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2025 DIGILAW 74 (GAU)

Sushant Saurabh Jha v. State of Arunachal Pradesh

2025-01-21

ROBIN PHUKAN

body2025
JUDGMENT : Heard Mr. P.K. Tiwari, learned Senior Counsel assisted by Mr. K. Saxena, learned counsel for the petitioners. Also heard Mr. S. Tapin, learned Senior Government Advocate for the respondents. 2. As the common question of law and facts and as a common order, being No. PHQ/PB/DP-43/2023, dated 18.04.2024, are being challenged in both these writ petitions and as agreed upon, it is proposed to dispose of both the writ petitions by this common judgment and order. 3. In these petitions, under Article 226 of the Constitution of India, the petitioners have challenged the order No. PHQ/PB/DP-43/2023, dated 18.04.2024, passed by the Director General of Police, Arunachal Pradesh. 4. The background facts, leading to filing of the present petitions, are briefly stated as under: “The petitioners, namely, Sushant Saurabh Jha in WP(C) No. 197/2024 and Minli Geyi in WP(C) No. 198/2024, were serving as Sub-Inspector of Police and Inspector of Police respectively, at Naharlagun Police Station. In connection with receipt of money from some persons for procuring high end cars by them and recovery of the same by Delhi Police, on 11.07.2023, they were placed under suspension, vide order dated 14.06.2023, being No. DIGP/ICR/10/2023, in contemplation of initiation of departmental enquiry. Thereafter, on 25.07.2023, a meeting of the Departmental Promotion Committee (DPC) was held for promotion of Sub-Inspectors of Police and since the petitioners were under suspension due to pendency of departmental enquiry, the DPC kept the recommendation for promotion of the petitioners in a sealed cover. Thereafter, departmental enquiry was conducted under Rule 7 of the Arunachal Pradesh Police (Discipline & Appeal) Rules, 1999 (“Rules of 1999”, for short) and three articles of charges were framed against both of them, vide order No. SPNLG/ESTT/DE-01/INSP/MG/SSJ/2023/316. Thereafter, on 22.11.2023, suspension order of the petitioners were revoked and they were attached to the Office of the Superintendent of Police, Itanagar Capital Range until further orders. Thereafter, the Enquiry Officer conducted the departmental enquiry and submitted his report to the Superintendent of Police, Naharlagun on 19.01.2024 and he had arrived at a finding that all the three charges were not proved against the petitioners. Being the disciplinary authority, the Superintendent of Police, Naharlagun accepted the enquiry report on 23.01.2024 and discharged the petitioners in exercise of power under Rule 13(5) of the Rules of 1999, treating the period of suspension w.e.f. 14.07.2023 to 22.11.2023, as spent on duty. Being the disciplinary authority, the Superintendent of Police, Naharlagun accepted the enquiry report on 23.01.2024 and discharged the petitioners in exercise of power under Rule 13(5) of the Rules of 1999, treating the period of suspension w.e.f. 14.07.2023 to 22.11.2023, as spent on duty. Thereafter, the Inspector General of Police (Admin), Arunachal Pradesh issued an order directing constitution of review DPC on 29.02.2024 for promotion of the petitioners from the rank of Sub-Inspector to Inspector in Civil Police, fixing the date on 04.03.2024 for review DPC. Thereafter, the meeting of review DPC was held under the chairmanship of Inspector General of Police (A), Police Headquarter, Arunachal Pradesh on 04.03.2024 and the review DPC opened the sealed cover and recommended promotion of the petitioners as Inspector of Police and forwarded the same to the Director General of Police. Thereafter, the Director General of Police in a detailed office note, disapproved the enquiry report and acceptance thereof by the disciplinary authority which resulted in discharge of the petitioners and also recommendation of the review DPC to promote the petitioners by invoking his power under Rule 31 of the Rules of 1999 and directed to hold de-novo enquiry against the petitioners from the stage of evidence by a SP rank officer, vide order dated 05.04.2024 i.e. the order impugned in these petitions. Thereafter, the Director General of Police had issued one detailed order on 18.04.2024, in exercise of power under Rule 31 of the Rules of 1999 and also directed that till finalization of the departmental enquiry, the promotion of the petitioners shall be kept in a sealed cover. Being aggrieved, the petitioners have approached this by filing the present petitions.” 5. The respondent No. 2 had filed affidavit -in-opposition denying the assertions made in the petitions. 6. Mr. Tiwari, learned Senior Counsel for the petitioners submits the following for consideration of this Court: (i) The Director General of Police had exercised power of review under Rule 31(1) of the Rules of 1999, which is in violation of the principles of natural justice and is void ab initio. 6. Mr. Tiwari, learned Senior Counsel for the petitioners submits the following for consideration of this Court: (i) The Director General of Police had exercised power of review under Rule 31(1) of the Rules of 1999, which is in violation of the principles of natural justice and is void ab initio. (ii) Rule 31(2) of the Rules of 1999 deals with the situation when the Director General of Police annuls the award of dismissal or removal from service which may be beneficial for the charged officer and in that case, there is no requirement to provide an opportunity of hearing to the charged officer by him and Rule 31(3) of the aforesaid Rules provides for those cases where the Director General of Police proposes to enhance punishment and since punishment is sought to be enhanced by the Director General of Police, Rule 31(3) makes it mandatory that the Director General of Police shall issue a show cause notice in writing and provide for personal hearing to the charged officer before enhancing the punishment, and even though the principles of natural justice is not embedded in Rule 31(1), the same has to be followed if the power there under is exercised to the prejudice of the subordinate officer. (iii) The impugned order dated 18.04.2024, has the effect of initiating a second enquiry against the petitioners in respect of those very charges which were held not proved in the earlier enquiry and as such, the impugned order is contrary to the principle of service jurisprudence and the law laid down by Hon’ble Supreme Court in the cases of: (a) Union of India and Anr. vs. Kunisetty Satyanarayana, reported in (2006) 12 SCC 28 . (b) Union of India vs. K.D. Pandey and Anr., reported in (2002) 10 SCC 471 . (c) Kanailal Bera vs. Union of India and Ors., reported in (2007) 11 SCC 517 . (iv) The power under Rule 31(1) does not envisage initiation of second enquiry of the same charges which were earlier held not proved in a regular enquiry. What envisages in the said Rule is further enquiry and the expression “such enquiry” used in the said Rule cannot be construed to mean “second enquiry” and the same can be construed as only “further enquiry”. What envisages in the said Rule is further enquiry and the expression “such enquiry” used in the said Rule cannot be construed to mean “second enquiry” and the same can be construed as only “further enquiry”. (v) While arriving at the finding to annul the enquiry report, the Director General of Police relied upon the preliminary enquiry report for rejecting the finding of the Enquiry Officer in regular enquiry and there was no fatal defect in the regular enquiry due to which proper enquiry cannot be held and/or some important witness was not made available at the time of enquiry, and even there can only be a further enquiry, not a de-novo enquiry. (vi) The Director General of Police had travelled beyond his jurisdiction by withholding the promotion of the petitioners and directing the recommendations to be kept in sealed cover and being contrary to the principle of service jurisprudence, the same requires interference of this Court and therefore, it is contended to set aside the impugned order dated 18.04.2024. 7. Per contra, Mr. Tapin, learned Senior Government Advocate for the respondents submits that the impugned order suffers from no infirmity or irregularity requiring any interference of this Court. Mr. Tapin also submits that Rule 31(1) of the Rules of 1999 empowers the Director General of Police, at any time, to call for the record of award made by any of his subordinate earlier on his own motion or otherwise and confirm, enhance, modify and annul the same or make further enquiry or direct such enquiry to be made before passing any order. And though it is named as de-novo enquiry, in fact it is not a de-novo enquiry, but an enquiry for the purpose under Rule 31(1) of the Rules 1999, and therefore, Mr. Tapin submits that there is no merit in this petition and therefore, it is contended to dismiss the same. 8. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the impugned order dated 18.04.2024, and also gone through the decision referred by Mr. Tiwari, learned Senior Counsel for the petitioners. 9. Before delving in discussion into the points raised in these petitions, it would be in the interest of justice to peruse Rule 31 of the Rules of 1999. 10. Tiwari, learned Senior Counsel for the petitioners. 9. Before delving in discussion into the points raised in these petitions, it would be in the interest of justice to peruse Rule 31 of the Rules of 1999. 10. Rule 31 of the aforesaid Rules provides for review and sub-rule (1) of Rule 31 read as under: “1. The DGP/Addl. DGP, SP, Addl. SP, Principal, Police training school or college; or any other officer of equivalent rank may at any time call for the record of awards made by any of his subordinate either on his own motion or otherwise and confirm, enhance, modify or annul the same or make further inquiry or direct such inquiry to be made before passing orders: Provided that no action in this sub-rule shall be initiated more than 6 months after the date of the order sought to be reviewed except with the prior approval of the State Government.” 11. That, perusal of the impugned order, dated 18.04.2024, indicates that after analysing the finding recorded by the Enquiry Officer in respect of articles 1, 2 and 3, the Director General of Police found that the Enquiry Officer did not adduce fact in proper perspective and failed to accumulate the charges leveled against the delinquents during the departmental enquiry. The said order read as under:- “The charges leveled against SI Sushant Kumar Jha and Inspector Minli Geyi were very serious in nature as there was sufficient evidence/materials on record which clearly revealed in the preliminary enquiry conducted by Sri Kengo Dirchi, DySP (HQ) Viz. not making proper GD entries of the recovery of stolen vehicles/individuals apprehended on 11/07/2023 at Yupia trijunction, malpractices/illegal money dealing done at PS Naharlagun, Dhasang Hotel Naharlagun and Golden Orchid Hotel Naharlagun in connivance with Delhi police officers and deleting of CC TV footage of Dhasang Hotel by SI Sushant Saurabh Jha, which had record of money dealings. Based on the PE report both the delinquents were placed under suspension and departmental enquiry was initiated against them on gross misconduct, indiscipline and dereliction of duty on their part on being members of disciplined police force. But in spite of the evidences/material on record, the enquiry officer did not adduce facts in proper perspective and failed to assimilate the charges leveled against the delinquents during the departmental enquiry. 12. But in spite of the evidences/material on record, the enquiry officer did not adduce facts in proper perspective and failed to assimilate the charges leveled against the delinquents during the departmental enquiry. 12. Thereafter, exercising power under Rule 31 of the Rules of 1999 and amended Rule 2005, passed the following order: (i) The order, vide No. SPNLG/ESTT/DE-01/INSP/MG/SSJ/2023 dated 23.01.2024 issued by SP, Naharlagun is annulled. (ii) DE-NOVO enquiry be conducted against Inspector Minli Geyi and SI Sushant Saurabh Jha by Shri Shekhar Prabhudesai IPS, Superintendent of Police (Crime), PHQ Itanagar from evidence stage. (iii) An explanation be sought from Enquiry Officer who conducted departmental enquiry in a perfunctory and lackadaisical manner and not appreciating the evidences/material available on record against Inspector Minli Geyi and SI Sushant Saurabh Jha. (iv) Till finalization of the DE, the promotion case of SI Sushant Saurabh Jha is kept in sealed cover. 13. Thus, it becomes apparent that while arriving at the finding, in the impugned order dated 18.04.2024; the Director General of Police has relied upon the report of the preliminary enquiry conducted by Sri Kengo Dirchi, Deputy Superintendent of Police (HQ). 14. It is to be noted here that the object of preliminary enquiry is to find out as to whether there is material or reason to go for a regular enquiry. The purpose of preliminary enquiry is clearly provided in Rule 6 of the Arunachal Pradesh Police (Discipline and Appeal) Rules. Sub-rule (1), (2), (3) and (4) are read as under:- “(1) A preliminary inquiry is a fact finding enquiry. Its purpose is:- (a) to establish the nature of default and identity of the defaulter(s), (b) to collect prosecution evidence, (c) to judge quantum of default and (d) to bring relevant documents on record to facilitate a regular departmental inquiry, (2) In case where specific information covering the points mentioned in the sub-rule (1) exists, a preliminary inquiry need not be held and departmental inquiry may be ordered by the disciplinary authority straightway. In all other cases a preliminary inquiry shall normally precede a departmental inquiry. The preliminary inquiry need not be conducted by any particular rank of officer and it need not necessarily be ordered by the disciplinary authority. In all other cases a preliminary inquiry shall normally precede a departmental inquiry. The preliminary inquiry need not be conducted by any particular rank of officer and it need not necessarily be ordered by the disciplinary authority. (3) In case in which a preliminary inquiry discloses the commission of a cognizable offence by an officer of subordinate rank in his official relations with the public, departmental inquiry shall be ordered after obtaining prior approval of the Deputy Inspector General of Police concerned as to whether a criminal case should be registered and investigated or a departmental inquiry should be held. (4) The suspected police officials may or may not be present at a preliminary enquiry but when present he shall not cross-examine the witnesses. The file of preliminary enquiry shall not form part of the formal departmental record. However, there shall be no bar to the inquiry officer bringing on record any document from the file of the preliminary inquiry, if he considered it necessary after supplying copies of the same to the charged official(s). All statements recorded during preliminary inquiry shall be signed by the person making them and attested by the inquiry officer.” 15. Thus, it appears that sub-rule (4) of Rule 6 prohibits the file of preliminary enquiry being part of the formal departmental record. But, discretion is left with the inquiry officer in bringing on record any document from the file of the preliminary inquiry, if he considered it necessary, subject however supplying copy of the same to the charged official. 16. Here in this case, regular enquiry was initiated against both the petitioners based upon the preliminary enquiry report and on the basis of regular enquiry, and the evidence so brought on record, the inquiry officer had arrived at the finding that article of charges Nos. 1, 2 and 3 could not be proved. And once the regular disciplinary proceeding is initiated, the preliminary enquiry report, prepared on the basis of materials collected at that time, lost its significance and as such, annulment of the report of the inquiry officer on the basis of the evidence collected during the preliminary enquiry, while there is express bar in sub-rule (4), to the considered opinion of this Court, is uncalled for and unwarranted and as such the same cannot sustain. 17. 17. Moreover, Rule 31(1) of the Rules 1999 never contemplates about de-novo enquiry, but, the Director General of Police has ordered for de-novo enquiry from the stage of evidence and appointed an inquiry officer, namely, Sri Shekhar Prabhudesai, IPS, Superintendent of Police (Crime), PHQ, which, to the considered opinion of this Court, is beyond the scope of the power conferred under Rule 31(1) of the Rules of 1999. Sub-rule 3(ii) of Rule 7 provides for appointment of inquiry officer by the disciplinary authority. As per said sub-rule the disciplinary authority may himself enquire into the Article of Charges or may, if it considers it necessary to do so, appoint any inquiry officer for the purpose. At best the DGP ought to have referred the matter to the disciplinary authority so far it relates to appointment of different inquiry officer. Instead, he himself appointed inquiry officer of his choice. But, being the ultimate authority, the Director General of Police has opted for appointing an inquiry officer of his choice, which, to the considered opinion of this Court, has gone against the principle of fairness of the process, as having been appointed by the supreme authority, the new inquiry would not be able to conduct the inquiry contemplated under Rule 31 (1) in fair manner as it would be difficult for him to go against the wish of the supreme authority. And as such, the impugned order dated 18.04.2024, is unsustainable in law and accordingly, the same is liable to be set aside and quash on this count also. 18. Another aspect of the matter, which cannot be eschewed consideration of this Court, is while annulling the inquiry report the DGP had not given any opportunity of being heard to the petitioners and as such, it violates the principle of natural justice. And though directly this was not the issue before the Hon’ble Supreme Court in State of Bihar vs. Sheo Narayan Singh reported in (1997) 3 SCC 46 , yet, the said decision suggest that before exercising the suo motu power of revision, conferred by Rule 853-A of Bihar Police Manual, and passing an order exonerating an officer of the charges leveled against him, the principle of fairness demands that an adequate opportunity be given to the employee concerned to make a representation. In the case in hand, no such opportunity was granted to the petitioners. Mr. In the case in hand, no such opportunity was granted to the petitioners. Mr. Tiwari, the learned counsel for the petitioner, had rightly pointed this out during hearing and I find substance in his submission. Thus, on this count also the order impugned has failed to withstand legal scrutiny. 19. I have also gone through the decisions referred by Mr. Tiwari, the learned counsel for the petitioner. And I find that the ratios laid down in the cases referred by him also strengthened his submissions. In the case of Kunisetty Satyanarayana, (supra) Hon’ble Supreme Court had held as under:- “18. We agree with the learned counsel for the respondent that if the charge which has been levelled under the memo dated 23-12-2003 had earlier been enquired into in a regular enquiry by a competent authority, and if the respondent had been exonerated on that very charge, a second enquiry would not be maintainable. ………………..” 20. In the case of K.D. Pandey (supra) Hon’ble Supreme Court in para No. 5 held as under:- “5. Learned counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which had not been properly examined in the earlier inquiry. In fact from the order made by the Railway Board as well as from that part of the file where the inquiry report made earlier is discussed, it is clear that specific findings have been given in respect of each of the charges after discussing the matter and, if that is so, we fail to understand as to how there could have been a remit to the inquiry authority for further inquiry. Indeed this resulted in second inquiry and not in a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. In that view of the matter we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly. 21. In that view of the matter we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly. 21. In the case of Kanailal Bera (supra), Hon’ble Supreme Court has held as under:- “6. ……………………………………… ………………………………… Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges leveled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges leveled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry. 21.1. In the said decision Hon’ble Supreme Court had also discussed its earlier decision in K.R. Deb v. CCE, reported in (1971) 2 SCC 102 , wherein considering the provisions contained in Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 held as under : “12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the disciplinary authority may ask the inquiry officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the inquiring officer or officers does not appeal to the disciplinary authority. The disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. 13. In our view the Rules do not contemplate an action such as was taken by the Collector on 13-2-1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the Rules but was harassing to the appellant.” 22. In our view the Rules do not contemplate an action such as was taken by the Collector on 13-2-1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the Rules but was harassing to the appellant.” 22. Thus, it is well settled from the decisions discussed herein above that second inquiry on the same set of charges and the material on record is not permissible. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. It is also well settled that when a disciplinary proceeding has been initiated, the same must be brought to its logical conclusion i.e. whether the delinquent officer is guilty of charges leveled against him or not. In a given case, further evidences may be directed to be adduced. But, it would not mean that despite holding a delinquent officer to be not guilty of the charges leveled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry. 23. Now, adverting to the facts herein this case, I find that Rule 31(1) of the Rules 1999, provides for making further enquiry or directs such enquiry to be made before passing orders. It never contemplates about de-novo enquiry. But, the Director General of Police had ordered for de-novo enquiry from the stage of evidence and appointed an inquiry officer on the selfsame charge, which is not permissible under the Rule. Though Mr. Tapin, the learned Senior Government Advocate submits that what the Director General of Police meant by de-novo enquiry is the enquiry under Rule 31(1) yet the said submission left this Court unimpressed and the same cannot be accepted. 24. Though Mr. Tapin, the learned Senior Government Advocate submits that what the Director General of Police meant by de-novo enquiry is the enquiry under Rule 31(1) yet the said submission left this Court unimpressed and the same cannot be accepted. 24. To sum up, the impugned order, dated 18.04.2024, has failed to withstand legal scrutiny on following counts:- (I) Firstly, it was passed without giving an opportunity of being heard and giving a chance to the employee concerned to make a representation; (II) Secondly, while passing the impugned order, the Director General of Police relied upon the materials collected during preliminary enquiry, which is not permissible in view of sub-rule (4) of Rule-6; (III) Thirdly, de-novo inquiry is never contemplated under Rule 31(1) of the Rules 1999; it provides for making further enquiry or directs such enquiry to be made before passing orders. (IV) Fourthly, appointment of inquiry officer by the Director General of Police, of his choice, is against the principle of fairness of the process, as having been appointed by the supreme authority, it would be difficult for him to conduct the inquiry in a fair manner as it would be difficult for him to go against the wish of the supreme authority. Moreover, appointment of inquiry officer is the function of disciplinary authority in view of sub-rule 3(ii) of Rule 7. 25. In view of above discussion and finding, I find sufficient merit in these two petitions and accordingly, the same stands allowed. The impugned order stands set aside and quashed. Consequently, the respondent authorities shall proceed to implement the review recommendation made by the review DPC dated 04.03.2024. 26. In terms of above, these writ petitions stand disposed of. 27. The parties have to bear their own costs.