Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 904 (JHR)

Sachidanand Singh v. State of Jharkhand

2023-07-19

S.N.PATHAK

body2023
JUDGMENT : Heard the parties. Prayers made 2. Petitioner has approached this Court with a prayer for quashing the order dated 23.11.2009, communicated to the petitioner on 17.07.2015, passed by respondent No. 3, whereby and whereunder the petitioner’s representation/ appeal has been rejected by passing non-speaking order. Petitioner has further prayed for quashing the order dated 17.11.2008, contained in Special Branch Departmental Appeal Enquiry No. 26 of 2003, passed by I.G. Police (Training), Jharkhand, Ranchi, whereby the petitioner has been dismissed from service vide order dated 17.11.2000. Petitioner has further prayed for a direction upon the respondents to reinstate the petitioner in service with all consequential benefits. Factual Matrix 3. Petitioner, who is a Police Trainee, was put under suspension on 08.11.2003, on the allegation that while he was cleaning his riffle, a bullet was fired which causes injury to his colleague, Shyam Bahadur Thapa, on account of which he died. Thereafter, the petitioner was served with charge-sheet on 09.11.2003, with regard to his indiscipline action and misconduct and explanation was sought to the charges levelled against him within 15 days. In reply to the same, the petitioner submitted his explanation denying all the charges levelled against him. However, being not satisfied with reply submitted by the petitioner, a departmental proceeding was initiated and the Enquiry Officer after conducting the enquiry submitted his report on 06.09.2004, holding the petitioner guilty of the charges. On the basis of enquiry report, the Superintendent of Police, JAP TC, Padma, Hazaribagh, vide his order dated 15.05.2006, awarded punishment of stoppage of one year’s increment which is equivalent to two black marks and further held that the petitioner is not entitled to get any other benefits except the subsistence allowance for the period of suspension. The order dated 15.05.2006 was received by the I.G., Special Branch, Ranchi and he was of the opinion that the punishment given to the petitioner is disproportionate to the charges levelled against him and hence, vide order dated 28.12.2006 directed the petitioner to give his explanation within 15 days as to why the petitioner should not be dismissed from service. Thereafter, vide order dated 17.11.2008 passed by the I.G. Training, Jharkhand, Ranchi the petitioner was dismissed from service. Against the order of dismissal the petitioner preferred appeal on 04.12.2008. 4. Thereafter, vide order dated 17.11.2008 passed by the I.G. Training, Jharkhand, Ranchi the petitioner was dismissed from service. Against the order of dismissal the petitioner preferred appeal on 04.12.2008. 4. It is the further case of the petitioner for the same occurrence, a criminal case was also lodged i.e. Barhi P.S. Case No. 216 of 2003, dated 09.11.2003 for the offence punishable under Sections 304(A) of the Indian Penal Code. However, vide order dated 25.05.2007, the J.M. 1st Class, Hazaribagh has not found the petitioner guilty of offence and acquitted him from all the charges levelled against him. 5. When the appeal preferred by the petitioner was not disposed of, he preferred a writ petition i.e. W.P.(S). No. 2990 of 2009, praying therein for quashing the order dated 17.11.2008, whereby the petitioner has been dismissed from service. This Hon’ble Court vide its order dated 01.12.2014, disposed of the said writ petition directing the respondent-Director General of Police-cum-Inspector General of Police, Jharkhand, Ranchi to dispose of the petitioner’s representation dated 04.12.2008, if not already disposed of. Thereafter, the respondent-authorities vide their letter dated 17.07.2015, informed the petitioner about the rejection of his appeal on 23.11.2009. Hence, the petitioner has been constrained to knock the door of this Court. Submissions of learned counsel for the petitioner 6. Mr. Rajesh Kumar, learned counsel appearing for the petitioner assiduously argues that the respondent-authorities without considering the grounds raised by the petitioner in appeal, rejected the same on 23.11.2009 and in a very arbitrary and malafide manner after lapse of about six years, intimated the petitioner on 17.05.2015 about rejection of his appeal. Thus, it is clear that the respondent-authorities on one pretext or the other are trying to deprive the petitioner from his rightful claim. Learned counsel further argues that while rejecting the appeal of the petitioner, the respondent-authorities have not considered that the petitioner has been acquitted from the charges by the learned J.M. 1st Class, Hazaribagh. Learned counsel further argues that order of dismissal passed against him is excessive, harsh and non-commensurate to the gravity of charges levelled against him and on that account the impugned order deserves to be quashed by this Court. Submissions of learned counsel for the Respondents 7. Per contra, counter-affidavit has been filed. Learned counsel further argues that order of dismissal passed against him is excessive, harsh and non-commensurate to the gravity of charges levelled against him and on that account the impugned order deserves to be quashed by this Court. Submissions of learned counsel for the Respondents 7. Per contra, counter-affidavit has been filed. Learned counsel for the respondent-State vehemently opposes the contention of learned counsel for the petitioner and submits that the departmental proceeding and criminal proceeding can proceed simultaneously as there is no bar in conducting the same separately. It is well settled law that if the employee has been acquitted of the charges in criminal proceeding, the same by itself cannot be a ground not to initiate departmental proceeding against him or drop the same in the event of an order of acquittal is passed. The yardstick and standard of proof in criminal case is different from the departmental proceeding. The standard of proof in a criminal case is a proof beyond reasonable doubt, whereas the proof in a departmental proceeding is preponderance of probability. Learned counsel further argues that the explanation submitted by the petitioner was not found satisfactory and a departmental proceeding has been initiated against him in which the he was held guilty of the charges and thereafter, he has been dismissed from services. Thereafter, the petitioner preferred appeal and the appellate authority considered the case of the petitioner and rejected the same. Learned counsel further argues that the acquittal by the criminal Court does not automatically give the petitioner right to be reinstated into the service. Learned counsel further argues that the punishment imposed against the petitioner is proportionate to the gravity of charges levelled against him in the departmental proceeding. Learned counsel accordingly submits that in view of the above, the petitioner is not entitled to get any relief from this Hon’ble Court and as such, the writ application is fit to be dismissed. Findings of the Court 8. Having heard the parties across the bar and upon perusal of the documents brought on record, this Court is of the considered view that no interference is warranted in the instant writ petition. Admittedly petitioner has been held guilty of the charges by the Enquiry Officer. Findings of the Court 8. Having heard the parties across the bar and upon perusal of the documents brought on record, this Court is of the considered view that no interference is warranted in the instant writ petition. Admittedly petitioner has been held guilty of the charges by the Enquiry Officer. Agreeing with the finding of the Enquiry Officer, the Disciplinary Authority has inflicted punishment which has been later on enhanced by the Appellate Authority and petitioner has been dismissed from services. 9. The petitioner was a trainee and was in the probation period. Utmost disciplined is expected from the members of police force. Due to the indiscipline behavior and approach of the petitioner, his action led to death of a fellow colleague which itself is a serious matter. This Court is in full agreement with the findings of Inspector General of Police-cum-Director General of Police that dismissal has rightly been awarded for the act done by the petitioner. Merely because petitioner has been acquitted in the criminal case that does not give any special attention or room for interference. The Enquiry Officer has conducted the enquiry following the procedure and no procedural lacuna has been pointed-out by the petitioner and as such, it cannot be said that the enquiry was conducted in violation of principle of natural justice. Disciplinary Authority agreeing with the findings of the Enquiry Officer has inflicted punishment and the same was enhanced by the Appellate Authority and affirmed by the Revisional Authority, who is fully empowered to do so under Rule 853-A of the Police Manual. The petitioner belongs to a disciplined force and he is required to maintain utmost discipline. 10. In the case of State of Bihar v. Phulpari Kumari, reported in (2020) 2 SCC 130 , the Hon’ble Apex Court has held that interference with the order passed pursuant to departmental enquiry can only be in case of ‘no evidence’. The Hon’ble Apex Court in case of Union of India v. P. Gunasekaran, (2015) 2 SCC 610 has held as under : “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” 11. The claim of the petitioner that since he has been acquitted in the criminal case, he should be reinstated into service after quashing the order of dismissal. Merely acquittal by the Criminal Court does not automatically give the petitioner right to be reinstated into service. 12. This Court in case of Ashok Kumar Nonia Vs. The claim of the petitioner that since he has been acquitted in the criminal case, he should be reinstated into service after quashing the order of dismissal. Merely acquittal by the Criminal Court does not automatically give the petitioner right to be reinstated into service. 12. This Court in case of Ashok Kumar Nonia Vs. M/s. BCCL & Ors., reported in 2021 (4) JBCJ 588 has held that, “merely acquittal in criminal case cannot be a ground for reinstatement after dismissal”. 13. The Hon’ble Apex Court in case of United India Insurance Co. Ltd. Vs. Narinder Mohan Arya V., reported in (2004) 6 SCC 713, has held as under : “39. Under certain circumstances, a decision of a civil court is also binding upon the criminal court although, converse is not true. (See Karam Chand Ganga Prasad v. Union of India.) However, it is also true that the standard of proof in a criminal case and civil case is different. 40. We may notice that in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., this Court observed: ‘35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.’ 41. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points out that the same would depend upon other factors as well. See e.g. Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Manager, Reserve Bank of India v. S. Mani. Each case is, therefore, required to be considered on its own facts.” Further, the Hon’ble Apex Court in case of D.I.G. of Police & Anr. Vs. S. Samuthiram, reported in (2013) 1 SCC 598 , has held as under : 24. The meaning of the expression “honourable acquittal” came up for consideration before this Court in RBI v. Bhopal Singh Panchal. 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. Vs. S. Samuthiram, reported in (2013) 1 SCC 598 , has held as under : 24. The meaning of the expression “honourable acquittal” came up for consideration before this Court in RBI v. Bhopal Singh Panchal. 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. 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. 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. 27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules. 14. The Hon’ble Apex Court in case of Krishnakali Tea Estate Vs. Akhil Bhartiya Chah Mazdoor Sangh, reported in JT 2004 (7) SC 333, it has been held that : “This Court was concerned with the validity of the termination of the services of workmen after acquittal by the Criminal Court. Dealing with a situation similar to the one in this case, where the acquittal was due to lack of evidence before criminal court and sufficient evidence was available before the Labour Court, this Court was of the opinion that the judgment in Captain M. Paul Anthony’s case (supra) cannot come to the rescue of the workmen.” 15. Further, the Hon’ble Apex Court in case of State of Rajasthan Vs. B.K. Meena, reported in JT (1996) 8 SC 684, it has been held that “Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. B.K. Meena, reported in JT (1996) 8 SC 684, it has been held that “Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the Respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different.” 16. In the instant case petitioner was given ample opportunity to respond to the notice for enhancement of punishment but the petitioner choose not to reply meaning thereby accepting the order. 17. In view of the aforesaid facts and also in view of settled principle of law, this Court is in agreement with view expressed by Appellate Authority and the Revisional Authority. 18. Resultantly, no interference is warranted in the instant writ petition and the same is hereby dismissed.