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2015 DIGILAW 979 (JHR)

Jai Mangal Prasad Mandal v. State of Jharkhand

2015-08-17

P.P.BHATT, VIRENDER SINGH

body2015
Judgment Virender Singh, J. During pendency of the instant appeal, Mr. Pathak, learned Senior Advocate has placed a supplementary affidavit of the appellant-writ petitioner asserting that one Constable, Rajiv Kumar Ranjan No. 214, who was also charged with the appellant-writ petitioner and dismissed from service, in his separate writ petition bearing W.P.(S) No. 6892 of 2012 decided by the learned Single Judge on 8.7.2013, has got a relief of quashing of the impugned order of dismissal with a direction to the respondents to conduct a fresh inquiry after giving him opportunity of being heard. Mr. Pathak has annexed the photocopy of the order dated 8.7.2013 passed in the said writ petition and states that the said order will have bearing upon the decision of the instant appeal. Copy of the order dated 8.7.2013 has already been provided to the learned State Counsel. 2. We, thus take supplementary affidavit of the appellant with the copy of the order dated 3.7.2013 annexed thereto on record. It shall now form part of the main appeal. 3. Mr. Pathak fairly concedes that the memo of appeal does not contain inquiry report dated 9.11.2004 with regard to the appellant-writ petitioner. He produces the same in the Court and prays for taking it on record. Copy of the inquiry report has also been provided to the learned State Counsel in the Court itself and she has no objection to it. 4. Prayer acceded to. Inquiry report (in two sets) is taken on record for perusal of the Court. 5. The instant appeal is at admission stage and with the consent of learned counsel for both the sides, we have taken it on board for its final consideration. 6. Appellant-writ petitioner (hereinafter referred to as the 'petitioner' only) being aggrieved of the order of dismissal passed by the Superintendent of Police, Railway, Jamshedpur dated 24.9.2005 as well as order dated 5.2.2011 passed by the Director General of Police, Jharkhand dismissing his appeal, knocked at the door of the Writ Court through the medium of W.P.(S) No. 7662 of 2011, Ed.-Reported in 2013(1) JLJR 36 which stands dismissed vide order dated 18.9.2012 handed down by the learned Single Judge. 7. Since there was delay of 286 days in filing the main appeal, limitation thereof stands condoned by this Court vide order dated 16.7.2014. 8. 7. Since there was delay of 286 days in filing the main appeal, limitation thereof stands condoned by this Court vide order dated 16.7.2014. 8. The petitioner along with one Constable, Rajiv Kumar Ranjan No. 214 were on patrolling duty in the intervening night of 1st/2nd May, 2002. They were under the command of one Hawaldar Saheb Bahadur Singh. The direction given to all of them was to remain with Hawaldar in the compartment of Ahmedabad Howrah Express, however, they violated his command and that the petitioner and constable Rajiv Kumar Ranjan boarded the different compartment of Ahmedabad Howrah Express and assaulted the passengers including a businessman, namely, Kailash Chandra Jaina and started extorting money from the passengers. When the train reached at a Station (Kharagpur Station), all the passengers got down and reported the matter to the Railway Police Station, Kharagpur, wherein a case bearing F.I.R. No. 28 of 2002 was registered against the petitioner and the aforesaid Constable Rajiv Kumar Ranjan under Sections 394/411 of the Indian Penal Code. The petitioner and his co-accused were thus, charged in the aforesaid criminal case and simultaneously departmental proceedings also initiated against them. The petitioner and his co-accused (Constable, Rajiv Kumar Ranjan) got acquittal in the aforesaid criminal case but the departmental proceedings already initiated against them continued and ultimately both of them were dismissed from service. 9. The case set up by the petitioner before the Writ Court was that the charges for which the petitioner faced the criminal proceeding as well as department proceeding were virtually the same and once he had earned clean acquittal in the criminal case, the order of the dismissal on the same set of evidence was bad in the eye of law. The other pleas taken by the petitioner were that the inquiry report submitted against him was cryptic in nature and that he was also not afforded any opportunity to even cross-examine the witnesses produced against him in the inquiry report, may be the same set of witnesses, who have earlier stepped into the witness box in the criminal proceedings. The learned Writ Court, however, instead of entering into the other aspects of the matter, dismissed the writ petition primarily on the ground that acquittal of the petitioner by a criminal court would not preclude the department from taking an action if it is, otherwise, permissible. The learned Writ Court, however, instead of entering into the other aspects of the matter, dismissed the writ petition primarily on the ground that acquittal of the petitioner by a criminal court would not preclude the department from taking an action if it is, otherwise, permissible. The main factor, which weighed with the learned Writ Court as it appears from the impugned judgment is that the petitioner being a Constable had violated the command of his superior (Hawaldar Saheb Bahadur Singh) who had directed him to remain in one compartment and he violating his directions boarded another compartment, which amounts to gross misconduct and insubordination. The other view taken by the learned Writ Court is that the part of charge was not in question before the criminal court, therefore, the charge and evidence in the inquiry report as well as in the trial was altogether different. What weighed more with the Writ Court was that the acquittal earned by the petitioner was on account of non-appearance of the material witnesses i.e. the complainant (businessman Kailash Chandra Jaina) whereas the departmental proceedings initiated against him was on account of boarding another compartment and extorting money from the passengers. 10. Mr. Pathak, learned Senior Advocate submitted that after dismissal of the writ petition [W.P.(S) No. 7662 of 2011, Ed.-Reported in 2013(1) JLJR 36 ], another writ petition bearing W.P.(S) No. 6892 of 2012 filed by the Constable Rajiv Kumar Ranjan No. 214 stands allowed by learned Writ Court vide order dated 8.7.2013 in which, finding the inquiry report against the petitioner therein (Constable Rajiv Kumar Ranjan) improper and non-speaking report, not satisfying the requirement of law, ultimately, quashed the order of dismissal slapped upon the petitioner therein with a direction to the respondents to conduct a fresh inquiry after giving opportunity to the petitioner. 11. Mr. Pathak has drawn the attention of the Court to the photocopy of the order dated 8.7.2013 passed in the aforesaid writ petition (taken on record today itself). Mr. Pathak has also drawn the attention of the Court to the inquiry report prepared in the case of the petitioner (taken on record today) and states that the case of the petitioner, on facts, is not at all distinguishable as in his case also, the inquiry report prepared is not only non-speaking report but improper also, not fulfilling the requirements in law. He states that the case of the petitioner is even on better footings for the reason that in his case, he has not been afforded any opportunity to cross-examine the material witnesses produced against him during inquiry proceeding, may be the same set of witnesses. He states that in the present set of circumstances, when the charge against the present petitioner and his co-accused (Constable Rajiv Kumar Ranjan) are virtually same in the criminal proceedings and that the respondents have to bank upon the same set of evidence against both the delinquents, the petitioner's case also deserves parity with the case of his co-delinquent vis-a-vis the punishment part. Mr. Pathak, thus, submits that in the case of petitioner also, the order of dismissal slapped upon him, deserves to be quashed with a direction to the respondents to conduct a fresh inquiry after giving reasonable opportunity to the petitioner of being heard. 12. In support of his contention Mr. Pathak has relied upon the judgment of Hon'ble Supreme Court in the case of Director General of Police & Ors. Vs. G. Dasayan reported in (1998)2 SCC 407 . He states that although in the present case, the parity was claimed with regard to two departmental proceedings but the ratio of the said case squarely covers the case of the petitioner. 13. Keeping in view the totality of the facts and circumstances of the case, especially, the fact that after dismissal of the writ petition of the petitioner bearing W.P. (S) No. 7662 of 2011, Ed.:-Reported in 2013(1) JLJR 36 , another writ petition bearing W.P.(S) No. 6892 of 2012 filed by Constable, Rajiv Kumar Ranjan, co-delinquent, has already been allowed by the learned Single Judge subsequently on 8.7.2013, the order of dismissal slapped upon him vide order dated 24.9.2005 passed by the Superintendent of Police, Railway, Jamshedpur as well as order dated 5.2.2011 passed by the Director General of Police, Jharkhand dismissing his appeal, deserve to be quashed. Ordered accordingly. 14. Respondents are directed to conduct a fresh inquiry after giving reasonable opportunity to the petitioner. Let inquiry be concluded within a period of eight (8) weeks only from the date, copy of this order is conveyed to the concerned authority, which shall primarily be the duty of the petitioner only. However, learned State Counsel also volunteers to convey the order to the concerned authorities. 15. At this stage, Mr. Let inquiry be concluded within a period of eight (8) weeks only from the date, copy of this order is conveyed to the concerned authority, which shall primarily be the duty of the petitioner only. However, learned State Counsel also volunteers to convey the order to the concerned authorities. 15. At this stage, Mr. Pathak, learned Senior Advocate submitted that Constable, Rajiv Kumar Ranjan has since been reinstated. That aspect shall also be considered by the concerned authority at the time of initiating fresh inquiry against the petitioner. 16. The net result is that the appeal on hand stands allowed in the aforesaid terms. 17. Interlocutory Applications, if any, also stands disposed of accordingly.