Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 967 (JHR)

Amit Kumar Singh v. State of Jharkhand

2015-08-14

PRAMATH PATNAIK

body2015
JUDGMENT : Pramath Patnaik, J. 1. In the aforesaid writ application, the petitioner has inter alia prayed for setting aside/quashing the order as contained in Memo no.09/D/06-01-34/2012 dated 13.01.2014 whereby the revision petition preferred by the petitioner on 21.11.2012 has been dismissed and for quashing of the order as contained in Memo no.2825 dated 20.05.2011 passed by the respondent no.4 as well as the appellate order dated 08.10.2012 passed by the respondent no.3 and further for direction to the respondents to make payment of arrears of salary and for all consequential benefits. 2. The factual matrix as delineated in the writ application in a nutshell is that the petitioner while serving as constable was served with a memo of charge vide Memo no.394 dated 21.12.2009 containing the charges of subjecting his legally married wife to cruelty and harassment for bringing more dowry from her parents and also for solemnizing his second marriage with another girl as per annexure-1 to the writ application. In pursuance to the said charge a departmental enquiry was held and the charges were found to be true against the petitioner. The petitioner submitted his explanation vide annexure-2 to the writ application and being not satisfied with the explanation of the petitioner, the petitioner was directed to file his further explanation before the authority explaining his defence and the copy of the second explanation has been annexed as Annexure-3 to the writ petition. The conducting officer of the departmental proceeding submitted his opinion on 30.04.2010 stating inter alia therein that all charges have been proved against the petitioner vide Annexure-4 to the writ petition and on the basis of the opinion of the conducting officer, the S.P, Bokaro (respondent no.4) came to the conclusion as contained in memo no.3045 dated 19.05.2010 that the petitioner has been found guilty of the charges levelled against him and on the proposed punishment of dismissal from services, the petitioner was asked to file his explanation as per annexure-5 to the writ application. The petitioner submitted his explanation stating inter alia that the charges are baseless and without any cogent legal evidence. The petitioner submitted his explanation stating inter alia that the charges are baseless and without any cogent legal evidence. Moreover, the Complaint Case no.2282 of 2009 lodged under Section 498A IPC and under Section 3/4 of the Dowry Prohibition Act has been falsely instituted against him, therefore, the decision of the departmental proceeding ought to be taken after decision comes in the court having competent jurisdiction, as evident from annexure-6 to the writ petition. Being not satisfied with the explanation of the petitioner the respondent no.4 has passed order of dismissal contained in District Force Order No.1343/2011 contained in Memo no.2825 dated 20.05.2011 vide annexure-7 to the writ application. Being aggrieved by the order of dismissal dated 20.05.2011, the petitioner preferred an appeal on 29.07.2011 before the appellate authority i.e. D.I.G., Bokaro (respondent no.3) stating inter alia therein that the allegation levelled through the memo of charges being Memo No.394 dated 21.12.2009 is totally false and fabricated, a copy of the said appeal filed by the petitioner dated 29.07.2011 has been annexed as annexure-8 to the writ petition. The appellate authority dismissed the appeal preferred by the petitioner vide District Force Order No.2389/2012 contained in Memo no.945 dated 08.10.2012, vide annexure 9 to the writ petition. Being aggrieved with the aforesaid order of dismissal as well as order passed by the appellate authority, the petitioner preferred a revision petition before the Director General of Police, Jharkhand (respondent no.2) on 21.11.2012 which has been dismissed vide order dated 13.01.2014 and are marked as annexures-10 and 10A to the writ application. It has been averred in the writ application that the criminal proceeding which was initiated in the Court of learned Sub Divisional Judicial Magistrate, Danapur wherein the petitioner has been acquitted vide order dated 13.08.2013 passed in Bihta P.S. Case No.109 of 2010 corresponding to G.R. No.1052 of 2010 has been marked as annexure-12 to the writ application. Basing on the aforesaid facts, the writ application has been filed by the petitioner invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievance. 2. Per contra, a counter affidavit has been filed on behalf of respondent no.4 repelling the averments made in the writ application. Basing on the aforesaid facts, the writ application has been filed by the petitioner invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievance. 2. Per contra, a counter affidavit has been filed on behalf of respondent no.4 repelling the averments made in the writ application. In the counter affidavit, it has been inter alia submitted that the petitioner has been dismissed from the services of police constable on the basis of the charges for which he has been found guilty in departmental proceeding vide 22/2010, during his posting at Bokaro District Police Force. His legally wedded wife Smt. Sushma Devi complained before the Superintendent of Police, Bokaro as the petitioner physically and mentally tortured her and without any consent/information, petitioner has solemnized second marriage with Priyanka, therefore, the petitioner’s wife filed a case against the petitioner vide Bihta P.S. Case No.109 of 2010 under Section 498A, 494 I.P.C and 3/4 D.P. Act. It is further submitted in the counter affidavit that on 09.11.2009 legally wedded wife of the petitioner Sushma Devi complained before the S.P. Bokaro and immediately S.P. Bokaro suspended the present petitioner with immediate effect vide Bokaro District Order no.2641/2009. Thereafter, on 21.12.2009 a departmental proceeding initiated against the suspended police 879 Amit Kumar Singh (petitioner) and, accordingly, charge has been framed against the petitioner and Circle Inspector, B.S. City was deputed as the presiding officer of the departmental proceeding 22/2010 against the petitioner. The petitioner has submitted his show cause on 21.02.2010 and he faced the departmental proceeding. The conducting officer of the departmental proceeding made due enquiry and recorded the written statement of witnesses namely S.I-Rajiv Ranjan Prasad, R.S.I-1-Binod Kumar, confidential reader-Sushma Devi. Petitioner has submitted his show cause. On 30.04.2010 the Conducting Officer submitted his final report vide departmental proceeding no.22/2010 in which he found the petitioner guilty of the charges made against him in the departmental proceeding and on the basis of the final report submitted by the Conducting Officer, Superintendent of Police, Bokaro agreeing with said report dismissed the petitioner from services vide Memo no.3045/conf. dated 19.05.2010 which was communicated to the petitioner vide memo no.2372/r.k dated 22.05.2010. The said order was also confirmed vide order dated 28.12.2010 and the appeal preferred by the petitioner before the Deputy Inspector General Police, Coal Range, Bokaro for setting aside the order of the respondent no.4. dated 19.05.2010 which was communicated to the petitioner vide memo no.2372/r.k dated 22.05.2010. The said order was also confirmed vide order dated 28.12.2010 and the appeal preferred by the petitioner before the Deputy Inspector General Police, Coal Range, Bokaro for setting aside the order of the respondent no.4. But, the appellate authority confirmed the order of the respondent no.4 and the revision petition filed by the petitioner before the Director General -cum-Inspector General, which has also been confirmed by order dated 17.01.2014. Therefore, the petitioner has been given adequate opportunity to defend his case before the disciplinary authority, appellate authority as well as the revisional authority and the order passed by the respondents have been passed after following the principles of natural justice. With the aforesaid submissions prayer has been made for dismissal of the writ petition. 3. Heard Mr. Ajay Kumar Pathak, learned counsel for the petitioner and J.C. to A.G, appearing for the respondents. 4. Learned counsel for the petitioner has vehemently submitted that the impugned orders are arbitrary, mala fide, whimsical and colourable exercise of power being violative of Article 14 of the Constitution of India. Learned counsel for the petitioner further submitted that petitioner has been acquitted in the criminal case and the charges in both the criminal case and departmental proceeding are more or less same, since the petitioner has been acquitted in the criminal case. His case ought to be considered by the authority afresh in view of the decision of Hon’ble Apex Court rendered in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another reported in (1999) 3 SCC 679 , which has been followed by the Hon’ble Supreme Court in subsequent cases and which still holds the field. The impugned order as contained in Memo no.09/D/06-01-34/2012 dated 13.01.2014 (Annexure-10A to the interlocutory application) and order as contained in Memo no.2825 dated 20.05.2011 (Annexure-7 to the writ petition) passed by the respondent no.4 as well as the appellate order dated 08.10.2012 (Annexure-9 to the writ petition) passed by the respondent no.3 are grossly disproportionate and excessive so as to prick the conscience of this Hon’ble Court. 5. 5. Learned counsel for the respondents on the contrary has dexterously submitted that though the petitioner has been acquitted in the criminal case but the acquittal has come by way of compromise which is not a clean or honourable acquittal, therefore, the petitioner’s case stands on a different footing and thus is distinguishable from the aforesaid decision of the Hon’ble Apex Court. 6. Having heard learned counsels for the respective parties at length and on perusal of the documents on record the impugned orders of punishment passed by the disciplinary authority, appellate authority as well as revisional authority are not legally sustainable, in view of the following facts, reasons and judicial pronouncements: (I) On perusal of annexure-12 of the writ application, it appears that the petitioner was charged under Section 498A, 494 of the Indian Penal Code and 3/4 of the D.P. Act in Bihta P.S. Case No.109 of 2010 (T. R. no.2129/2013) corresponding to G.R. No.1052 of 2010 vide order dated 13.08.2013 and has been found not guilty of the aforesaid charges and has been acquitted and set at liberty. The charges in the departmental proceeding as well as criminal proceeding vide annexure-1 to the writ application are more or less same and since the petitioner has already been acquitted by a competent criminal court where the yardstick is proof beyond all reasonable doubts but in a departmental proceeding the yardstick is the preponderance of probability. Once the petitioner has been acquitted from the aforesaid charges and that too his acquittal came vide judgment dated 13.08.2013 after the order passed in the departmental proceeding was on 20.05.2011. In in view of the changed circumstances, the case of the petitioner ought to be considered afresh in the interest of justice. (II) In the instant case, the petitioner having rendered services for a considerable period has been visited with punishment of dismissal from services which appears to be excessive and grossly disproportionate since the petitioner would be deprived of getting pensionary and other retirement benefits. (III) The Hon’ble Apex Court in case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another reported in (1999) 3 SCC 679 has been pleased to observe in para 34 of the said judgment, which is quoted herein below: “34. There is yet another reason for discarding the whole of the case of the respondents. (III) The Hon’ble Apex Court in case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another reported in (1999) 3 SCC 679 has been pleased to observe in para 34 of the said judgment, which is quoted herein below: “34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, “the raid conducted at the appellant’s residence and recovery of incriminating articles there from”. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the “raid and recovery” at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.” (IV) When a criminal proceeding is initiated at the instance of the employer, after acquittal in the criminal case the delinquent employee would be entitled for reinstatement in service from the date of dismissal. However, if the criminal case has been instituted at the instance of the third party, the delinquent employee would be reinstated in service from the date of acquittal in the criminal case. Admittedly, in the case at hand, the petitioner has been acquitted in the criminal case from the charges which are more or less same in the departmental proceeding. However, if the criminal case has been instituted at the instance of the third party, the delinquent employee would be reinstated in service from the date of acquittal in the criminal case. Admittedly, in the case at hand, the petitioner has been acquitted in the criminal case from the charges which are more or less same in the departmental proceeding. In a criminal case, he has been acquitted but in the departmental proceeding, the petitioner has been found guilty of the charges and order of dismissal has been passed vide order dated 20.05.2011 (Annexure-7 to the writ application) which has been confirmed by the appellate authority vide order dated 08.10.2012 (Annexure-9 to the writ application) as well as dismissed by the revisional authority vide order dated 13.01.2014 (Annexure-10A to the interlocutory petition). Therefore, it would be just and proper for the respondents to consider the case afresh, in the light of the order passed in the aforesaid criminal case. 7. On the conspectus of the facts, reasons and judicial pronouncements, the impugned order of dismissal dated 20.05.2011 passed by the disciplinary authority, which is confirmed by the appellate authority vide order dated 08.10.2012 and further dismissed by the revisional authority vide order dated 13.01.2014 are not legally sustainable and are hereby quashed and set aside. Accordingly, the respondents are directed to consider the case of the petitioner afresh, in view of the acquittal of the criminal case bearing Bihta P.S. Case No.109 of 2010, corresponding to G.R. No.1052 of 2010 (T.R.no.2129/2013) on the question of quantum of punishment and pass an appropriate order within a period of two months, in accordance with law. 8. With the aforesaid directions, the writ petition stands disposed of.