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2018 DIGILAW 332 (GAU)

Bishram Yadav v. State of Mizoram

2018-02-21

NELSON SAILO

body2018
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. Joseph L. Renthlei, the learned counsel for the petitioner and Mrs. Linda L. Fambawl, the learned Govt. Advocate appearing for all the respondents. The case of the petitioner in brief is that he was working as a Police Constable under the Mizoram Armed Police (MAP) and sometime in the year 2012, while he was posted in the 1st Battalion of the MAP, an allegation was made by one Smt. Devanti Devi, w/o. Constable Guru Charan Das that the petitioner sometime in the month of June, 2012 committed rape upon her and thereafter, threatened her with dire consequences if she divulged the same to anyone. Smt. Devanti Devi therefore remained silent about the issue but however, sometime in the month of August 2013, the petitioner approached her again and while showing her his private parts, the petitioner asked her as to when they should do it again. Smt. Devanti Devi feeling scared informed her husband over phone and pursuant to which, she submitted a complaint to the respondent No. 5 on 01.09.2013. She also lodged an FIR before the Officer-in-charge of Aizawl Police Station and as a result Aizawl Police Case No. 275 dated 02.09.2013 under Section 376(1) IPC was registered. 2. Following the complaint, a memorandum of charge was issued to the petitioner vide Memorandum dated 25.10.2013. 3. In the Memorandum, it was provided that the petitioner while posted as MPGA duty committed immoral turpitude act upon Smt. Devanti Devi, w/o. Constable Guru Charan of 1st Battalion MAP in the month of June, 2012. By the said act, he had shown grave misconduct and acted in a manner un-becoming of a Police Personal and rendering himself liable for disciplinary action under Section 94, Chapter-XI of the Mizoram Police Act, 2011 read with Rule 1038/1044 of the Mizoram Police Manual, 2005. 4. In support of the Article of charge framed against the petitioner, it was stated that the petitioner committed immoral turpitude act upon Smt. Devanti Devi, w/o. Constable Guru Charan of 1st Battalion MAP by raping her in the month of June 2012 during the absence of her husband and threatened her not to disclose the matter to anyone. The petitioner again invited Smt. Devanti Devi with filthy language to have sexual intercourse with him and even showed her his private parts to her. The petitioner again invited Smt. Devanti Devi with filthy language to have sexual intercourse with him and even showed her his private parts to her. Out of fear, Smt. Devanti Devi disclosed the incident to her husband, whereafter an FIR was lodged in the Aizawl Police Station as may be noticed above. It was also further indicated that an explanation was called from the petitioner and to which, he submitted his explanation on 23.09.2013 fully denying the charge leveled against him. The Memorandum of Charge also contained Article of Charge alongwith list of witnesses. The witnesses sought to be examined were S.I. Lalhmachhuani Sailo from Crime Against Women Cell, Aizawl, Constable Guru Charan of 1st Battalion MAP and Smt. Devanti Devi in order to prove the charge. 5. Against the Memorandum of Charge, the petitioner on 06.11.2013 submitted his statement of defense denying the charge as contained in the Memorandum. He also stated that since a criminal case was instituted, the enquiry proceedings may not be continued and the outcome of the criminal proceedings be awaited. 6. However, the respondent authority concerned proceeded with the enquiry proceedings and appointed an Enquiry Officer, Presenting Officer and also a Defence Assistant to assist the petitioner. Consequently, the Enquiry Officer submitted the enquiry report to the respondent No. 5 on 20.03.2014 by concluding that the charge against the petitioner was proved on preponderance of probabilities. 7. The petitioner upon being furnished with a copy of the enquiry report dated 20.03.2014 submitted his representation against the enquiry report denying the findings while maintaining mat he was on leave w.e.f. 04.06.2012 to 08.07.2012 i.e. during the period he was alleged to have committed rape upon the complainant 8. The petitioner also submitted a representation to the respondent No. 5 against the proposed penalty on 29.04.2014. However, the Disciplinary Authority (respondent No. 5) vide the impugned Order dated 30.04.2014 imposed upon the petitioner, a penalty of removal from service. It was also directed that his suspension period w.e.f. 05.09.2013 to 30.04.2014 would be treated as "Not on duty" for all purpose. 9. The petitioner thereafter filed an appeal before the respondent No. 3 against the penalty imposed upon him. At the relevant time, the criminal trial instituted against the petitioner vide SC No. 111/2013 before the Court of Addl. District & Sessions Judge-I, Aizawl concluded with an acquittal of the petitioner vide Order dated 01.08.2014 (An-nexure-10). 9. The petitioner thereafter filed an appeal before the respondent No. 3 against the penalty imposed upon him. At the relevant time, the criminal trial instituted against the petitioner vide SC No. 111/2013 before the Court of Addl. District & Sessions Judge-I, Aizawl concluded with an acquittal of the petitioner vide Order dated 01.08.2014 (An-nexure-10). The petitioner therefore, submitted an application before the respondent No. 3 on 04.08.2014 praying for his reinstatement into service in view of having being acquitted by the criminal Court. 10. The respondent No. 3 however, vide the impugned Order dated 27.08.2014 (An-nexure-12) rejected the appeal of the petitioner by up-holding the penalty imposed upon by the Disciplinary Authority. 11. The petitioner again submitted another appeal against the order passed by the respondent No. 3 before the respondent No. 4 i.e. the Director General of Police, Mizoram Aizawl on 02.09.2014 (Annexure-13), which was also rejected vide the impugned Order dated 26.09.2014 (Annexure-14). Be it mentioned herein, that the appeal of the petitioner dated 02.09.2014 was treated as a revision petition and it was considered and disposed of by the Inspector General of Police, Mizoram Aizawl. Being highly aggrieved, the petitioner has filed the instant writ petition. 12. Appearing for the petitioner, Mr. Joseph L. Renthlei submits that the Enquiry Officer could not have come to the conclusion that the charge against the petitioner was proved even on the basis of preponderance of probabilities. He submits that there was a contradiction in the statement of the complainant the complainant could not specifically give the date of the alleged incident but she simply contended that it was in the month of June, 2012. The complainant in the departmental enquiry proceedings was examined as one of the prosecution witness. While in the FIR, she mentioned that the petitioner again attempted to rape her by hugging her and showing his private parts but during the cross examination, she stated that the petitioner had not showed her his private parts and that it was only a verbal invitation. Similarly, while she mentioned that rape was committed upon her in the bed in the FIR but in her examination-in-chief, she stated that she was forced down on the long chair where she was sitting. Similarly, while she mentioned that rape was committed upon her in the bed in the FIR but in her examination-in-chief, she stated that she was forced down on the long chair where she was sitting. Therefore, there being no consistency in the place of the alleged rape, the allegation of rape was clearly doubtful and in such circumstances, the enquiry report could not have been concluded against the petitioner. 13. Mr. Joseph L. Renthlei, further submits that during the relevant period i.e. June, 2013 when rape was alleged to have been committed upon the complainant as alleged by her, the petitioner was in fact on leave w.e.f. 04.06.2012 to 09.07.2012 and in order to prove that he was actually on leave, the petitioner had produced Train Tickets as well as his leave certificate issued by the Reserve Officer of the 1st Battalion MAP showing that he took 36 days earned leave. Under such circumstances, Mr. Joseph L. Renthlei submits that the finding of the Enquiry Officer is wholly misconceive and unsustainable. 14. Mr. Joseph L. Renthlei further submits that the disciplinary authority (respondent No. 5) before imposing the impugned penalty of removal from service upon the petitioner did not consider the entire evidence on record as well as the representation submitted by the petitioner. The disciplinary authority did not give any reasons as to why the evidence of the petitioner was rejected and instead as to why the inconsistence statement of the complainant was being believed. The disciplinary authority therefore, having failed to appreciate the materials on record as well as the representation of the petitioner, the impugned order of penalty cannot be sustained. Mr. Joseph L. Renthlei by referring to the impugned Order dated 30.04.2014 (An-nexure-8) passed by the Disciplinary Authority submits that even before the petitioner could submit a representation against the enquiry report, the said authority had already agreed to the finding and conclusion arrived at by the Enquiry Officer. Therefore, the opportunity given to the petitioner to submit his representation against the enquiry report was only a formality. 15. Mr. Joseph L. Renthlei in support of his contention has relied upon the following decisions of the Apex Court in the case of (i) ORYX Fisheries Private Limited Vs. Union of India & Ors. reported in 2010 13 SCC 427 (ii) G. Vallikumari Vs. Andhra Education Society & Ors. 15. Mr. Joseph L. Renthlei in support of his contention has relied upon the following decisions of the Apex Court in the case of (i) ORYX Fisheries Private Limited Vs. Union of India & Ors. reported in 2010 13 SCC 427 (ii) G. Vallikumari Vs. Andhra Education Society & Ors. reported in 2010 2 SCC 497 (iii) S. Bhaskar Reddy & Anr. Vs. Superintendent of Police & Anr. reported in 2015 2 SCC 365 (iv) S.R. Tewari Vs. Union of India & Anr. reported in 2013 6 SCC 602 (v) Allahabad Band & Ors. Vs. Krishna Narayan Tewari reported in 2017 2 SCC 308 . 16. Appearing for the State respondents, Mrs. Linda L. Fambawl, the learned Govt. Advocate submits that the entire departmental proceedings and the resultant penalty of removal from service imposed upon the petitioner do not suffer from any irregularity or infirmity. She submits that the complainant in fact clearly stated that the petitioner had committed rape upon her in the month of June 2012 and thereafter, after about a year he again approached her with the same intention. Since the petitioner warned the complainant of dire consequences, the complainant being afraid did not divulge the incident after rape was committed upon her. However, when the petitioner again showed similar intention after about a year, the complainant could no longer remain silent. In the result, a complaint was submitted before the respondent No. 5 and at the same time, an FIR was lodged in Aizawl Police Station. During the departmental enquiry, the complainant clearly stated that the petitioner committed rape upon her in the month of June, 2012. Such statement of the complainant as a victim of rape requires no further corroboration, inasmuch as, the law in this regard is well settled that the statement of a prosecutrix is sufficient for convicting an accused under Section 376 of the IPC. She submits that discrepancies as pointed out by the learned counsel for the petitioner are only minor in nature and the same cannot be a ground to reject the version of the complainant 17. Mrs. Linda L. Fambawl further submits that the petitioner may have been acquitted by the criminal Court but however, there is no bar in law to conduct departmental enquiry independent of a criminal proceeding. Mrs. Linda L. Fambawl further submits that the petitioner may have been acquitted by the criminal Court but however, there is no bar in law to conduct departmental enquiry independent of a criminal proceeding. In a departmental enquiry, charge can be proved even only by way of preponderance of probability unlike a criminal trial wherein, the prosecutions are required to establish the case against the accused with proof beyond reasonable doubt. She therefore submits that from the materials on record, there are sufficient materials to prove that the petitioner is guilty of the charge of immoral turpitude and unbecoming of a Government servant or a Police Officer in view of his act and misconduct. In support of her submissions, Mrs. Linda L. Fambawl relies upon the decision of the Apex Court as well as the Madras High Court, which are as follows:- (i) Thakur Prasad (Dead) through LRS Vs. Raj Karan (Dead) by LRS & Ors., 2003 9 SCC 24 (ii) Deputy Inspector General of Police &Anr. Vs. S. Samuthiram, 2013 1 SCC 598 . 18. I have heard the submissions advanced by the learned counsels for the parties and 1 have perused the materials available on record including the departmental proceeding record produced by the learned Govt. Advocate. 19. The question to be decided is as to whether there are materials available from the departmental proceedings drawn against the petitioner to established that the petitioner is indeed guilty of the charge leveled against him and thereby, warranting imposition of appropriate penalty. Secondly, the charges against the petitioner in the departmental proceedings as well as in the criminal trial were similar and identical so as to give the petitioner the benefit of being reinstated into service, since the criminal trial and that in his acquittal. Thirdly, whether the petitioner was deprived of reasonable opportunity to present his case and defend himself from the Memorandum of Charge drawn against him. 20. For the sake of convenience, the third issue is being examined first. As may be noticed, the complainant submitted a written complaint before the respondent No. 5 on 01.09.2013 and pursuant to which, an explanation was called from the petitioner vide Explanation Notice dated 02.09.2013. In response to the notice, the petitioner submitted his explanation to the respondent No. 5 on 23.09.2013 and denied the allegation. As may be noticed, the complainant submitted a written complaint before the respondent No. 5 on 01.09.2013 and pursuant to which, an explanation was called from the petitioner vide Explanation Notice dated 02.09.2013. In response to the notice, the petitioner submitted his explanation to the respondent No. 5 on 23.09.2013 and denied the allegation. However, not being satisfied with the explanation, the respondent No. 5 vide Order dated 05.09.2013 placed the petitioner under suspension with immediate effect pending drawal of departmental proceedings. Be it stated herein that prior to his suspension pursuant to the filing of an FIR on 02.09.2013, the petitioner was arrested on 02.09.2013. The respondent being the Disciplinary Authority thereafter, appointed an Enquiry Officer and a Presenting Officer vide office Order dated 08.11.2013 and 19.12.2013 respectively. The Memorandum of Charge was then issued to the petitioner vide Memorandum dated 25.10.2013, charging him of raping the complainant in the month of June, 2012 and thereafter, after about a year inviting the complainant with filthy language to have sexual intercourse with him and showing his private parts to her. The petitioner was therefore, charged of grave misconduct and of acting in a manner of unbecoming of a Police Personnel and rendering him liable for disciplinary action under the relevant provisions of the Mizoram Police Act, 2011 and the Mizoram Police Manual, 2005. The petitioner was required to submit a written statement in his defence within 10 (ten) days of receipt of the Memorandum. Alongwith the Memorandum a list of documents and list of witnesses were also enclosed. The petitioner thereafter, submitted his written statement of defence on 06.11.2013 denying the charge and at the same time requesting the Disciplinary Authority to defer the departmental proceedings, since a criminal investigation was been conducted pursuant to the filing of FIR. However, the departmental proceeding was conducted and the petitioner was given a Defence Assistant to assist him. Consequently, the Enquiry Officer submitted the enquiry report to the respondent No. 5 on 20.03.2014 quoting that the charge against the petitioner was proved on preponderance on probabilities. The petitioner was furnished a copy of the enquiry report by the respondent No. 5 vide communication dated 08.04.2014, which he received on 09.04.2014. The petitioner was given 15 (fifteen) days time to submit his representation against the enquiry report and accordingly, he submitted his representation within the given time. The petitioner was furnished a copy of the enquiry report by the respondent No. 5 vide communication dated 08.04.2014, which he received on 09.04.2014. The petitioner was given 15 (fifteen) days time to submit his representation against the enquiry report and accordingly, he submitted his representation within the given time. Upon receiving the representation of the petitioner, the respondent No. 5 again issued a show cause notice to the petitioner on 22.04.2014 asking the petitioner to submit are presentation within 10 (ten) days from the date of receipt of the notice on the proposed penalty of dismissal from service contemplated against him. The petitioner upon receipt of the show cause notice submitted his representation on 29.04.2014 and it was thereafter that the impugned penalty of removal from service vide Order dated 30.04.2014 was passed against the petitioner. From a perusal of the records produced by the learned Govt. Advocate, it appears that the petitioner was given adequate opportunity to defend himself, while the service of a Defence Assistant was also given to him. I therefore, do not find any irregularity committed in the enquiry proceedings. 21. Moving on to the first issue now, during the departmental proceedings as many as 3 (three) witnesses were examined including the complainant. The complainant stated that some time in the month of June 2012, one night while she was watching TV alone, while her children were sleeping, the petitioner came inside the house and after closing her mouth with his hands he committed rape upon her in a long chair where she was sitting. The husband of the complainant was not at home at the relevant time and the petitioner threatened her and told her not to divulge the incident to anyone. The complainant out of fear did not report the matter to anyone but however, again in the month of July 2013 while the complainant's husband was away on training, the petitioner upon seeing the complainant walking on the road approached her and told her as to when they would do it again. This time, the complainant out of fear called up her husband over phone and informed him about the incident as well as the previous incident. The second prosecution witness was the husband of the complainant viz.; Shri Guru Charan Das, who reiterated about the incident as per the information given to him by his wife. This time, the complainant out of fear called up her husband over phone and informed him about the incident as well as the previous incident. The second prosecution witness was the husband of the complainant viz.; Shri Guru Charan Das, who reiterated about the incident as per the information given to him by his wife. The third witness, a Sub-Inspector posted in the Crime against Women Cell at Aizawl Police Station also narrated the incident as per the statement she recorded from the complainant during the investigation conducted by her. The petitioner during the entire enquiry proceedings denied the charge and maintained that he was falsely accused by the complainant, on account of some personal grudge. He also pleaded an alibi contending that he was away on leave w.e.f. 04.06.2012 to 09.07.2012 on account of being sanctioned earned leave for 35 days. In support of his stand, the petitioner produced Train Tickets and receipts alongwith Leave Certificate dated 04.05.2012 issued by the Reserve Officer of 1st Battalion MAP. Therefore, what can be noticed is that besides the lone version of the complainant, there are no evidence which is material to show that rape was actually committed upon the complainant by the petitioner. No doubt, the settled position in law is that the statement of the prosecutrix itself would be sufficient to convict an accused for committing rape. However, in the instant case as can be seen, the alleged rape committed upon the complainant took place more than a year back in the month of June 2012 before complaint was lodged and the date and time also could not be ascertained from her own statements. That apart, due to the long lapse of time there could not be any possible medical evidence to establish the commission of rape upon the complainant. Further, upon perusal of the impugned order of penalty dated 30.04.2014, it can be seen that the disciplinary authority even prior to furnishing a copy of the enquiry report was fully in agreement with the findings of the Enquiry Officer. The relevant portion of the impugned Order dated 30.04.2014 may be abstracted below:- "And whereas Pu Zoramsanga Rake, Asstt. Commandant & Enquiry Officer, 1st Bn. MAP, after observing all formalities submitted his final report of the enquiry on dt. 20.3.2014, proving the charge leveled against C/422 Bishram Yadov (u/s.) of 1st Bn. The relevant portion of the impugned Order dated 30.04.2014 may be abstracted below:- "And whereas Pu Zoramsanga Rake, Asstt. Commandant & Enquiry Officer, 1st Bn. MAP, after observing all formalities submitted his final report of the enquiry on dt. 20.3.2014, proving the charge leveled against C/422 Bishram Yadov (u/s.) of 1st Bn. MAP on the basis of evidences adduced during the course of enquiry. And on careful perusal of the enquiry report with all its connected documents submitted by the Enquiry Officer, I fully agree with his findings as the charge leveled against C/422 Bishram Yadov (u/s.) of 1st Bn. MAP is proved. However, in order to give a reasonable opportunity, a copy of the enquiry report was furnished to the Charged Official, C/422 Bishram Yadov (u/s.) of 1st Bn. MAP on dt. 9.4.2014 vide letter No. BN/R/Proc-33/2013/130 dt. 8.4.2014, directing him to submit his representation if any, against the enquiry report within 15 days from the date of receipt of the notice". 22. A perusal of the observation made by the Disciplinary Authority would go to show that the said authority even before affording the petitioner, an opportunity of making a representation against the enquiry report fully accepted the petitioner to be guilty. The Apex Court in the case of ORYX Fisheries Private Ltd. (Supra) observed as follows:- "27. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show-cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony". Considering the ratio laid down in the referred case, I see no reason as to why the same cannot be applied to the opinion expressed by the Disciplinary Authority on the enquiry report even before the petitioner could make a representation on the enquiry report. 23. Considering the ratio laid down in the referred case, I see no reason as to why the same cannot be applied to the opinion expressed by the Disciplinary Authority on the enquiry report even before the petitioner could make a representation on the enquiry report. 23. Further, a perusal of the impugned Order dated 30.04.2014 would also go to show that no reasons for imposing the penalty of removal from service has been assigned by the Disciplinary Authority apart from reciting the procedure adopted during the enquiry proceedings. In this connection, the observation of the Apex Court in the case of G. Vallikumari (Supra) may be quoted as below:- "18. We shall now deal with the question whether the Division Bench of the High Court was justified in setting aside the direction given by the Tribunal for reinstatement of the appellant with consequential benefits. Shri Y.S. Rao, who conducted the enquiry against the appellant submitted the report dated 4.7.1999 with the findings that all the charges except Charge 4 have been proved against the appellant. She was given a copy of the enquiry report along with a show-cause notice to which she filed a reply dated 20.11.1995. 19. In his order, the Chairman of the Managing Committee did refer to the allegations leveled against the appellant and representation submitted by her in the light of the findings recorded by the enquiry officer, but without even adverting to the contents of her representation and giving a semblance of indication of application of mind in the context of Rule 120(1)(d)(iv) of the Rules, he directed her removal from service. Therefore, there is no escape from the conclusion that the order of punishment was passed by the Chairman without complying with the mandate of the relevant statutory rule and the principles of natural justice. The requirement of recording reasons by every quasi-judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned". The requirement of recording reasons by every quasi-judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned". From what has been quoted above, it can be seen that an Administrative Authority or a Quasi Judicial Authority cannot exercise powers mechanically without recording of proper reasons for taking a decision which would adversely affect an individual or an employee. 24. It is indeed a well settled principal of law that in the departmental proceedings, preponderance of probabilities would be sufficient to proceed against the delinquent employee by imposition of appropriate penalty. However, upon appreciating the facts involved in the instant case and upon careful examination of the departmental proceedings records, the probability of the petitioner not having been involved in the alleged incident of misconduct is in his favour. 25. The Apex Court in the case of Krishna Narayan Tiwari (Supra) also opined that in a case where the Disciplinary Authority records the findings i.e. unsupported by any evidence whatsoever or a findings which no reasonable person could have arrived at, a Writ Court would be justified if not duty bound to examine the matter and grant relief in appropriate cases. This Court is not unmindful of the fact that in exercise of the powers under Article 226 of the Constitution of India, Court does not act as an Appellate Authority but at the same time, if it finds that the conclusion arrived at by the Disciplinary Authority is not based on any material finding in the enquiry proceedings, a Writ Court will definitely interfere with the findings on the ground of perversity. 26. Therefore, upon considering all the materials available on record and upon hearing the learned counsels for the parties, I find the impugned Order dated 30.04.2014 to be unsustainable. Having opined thus, the second issue need not detain this Court and the remaining authorities relied upon by the learned counsel for the petitioner also requires no examination. 27. In the result, the Writ Petition is allowed. The respondents are directed to reinstate the writ petitioner back into service with all service benefits including back wages. Having opined thus, the second issue need not detain this Court and the remaining authorities relied upon by the learned counsel for the petitioner also requires no examination. 27. In the result, the Writ Petition is allowed. The respondents are directed to reinstate the writ petitioner back into service with all service benefits including back wages. The impugned enquiry report dated 03.03.2014 and the impugned Order dated 30.04.2014 are set aside and quashed. The departmental proceedings records be returned to the learned Govt. Advocate.