Yashoda Singh … v. 1. The State of Jharkhand 2. The Director General of Police, Jharkhand, Ranchi 3
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 564 of 2019 Yashoda Singh ….. Petitioner Versus 1. The State of Jharkhand 2. The Director General of Police, Jharkhand, Ranchi 3. The Superintendent of Police, Giridih 4. The Deputy Inspector General of Police, North Chotanagpur, Hazaribagh 5. The Inspector General of Police, Jharkhand Armed Police, Jharkhand, Ranchi ….. Respondents ----- CORAM HON’BLE MR. JUSTICE RAJESH SHANKAR ----- Mr. Satish Prasad Mr. Syed Naushad Ahmed Ms. Omiya Anusha, A.C to A.A.G-I-A ----- For the Petitioner: For the Respondents: 09/06.03.2024 The present writ petition has been filed for quashing the order as contained in memo No. 367/General Section dated 21.02.2018 (Annexure-5 to the writ petition) passed by the respondent No.4 whereby the original petitioner, namely, Ram Nath Singh (since deceased) has been dismissed from service. Further prayer has been made for quashing the order as contained in memo No. 312/D dated 06.11.2018 (Annexure-7 series to the writ petition) passed by the respondent No.2 whereby the departmental appeal preferred by the original petitioner has been rejected. 2. During pendency of the present writ petition, the original petitioner died on 24.01.2021 and thereafter the present petitioner was substituted in his place vide order dated 02.01.2023. 3.
Legal Reasoning
The factual background of the case as stated in the writ petition is that
Legal Reasoning
the original petitioner was posted as Sub-Inspector of Police at Tisri Police Station in District-Giridih and he was made the Investigating Officer of Tisri P.S. Case No. 37/16 registered under Sections 147/148/149//354/379/307/436 of I.P.C and Tisri P.S. Case No. 38/2016 registered under Sections 147/148/149/354/379/307 of IPC, both instituted on 09.10.2016. The original petitioner was arrested by the Anti-Corruption Bureau (ACB) on the allegation 1 made by one Naresh Yadav that the I.O of the aforesaid cases had demanded Rs.3,000/- from each of the accused persons of Tisri P.S. Case No. 38/2016 on the pretext of deleting their names from the said case. Subsequently, on verification of the allegation, A.C.B Dhanbad P.S. Case No. 15 of 2016 was registered on 30.11.2016 against the original petitioner. It was further alleged that the original petitioner was caught red handed by a team of ACB on 01.12.2016 while receiving bribe of Rs.10,000/- and he was remanded to judicial custody on 02.12.2016. Thereafter, he was suspended from service with immediate effect vide Giridih District Order No. 2623/2016 as contained in memo No. 6078 dated 02.12.2016 issued by the respondent No.3. A memo of charge was issued by the respondent No.3 to the original petitioner vide D.O. No. 2703/16 on 08.12.2016 for showing extreme lethargy, dereliction of duty, indiscipline, masterfulness, arbitrariness, inaction, violation of order, being caught red handed by Anti-Corruption Bureau while taking bribe of Rs.10,000/-, involvement in corruption and being an incompetent police officer. 4. An explanation was asked from the original petitioner vide memo No. 2726/Confidential dated 12.09.2017 issued under the signature of the respondent No.3. He submitted his explanation on 24.09.2017 before the respondent No.3 requesting inter alia to stay the departmental proceeding till the final order was passed in the criminal case instituted against him. However, the enquiry officer proceeded with the enquiry and submitted report observing that the aforesaid charges against the original petitioner stood proved and also recommended for his dismissal from service. Thereafter, the respondent No.4 dismissed the original petitioner from service vide the impugned order dated 21.02.2018. The original petitioner then preferred an appeal against the said order of ‘’dismissal from service’’ before the respondent No.2, however, the same was also rejected vide the impugned order dated 06.11.2018. 2 5. Learned counsel for the petitioner submits that vide letter No. 8000 dated 02.09.2015 issued by the Secretary, Department of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand, it was informed to the Additional Chief Secretary/Chief Secretary/Secretary of all departments and all Divisional Commissioners of the State of Jharkhand that in the case of pendency of any criminal case as well as departmental proceeding against the delinquent employee on identical and similar set of facts and charge, which was of grave nature involving complicated questions of law and fact, it was desirable to stay the departmental proceeding till conclusion of the criminal case. 6. It is further submitted that in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Limited & Anr. reported in (1999) 3 SCC 679, the Hon’ble Supreme Court has held that if the departmental proceeding and the criminal case are based on identical and similar set of facts and the charges levelled against the delinquent employee in the criminal case is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till conclusion of the criminal case. 7. It is also submitted that Rule 847 of Jharkhand Police Manual provides that no action should be taken against a delinquent employee in course of departmental proceeding till conclusion of criminal trial, if common questions of law and facts are involved in both the proceedings, which require adjudication at the hand of the Court. 8. Learned counsel for the petitioner further submits that the departmental proceeding against the original petitioner was initiated and continued even during pendency of criminal case and ultimately the impugned order of dismissal from service was passed in the teeth of the provision contained in Article 311(2) of the Constitution of India and Rule 847 of Jharkhand Police Manual as well as 3 the ratio laid down by the Hon’ble Supreme Court in the case of M. Paul Anthony (Supra). 9. It is also contended that no reasonable opportunity was given to the original petitioner to defend himself and even no second show cause notice was issued to him by the respondent No.4 before passing the impugned order of ‘’dismissal from service’’. He was thus deprived of the opportunity to cross- examine the witnesses in the departmental proceeding. Necessary documents were also not supplied to him to prepare his defence. Hence, the impugned order of ‘’dismissal from service’’ has been passed in violation of the principles of natural justice. 10. It is further submitted that Giridih District departmental proceeding No. 80/2016 initiated against the original petitioner was not conducted as per rule 167 of the Bihar Board’s Miscellaneous Rules, 1958 which have been adopted by the State of Jharkhand. In fact, the Anti-Corruption Bureau conducted raid on 01.12.2016 and arrested the original petitioner on the same day whereas the F.I.R was lodged on 30.11.2016, meaning thereby, the F.I.R was registered against the original petitioner before the alleged occurrence clearly indicating malafide intention and ulterior motive of the concerned department to falsely implicate the original petitioner. 11. Per-contra, learned counsel for the respondents submits that there is no bar in conducting the departmental proceeding during pendency of a criminal case. In a criminal case of grave nature which involves complicated questions of law and facts, it is desirable to stay the departmental proceeding till conclusion of the same. However, there is no strait jacket formula that in each and every case where a criminal case is pending, the departmental proceeding should be stayed. 12. It is further submitted that the impugned order of ‘’dismissal from service’’ has been passed after due compliance of the principles of natural 4 justice as the original petitioner was given ample opportunity to cross-examine the witnesses and all necessary documents were supplied to him. Though the charges levelled against the original petitioner in the departmental proceeding and the criminal case were same, however, the witnesses were different. 13. It is also submitted that the Hon’ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. & Ors. Vs. Sarvesh Berry [S.L.P (Civil) No. 24560 of 2003] has held that criminal case and departmental proceeding can proceed simultaneously. 14. Heard learned counsel for the parties and perused the relevant materials available on record. Thrust of the argument of learned counsel for the petitioner is that the impugned order of dismissal from service is liable to be set aside as the same has been passed during pendency of the criminal case against him. It has further been contended that the complainant, who was the prime witness to prove the alleged charge of bribery against the original petitioner, was not examined in the departmental proceeding due to which the original petitioner did not get an opportunity to cross-examine the said complainant which caused serious prejudice to him. 15. To appreciate the said contention of learned counsel for the petitioner, I have perused the judgment rendered by the Hon’ble Supreme Court in the case of Capt. M. Paul Anthony (Supra) as has been relied by him. The relevant paragraph of the said judgment is quoted hereunder: ‘’22. The conclusions which are deducible from various decisions of this Court referred to above are: (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it the departmental would be desirable proceedings till the conclusion of the criminal case. to stay 5 (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet. (iv) The factors mentioned at (ii) and (iii) above isolation to stay the in cannot be considered departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.’’ 16. Thus, it is well settled that the trial in a criminal case and the departmental proceeding can proceed simultaneously since both operate in distinct and different jurisdictional areas. In a departmental proceeding where a charge relating to misconduct is being inquired, the required standard of proof is different from that required in a criminal case. In the case of departmental proceeding, the standard of proof is one of preponderance of the probabilities whereas in a criminal case, the charge has to be proved by the prosecution beyond the shadow of reasonable doubt. However, if the departmental proceeding and the criminal case are based on the same set of facts as well as the evidences in both the proceedings are common without there being a variance and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it is desirable to stay the departmental proceeding till conclusion of the criminal case. 17. In the case in hand, the departmental proceeding was initiated against the original petitioner during pendency of the criminal case for the same allegation as made in the criminal case and the impugned order of dismissal 6 from service was passed against him. It is evident from the enquiry report annexed as Annexure-A to the supplementary counter affidavit dated 13.12.2023 that neither the complainant, Naresh Yadav, on whose complaint ACB, Dhanbad P.S. Case No. 15 of 2016 was lodged, nor Kanhaiya Prasad Singh, Police Inspector-cum-investigating officer, Anti-Corruption Bureau, Dhanbad, was examined during the departmental enquiry. All the witnesses examined during the departmental proceeding were hearsay witnesses who neither proved the factum of demand nor the acceptance of illegal gratification. It further appears that no independent witness was also examined during the departmental enquiry. 18. It is well settled that the High Court exercising power of judicial review under Article 226 of the Constitution of India is neither a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant and to reassess the evidence led in the domestic enquiry, nor is supposed to interfere on the ground that another view is possible on the material on record. The High Court is primarily concerned with determining as to whether the enquiry has been held by an authority competent in that behalf and according to the prescribed procedure and whether the principles of natural justice have been followed. If the enquiry has been fairly and properly conducted and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the same will not be ground to interfere with the findings in departmental enquiries. However, if the disciplinary authority records a finding which is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the writ Court may interfere with the finding of the disciplinary proceedings. 19. This Court is of the view that the present case is of ‘no evidence’ and the enquiry officer recorded his opinion for dismissal of the original petitioner from 7 service in a quite mechanical manner without satisfying himself that the charges levelled against him were proved or not. 20. In the case of Commissioner of Police, Delhi & Ors. Vs. Jai Bhagwan reported in (2011) 6 SCC 376, the complainant was not examined during departmental enquiry and as such the delinquent employee could not cross-examine him to test the veracity of the allegation. Their Lordships held that in absence of clear proof supporting the case of the appellant, it was difficult to draw a finding of taking illegal gratification by the employee from the complainant and therefore the High Court rightly held that the case was of no evidence. 21. In view of the aforesaid discussions, the impugned order as contained in memo No. 367/General Section dated 21.02.2018 passed by the respondent No.4 (the disciplinary authority) cannot be sustained in law and the same is hereby quashed. The respondent No.2 being the appellate authority has also failed to take into consideration the infirmities committed during the departmental enquiry and has mechanically rejected the appeal preferred by the petitioner. Hence, the order as contained in memo No. 312/D dated 06.11.2018 passed by the respondent No.2 (the appellate authority) cannot be sustained in law and the same is also quashed. 22. Since the original petitioner died on 24.01.2021 and thereafter the criminal case being Dhanbad Spl. (Vigilance) Case No. 15/2016 also got abated vide order dated 07.08.2023 passed by learned Additional District Judge-X, Dhanbad, there is no reason to remand the matter to the disciplinary authority to take decision on the charges levelled against the original petitioner afresh. No order can also be passed for reinstatement of the original petitioner in service. 23. In the facts and circumstances of the case, the respondents are directed to forthwith release the death-cum-retiral benefits of the original petitioner to the present petitioner treating the original petitioner to be in service at the time 8 of death, however, without any back wages on the principle of ‘no work, no pay’. 24. The present writ petition is, accordingly, allowed with the aforesaid observation and direction. Satish/A.F.R (RAJESH SHANKAR, J) 9