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2023 DIGILAW 390 (JHR)

Avinash Gurung, son of Mani Kumar Gurung v. State of Jharkhand

2023-03-22

ANANDA SEN, SANJAYA KUMAR MISHRA

body2023
ORDER : (Ananda Sen, J.) 1. This intracourt appeal is against the judgment dated 02.12.2020 passed by learned Single Judge in W.P.(S) No.800 of 2016. 2. Counsel appearing on behalf of the appellant submits that the punishment order passed in the Departmental Proceeding is absolutely bad as there is no evidence to suggest that the petitioner was in a drunken state. As per him, enquiry report is cryptic and does not even disclose as to what were the questions put to the petitioner and what he answered, nor it mentions the questions, the petitioner had put to the witnesses in cross examination. His contention is that the girl, who has been allegedly molested by the petitioner and upon whom the petitioner had allegedly tried to commit rape, has not come forward in the Departmental Proceeding as witness, thus, the entire charge levelled against the petitioner fails. Counsel for the appellant submits that learned Single has failed to appreciate this aspect, thus, the order impugned is bad in law and needs to be set aside. Counsel in support of the contentions of the appellant refers to and relies on the decision of the Hon’ble Supreme Court in the case of Roop Singh Negi versus Punjab National Bank & Others reported in (2009) 2 SCC 570 . 3. The Scope of interference in a writ of certiorari is very limited. It is well settled principle that the Court, exercising jurisdiction under Article 226 of the Constitution of India in the nature of certiorari cannot act as an Appellate Court. The Hon’ble Supreme Court in the case of S.S. Muniraju versus State of Karnataka reported in (2008) 4 SCC 451 at paragraph 24 thereof has held as under: 24. It is clear that whether it is a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. 4. In the case of Mazdoor Sang versus Usha Breco Ltd. reported in (2008) 5 SCC 554 , at paragraph 33 thereof, the Hon’ble Supreme Court has held as under: 33. Before a departmental proceeding, the standard of proof is not that the misconduct must be proved beyond all reasonable doubt but the standard of proof is as to whether the test of preponderance of probability has been met. … Further, in the case of Shashi Bhushan Prasad versus CISF reported in (2019) 7 SCC 797 the Hon’ble Supreme Court at paragraph 19 thereof, has held as under: 19. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. Even the rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a court of law whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of “preponderance of probability. Acquittal by the court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. … 5. Considering the aforesaid position of law, we have gone through the entire memo of appeal, the writ petition and the impugned order passed by the Single Judge. 6. Acquittal by the court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. … 5. Considering the aforesaid position of law, we have gone through the entire memo of appeal, the writ petition and the impugned order passed by the Single Judge. 6. Petitioner was a police constable posted in JAP I. The entire camp where the petitioner was deputed was directed to remain alert and in standby mode during Holi Festival for the purpose of taking care of law and order situation. Inspite of the clear direction, petitioner left the camp and under heavy influence of liquor, he went to the Harijan Basti and poured colours on one Harijan Girl, misbehaved with her and tried to commit rape. Due to his indecent behaviour, people of that area got enraged and when this information was received by the Commandant, he sent some police personnel, who were also attacked by the local people. 7. On the aforesaid facts, chargesheet was issued to the petitioner. Petitioner was subjected to a departmental enquiry, where the Enquiry Officer found the charges levelled against the petitioner to be proved. Enquiry report is before us, from which we find that the petitioner was given full opportunity of examining the witnesses. Several police personnel, namely, Shashikant Kujur, June Bahadur Thapa, Surendra Kumar Sharma, Neil Bahadur Pun, Rajan Kumar Singh etc. were examined by the Enquiry Officer. The petitioner was given opportunity to cross examine the witnesses. The gist of evidence of Shashikant Kujur has also been noted wherein he stated that allegation against the petitioner is correct. Further, it is mentioned in the enquiry report that Golmuri Burma Mines Police Station Case No.43 of 2005 was also instituted under Sections 341/337/323/348/376/511/34 of the Indian Penal Code against 28-30 unknown police personnel. The Enquiry Officer found the petitioner guilty of the charge and submitted the report. After receipt of reply to the second show cause notice, petitioner was dismissed from service vide order dated 23.08.2006. Appellate Authority, considering the appeal of the petitioner, also dismissed the same on 17.05.2007. 8. The Enquiry Officer found the petitioner guilty of the charge and submitted the report. After receipt of reply to the second show cause notice, petitioner was dismissed from service vide order dated 23.08.2006. Appellate Authority, considering the appeal of the petitioner, also dismissed the same on 17.05.2007. 8. The case of Roop Singh Negi (supra) as relied upon by the petitioner is not applicable in the instant case, as in the instant case, evidence was led by the witnesses before the Enquiry Officer, whereas in the case of Roop Singh Negi (supra), no evidence was led by anyone to prove the documents, which were relied upon. 9. There was no procedural illegality or irregularity in the entire process. Opportunity was granted to the petitioner and the petitioner availed the same. The Enquiry Officer found the allegation against the petitioner to be proved. Considering the said enquiry report, petitioner was dismissed from service. In the enquiry report, we find that there are sufficient materials, based on which the Enquiry Officer found the charge against the petitioner to be proved. Once the charge is proved, it is the prerogative of the Disciplinary Authority to impose punishment and fix the quantum. In this case, the petitioner has been punished, which cannot be said to be disproportionate to the proved charge. 10. Further, from the impugned order, we find that the petitioner was dismissed from service on 23.08.2006 and the Departmental Appeal preferred by the petitioner was dismissed on 17.05.2007. The petitioner, thereafter, filed the writ petition in the year 2016, which is nearly after 10 (ten) years from the date of punishment order. The petitioner has approached this Court nearly after 10 (ten) years from the cause of action. 11. Learned Single Judge, considering all these aspects, dismissed the writ petition. We find no illegality in the impugned judgment dated 02.12.2020 passed by learned Single Judge in W.P.(S) No.800 of 2016. This Letters Patent Appeal is, accordingly, dismissed.