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Jharkhand High Court · body

2023 DIGILAW 1331 (JHR)

Kundan Kant Vimal v. State of Jharkhand

2023-11-08

S.N.PATHAK

body2023
JUDGMENT : Heard the parties. 2. Petitioner has approached this Court with prayer for quashing the order of punishment dated 20.08.2021 by which the petitioner has been inflicted with punishment of one black mark and also for quashing the appellate order dated 26.11.2021, by which the Appellate Authority has affirmed the order of punishment. 3. The case of the petitioner lies in a narrow compass. In the year 2012, in terms of advertisement and after due selection process, the petitioner was initially appointed as Sub-Inspector of Police and accordingly, he joined the said post on 22.06.2012. While the petitioner was posted as Officer Incharge of Radha Nagar Police Station in the district of Sahibganj, on the basis of information received from the Forest Department, on 26.02.2021 during the patrolling at Balugram Kabristan, at 04:30 a.m. two trucks loaded with coal were seized and after preparation of the seizure report, it was sent to the Campus of the Police Station for security reasons. At the same time, it has been given information that another two trucks loaded with coal are unloading at Madarsa, South Piarpur and accordingly, at 05:00 a.m. the petitioner rushed to the place of occurrence and seized other two trucks and from both of the trucks no document has been produced and therefore both the trucks were given on zimenama to one Md. Habibul Rahman security and monitoring. 4. Thereafter, on the basis of written complaint made by one Bihari Mandal, the Authority of the Forest Department lodged the FIR bearing Radha Nagar P.S. Case No. 46 of 2021 under Sections 41, 42 and 52 of the Indian Forest Act. Since the engine of the seized trucks were not functioning therefore, two Chowkidars namely, Birbal Dholi and Jagmohan Mohli were deputed for security/ monitoring of said trucks and copy of command was issued on 26.02.2021. It is further case of the petitioner that on 17.03.2021, Chowkidar Birbal Dholi filed an application stating therein that two trucks had been fled away and on the basis of such information, FIR bearing Radha Nagar P.S. Case No. 67 of 2021 has been lodged under Sections 188, 379, 353, 406, 407 and 120B/34 of the Indian Penal Code. 5. Thereafter, in the month of May, 2021, the petitioner has received a letter issued vide memo No. 1942 dated 04.05.2021 by the respondent no. 5. Thereafter, in the month of May, 2021, the petitioner has received a letter issued vide memo No. 1942 dated 04.05.2021 by the respondent no. 4, whereby explanation has been asked for from the petitioner in relation to Radha Nagar P.S. Case No. 67 of 2021. In the said letter it appears that the Sub Divisional Police Officer, Rajmahal in his supervision note has stated that Md. Habibul Rahman has stated that when the drivers of two trucks were taking the trucks, he has already informed the Officer Incharge but the Officer Incharge did not inform it to his Superior nor it has been mentioned in the station diary and thus the act of petitioner amounts to negligence and dereliction of duty. After receiving the said letter dated 04.05.2021, the petitioner submitted his detailed reply stating therein that there is no dereliction of duty on his part and has requested to exonerate him from the allegations levelled against the petitioner. 6. However being not satisfied with the reply of the petitioner, charges were framed and departmental proceeding bearing No. 21 of 2021 has been initiated against the petitioner by appointing one Rajendra Kumar Dubey, Sub-Divisional Police Officer as the Conducting Officer. Thereafter, the Conducting Officer vide memo No. 1337 dated 25.07.2021 submitted his report holding the petitioner guilty of the charges. The Disciplinary Authority based on the enquiry report submitted by the Conducting Officer, passed the order of punishment dated 20.08.2021, imposing punishment of one black mark against the petitioner. Being aggrieved and dissatisfied with the order of punishment, the petitioner preferred appeal before the Appellate Authority which also stood dismissed vide appellate order dated 26.11.2021. Hence, the petitioner has knocked the door of this Court. 7. Mr. Dhananjay Kumar Dubey, learned counsel appearing for the petitioner assailing the impugned orders submits that impugned orders are not tenable in the eyes of law as the same has been passed without serving copy of the enquiry report along with 2nd show-cause notice. It is further argued that it is a case of no evidence. Learned counsel further submits that Conducting Officer has relied upon supervision note which was never exhibited and the author of supervision note was never examined. It has been further argued that Enquiry Officer relied on the supervision note and the statement made by one Md. It is further argued that it is a case of no evidence. Learned counsel further submits that Conducting Officer has relied upon supervision note which was never exhibited and the author of supervision note was never examined. It has been further argued that Enquiry Officer relied on the supervision note and the statement made by one Md. Habibul Rahman but there is no occasion to call for the supervision note or examine Md. Habibul Rahman. The Conducting Officer has never looked into these aspects and has held petitioner guilty of the charges. 8. To buttress his arguments, learned counsel for the petitioner places heavy reliance on the following judgments: I) M.D., ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors., [ (1993) 4 SCC 727 ]; & II) Roop Singh Negi Vs. Punjab National Bank & Ors., [ (2009) 2 SCC 570 ]. 9. On the other hand, Mr. Indranil Bhaduri, learned counsel appearing for the respondent-State vehemently opposes the contention of learned counsel for the petitioner and argues that Petitioner was an Officer Incharge posted at Radha Nagar Police Station. In the Police Force it is expected that discipline has to be maintained in all respects. When an incident occurs, it is incumbent upon the Officer Incharge to make a note in the Station Diary. Admittedly, the same was not done which has been admitted by the Petitioner. Learned counsel submits that since nothing has been mentioned in the Station Diary regarding the incident neither the Higher Authorities were informed about the same, it shows the malice and callous approach of the petitioner. Learned counsel submits that punishment order is fully justified and the same is not disproportionate. It has been further argued that ample opportunity was given to the petitioner in the departmental proceeding by the Conducting Officer as well as by the Appellate Authority and nowhere in the appeal, the contention has been raised by the petitioner that he was ever prejudiced by non-serving of the enquiry report and 2nd show-cause notice. Learned counsel further argues that petitioner was not prejudiced by non-serving of enquiry report and as such, it cannot be said that order is not justified. Punishment of one black mark looking into the gravity of act of petitioner, who was an Officer Incharge, is fully justified. Learned counsel further argues that petitioner was not prejudiced by non-serving of enquiry report and as such, it cannot be said that order is not justified. Punishment of one black mark looking into the gravity of act of petitioner, who was an Officer Incharge, is fully justified. The Police Force is a disciplined force and thus, act of petitioner amounts to unbecoming of a Police Officer. 10. Having heard the rival submissions of parties across the bar, this Court is of the considered view that no interference is warranted in the instant writ petition. The contention of learned counsel for the petitioner that petitioner was prejudiced by non-serving of copy of enquiry report and 2nd show-cause notice. Nothing has been brought on record to show how the petitioner was prejudiced. It is settled principle of law that serving of copy of enquiry report is sine qua non but equally it has to be proved by the petitioner that prejudice has been caused to him by non-serving of copy of enquiry report and 2nd show-cause notice. In absence of any prejudice being caused, the order of punishment is fully justified and this Court is not inclined to interfere with the same. The petitioner who is a police personnel is expected to maintain discipline and being an Officer Incharge it was incumbent upon him to make entry in the Station Diary. Supervision note is not the basis of the disciplinary proceeding rather, it has to be clearly held that petitioner has not mentioned about the incident in the Station Diary and has also not informed the Higher Authorities, rightly he was held guilty of the charges and the same has been affirmed by the Disciplinary Authority and Appellate Authority. 11. The Hon’ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India & Ors., reported in (1995) 6 SCC 749 has held thus; “The High Court does not act as appellant authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to the decision of a case on merit as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to the decision of a case on merit as an appellate authority. (ii) Insufficiency of materials cannot be a ground to annul the findings of the Enquiry Officer neither can a substituted view be taken in place of Enquiry officer/disciplinary authority in cases of departmental proceeding.” The Hon’ble Apex Court in case of Apparel Export Promotion Council v. A.K. Chopra, reported in (1999) 1 SCC 759 has held as under: “16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans, observed: “The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the court.” 22. In the established facts and circumstances of this case, we have no hesitation to hold, at the outset, that both the learned Single Judge and the Division Bench of the High Court fell into patent error in interfering with the findings of fact recorded by the departmental authorities and interfering with the quantum of punishment, as if the High Court was sitting in appellate jurisdiction. From the judgments of the learned Single Judge as well as the Division Bench, it is quite obvious that the findings with regard to an “unbecoming act” committed by the respondent, as found by the departmental authorities, were not found fault with even on reappreciation of evidence. The High Court did not find that the occurrence, as alleged by the complainant, had not taken place. The High Court did not find that the occurrence, as alleged by the complainant, had not taken place. Neither the learned Single Judge nor the Division Bench found that the findings recorded by the enquiry officer or the departmental appellate authority were either arbitrary or even perverse. As a matter of fact, the High Court found no fault whatsoever with the conduct of enquiry. The direction of the learned Single Judge to the effect that the respondent was not entitled to back wages and was to be posted outside the city for at least two years, which was upheld by the Division Bench, itself demonstrates that the High Court believed the complainant’s case fully for otherwise, neither the withholding of back wages nor a direction to post the respondent outside the city for at least two years was necessary. The High Court in our opinion fell in error in interfering with the punishment, which could be lawfully imposed by the departmental authorities on the respondent for his proven misconduct. To hold that since the respondent had not “actually molested” Miss X and that he had only “tried to molest” her and had “not managed” to make physical contact with her, the punishment of removal from service was not justified, was erroneous. The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone. But there is another aspect of the case which is fundamental and goes to the root of the case and concerns the approach of the Court while dealing with cases of sexual harassment at the place of work of female employees.” The Hon’ble Apex Court in case Pravin Kumar Vs. Union of India & Ors., reported in (2020) 9 SCC 471 held that if the highest authority has approved the order of disciplinary authority, the same cannot be interfered by the High Court sitting under Article 226 of the Constitution. The relevant para of the said judgment reads as under: Scope of judicial review in service matter 25. Union of India & Ors., reported in (2020) 9 SCC 471 held that if the highest authority has approved the order of disciplinary authority, the same cannot be interfered by the High Court sitting under Article 226 of the Constitution. The relevant para of the said judgment reads as under: Scope of judicial review in service matter 25. The learned counsel for the appellant spent considerable time taking us through the various evidence on record with the intention of highlighting lacunae and contradictions. We feel that such an exercise was in vain, as the threshold of interference in the present proceedings is quite high. The power of judicial review discharged by constitutional courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision-making process, and not the merits of the decision itself. Judicial review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome. [State of A.P. v. Mohd. Nasrullah Khan, (2006) 2 SCC 373 , para 11 : 2006 SCC (L&S) 316]. The Hon’ble Apex Court in case of State of Bihar & Ors. Vs. Phulpari Kumari, reported in (2020) 2 SCC 130 , has clearly held that High Court ought not to have interfered with dismissal order passed against respondents by re-examination of evidence and taking view different from that of disciplinary authority which was based on findings of enquiry officer i.e. while in departmental enquiry charge of demanding and accepting illegal gratification was found to have been proved by respondent Further, the Hon’ble Apex Court in case of SBI v. Ajai Kumar Srivastava, reported in (2021) 2 SCC 612 has held thus: 28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. Of late, the Hon’ble Apex Court in case of UCO Bank v. Krishna Kumar Bhardwaj, (2022) 5 SCC 695 has held as under:- 17. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional courts under Article 226 or Article 136 of the Constitution of India is well circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority which has earlier been examined by this Court in B.C. Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] ; H.P. SEB v. Mahesh Dahiya [H.P. SEB v. Mahesh Dahiya, (2017) 1 SCC 768 : (2017) 1 SCC (L&S) 297] and recently by a three-Judge Bench of this Court (of which one of us is a member) in SBI v. Ajai Kumar Srivastava [SBI v. Ajai Kumar Srivastava, (2021) 2 SCC 612 : (2021) 1 SCC (L&S) 457] wherein this Court has held as under : (Ajai Kumar Srivastava case [SBI v. Ajai Kumar Srivastava, (2021) 2 SCC 612 : (2021) 1 SCC (L&S) 457] , SCC pp. 626-27, paras 24-28) “24. It is thus settled that the power of judicial review, of the Constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. 626-27, paras 24-28) “24. It is thus settled that the power of judicial review, of the Constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact. 25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine: (i) whether the enquiry was held by the competent authority; (ii) whether rules of natural justice are complied with; (iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion. 26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry. 27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings. 28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.” 12. As a sequitur to the aforesaid observations, rules, guidelines and legal propositions, there is no merit in the instant writ petition and the same is hereby dismissed.