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2023 DIGILAW 834 (JHR)

Nawal Kishore Prasad v. State of Jharkhand

2023-07-04

RAJESH SHANKAR

body2023
JUDGMENT : The present writ petition has been filed for following reliefs:- (i) For quashing departmental proceeding no. 130/2013. (ii) For quashing inquiry report dated 22.04.2015 (Anneuxre-5 to the writ petition) submitted by the Deputy Superintendent of Police (HQ)-1, Giridih (the respondent no. 6). (iii) For quashing the order as contained in memo no. 2571 dated 03.05.2015 (Annexure-7 to the writ petition) issued by the Superintendent of Police, Giridih (respondent no.5) whereby two annual increments of the petitioner were forfeited (equivalent to three black marks) stating that the same would not affect the future increment. (iv) For quashing the order as contained in memo No. 1193 dated 09.07.2015 (Anneuxre-8 to the writ petition) issued by the respondent no.4 -the Deputy Inspector General of Police, North Chhotanagpur Region, Hazaribag, i.e., the appellate authority, whereby the order of the disciplinary authority has been upheld. (v) For quashing the order as contained in memo No. 2121 dated 14.08.2015 (Annexure-9 to the writ petition) issued by the Inspector General of Police, North Chhotanagpur Region, Bokaro (the respondent no. 3) whereby memorial appeal has also been dismissed. 2. Learned counsel for the petitioner submits that while the petitioner was posted as in-charge of Tisri Police Station, District Giridih, a complaint was received by him on 15.12.2013 from one Binod Yadav alleging that Hari Ravidas had abused and beaten him. Accordingly, Senha No. 261/2013 dated 15.12.2013 was registered and Hari Ravidas was called in the police station for enquiry in the matter, however Hari Ravidas got excited, started shouting and tried to assault Binod Yadav by abusing him due to which both were directed to sit quietly in the police station. A preliminary inquiry was conducted by the Sub- Divisional Police Officer, Giridih (respondent no.7) on the allegation that the petitioner had beaten Hari Ravidas and put him in the lockup. The respondent no. 7 finding the allegation true against the petitioner submitted the inquiry report before the Superintendent of Police, Giridih (the respondent no. 5) on 17.12.2013 observing that due to conduct of the petitioner, the local people were angry and the image of the police was tarnished. 3. Thereafter, the respondent no. 5, vide letter as contained in memo no. 7127 dated 17.12.2013, sought clarification from the petitioner regarding the allegation made against him in the said inquiry report. 5) on 17.12.2013 observing that due to conduct of the petitioner, the local people were angry and the image of the police was tarnished. 3. Thereafter, the respondent no. 5, vide letter as contained in memo no. 7127 dated 17.12.2013, sought clarification from the petitioner regarding the allegation made against him in the said inquiry report. However, being dissatisfied with the explanation submitted by the petitioner, chargesheet was issued to him vide memo No. 9289 dated 31.12.2013 and in the meantime he was suspended from service vide order no. 2814/2013 dated 18.12.2013 with immediate effect. Subsequently, departmental proceeding no. 130 of 2013 was initiated against the petitioner in which the respondent no. 6 was made conducting officer who concluded the said proceeding on 22.04.2015 and submitted the report to the respondent no. 5 who having found the petitioner guilty of the alleged charges, passed the impugned order dated 03.05.2015. 4. It is further submitted that the respondent no.7, who made preliminary inquiry and was the main departmental witness, was not examined before the conducting officer (respondent no.6), rather only formal witnesses were examined and on this score alone, the impugned order of punishment is liable to be vitiated. 5. It is also submitted that the person whom the petitioner had allegedly assaulted, was also not examined before the respondent no.6. Being aggrieved with the order dated 03.05.2015 passed by the disciplinary authority, the petitioner preferred appeal before the respondent no.4, however the said appeal was dismissed in a very mechanical manner vide order as contained in memo No. 1193 dated 09.07.2015. The petitioner thereafter preferred memorial appeal before the respondent no. 3 against the order dated 09.07.2015 which was also dismissed summarily vide order as contained in memo no. 2121 dated 14.08.2015. Being aggrieved with the said order passed by the respondent no. 3, the petitioner filed another memorial appeal before the respondent no.2 which is still pending. 6. Learned counsel for the petitioner further submits that the respondent no.6 who was the conducting officer, submitted the enquiry report without examining the material witnesses as well as the complainant and in absence of their statements, the charges levelled against the petitioner cannot be said to be proved in the inquiry. 7. Per contra, Mr. Mrinal Kanti Roy, learned G.A.- I appearing on behalf of the respondents, submits that the respondent no. 7. Per contra, Mr. Mrinal Kanti Roy, learned G.A.- I appearing on behalf of the respondents, submits that the respondent no. 6 had conducted enquiry with respect to a complaint made by one Hari Ravidas against the petitioner that he assaulted the complainant and thereafter put him in the lockup. In course of inquiry, the respondent no. 7 recorded the statement of ASI, Suryadeo Mishra and Constable No. 1120 Rajendra Yadav, who stated that the petitioner had assaulted the complainant and thereafter had put him in the lockup of Tisri police station. The Police Inspector of Tisri Circle, namely Gowardhan Oraon also stated during inquiry that when he had visited Tisri police station on 15.12.2013, he had found one person in the lockup who had disclosed his name as Hari Ravidas and had stated that the petitioner had beaten and confined him in the lockup without any reason. He further stated that on his instruction, Hari Ravidas was released from the lockup. 8. It is also submitted that the respondent no. 7 came to the conclusion that the petitioner had illegally confined Hari Ravidas in the lockup. On the basis of the enquiry report submitted by the respondent no.7, departmental proceeding no. 130 of 2013 was initiated against the petitioner. Hence, non-examination of the respondent no.7 is not fatal for drawing adverse inference against the departmental proceeding. 9. Heard learned counsel for the parties and perused the materials available on record. 10. The petitioner is aggrieved with the order as contained in memo No. 2571 dated 03.05.2015 issued by the disciplinary authority i.e., respondent no. 5, whereby punishment of forfeiture of two annual increments of the petitioner equivalent to three black marks was imposed, however the same was not to affect his future increment. The petitioner is also aggrieved with the order dated 09.07.2015 passed by the respondent no. 4 as well as order dated 14.08.2015 passed by the respondent no.3 whereby the appeal and memorial appeal respectively filed by the petitioner have been dismissed. 11. Thrust of the argument of learned counsel for the petitioner is that the main witness i.e the respondent no. 7 was not examined in the disciplinary proceeding and the order of punishment was passed without any cogent evidence. 11. Thrust of the argument of learned counsel for the petitioner is that the main witness i.e the respondent no. 7 was not examined in the disciplinary proceeding and the order of punishment was passed without any cogent evidence. Further contention is that the appeal and memorial appeal preferred by the petitioner were also dismissed by the respondent no.4 and 3 respectively in a perfunctory/mechanical manner. 12. On the other hand, learned G.A.- I appearing on behalf of the respondents has contended that on mere ground that the inquiry officer was not examined in the disciplinary proceeding, does not vitiate the entire departmental proceeding. It has further been contended that the enquiry report submitted by the respondent no. 7 clearly revealed that the petitioner had beaten Hari Ravidas and put him in lockup in illegal manner due to which the image of the police was tarnished and there was annoyance in the local people. 13. On bare perusal of the preliminary inquiry report, which was heavily relied upon by the respondent no.6, it appears that the same was prepared without providing any opportunity of hearing to the petitioner, rather in course of inquiry, the statements of two witnesses were recorded and thereafter an opinion was formed that the petitioner had assaulted Hari Ravidas and put him in lockup illegally. After issuance of the chargesheet, the petitioner submitted his explanation denying the allegation of assaulting and putting Hari Ravidas in lockup. He stated in the explanation that when Hari Ravidas was called in the police station to enquire about the complaint made against him by Vinod Yadav, Hari Ravidas became violent and started abusing Vinod Yadav whereupon the petitioner directed both the persons to sit quietly otherwise legal action would be taken. 14. Though the respondent no.7 was made as departmental witness no.1 in the disciplinary proceeding, yet he was not examined and two witnesses, who were examined in the enquiry/disciplinary proceeding, were formal in nature. The respondent no.6 however totally relied upon the preliminary inquiry report submitted by the respondent no.7 by ignoring the reply submitted by the petitioner and came to the conclusion that the charges levelled against the petitioner was found proved. On the basis of observation made by the respondent no.6, the disciplinary authority finally passed the impugned order of punishment vide memo no. 2571 dated 03.05.2015. 15. On the basis of observation made by the respondent no.6, the disciplinary authority finally passed the impugned order of punishment vide memo no. 2571 dated 03.05.2015. 15. It thus appears that the petitioner was not provided any opportunity of hearing during the preliminary inquiry conducted by the respondent no.7 and subsequently the preliminary enquiry report was heavily relied upon by the conducting officer without getting the respondent no.7 examined in the disciplinary proceeding. Had the said respondent been examined before the respondent no.6, the petitioner would have got opportunity to controvert the allegation levelled against him. Moreover, Hari Ravidas i.e., the complainant, whose statement was recorded during preliminary enquiry, was also not examined before the respondent no.6. 16. In the case of Indu Bhushan Dwivedi Vs. State of Jharkhand & Another reported in (2010) 11 SCC 278 , the Hon’ble Supreme Court has held as under :- "22. As a general rule, an authority entrusted with the task of deciding lis between the parties or empowered to make an order which prejudicially affects the rights of any individual or visits him with civil consequences is duty bound to act in consonance with the basic rules of natural justice including the one that material sought to be used against the person concerned must be disclosed to him and he should be given an opportunity to explain his position. This unwritten right of hearing is fundamental to a just decision, which forms an integral part of the concept of rule of law. This right has its roots in the notion of fair procedure. It draws the attention of the authority concerned to the imperative necessity of not overlooking the cause which may be shown by the other side before coming to its decision. 23. When it comes to taking of disciplinary action against a delinquent employee, the employer is not only required to make the employee aware of the specific imputations of misconduct but also to disclose the material sought to be used against him and give him a reasonable opportunity of explaining his position or defending himself. If the employer uses some material adverse to the employee about which the latter is not given notice, the final decision gets vitiated on the ground of the violation of the rule of audi alteram partem. If the employer uses some material adverse to the employee about which the latter is not given notice, the final decision gets vitiated on the ground of the violation of the rule of audi alteram partem. Even if there are no statutory rules which regulate holding of disciplinary enquiry against a delinquent employee, the employer is duty-bound to act in consonance with the rules of natural justice—U.P. Warehousing Corpn. v. Vijay Narayan Vajpayee [ (1980) 3 SCC 459 ]. 24. However, every violation of the rules of natural justice may not be sufficient for invalidating the action taken by the competent authority/employer and the Court may refuse to interfere if it is convinced that such violation has not caused prejudice to the affected person/employee.” 17. In the case of Deputy General Manager (appellate authority) & Others Vs. Ajai Kumar Srivastava reported in (2021) 2 SCC 612 , the Hon’ble Supreme Court has also held as under:- 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. 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.” 18. Thus, the power of judicial review may be exercised against an order of disciplinary authority if the same is found to be passed in violation of the principles of natural justice or is based on no evidence. 19. I am of the view that since at the time of preliminary enquiry, the petitioner was not given opportunity of hearing, it was incumbent upon the conducting officer to get the respondent no. 7 examined during the departmental enquiry before relying on the report prepared by him so as to afford reasonable opportunity to the petitioner to controvert the factual observations made in the report. 20. Consequently, I find that the impugned order of punishment has been passed without any legal evidence in support of the charges levelled against the petitioner. The explanation submitted by the petitioner was also not considered by the respondent no.6. Hence, the impugned order also suffers from violation of the principles of natural justice. I further find that the appeal and memorial appeal preferred by the petitioner were also dismissed in mechanical manner as the grounds taken by the petitioner in the said appeals were not considered by the respondent no.4 and 3 respectively. 21. In view of the aforesaid discussion, the impugned order of punishment as contained in memo no. 2571 dated 03.05.2015 issued by the respondent no. 5, the appellate order as contained in memo no. 1193 dated 09.07.2015 issued by the respondent no.4 and the order passed in memorial appeal as contained in memo no. 2121 dated 14.08.2015 issued by the respondent no. 3 are hereby quashed and set aside. 22. The writ petition is, accordingly, allowed.