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2023 DIGILAW 756 (JHR)

Padma Kumari v. State of Jharkhand

2023-06-14

RAJESH SHANKAR

body2023
ORDER : 1. The present writ petition has been filed for quashing the order dated 12.12.2015 (Annexure-6 to the writ petition) passed by the Commandant, Jharkhand Armed Police-10, Hotwar, Ranchi in Departmental Proceeding No. 24/2015, a copy of which was communicated to the petitioner vide memo no. 476 dated 12.12.2015, whereby she was dismissed from service. Further prayer has been made for quashing order dated 06.04.2016 (Annexure-9 to the writ petition) passed by the appellate authority i.e the Deputy Inspector General of Police, Jharkhand Armed Police, Ranchi (the respondent no.3) whereby the appeal preferred by the petitioner was dismissed. The petitioner has also prayed for quashing letter dated 13.04.2018 issued by the Deputy Superintendent of Police (Administration), Office of the Additional Director General of Police, Jharkhand Armed Police, Ranchi (the respondent no.4) whereby she was informed regarding rejection of her application dated 12.01.2018 filed for reinstatement in service in the light of acquittal order dated 18.12.2017 passed by the Judicial Magistrate-1st Class, Ranchi in G.R. Case No. 4709 of 2015 (arising out of Sadar P.S. Case No. 385 of 2015). The petitioner has also prayed for her re-instatement on the post of Constable with all consequential benefits. 2. Learned counsel for the petitioner submits that the petitioner was appointed as a Lady Constable on 10.05.2008 in the Jharkhand Armed Police, 10th Battalion, Jharkhand and she was posted in the Camp at Birsa Munda Central Jail, Hotwar, Ranchi. An FIR being Sadar P.S Case No. 385 of 2015 was lodged against her u/s 419, 420 and 379 of IPC alleging that she had withdrawn an amount of Rs.49,000/- from the Bank Account of one of her colleagues namely Vibha Kumari of the same Unit by stealing her cheques from her purse. Accordingly, vide order dated 04.08.2015 passed by the Commandant, Jharkhand Armed Police-10, Hotwar, Ranchi, petitioner was suspended w.e.f. 04.08.2015 (afternoon) and departmental proceeding no. 24/2015 was initiated against her, a copy of which was communicated to the petitioner vide memo no. 1891 dated 05.08.2015. Thereafter, charge-sheet was issued to the petitioner vide memo no. 2046 dated 21.08.2015. During the said departmental proceeding, eight witnesses were examined and finally the inquiry officer submitted the report on 03.11.2015 finding the petitioner guilty of the charges levelled against her. Subsequently, the petitioner was dismissed from service by the Commandant, Jharkhand Armed Police-10, Hotwar, Ranchi vide order as contained in memo no. 2046 dated 21.08.2015. During the said departmental proceeding, eight witnesses were examined and finally the inquiry officer submitted the report on 03.11.2015 finding the petitioner guilty of the charges levelled against her. Subsequently, the petitioner was dismissed from service by the Commandant, Jharkhand Armed Police-10, Hotwar, Ranchi vide order as contained in memo no. 476 dated 12.12.2015. Being aggrieved with the said order, the petitioner filed appeal before the respondent no.3 which was dismissed vide order as contained in memo no. 901 dated 06.04.2016. The petitioner then filed application before the Director General of Police, Jharkhand, Ranchi on 12.01.2018 praying for her reinstatement in service pursuant to order of her acquittal passed on 18.12.2017 in G.R. Case No. 4709 of 2015, however the same was rejected vide letter as contained in memo no. 291 dated 13.04.2018 issued by the Deputy Superintendent of Police (Administration), Office of the Additional Director General of Police, Jharkhand Armed Police, Ranchi, without considering the fact that on the basis of compromise taken place between the complainant-Vibha Devi and her, she was acquitted in the said criminal case. It is also submitted that even if the allegation against the petitioner is taken to be true, the order of punishment is grossly disproportionate and as such the same is required to be set aside. 3. Per contra, Mr. Vinit Prakash, learned A.C. to S.C.-IV appearing on behalf of the respondents, submits that the petitioner had admitted commission of the offence in her written replies dated 31.08.2015 & 09.09.2015 filed before the Commandant, Jharkhand Armed Police-10, Hotwar, Ranchi and subsequently compromised with the complainant-Vibha Kumari by returning her Rs.49,000/- vide cheque no. 278281 dated 11.08.2015. 4. It is further submitted that the petitioner is a habitual offender as earlier also, she was involved in withdrawing amount by stealing ATM Card of one of her colleagues namely Ashishan Kandulna. On bare perusal of the order passed in criminal case, it would appear that the petitioner has been acquitted of the criminal charges on the basis of compromise taken place between her and the victim/complainant. 5. It is also submitted that the petitioner has suppressed an important fact regarding filing of revision before the Director General of Police-cum-Inspector General of Police, Jharkhand, Ranchi against the order dated 06.04.2016 passed by the appellate authority which was dismissed vide order as contained in memo no. 5. It is also submitted that the petitioner has suppressed an important fact regarding filing of revision before the Director General of Police-cum-Inspector General of Police, Jharkhand, Ranchi against the order dated 06.04.2016 passed by the appellate authority which was dismissed vide order as contained in memo no. 55 dated 16.03.2017, a copy of which was communicated to the petitioner vide memo no. 773 dated 20.03.2017. Thus, the order of punishment having been rightly passed against the petitioner by following due procedure of law, needs no interference of this Court. 6. Heard learned counsel for the parties and perused the materials available on record. The petitioner has challenged the order of her dismissal from service passed by the disciplinary authority which has subsequently been affirmed by the appellate as well as revisional authorities. 7. The main contention of learned counsel for the petitioner is that the petitioner was subsequently acquitted of the criminal charges and as such she was required to be exonerated from the charges levelled in the departmental proceeding. The said argument of learned counsel for the petitioner has been countered by learned counsel for the respondents contending that the acquittal of the petitioner was not honourable, rather was on the basis of joint compromise petition filed by her and the complainant. 8. Learned counsel for the petitioner puts reliance on a judgment rendered by the Hon’ble Supreme Court in the case of G.M. Tank Vs. State of Gujarat reported in (2006) 5 SCC 446 in which the departmental proceedings and the criminal case were based on identical and similar set of facts as well as the charges. In the said case, charges, evidence, witnesses and circumstances were one and the same. Their Lordships noticed that the judicial pronouncement was made after a regular trial and on hot contest. It was further held that when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same was required to be taken note of. Finally, Their Lordships granted monetary benefit to the concerned employee from the date when the order of acquittal was passed and also observed that the appellant would be entitled to pension. 9. In a judgment rendered by the Hon’ble Supreme Court in the case of Deputy Inspector General of Police & Another Vs. Finally, Their Lordships granted monetary benefit to the concerned employee from the date when the order of acquittal was passed and also observed that the appellant would be entitled to pension. 9. In a judgment rendered by the Hon’ble Supreme Court in the case of Deputy Inspector General of Police & Another Vs. S. Samuthiram reported in (2013) 1 SCC 598 , it has been held as under:- “Honourable acquittal 24. The meaning of the expression “honourable acquittal” came up for consideration before this Court in RBI v. Bhopal Singh Panchal [ (1994) 1 SCC 541 ] . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions “honourable acquittal”, “acquitted of blame”, “fully exonerated” are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression “honourably acquitted”. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. 25. In R.P. Kapur v. Union of India [ AIR 1964 SC 787 ] it was held that even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam v. Raghava Rajgopalachari [ 1972 SLR 44 (SC)] this Court quoted with approval the views expressed by Lord Williams, J. in Robert Stuart Wauchope v. Emperor [ILR (1934) 61 Cal 168] which is as follows : (Raghava case [ 1972 SLR 44 (SC)] , SLR p. 47, para 8) “8. … ‘The expression “honourably acquitted” is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other extrajudicial tribunals. We said in our judgment that we accepted the explanation given by the appellant, believed it to be true and considered that it ought to have been accepted by the government authorities and by the Magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. We said in our judgment that we accepted the explanation given by the appellant, believed it to be true and considered that it ought to have been accepted by the government authorities and by the Magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what government authorities term “honourably acquitted”.’” (Robert Stuart case [ILR (1934) 61 Cal 168] , ILR pp. 188-89) 26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so. 10. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so. 10. Thus, it is a well settled principle of law that acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority since the standards of proof required for holding a person guilty in a criminal trial and the enquiry conducted by way of disciplinary proceeding are entirely different. In the criminal trial, strict burden of proof is required to establish the guilt of an accused whereas preponderance of probabilities is sufficient in a disciplinary proceeding. 11. On bare perusal of the record, it appears that altogether eight witnesses were examined during inquiry and the petitioner herself admitted that she had withdrawn Rs.49,000/- from the account of Vibha Devi by putting forged signature on the cheque stolen by her from the complainant’s purse. The petitioner again tried to withdraw Rs.49,000/- from the account of Vibha Devi by another stolen cheque, however she failed in her attempt. The petitioner also admitted that the said amount was subsequently deposited in the bank account of Vibha Devi by way of a cheque dated 11.08.2015. In the inquiry report, the conducting officer recorded the explanation given by the petitioner wherein she had stated that a demand of Rs.1,50,000/- was made to her by her husband for purchasing land in the village and due to unavailability of fund, she asked the complainant-Vibha Devi and other colleagues to help her by lending the aforesaid money, however when the complainant refused to help, she stole the cheques from her purse and withdrew Rs.49,000/- from her account by putting forged signature. The conducting officer further observed that earlier also in the year 2009, the petitioner had withdrawn money from the account of one of her colleagues namely Ashishan Kandulna by committing theft of her ATM card. The disciplinary authority after considering the inquiry report observed that the conduct of the petitioner was of tarnishing the image of Police Department in the public. The disciplinary authority after considering the inquiry report observed that the conduct of the petitioner was of tarnishing the image of Police Department in the public. It was further observed that for the earlier conduct, the petitioner was awarded punishment of seizure of one annual increment vide departmental proceeding no. 05 of 2010, however she again committed similar offence. Hence, she was considered incompetent for the police force. 12. On perusal of the judgment passed in criminal case being G.R Case No. 4709 of 2015, it appears that in the said case, only one witness i.e, the informant/complainant was examined whereas the investigating officer as well as other witnesses were not examined. It was observed by the criminal court that due to non-examination of the investigating officer, the withdrawal of money allegedly made by the accused could not be proved. The criminal court also noted that the money was returned to the complainant after compromise arrived between her and the accused. The criminal court having found that the offences alleged against the accused were compoundable with permission of the court and since the accused and the complainant had compromised the matter, permission was granted to compound the offences. Thereafter, on the basis of the said compromise, the accused/petitioner was acquitted of the charges levelled against her. 13. From the aforesaid observations made by the criminal court, it appears that the acquittal of the petitioner is not honourable and therefore on mere ground that she has been acquitted of the charges in criminal case, she cannot claim reinstatement in service. 14. Now, the question arises as to whether any interference with the quantum of punishment imposed upon the petitioner is required to be made by this Court under extraordinary writ jurisdiction. 15. The Hon’ble Supreme Court in the case of Union of India & Others Vs. Dwarka Prasad Tiwari reported in (2006) 10 SCC 388 , has held that the quantum of punishment should not be interfered in a routine manner. The court is not supposed to interfere with the administrator's decision unless it is illogical or suffers from procedural impropriety or is shocking to the conscience of the court, in the sense that it is in defiance of logic or moral standards. 16. In the case of Govt. of A.P. & Others Vs. Mohd. The court is not supposed to interfere with the administrator's decision unless it is illogical or suffers from procedural impropriety or is shocking to the conscience of the court, in the sense that it is in defiance of logic or moral standards. 16. In the case of Govt. of A.P. & Others Vs. Mohd. Nasrullah Khan reported in (2006) 2 SCC 373 , the Hon’ble Supreme Court held as under:- “14. As already said, in the present case there is no allegation of violation of principles of natural justice or the inquiry being held inconsistent with the mode of procedure prescribed by the rules or regulations. 15. This takes us to the last submission of the counsel for the respondent. Learned counsel for the respondent contended that the offence, said to have been committed, being minor in nature and no loss being caused to the owner of the property, inasmuch as the same had been recovered on the spot, lenient punishment may be awarded in place of dismissal from service. We are unable to countenance this submission. The gravity of the offence must necessarily be measured with the nature of the offence. The respondent was a member of a disciplined force holding the rank of Head Constable. The duty assigned to him was a “bandobast” duty during the visit of the then President Bill Clinton, who ran a security risk of the highest grade. His misconduct could have led to serious security lapse resulting in fatal consequences. But, because of timely detection by the electrician, PW 4, the lens was recovered and immediately restored. We entirely agree with the inquiry officer that the charges are serious in nature, being committed by a member of a disciplined force, who deserved stringent punishment. To instil the confidence of the public in the establishment, the only appropriate punishment in such cases is dismissal from service, which has been correctly awarded. 17. In the present case also, the petitioner had withdrawn money from the account of the complainant by putting forged signature on the cheque stolen by her which is a serious charge particularly considering that she was a member of a disciplined force. Previously also, the petitioner had committed theft of ATM card of her colleague-Ashishan Kandulna for which she was imposed punishment of seizure of one annual increment. Previously also, the petitioner had committed theft of ATM card of her colleague-Ashishan Kandulna for which she was imposed punishment of seizure of one annual increment. Moreover, the petitioner has failed to show any procedural irregularity in the departmental proceeding no. 24 of 2015. 18. In view of the aforesaid discussion, I find no reason to interfere with the order passed against the petitioner by the disciplinary authority as well as the orders of the appellate and the revisional authorities. 19. The writ petition is, accordingly, dismissed.