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2016 DIGILAW 346 (JHR)

Md. Aslam v. State of Jharkhand

2016-02-16

SHREE CHANDRASHEKHAR, VIRENDER SINGH

body2016
ORDER : Constrained by dismissal of the writ petition, challenging order of termination from service passed in a departmental proceeding, the appellant has preferred the present Letters Patent Appeal. 2. The brief facts of the case are summarised thus; The writ-petitioner/appellant, who was appointed as constable, was posted at Baliapur Police Station, Dhanbad. At the relevant time he was deputed, during Shrawani Mela, at Deoghar and he was relieved from duty on 22.07.2010. For the incident between 20.08.2010 and 21.08.2010, on a written complaint Govindpur (Barwadda) P.S. Case No. 320 of 2010 under Sections 491/420 IPC was registered on 21.08.2010 against the appellant. On 23.08.2010, he was put under suspension on the allegation of abscondance from duty and demanding bribe impersonating himself as bodyguard of the Superintendent of Police. A charge-memo was issued to him on 30.08.2010. The appellant was in judicial custody when the departmental proceeding against him was conducted. The enquiry officer issued notice dated 24.11.2010, 28.11.2010 and 04.01.2011 however, the appellant sent a representation pleading that he would submit his final defence after his release from the judicial custody. He was released on bail on 19.01.2011 and, the enquiry officer submitted a report on 25.01.2011, holding charges levelled against the delinquent, proved. The appellant was issued second show-cause notice which was not responded to by the appellant. The disciplinary authority passed order of dismissal from service on 27.02.2011 and, the Appeal as well as the Appeal-Memorial preferred by the appellant also stood dismissed. Constrained, the appellant approached the writ court however, unsuccessfully. 3. Heard. 4. Mr. Rupesh Singh, the learned counsel for the appellant has raised three fold contentions namely; (i) The charge against the appellant was one of “impersonation and cheating” which being an offence must be proved to the hilt; (ii) The enquiry was conducted in violation of the principles of natural justice in as much as, the appellant was not afforded an opportunity to cross-examine the witnesses and, he was incapacitated in defending himself as subsistence allowance was not paid to him during the period of suspension and; (iii) The appellate authority did not consider the plea taken by the appellant and thus, it suffers from non-application of mind. 5. 5. Having heard the learned counsel for the parties and after perusing the documents on record including, the original file relating to the departmental proceeding produced by learned State counsel, we are unable to accept challenge to the impugned order dated 03.12.2014 in W.P.(S) No. 4880 of 2012. 6. The charge-memo dated 30.08.2012 discloses that on 21.08.2010, the appellant was brought to the police station by the truck driver namely, Ramdeo Kumar and his khalasi and on the basis of the written complaint of the said truck driver, a First Information Report was lodged against the appellant and he was arrested. The allegation levelled against the appellant was that he, impersonating himself as bodyguard of the Superintendent of Police, demanded Rs. 12,000/- for release of the truck whereupon, the truck driver gave him Rs. 5,000/- however, when the truck was not released by the evening as promised, the truck driver got suspicious and made enquiries. On 21.08.2010, when the appellant instead of tendering the release order demanded the balance amount, the truck driver and his khalasi caught hold of the appellant and brought him to the police station where, he disclosed his name and admitted that he is a constable in Dhanbad District Constabulary. The said fact was confirmed telephonically from Dhanbad Police Station and thereafter, the appellant was arrested and forwarded to the judicial custody on 22.08.2010. 7. The learned counsel for the appellant referring to the decision in “Union of India and Others vs. Gyan Chand Chattar” (2009) 12 SCC 78 , submits that the charge of corruption must be proved to the hilt and, since neither the truck driver nor any independent witness has been examined during the domestic enquiry, the charge of “impersonation and cheating” must fail. This submission is devoid of merits. Non-examination of the truck driver during the departmental proceeding, in the facts of the case, would not extend benefit of doubt to the appellant. During the departmental enquiry, the Police Inspector, Topchanchi Circle before whom the appellant was produced by the truck driver and his khalasi, was examined and he affirmed that the appellant was apprehended by the truck driver and the persons present in the vicinity and the appellant was produced before him. The witness has further stated that the identity of the appellant was verified and it was affirmed that he is a police constable. The witness has further stated that the identity of the appellant was verified and it was affirmed that he is a police constable. The truck driver gave a written report, on the basis of which Govindpur (Barwadda) P.S. Case No. 320 of 2010 under Sections 491/420 IPC was registered on 21.08.2010 and the appellant was arrested. The motorcycle driven by the appellant was also seized. The appellant refused to cross-examine the witnesses. The criminal case registered against the appellant ended in acquittal of the appellant on the basis of the compromise between the informant and the appellant. The order of acquittal dated 17.11.2011 in criminal case bearing G.R. No. 2876/2010 (T.R. No. 1692/2011) is not on merits of the case. Even otherwise also, acquittal in the criminal case would not affect the merits of the findings recorded during the departmental enquiry which are based on the evidence led during the enquiry. In the aforesaid facts, non-examination of the truck driver would not materially affect the findings recorded by the enquiry officer on the aforesaid charge against the appellant. 8. The learned counsel for the appellant next contended that the appellant was not afforded an opportunity to cross-examine the witnesses produced by the department during the domestic enquiry and, merely a copy of the typed deposition of the witnesses was supplied to the appellant. The learned State counsel has submitted that the departmental enquiry was conducted observing the rules of natural justice and, the appellant was afforded opportunity to defend himself. The original record of the departmental proceeding against the appellant has been produced in the Court and we have perused the same. A perusal of the statement of the witnesses recorded during the departmental enquiry discloses that after the statement of the witnesses was recorded, the Enquiry Officer put a question to the appellant whether he wanted to cross-examine the witnesses, to which he declined and received a copy of the statement which bears the signature of the appellant. 9. The learned counsel for the appellant submitted that the statement of the witnesses was not recorded in presence of the appellant who was in judicial custody. 9. The learned counsel for the appellant submitted that the statement of the witnesses was not recorded in presence of the appellant who was in judicial custody. The endorsement by the appellant on the copy of the statement of the witnesses, prima-facie, indicates that the witnesses were brought in the jail where the appellant was lodged in judicial custody and the evidence of the witnesses was recorded in presence of the appellant. Additionally, to satisfy our judicial conscience, we directed the respondent-State to produce the relevant record from the concerned jail also which has been produced in the Court. We find that the visitor register bears entry of both the witnesses in the jail where, their statement was recorded. It is not in dispute that the department took permission of the Court for holding departmental proceeding against the appellant in the jail and, vide order dated 22.11.2010 in G.R. No. 2876 of 2010, such permission was granted subject to permission of the jail superintendent. 10. In so far as, non-payment of subsistence allowance during the period of suspension is concerned, it is to be noticed that at no point in time the appellant made a demand for payment of subsistence allowance. No doubt, payment of subsistence allowance is an obligation of the employer however, the plea that non-payment of subsistence allowance would vitiate the domestic enquiry against the delinquent, has to be examined in the facts of the each individual case. From a reading of the cases relied on by the learned counsel for the appellant what emerges is that, it has also to be seen whether the delinquent had no other means of substance to defend himself effectively. In “State of Maharashtra vs. Chandrabhan Tale” (1983) 3 SCC 387 , second proviso to Rule 151(i), (ii) (b) of Bombay Civil Services Rules, 1959 providing for payment of subsistence allowance @ Rs. 1 per month was held violative of Article 14, 16, 21 and 311(2) of the Constitution of India. Restricting the payment of subsistence allowance @ Rs. 1 per month was held by the Hon'ble Supreme Court, an action which stultifies the right of appeal and thus, unfair and unconstitutional. In “Capt. 1 per month was held violative of Article 14, 16, 21 and 311(2) of the Constitution of India. Restricting the payment of subsistence allowance @ Rs. 1 per month was held by the Hon'ble Supreme Court, an action which stultifies the right of appeal and thus, unfair and unconstitutional. In “Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and Another” (1999) 3 SCC 679 , the appellant was not provided subsistence allowance during the period of suspension and the prayer for adjournment was declined which resulted in ex-parte proceedings against him. In “Ghanshyam Das Shrivastava vs. State of Madhya Pradesh.” (1973) 1 SCC 656 , the delinquent employee took a specific plea that for non-payment of subsistence allowance he was short of fund and could not attend the departmental enquiry which resulted in an ex-parte order. The present is a case clearly distinguishable on facts. The petitioner was under judicial custody and the departmental proceedings were held in the jail. During the currency of the departmental proceeding, the appellant did not raise a grievance inspite of non-payment of the subsistence allowance nor did he made a demand for payment of the subsistence allowance. In the aforesaid facts, the appellant was not incapacitated by non-payment of subsistence allowance. In “Indra Bhanu Gaur vs. Committee, Management of M.M. Degree College and others” 2003 (4) LAB IC 3844, the Hon'ble Supreme Court has held that non-payment of subsistence allowance would ipso-facto cannot be a ground which vitiates the departmental proceeding and for sustaining such a plea the delinquent employee is required to establish prejudice caused to him in effectively defending himself in the departmental proceeding. Resultantly, on admitted facts, we find that the departmental proceeding against the appellant was not vitiated on account of non-payment of subsistence allowance to him during the period of suspension. 11. Now, adverting to the contention that the Appellate Authority did not consider the specific plea raised by the appellant, we find that the Appellate Authority sought comments on the questions raised by the appellant in the appeal memo. The appellate order dated 17.10.2011 records that the Appellate Authority has considered the questions raised in the memorandum of appeal in the light of the para-wise comments furnished by the Superintendent of Police and perused the records of the departmental proceeding. The appellate order dated 17.10.2011 records that the Appellate Authority has considered the questions raised in the memorandum of appeal in the light of the para-wise comments furnished by the Superintendent of Police and perused the records of the departmental proceeding. The Appellate Authority after perusing the aforesaid materials recorded a finding that, “considering the aforesaid materials the questions raised by the appellant merit no acceptance”, and accordingly the appeal was dismissed. No doubt, the Appellate Authority has not recorded specific finding on the question of non-payment of subsistence allowance and non-observance of the principles of natural justice in not affording opportunity to cross-examine the witnesses, as noticed above, the record of the departmental proceeding clearly establishes that the aforesaid pleas raised by the appellant were unsubstantiated. 12. In “Narinder Mohan Arya Vs. United India Insurance Co. Ltd. & Ors.” (2006) 4 SCC 713 , the Hon'ble Supreme Court has observed that an appellate order if it is in agreement with the disciplinary authority may not be a speaking order, but of course, the appellate authority must show that there had been proper application of mind on his part. The Disciplinary Authority, agreeing with the findings recorded during the departmental enquiry, inflicted the punishment of dismissal from service. The appellant was issued show-cause notices dated 24.11.2010, 28.11.2010, 04.01.2011, 31.01.2011 and 24.02.2011 however, he failed to respond to the same. The learned counsel for the respondent-State has submitted that even after his release from the jail on 19.01.2011, the appellant did not submit his defence, constrained, the Enquiry Officer submitted the enquiry report on 25.01.2011. In view of the facts recorded during the departmental enquiry, and order dated 27.02.2011 passed by the Disciplinary Authority, which have been duly noticed in the appellate order dated 17.10.2011, we are of the opinion that the appellate order does not disclose non-application of mind by the Appellate Authority. The said order is not a cryptic order rather, the Appellate Authority has noticed all relevant facts quite elaborately. 13. The revisional authority has also concurred with the penalty order and, the learned Single Judge referring to the decision in “State Bank of Hyderabad and another vs. P. Kata Rao” (2008) 15 SCC 657 dismissed the writ petition. In “P. Kata Rao” case, the Hon'ble Supreme Court has observed thus; “18. 13. The revisional authority has also concurred with the penalty order and, the learned Single Judge referring to the decision in “State Bank of Hyderabad and another vs. P. Kata Rao” (2008) 15 SCC 657 dismissed the writ petition. In “P. Kata Rao” case, the Hon'ble Supreme Court has observed thus; “18. There cannot be any doubt whatsoever that the jurisdiction of superior courts in interfering with a finding of fact arrived at by the enquiry officer is limited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment. There cannot, furthermore, be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding and/or where the departmental proceedings had already been initiated, to continue therewith” 14. As a sequel to aforesaid discussion, we find no infirmity in the impugned order dated 03.12.2014, resultantly, challenge thrown by the appellant to the said order fails. 15. In the result, the Letters Patent Appeal warrants dismissal. Ordered accordingly.