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2016 DIGILAW 610 (JHR)

Bijay Shanker Singh v. State of Jharkhand

2016-04-18

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter alia prayed for quashing of order dated 30.05.2007 issued under the signature of Superintendent of Police, Pakur-respondent no. 4 whereby the petitioner has been awarded with punishment of dismissal from services and for quashing of order dated 21.02.2008 issued under the signature of Deputy Inspector General of Police, Santhal Pargana Range, Dumka whereby the punishment awarded by respondent no. 4 has been modified to infliction of punishment of withholding of all increments for three years and further ordered that the period from the date of dismissal to reinstatement in service will be treated as leave without pay and further prayed for direction upon the respondents to reinstate the petitioner in services with all consequential benefits. 2. Sans details, the facts as disclosed in the writ application is that the petitioner initially was appointed as Armourer in the district of Ranchi and in the year 1997 he was transferred to Pakur in District Force. While continuing as such, he lodged an F.I.R. bearing Pakur (Town) P.S. Case No. 66 of 2005 before Officer-in-Charge, Town Police Station, Pakur against 4-5 boys of trespass and assault on him and of snatching of gold chain and ring and for taking away Rs. 7000/- from his bag under Sections 147, 148, 149, 448, 307, 323 and 504 of the Indian Penal Code and under Section 27 of the Arms Act. It is further averred that one Bhola Bhagat, seller of K.D. Liquor and Fertilizer, Pakur also lodged an F.I.R alleging that the petitioner along with 6-7 persons came to his shop and took away Rs. 20,000/- from the cash box and has given threat to kill him, on the basis of which, Pakur (Town) P.S. Case No. 67 of 2005 was lodged under Sections 448, 323, 342, 506, 379 and 34 of the Indian Penal Code. In pursuance to the aforesaid cases, a supervision was conducted by Sub-Divisional Police Officer, who after taking into consideration of the statements made by the witnesses, came to the conclusion that Pakur (Town) P.S. Case No. 66 of 2005 is true whereas Pakur (Town) P.S. Case No. 67 of 2005 is not true. But that supervision note was not accepted by respondent no. But that supervision note was not accepted by respondent no. 4 and departmental proceeding was initiated against the petitioner and in the departmental proceeding, the petitioner has been inflicted with punishment of dismissal from services vide order dated 30.05.2007. Being aggrieved by the impugned order of dismissal from services, the petitioner preferred appeal, wherein the appellate authority after considering all the facts including the fact that the petitioner has been acquitted in criminal case, modified the earlier order of dismissal from services to withholding of all increments for three years and directed to reinstate the petitioner in services and further held that period of dismissal from services till reinstatement shall be treated as leave without pay. 3. Left with no alternative, efficacious and speedy remedy, the petitioner approached this Court invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of his grievances. 4. Heard Dr. S.N. Pathak, learned senior counsel for the petitioner and Mr. Chandrashekhar Singh, J.C to learned Sr. S.C. III for the respondents-State. 5. Learned senior counsel for the petitioner submitted that from the enquiry report, it reveals that none of the witnesses has deposed against the petitioner, hence, the entire enquiry report is based on no evidence. Learned senior counsel further submitted that the findings of the disciplinary authority have no locus to stand because of the fact that on the self same fact, the petitioner has been acquitted by the trial Court. Learned senior counsel further submitted that the impugned order passed by disciplinary authority as well as by the appellate authority are cryptic and laconic. In order to buttress his argument, learned counsel for the petitioner referred to the judgment rendered in the case of State of U.P Vs. Dayanand Chakrawarty & Ors as reported in (2013) 7 SCC 595 , in particular paragraph 3. 6. Per contra, basing his arguments on the counter affidavit filed by the respondents, learned counsel appearing for the respondents submitted that the order passed by the D.I.G, Dumka vide memo dated 21.02.2008 is legal and based upon the factual aspect and the acquittal of the petitioner in criminal case has no bearing in departmental proceeding. The punishment which was given is minor in nature. Moreover, the petitioner has been acquitted due to hostility of the witnesses including the informant. The punishment which was given is minor in nature. Moreover, the petitioner has been acquitted due to hostility of the witnesses including the informant. The Court did not find that the case was false rather as because none of the witnesses came forward to prove the case, the petitioner was declared hostile. So far as departmental enquiry is concerned, the enquiry officer has given sufficient opportunity vide letter dated 06.09.2006, 12.09.2006 and 03.01.2007. Therefore, there has been no procedural irregularity nor the proceeding is based on no evidence. Hence, considering the gravity of charge, taking a lenient view, major punishment has been modified by the appellate authority. 7. After having heard learned counsel for the respective parties at length and on perusal of the record, I am of the view that that petitioner has been able to make out a case for interference in the impugned order of punishment passed by disciplinary authority as well as by appellate authority for the following facts, reasons and judicial pronouncements: (i) Although initially the petitioner was inflicted with punishment of dismissal from services but subsequently on the basis of acquittal in the criminal case, the appellate authority vide order dated 21.02.2008 modified the order of punishment of dismissal from services to infliction of punishment of withholding of all increments for three years and further the period from the date of dismissal to reinstatement in service will be treated as leave without pay, which as per the averments made in the counter affidavit is minor punishment. But, on plain reading of Section 824 read with Section 828 of the Police Manual, the punishment imposed upon the petitioner by the appellate authority appears to come under the category of major punishment. (ii) On the same and similar set of allegations, the petitioner was proceeded departmentally as well as in criminal case. However, in the criminal case, the petitioner has been honorably acquitted in view of the fact that the trial Court has come to the conclusion that the prosecution has miserably failed to prove the charges levelled against the petitioner. (ii) On the same and similar set of allegations, the petitioner was proceeded departmentally as well as in criminal case. However, in the criminal case, the petitioner has been honorably acquitted in view of the fact that the trial Court has come to the conclusion that the prosecution has miserably failed to prove the charges levelled against the petitioner. On the other hand, though in the departmental proceeding the enquiry officer has found the charges levelled against the petitioner proved but it appears that the report of enquiry officer is based on surmises and conjectures because the very same incident for which two FIRs were lodged, the matter was inquired into by the Supervisory Officer, who after examining the witnesses has found the criminal case lodged by the liquor owner to be false whereas criminal case lodged by the petitioner to be true. Therefore, in view of the acquittal of the petitioner by competent Court of law, the punishment inflicted upon the petitioner appears to be shockingly disproportionate and not commensurate with the gravity of charges. (iii) In this respect, it would be apposite to refer to the judgments rendered in the case of S. Bhaskar Reddy and Another vs. Superintendent of Police & Another as reported in (2015)2 SCC 365 in particular paragraph 22, which is quoted herein below: “22. The meaning of the expression “honourable acquittal” was discussed by this Court in detail in Inspector General of Police v. S. Samuthiram, the relevant paragraph from the said case reads as under: “24. The meaning of the expression ‘honourable acquittal’ came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions ‘honourable acquittal’, ‘acquitted of blame’, ‘fully exonerated’ are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression ‘honourably acquitted’. The expressions ‘honourable acquittal’, ‘acquitted of blame’, ‘fully exonerated’ are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression ‘honourably acquitted’. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.” In the case at hand, the prosecution has miserably failed to prove the charges, hence, it comes exclusively under the category of honorably acquittal. (iv) Learned counsel for the respondents submitted that sufficient opportunity has been afforded but it appears that on 03.01.2007, the conducting officer issued a letter asking the petitioner to take part in the departmental proceeding on 15.01.2007, on which date the petitioner filed an application stating that since for the same charge, criminal case was going on, departmental proceeding may be kept in abeyance till disposal of criminal case but neither the request made by the petitioner was considered nor any opportunity was given to cross-examine the witnesses rather the statements of the witnesses were taken behind the back of the petitioner. 8. Viewed thus, the impugned order of punishment dated 30.05.2007 and appellate order dated 21.02.2008 are hereby quashed and set aside and the matter is remitted back to the respondents to take a decision afresh on the quantum of punishment taking into account the observations and discussions made in the foregoing paragraphs within a period of sixteen weeks from the date of receipt/production of copy of this order. 9. With the aforesaid observations and directions, the writ petitions stand disposed of.