scrutinizing the record, agreed by the conducting officer and after considering the material available on record including the explanation given by the petitioner found guilty of the charges, as evident from Annexure-B to the counter-affidavit. The Superintendent of Police, Dhanbad after minutely scrutinizing the record, agreed by the conducting officer and after considering the material available on record including the explanation given by the petitioner found guilty of the charges, as evident from Annexure-B to the counter-affidavit. It has further been submitted that the Superintendent of Police also asked for an explanation from the petitioner within 7 days which further transpires that the petitioner submitted his explanation in defence before the then Superintendent of Police, Dhanbad and the then Superintendent of Police, Dhanbad after scrutinizing the entire records passed final order, dismissing the petitioner from services as per Annexure-C to the counter-affidavit. The Appellate Authority passed a reasoned order dismissing the appeal vide Annexure-D to the counter-affidavit and the Revisional Authority also dismissed the memorial by order dated 14.03.2011, vide Annexure-E to the counter-affidavit. Petitioner was found to be indulging in grave misconduct which has tarnished the reputation of Police. 4. Heard Mr. Dr. S. N. Pathak, learned senior counsel appearing for the petitioner and Mr. Anshuman Kumar, J.C. to A.G., learned counsel appearing for the respondents and perused the records. 5. Learned senior counsel for the petitioner has strenuously urged that the inquiry has been conducted in an ex-parte manner and the principles of natural justice has not been followed which has vitiated the entire proceeding. Learned senior counsel further submits that the prosecution witnesses were examined behind the back of the petitioner which vitiated the entire departmental proceedings and the findings of the inquiry officer was based on inadmissible evidences and extraneous consideration and the material witness S.I. Binod Murmu, Officer in-charge, Hariharpur Thana was not an eye witness rather hearsay witness to the occurrence. Learned senior counsel has further submitted that the newspaper cutting was used as an evidence against the petitioner which cannot be treated to be legal piece of evidences without 5 proper examination and cross examination in the departmental proceeding. Learned senior counsel further submitted that the inquiry report has not been served to the petitioner rather a show cause notice was served as to why his services may not be dismissed which is against the law laid down in the Constitutional Bench of the Apex Court. Learned senior counsel further submitted that the inquiry report has not been served to the petitioner rather a show cause notice was served as to why his services may not be dismissed which is against the law laid down in the Constitutional Bench of the Apex Court. Learned senior counsel has further submitted that the victim/complainant ought to have been examined to bring home the charges against the petitioner but non-examination of vital witnesses has given serious dent to the departmental proceedings. Learned senior counsel has further submitted that the impugned order of punishment is grossly disproportionate to the alleged charges. Learned senior counsel in order to buttress his submissions has relied upon the judgment rendered in the case of Kuldeep Singh Vs. Commissioner of Police & Ors. as reported in 1999 2 SCC 10 wherein the Hon'ble Apex Court has held that witnesses whose statement relied upon must be produced. Learned senior counsel has further relied upon the judgment rendered in the case of Narinder Mohan Arya Vs. United India Insurance Co. Ltd. & Ors. as reported in 2006 (4) SCC 713 plasitum-D at paragraph 26, wherein the Hon'ble Apex Court has been pleased to hold that suspicion or presumption cannot take the place of proof even in a domestic enquiry. The court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. Learned senior counsel has further relied upon the judgment rendered in the case of Roop Singh Negi Vs. Punjab National Bank & Ors. as reported in 2009 (2) SCC 570 at Paragraph 23, wherein the Hon'ble Apex Court has been pleased to hold that standard of proof, suspicion howsoever high, cannot be a substitute for legal proof. Learned senior counsel has further referred to the decisions in the case of State of Uttar Pradesh & Others Vs. Saroj Kumar Sinha as reported in 2010 (2) SCC 772 at paragraphs no.26 to 28 wherein the Hon'ble Apex Court has been pleased to hold that it is only when despite notice government servant fails to appear, that enquiry officer can proceed ex parte, even in such circumstances, it is incumbent on enquiry officer to record statement of witnesses mentioned in charge-sheet, in absence of delinquent official he has to assess whether unrebutted evidence is sufficient to hold that charges are proved. In the instant case, since no oral evidence was examined and documents were not proved, the same could not have been taken into consideration to conclude that charges were proved against respondent. Learned senior counsel has further referred to the decisions in the case of Commissioner of Police, Delhi & Ors. Vs. Jai Bhagwan as reported in 2011 (6) SCC 376 wherein the Hon'ble Apex Court has been pleased to hold that proof of demand and illegal gratification cannot be drawn from returning the amount and further held, suspicion cannot take place of proof. 6. On the contrary, learned counsel for the respondents has referred to supplementary counter-affidavit filed on behalf of the respondent nos. 2, 3 and 4, wherein it has been submitted that two witnesses namely Binod Murmu and Madan Prasad Kharwar have been examined by the conducting officer. It has been stated that by Binod Murmu, a news item was published in local daily, in which it was mentioned that Rs. 17,000/-was snatched by the petitioner and Binod Murmu, who was officer in charge of Hariharpur Police Station reported the matter of S.P. alongwith photo copy of the depositions, news paper cutting and report have been annexed as Annexures A, B, C and D to the supplementary counter-affidavit. 6. Having gone through the writ application, counter-affidavit, additional counter-affidavit and the rivalized submissions, I am of the view that the petitioner has not been able to make out a case for interference by this Court due to following facts, reasons and judicial pronouncements :- (a) In the instant case, the departmental proceeding has been conducted in a fair manner by affording reasonable opportunity to the petitioner and the procedural irregularity whatsoever, has not been found nor the proceedings is based on no evidence to call for any interference. The conduct of the petitioner being an employee of disciplined force has damaged the reputation and blemished the management of the disciplined police force. Moreover, the scope of interference in a departmental proceeding is very very limited, as has been held by Hon'ble Supreme Court in the case of State of U.P. and Others Vrs. Raj Kishore Yadav and Another reported in (2006) 5 SCC 673 at para 4 as follows :- “ …....... Moreover, the scope of interference in a departmental proceeding is very very limited, as has been held by Hon'ble Supreme Court in the case of State of U.P. and Others Vrs. Raj Kishore Yadav and Another reported in (2006) 5 SCC 673 at para 4 as follows :- “ …....... It is a settled law that the High Court has limited scope of interference in the administrative action of the State in exercise of extra-ordinary jurisdiction under Article 226 of the Constitution of India and, therefore, the findings recorded by the enquiry officer and the consequent order of punishment of dismissal from service should not be disturbed.” The Hon'ble Apex Court further in the case of Krushnakant B. Parmar Vs. Union of India and Another as reported in (2012) 3 SCC 178 has held that High Court under Article 226 cannot disturb the facts and findings given by the disciplinary authority. (b) The Hon'ble Apex Court in the case of Union of India & Anr. Vs. G. Ganayutham as reported in (1997) 7 SCC 463 held that in the matter of penalty imposed in a disciplinary case, unless the Court/Tribunal opines in its secondary role, that the administrator was, on the material before him, irrational, the punishment cannot be quashed. (c) The Hon'ble Apex Court in the case of Apparel Export Promotion Council Vs. A.K. Chopra as reported in (1999) 1 SCC 759 in paragraph 22 held as under :- “............ The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone................” 7. On the cumulative effect of facts, reasons and judicial pronouncement and in view of the submissions made in the foregoing paragraphs, the impugned order passed by the Disciplinary Authority dated 26.07.2010 (Annexure-4), Appellate Authority dated 07.09.2010 (Annexure-6) and Revisional Authority dated 04.03.2011 (Annexure-8) do not warrant any interference by this Court. 8. Accordingly, the writ petition is dismissed being devoid of any merit.