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2019 DIGILAW 773 (GAU)

Taj Uddin Laskar v. State of Assam

2019-06-20

N.KOTISWAR SINGH

body2019
ORDER : N. Kotiswar Singh, J. 1. Heard Mr. S.K. Sinha, learned counsel for the petitioner. Also heard Mr. S.S. Roy, learned Government Advocate, Assam. 2. In this petition the petitioner has challenged the impugned order of penalty dated 30.05.2015 by which 2 annual increments of the petitioner have been stopped with cumulative effect from the date of the next increment. The said penalty was imposed on the petitioner after a departmental inquiry was held against him on the charge of uploading certain obscene pictures of a lady constable. 3. The petitioner was issued a show-cause notice on 31.05.2014, charging that while the petitioner was posted at No. 2 Platoon, Halflong Police Reserve, he had uploaded some obscene photos of one lady constable of the 15th AP(IR) Battalion, Assam Police Reserve in the mobile phone memory card of one constable Iqbal Hussain while he was in bathroom and the said photos were sent through Iqbal Hussain's Face Book account without his knowledge, which has damaged the image of the said lady constable. According to the petitioner, though an inquiry was held in which the said charge was held not proved, disciplinary authority without informing the petitioner conducted another inquiry in which the aforesaid charge against the petitioner was found to have been proved on the basis of which the said penalty was imposed. It has been submitted by the learned counsel for the petitioner that holding of the said second inquiry by not informing the petitioner with reasons thereof when the first inquiry was favourable to the petitioner is illegal. 4. Learned counsel for the petitioner submits that perusal of the evidence would clearly indicate that the aforesaid charge could not be proved against the petitioner. It has been also submitted that perusal of the deposition of Iqbal Hussain before the Inquiry Officer would indicate that the charge against the petitioner could not have been proved. The aforesaid, Iqubal Hussain, who was the second witness in the departmental inquiry, had stated that while he was performing duty at No. 2 Platoon, Halflong from June, 2013 to 2014, he became acquainted with one lady constable. On 13.05.2014 his mobile having No. 7399312643 and Face Book account no. 739931, which was already signed in, was kept for charging. He further stated that he had gone to take bath at around 11 A.M. by keeping his mobile phone charging. On 13.05.2014 his mobile having No. 7399312643 and Face Book account no. 739931, which was already signed in, was kept for charging. He further stated that he had gone to take bath at around 11 A.M. by keeping his mobile phone charging. At that time the petitioner, who was there, uploaded some obscene photos of the said lady constable from his mobile on his Face Book account and when he came back to barrack after taking bath, he found that the petitioner was sitting on his bed with his mobile phone in his hand. However, he did not notice what he did with the mobile phone. On the next day i.e. on 14.05.2014, Iqbal Hussain came to know from his friend that certain obscene photos were uploaded from his Face Book account and when he checked his mobile phone, he found three photos of the said lady constable and he immediately deleted the same. He stated that he firmly believed that the petitioner had uploaded these photos. He had also stated that he lost the SIM card No. 7399312643 on 07.04.2014 but he did not make any complaint in the police because of certain inconvenience and he also sold his Lava Make mobile phone at a price of Rs. 4,500/- to another person but he cannot remember the date and time of the said sale and he does not have any documents for the said sale. 5. There were other witnesses produced by the Department in support of the charge. The other witnesses though relevant, did not state anything on the aforesaid crucial charge of uploading of obscene photos of the said lady constable. The learned counsel for the petitioner submits that it is on the basis of the statement of the said Iqbal Husain that the petitioner was charged with the uploading of the obscene photos. It is the contention of the petitioner that the stand of the Department that the aforesaid obscene photos were uploaded from the mobile phone belonging to Iqbal Hussain on 13.05.2014 cannot be accepted as correct as the said Iqbal Hussain himself had stated before the Inquiry Officer that the SIM card bearing the said number was lost on 07.03.2014. It is the contention of the petitioner that the stand of the Department that the aforesaid obscene photos were uploaded from the mobile phone belonging to Iqbal Hussain on 13.05.2014 cannot be accepted as correct as the said Iqbal Hussain himself had stated before the Inquiry Officer that the SIM card bearing the said number was lost on 07.03.2014. It has been accordingly submitted by the learned counsel for the petitioner that if the said SIM card was lost on 07.03.2014, it is inconceivable that the said mobile phone with the same number could be used for uploading the obscene photos on 13.05.2014 i.e. after about 2 months of the loss of the SIM card. 6. Mr. S.S. Roy, learned Government Advocate, Assam submits that mere loss of SIM card may not affect the functions of the mobile phone as a new SIM card could have been obtained for the lost SIM card. However, the aforesaid relevant facts were not placed on record. 7. None of the witnesses including Iqbal Hussain has stated before the Inquiry Officer as to what he did after the said SIM card bearing no. 7399312643 was lost on 7.3.2014. He never stated before the Inquiry Officer that after the aforesaid SIM card was lost on 07.03.2014, he obtained another SIM card with the same number which was used by the petitioner for uploading the obscene photos on 13.05.2014. 8. In view of above, this Court is of the opinion that the aforesaid evidence before the Inquiry Officer suffers from a serious deficiency of not being able to link with the act of uploading of the obscene photos on 13.05.2014 after the SIM card was lost on 07.03.2014. It is now well settled that in a departmental inquiry, the standard of proof required is preponderance of the probability and it is not a strict proof as required under the normal criminal proceeding. However, that does not dispense with the requirement of producing the relevant evidences. When the very crucial evidence of linking the act of uploading obscene photos on 13.05.2014 after the SIM card was loss on 07.03.2014 was never placed on record before the Inquiry Officer, it is not understood how the Inquiry Officer could come to the conclusion that after the loss of the said SIM card on 07.04.2014, after two months, the petitioner could upload the obscene photos from the same mobile. 9. 9. It may be also noted that it was the said Iqbal Hussain who was having some acquaintance with the lady constable and not the petitioner. Further, the Facebook account open while leaving the mobile on charge and going for bath does not seem to be a natural behavior. 10. In view the above, this Court is of the opinion that the finding of the Inquiry Officer that the petitioner had uploaded the obscene photos on 13.05.2014 cannot be held to have been proved in view of the critical missing link between the date of loss of the SIM card and date of uploading of the obscene photos. Accordingly, this Court holds that penalty imposed on the petitioner will be unsustainable in law. 11. For reasons discussed above, the present petition is allowed by setting aside the impugned order of penalty dated 30.05.2015. The petitioner will be entitled to his 2 (two) increments which have been denied to him vide the order of penalty and it will be released to him within a period of 3 (three) months from the date of receipt of a certified copy of this order.