High Court
Case Details
WP(C) 6623/2011 BEFORE THE HON’BLE MR JUSTICE T. VAIPHEI The legality of the order dated 12.10.2011 issued by the Superintendent of Polic e, Nagaon, Assam (respondent No. 3) dismissing the petitioner from service and t he departmental proceeding in question therewith is called into question. 2. The petitioner is admittedly the third son of the late Shakiram Nath @ Su mendra Nath @ Sumen Nath who was previously a resident of Pahupari village under Dighaldai Post Office but had subsequently migrated to village Kakatigaon under the same post office. The late Sumen Nath had four sons, viz., i) Prafulla Nath , an employee in the Indian Railways, ii) Narendra Kumar Nath, a constable in th e Assam Police , iii) Naren Kumar Nath @ Golap Nath, also a constable in the Ass am Police, who is the petitioner herein and iv) Bhogiram Nath, a tailor by profe ssion. The case of the petitioner is that the date of birth of his elder brothe 3. r, viz., Narendra Kumar Nath is 01-08-1967 whereas his date of birth is 31.12.19 68. His elder brother prosecuted his studies in Dighaldari Kakatigaon High Schoo l and that he left the school on 31.12.1983 when he was reading at Class X. The petitioner, however, prosecuted his studies at a different school, namely, Raha Higher Secondary School and left the school on 31.03.1983 and was at that time r eading at Class X. According to the petitioner, the two schools have issued two separate transfer certificates in his name and in the name of his elder brother. His elder brother was appointed as a Constable in the Assam Police on the basis of his educational qualification of Class X in Dighaldari Kakatigaon High Schoo l and that similarly the petitioner also got his appointment on the basis of the transfer certificate issued by Raha Higher Secondary School. It appears that wh ile the petitioner was serving as Constable at Nagaon D.E.F., a complaint was lo dged against him by some of his co-villagers of Kakatigaon village, with whom hi s family had land dispute, alleging that he had obtained his appointment as a Co nstable fraudulently on the basis of the educational qualification of his leader brother by posing himself as Narendra Kumar Nath/Naren Kumar Nath, although he is actually none other than Golap Nath. against whom there was a land dispute. O n the basis of the complaint so lodged, a show cause notice was issued upon the petitioner on 07.08.2010 along with statement of the allegations that he posed h imself as Naren Nath before the appointing authority with the appointment letter which was issued in the name of Naren Nath and thereby cheated the department e ver since his appointment in 1987. He was accordingly charged with gross miscon duct, cheating by impersonation and forgery of document, etc. The petitioner sub mitted his written statement of defense denying all the charges and explained th at the name referred to as (cid:28)Narendra Kumar Nath (cid:29) is his elder brother who is als o a police constable whereas his name is (cid:28)Naren Kumar Nath @ Golap Nath (cid:29) and tha t he never posed as his elder brother to obtain the appointment. He also explain ed that he was reading in Class X at Raha Higher Secondary School and not at Kak atigaon High School and had left the school on 31.03.1983. He, therefore, prayed that the departmental enquiry proposed to be held against him should be dropped . 4.
Legal Reasoning
The respondent was apparently not satisfied with the explanation of the petitioner whereupon he launched a departmental enquiry against the peti tioner by appointing an enquiry officer to enquire into the charges leveled agai nst the petitioner. The enquiry officer, at the conclusion of his enquiry, held that the charge of gross misconduct brought against the petitioner has been prov ed beyond reasonable doubt and the act of commission or omission of the petition er amounts to gross misconduct in a disciplined force. The disciplinary authorit y thereafter supplied a copy of the enquiry report upon the petitioner and asked him to submit his representation against the findings in the enquiry report. Th e petitioner did so. However, the respondent No. 4 agreed with the finding of th e enquiry officer and issued the impugned order of dismissal. Aggrieved by this, this writ petition is filed by the petitioner.
Legal Reasoning
5. The contention of Mr. A.M. Bujarbaruah, the learned counsel for the petitioner is that the findings of the enquiry officer were based on ora l evidence which cannot be acted upon in the face of the entry of the particular s of the petitioner in the service record such as his transfer certificate indic ating his date of birth entered as 31-12-1968, which is different from the date of birth entered by his elder brother in his service record as 1-8-1967. He furt her contends that the findings in the enquiry report is not based any documentar y evidence and, as such, the finding of guilt recorded against him is liable to be quashed. Contending that the disciplinary authority did not properly apply hi s mind to the findings of the enquiry officer, which resulted in grave miscarria ge of justice, the learned counsel submits that the impugned order has no leg to stand on and is liable to be quashed. He has also pointed out that the petition er is currently suffering from cancer and that if he is reinstated to his former post, at least his family would be entitled to family pension after his death. The impugned order is supported by Mrs. H.M. Phukan, the learned State counsel, who submits that a number of co-villagers of the petitioner were examined by the enquiry officer to bring home the charges against the petitioner and the eviden ce of those witnesses reasonably proved the charges leveled against the petition er. She, therefore, urges this Court to dismiss the writ petition, which is bere ft of merit. 6. I have carefully examined the pleadings of the parties and the or iginal service book of the petitioner and that of his elder brother produced by the learned Govt. Advocate. I have also perused the enquiry report on the basis of which the respondent No. 3 issued the impugned order of dismissal. In order t o bring home the charges against the petitioner, the department examined as many as 10 witnesses who are mostly the co-villagers of the petitioner. Even though the evidence appears to be impressive at the first blush, a closer scrutiny of t heir statements does not justify such an impression. The evidences adduced by th ose witnesses are oral in nature and are not supported by any documentary eviden ce. In a departmental enquiry, the burden of proof of the guilt of a delinquent official also lies with the department even though the standard of proof may not be as stringent as those insisted upon in a criminal trial. The evidence of PW 1 and the remaining nine witnesses are to the effect that the name of the petiti oner as known in their village is Golap Nath and not Naren Kumar Nath and that h e got himself appointed as Constable in the name of Naren Nath, his elder and th at he presented himself before the appointing authority as (cid:28)Naren Nath (cid:29) with the appointment letter issued in the name of (cid:28)Naren Nath (cid:29). On examining the service book of the petitioner, it is found t 7. hat the name of the petitioner is entered as (cid:28)Naren Kr. Nath (cid:29) with his date of b irth as 31.12.1968. In his appointment order also, his name is recorded as (cid:28)Nare n Kr. Nath (cid:29). On the other hand, the service book of the elder brother of the pet itioner reveals that his name is recorded as (cid:28)Narendra Kr. Nath (cid:29) with a date of birth of 1st August, 1967 and that he was reading up to class-X and that he left the Dighaldari Kakatigaon High School in 1986. Thus, on a comparative examinati on of the service books of the petitioner and that of his elder brother, there i s no reason or evidence to hold that the two names (cid:28)Narendra Kr. Nath (cid:29) and (cid:28)Nare n Kr. Nath (cid:29) are one and the same person: the possibility of the petitioner imper sonating Narendra Kr. Nath is quite remote, if not impossible. As noticed above, the petitioner was appointed in the name of (cid:28)Naren Kr. Nath (cid:29) with a separate Se rvice Book whereas his elder brother was appointed in the name of (cid:28)Narendra Kr. Nath (cid:29) with a separate Service Book. 8. On the other hand, the findings of the enquiry officer do not inspire any confidence. All he did was to record the statement of the witnesses and then , without appreciating those statements, to merely observe in one sentence that the charge of gross misconduct brought against the petitioner is proved beyond r
Decision
easonable doubt. No documentary evidence was procured on behalf of the Departmen t to substantiate the oral evidence of the witnesses examined by the department in the course of enquiry. In my judgment, the oral evidences adduced on behalf o f the Department are not sufficient to successfully impeach the particulars of t he petitioner entered in his Service Book, which clearly indicated that he is (cid:28)N aren Kr. Kumar (cid:29) and is different from (cid:28)Narendra Kr. Nath (cid:29), which happens to be t he name of his elder brother and that he did not impersonate his elder brother f or getting his appointment as Constable. The findings of the enquiry officer are , therefore, perverse or are otherwise based on no evidence, which cannot be act ed upon by the disciplinary authority for dismissing the petitioner from service . The impugned order issued by the respondent No. 4 therefore suffers from the v ice of non-application of mind and perversity, which resulted in grave miscarria ge of justice. 9. For the reasons stated hereinabove, this writ petition succe eds. The impugned order of dismissal dated 12.10.2011 issued by the respondent N o. 4 is, therefore, quashed. The petitioner shall be reinstated to his post fort hwith. As the petitioner is stated to be suffering from terminal cancer disease, it shall be open to the respondent authorities to take appropriate decision to utilize the services of the petitioner or to grant him invalid pension or compul sory retirement as the case may be. The reinstatement of the petitioner will, ho wever, be subject to the outcome of the criminal case pending against him. The p eriod of dismissal of the petitioner from service shall be treated as the period of suspension for the purpose of enabling him to receive the subsistence allowa nce for that period. The entire exercise shall be carried out by the respondent authorities within a period of two months from the date of receipt of the copy o f this judgment. No costs. 10. Return the service books produced by the learned Government Advocate.