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2020 DIGILAW 897 (JHR)

Deepak Kumar Gupta v. State of Jharkhand

2020-09-18

DEEPAK ROSHAN

body2020
JUDGMENT : Heard through V.C. 2. The instant writ application has been preferred by the petitioner for quashing the order dated 07.04.2012 passed in the departmental proceeding No. 50 of 2011, whereby the petitioner was dismissed from the post of constable w.e.f. 07.04.2012. The petitioner had also prayed for quashing of the order dated 08.01.2013 passed by the Appellate Authority, whereby the appeal preferred by the petitioner against the order of punishment has been dismissed and also for quashing of the order dated 25.02.2015, whereby the memorial so preferred by the petitioner has also been rejected. 3. The brief facts of the case lie in a narrow compass. The petitioner was appointed in the rank of constable by the Superintendent of Police at Dumka. He got married with one Kiran Devi on 07.03.2006. On 15.07.2009, the wife of the petitioner-Kiran Devi had left the petitioner’s matrimonial house and after two years; in the year, 2011, his wife lodged an FIR against this petitioner vide Godda P.S. Case No. 357 of 2011, under Section 498 A of the I.P.C and Section 3/4 of Dowry Prohibition Act. In the said case, charge-sheet has been submitted, but the trial is still pending. Subsequently, on 25.09.2011, a charge memo was issued, wherein the petitioner has been charged for torturing his wife mentally and physically and demanding dowry of Rs.1,00,000/-, forcefully taking the gold jewelry of his wife, beating his wife and throwing her out of the matrimonial house, and even after efforts by the relatives, the petitioner was not ready to take her in the matrimonial house and being a police constable it is highly derogatory and also inhuman behavior, as such the petitioner is not eligible for being employed in police. By issuing of the aforesaid chargesheet, the departmental proceeding was initiated and finally the petitioner has been punished vide order dated 07.04.2012, whereby he has been dismissed from the post of constable. Thereafter, the petitioner preferred an appeal before the DIG, South Chhotanagpur Range, Ranchi which was also dismissed vide order dated 08.01.2013. The memorial preferred by the petitioner was also rejected. 4. Mr. Ajit Kumar, learned senior counsel for the petitioner has raised following issues in his submissions: (i) Criminal proceeding and Civil Proceeding should not go side by side. Thereafter, the petitioner preferred an appeal before the DIG, South Chhotanagpur Range, Ranchi which was also dismissed vide order dated 08.01.2013. The memorial preferred by the petitioner was also rejected. 4. Mr. Ajit Kumar, learned senior counsel for the petitioner has raised following issues in his submissions: (i) Criminal proceeding and Civil Proceeding should not go side by side. (ii) The enquiry proceeding is vitiated on the ground of non-examination of vital witnesses, inasmuch as, the place of enquiry was changed from Lohardaga to Ranchi without any intimation to the petitioner and the witnesses were examined behind the back of the petitioner. (iii) The show-cause notice is bad in law, as the same had decided to award punishment of a particular nature by giving a finding, which is against the settled principles of law. (iv) The Impugned order of punishment as well as the appellate order has been passed with non-application of mind with respect to issue no.1 that criminal proceeding and civil proceeding should not go side by side. 5. In support of his 1st contention he referred to the judgment of the Hon’ble Apex Court in the case of Stanzen Toyotetsu India (Pvt) Ltd. v. Girish V and Ors as reported in (2014) 3 SCC 636 , wherein the Hon’ble Apex Court has held that though there is no legal bar for both the proceedings to go on simultaneously, but it is to be seen when the nature of charge in criminal case is grave and whether the case of delinquent will be prejudiced while proceeding with departmentally. 6. For the second issue that the enquiry proceeding is vitiated by non-examination of witness; he draws attention of this Court towards Annexure-6 of the supplementary affidavit, which is the letter given by the petitioner to the Inquiry Officer for calling the witnesses for cross-examination, who were examined behind back of the petitioner. He further contended that though the enquiry proceeding was being continuously held at Lohardaga, but for the reason best known to the Inquiry Officer, on 19.03.2012 few witnesses were called to Ranchi and they were examined. He further contended that though the enquiry proceeding was being continuously held at Lohardaga, but for the reason best known to the Inquiry Officer, on 19.03.2012 few witnesses were called to Ranchi and they were examined. This action of the respondent is against the settled principle of law as laid down in the case of Kuldeep Singh v. Commissioner of Police and Ors reported in (1999) 2 SCC 10 and later on the same principles were reiterated by the Hon’ble Apex Court in the case of State of Uttaranchal and Ors. v. Kharak Singh as reported in (2008) 8 SCC 236 . 7. The third limb of argument is that the 2nd show cause notice is bad in law, inasmuch as, the entire finding and decision of the disciplinary authority has been mentioned in the show cause notice as if the disciplinary authority had already decided to punish the petitioner. This is against the law as laid down in the case of Oryx Fisheries (Pvt) Ltd. v. Union of India and Ors. as reported in (2010) 13 SCC 427 . 8. He lastly contended that the impugned orders; either the order of dismissal or the order dismissing the appeal of the petitioner or the memorial, all have been passed without application of mind and no reasons has been assigned by either of the authorities for punishing the petitioner. In order to buttress this argument, he relied upon the judgment passed in the case of Kranti Associates (Pvt) Ltd. and Anr. v. Masood Ahmed Khan and Ors. as reported in (2010) 9 SCC 496. 9. Per contra, Mr. Apoorva Singh, learned AC to S.C. (Mines) II contended that it is not necessary that whenever any criminal case is pending, the departmental proceeding should be stopped. He further contended that the petitioner has failed to bring on record any prejudice which has been caused due to continuation of departmental proceeding. Learned counsel further relied upon the judgment passed in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., (1999)3 SCC 679 . He further contended that even in the show cause notice it has been stated in details that the disciplinary authority are proposing to inflict major penalty so there was no reason to reiterate the same thing in the impugned order. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., (1999)3 SCC 679 . He further contended that even in the show cause notice it has been stated in details that the disciplinary authority are proposing to inflict major penalty so there was no reason to reiterate the same thing in the impugned order. He further contended on the issue of non-examination of witnesses that the petitioner has failed to bring on record any evidence that non-examination of those witnesses at Ranchi has caused serious prejudice to him. As a matter of fact, it was not intended to examine those witnesses behind his back rather it was a coincidence and the day when the petitioner was called he was not found available; as such, on this ground alone, the entire departmental proceeding should not vitiate. Relying upon these contentions, learned counsel submits that there is no error in the impugned orders. 10. Having heard learned counsel for the parties and after going through the materials available on record, it appears that trial in the criminal case is still pending. It is true that there is no legal bar for both the proceedings to go simultaneously, but it is to be seen whether the nature of charge in criminal case is grave and whether the case of delinquent will be prejudiced while proceeding with departmentally. In the case in hand, the criminal case relates to an offence committed under section 498A of the I.P.C. and section 3/4 of Dowry Prohibition Act, and in the departmental proceedings, the petitioner has been charged for torturing his wife mentally and physically, demanding dowry of Rs.1,00,000/-, forcefully taking the gold jewelry of his wife, throwing her out of the matrimonial house etc. 11. After going through the charges leveled against the petitioner in the departmental proceedings and the charges in criminal case; it is quiet apparent that they are common in nature. The Hon’ble Apex Court in the case of Stanzen Toyotetsu India (Pvt) Ltd (supra) after considering various other judgments on the issue, including the judgment cited by the learned counsel for the State, has held in paragraphs no. 10(iv) as under: “ 10 (i) …. (ii) …. (iii) …. (iv) Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common.” 12. 10(iv) as under: “ 10 (i) …. (ii) …. (iii) …. (iv) Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common.” 12. Respectfully relying upon the aforesaid judgment of the Hon’ble Apex Court, it can be easily held that the departmental proceeding should have awaited for the simple reason that both the proceedings are based on the same set of facts and the evidences in both the proceedings are common; especially the evidence of the complainant-wife. The evidence of the wife in the departmental case will certainly prejudice the petitioner in criminal case. 13. Though the learned senior counsel for the petitioner has raised several grounds to challenge the impugned orders, but this court is not addressing those grounds because it has already been held that departmental proceeding should have waited till the disposal of the criminal case. 14. In view of the aforesaid findings, the impugned order dated 07.04.2012 passed in the departmental proceeding No. 50 of 2011, whereby the petitioner was dismissed from the post of constable w.e.f. 07.04.2012, order dated 08.01.2013 and also the order dated 25.02.2015, whereby the appeal and memorial so preferred by the petitioner has been rejected; is quashed and set-aside. The respondents are directed to re-instate the petitioner forthwith after receipt/production of copy of this order. The respondents are further directed to wait in the departmental proceeding up till conclusion of the criminal case and after its conclusion, shall re-initiate the departmental proceeding from the stage of calling the witnesses for cross-examination who were examined at the back of the petitioner after giving proper notice to the petitioner and pass an appropriate order in accordance with the procedure of the Police Manual and following principals of natural justice. In the meantime, the respondents shall also take a decision on the question of consequential benefits in favour of the petitioner, from the date of removal till the date of re-instatement, in accordance with law. 15. With the aforesaid observations and directions, this writ application is allowed. The interlocutory application, if any, also stands disposed of.