Ram Pramod Singh … v. 1. The State of Jharkhand. 2. The Superintendent of Police, Dhanbad. 3. The Deputy
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3965 of 2012 Ram Pramod Singh …. Petitioner Versus 1. The State of Jharkhand. 2. The Superintendent of Police, Dhanbad. 3. The Deputy Inspector General of Police, Coal Area, Bokaro. …. Respondents CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ For the Petitioner For the Respondents ------ : Mr. Manoj Tandon, Advocate Ms. Neha Bhardwaj, Advocate : Mr. Rahul Kamlesh, AC to GA-II ----- 12 / 03.03.2023 Heard Mr. Manoj Tandon, learned counsel, assisted by Ms. Neha Bhardwaj, learned counsel for the petitioner and Mr. Rahul Kamlesh, learned AC to GA-II, representing the respondents. Prayer 2. The petitioner has filed this writ petition challenging the order contained in Memo No. 4958 dated 30.08.2010 (Annexure-6), whereby, the punishment of dismissal from service was imposed upon him. The appellate order dated 27.12.2010 (Annexure-7) passed by the Deputy Inspector
Legal Reasoning
General of Police, Bokaro, affirming the penalty order, as also the revisional order contained in Memo No. 357 dated 14.10.2011 (Annexure-9) passed by the Inspector General of Police (Training), Jharkhand, Ranchi are also under challenge. Factual matrix 3. The facts, which are pleaded in the writ petition, are that the petitioner was initially appointed as Constable on 01.03.1989. While the petitioner was posted as Sub-Inspector of Police at Police Centre, Dhanbad, a memo of charge was framed against him by Memo No. 1848 dated 19.3.2010 (Annexure-3) by the Superintendent of Police, Dhanbad. The charges in nutshell against the petitioner are that despite transfer of the petitioner to Bastacola T.O.P. (Jharia) by Dhanbad District Order No. 1658/07 dated 26.04.2007, he did not gave his joining on the transferred place. It is further alleged that again he was transferred to Katras T.O.P.-1 by Dhanbad District Order No. 650/10 dated 18.2.2010, but he did not gave his joining to the transferred place of posting and got his leave sanctioned by his influence 2 from back date. It is further alleged in the memo of charge that an FIR was lodged against him, being Dhanbad P.S. Case No. 216 of 2010 dated 7.3.2010 and the same was registered under Sections 323, 336, 342, 504 of the Indian Penal Code and Section 27 of the Arms Act. It is alleged in the FIR that he is running a Khatal in Housing Colony and was indulged in quarrel with one Baidyanath Singh, which tarnished the image of the police. The petitioner submitted his reply to the charges on 16.5.2010, whereby while denying the charges, he explained that since the very transfer order was cancelled, he did not join the transferred post. The petitioner further explained his position in the written statement of defence as to how he is not guilty of the charges and claimed to be innocence. Thereafter, the enquiry officer enquired into the matter and submitted his report on 12.7.2010 holding the petitioner guilty of the charges. The penalty of dismissal from service was thereafter imposed upon the petitioner by Memo No. 4958 dated 30.8.2010 in departmental proceeding no. 65/2010. The petitioner thereafter preferred appeal before the appellate authority, which came to be rejected by the Deputy Inspector General of Police, Koyla Range, Bokaro by Memo No. 1644 dated 27.12.2010 (Annexure-7). The memorial preferred thereagainst was also rejected by the Inspector General of Police (Training), Jharkhand, Ranchi vide memo no. 357 dated 14.10.2011 (Annexure-9). All these three orders are under challenge in the present writ petition.
Legal Reasoning
Arguments advanced by learned counsel for Petitioner 4. While assailing the impugned orders of penalty, appellate and memorial, the learned counsel for the petitioner, Mr. Manoj Tandon, vociferously argues that from perusal of the memo of charge dated 19.3.2010 itself, it is evident that though it is alleged that this petitioner misbehaved with one Baidyanath Singh, but he has not been cited as a witness in the memo of charge. Only the Officer-in-Charge and other two police personnel were cited as a witness. The charge, therefore, is absolutely defective. Learned counsel further argues that the said criminal case, being Dhanbad P.S. Case No. 216 of 2010 was tried by competent Court of law and after thorough trial, the petitioner was acquitted by judgment dated 29.11.2012 passed by learned Judicial Magistrate 1st Class, Dhanbad in G.R. Case No. 890 of 2010 (T.R. No. 53 of 2012). He further adds that in the said trial, said Baidyanath Singh was examined as P.W.1, being the informant of the case 3 and he deposed in para-7 of his cross-examination that he filed the criminal case on the basis of hearsay information against the petitioner and again in para-8 of his cross-examination, he disclosed that he wrongly filed the case against the petitioner. Considering the evidence of the witnesses on record, the petitioner was acquitted by competent Court of law. 5. Mr. Tandon, further submits that though in the memo of charge, there is allegation that the petitioner was indulged in quarrel with Baidyanath Singh, therefore, he ought to have been examined in the departmental proceeding to prove the charge. However, the fact remains that said witness Baidyanath Singh, who was the complainant, which led to framing of charge, was not examined by the Department to prove the charge against the petitioner. As regards the allegation of non-joining of the petitioner on transferred post, Mr. Tandon submits that since the transfer order was cancelled and thereafter fresh transfer order was issued, which was duly complied by the petitioner. The said charge, therefore, is also without any basis and hence, it is a case of no evidence against the petitioner. 6. In support of his contention, learned counsel places reliance on the judgment of the Hon’ble Apex Court in the case of Kuldeep Singh Vs. Commissioner of Police and Ors., reported in (1999) 2 SCC 10 and in the case of Hardwari Lal Vs. State of U.P. & Ors., reported in (1999) 8 SCC 582. Another judgment, relied by learned counsel for the petitioner is in the case of Commissioner of Police, Delhi & Ors. Vs. Jai Bhagwan, reported in (2011) 6 SCC 376. 7. Lastly, learned counsel submits that the punishment imposed upon the petitioner i.e. dismissal from service is not at all in commensurate with the charge and the material available on record against the petitioner. The petitioner has rendered a long tenure of service and hence, this type of penalty would be highly disproportionate to the nature of misconduct. Therefore, the learned counsel submits that the punishment imposed upon the petitioner is fit to be set aside and the petitioner is fit to be reinstated in service with consequential benefits. Arguments advanced by learned counsel for Respondents. 8. Refuting the contentions of learned counsel for the petitioner, Mr. Rahul Kamlesh, learned associate counsel to Government Advocate-II, representing the respondents, submits that the petitioner was given ample 4 opportunity of hearing before imposing the penalty, which has been affirmed in the appeal as well as in the memorial. Learned counsel further submits that the petitioner was proceeded departmentally on two folded charges. First charge is that the petitioner did not join on the transferred place and by using his influence got a back dated leave sanctioned from the authority and left for leave on 16.02.2010, but actually he was not on leave and remained physically present in Dhanbad and the Inspector-cum-Officer in Charge submitted a report to this effect and also an first information report, being Dhanbad P.S. Case No. 216/10 dated 7.3.2010 was brought on record, which led to framing of second charge against the petitioner. It is alleged in the FIR that this petitioner has abused one Baidyanath Singh and his guest, which tarnished the image of police. Thereafter, the petitioner was proceeded departmentally and finding him guilty of the charges, penalty order of dismissal was passed, which came to be affirmed by the appellate authority as well as by the revisional authority. Further no foully was pointed out by the petitioner in the entire departmental proceeding. Learned counsel further submits that in the departmental proceeding, this Court sitting under Article 226 of the Constitution would not re-appreciate the evidence on record. He further submits that it is true that the petitioner has been acquitted in the criminal case, but on that basis, his punishment cannot be said to be illegal. Learned counsel submits that it is well settled that the acquittal in a criminal case has no bearing or relevance on the disciplinary proceedings, as the standard of proof in both the cases are different and the proceedings operate in different fields and with different objects. To strengthen his argument, learned counsel places heavy reliance upon the judgment of the Hon’ble Apex Court delivered in the case of Samar Bahadur Vs. State of Uttar Pradesh & Ors, reported in (2011) 9 SCC 94. Relying on this judgment, learned counsel submits that no interference is warranted in the writ petition. Findings of the Court 9. Having heard the learned counsel for the parties and having gone through the records, this Court is of the considered view that the instant writ petition warrants interference for the following facts and reasons:- (i) The petitioner was proceeded departmentally on two fold charges. (ii) The first charge that petitioner did not join on the transferred post and by using his influence managed to get the leave ante-dated sanctioned 5 from the authority is proved by the enquiry officer by cogent evidence. (iii) The first limb of argument of learned counsel for the petitioner that as the petitioner’s transfer order was stayed and also because he was on leave, he did not join the transferred place, is not at all acceptable to this Court. (v) The petitioner being a member of police force has to maintain discipline. The moment he was transferred, it was incumbent upon him to obey the transfer order as per its terms and conditions and thereafter, he could have joined the transferred place as per the order of authority. (vi) From the records prepared by the Inspector-cum-Officer-in-Charge, it is clear that the petitioner was not on leave, rather, he only to get the transfer order infructuous, went on leave with back date. As the petitioner has not complied the order of transfer, he was guilty of dereliction of duty, which is not expected from a member of disciplined force. (vii) So far as second charge is concerned, a report with respect to non- joining of the petitioner and also the first information report, being Dhanbad P.S. Case No. 216/2010 dated 7.3.2010 were brought on record, alleging inter alia therein that the petitioner indulged in quarrel with one Baidyanath Singh, which tarnished the image of the police. (vii) It is obvious from perusal of the record that said Baidyanath Singh, the complainant was not examined. It is the requirement of law, as has been held by the Hon’ble Apex Court in the case of Hardwari Lal (supra) that failure to examine material witness would vitiate the entire departmental proceeding, as the same would be in violation of the principles of natural justice. The relevant paragraphs-3 and 4 are quoted herein below:- “3. Before us the sole ground urged is as to the non- observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and the witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by 6 Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant. 4. However, Shri Goel, the learned Additional Advocate General, State of Uttar Pradesh has submitted that there was other material which was sufficient to come to the conclusion one way or the other and he has taken us through the same. But while appreciating the evidence on record the impact of the testimony of the complainant cannot be visualised. Similarly, the evidence of Jagdish Ram would also bear upon the state of inebriation, if any, of the appellant.” (viii) Further the Hon’ble Apex Court in the case of Kuldeep Singh (supra) held that the person, who is the complainant of the case, must be produced before the enquiry officer in a departmental proceeding to prove the charge and unless and until, the complainant is cited as a witness / or examined as a witness in the departmental proceeding, the charge cannot be said to be proved against the delinquent and it would be a case of no evidence. Their Lordship in para-32 held as under:- “32. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means “hearing” in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross- examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent who should thereafter be given an opportunity to cross-examine that witness.” (ix) Similar view has been expressed by the Hon’ble Apex Court in the case of Commissioner of Police, Delhi & Ors. Vs. Jai Bhagwan 7 (supra) that non-examination of the complainant during the departmental proceeding has denied the delinquent of his right of cross-examination and thus caused violation of Rules. (x) Apart from the above lacuna of non-examination of complainant in the departmental proceeding, it is crystal clear that the petitioner has been acquitted honorably in the criminal case. Since no finding has been returned on the clean acquittal of the petitioner before imposing penalty, it would be desirable that the matter be remitted back before the disciplinary authority. The disciplinary authority is required to reconsider the case of the petitioner on the quantum of punishment taking into consideration the clean acquittal of the petitioner in the criminal case. (xi) Admittedly, the order of dismissal is disproportionate to the charge levelled against the petitioner. The only charge against the petitioner is that he did not join on the transferred post. Therefore, the petitioner being a member of disciplined force cannot be left scot- free. However, from perusal of the charge levelled against the petitioner, it appears that the charge is not as grave as it warrants dismissal from service. The respondent-authorities before passing the impugned order, ought to have considered that after passing of the impugned order, the livelihood of the petitioner is at stake and as such, respondents should reconsider the matter on the quantum of punishment. The Hon’ble Apex Court in case of Naresh Chandra Bhardwaj Vs. Bank of India & ors., reported in (2019) 4 Supreme 614, has held as under:- “There is really no difference in the proposition, which is sought to be propounded except that in the latter judgment the principles have been succinctly summarised in the last paragraph of the judgment, which read as under: 19. The principles discussed above can be summed up and summarized as follows: 19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case the departmental the domain of authorities. 19.2. The Courts cannot assume function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as the jurisdiction of the competent authority. is exclusively within is essentially function this the 8 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court. 19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case. (emphasis supplied) (xii) However, this Court sitting under Article 226 of the Constitution cannot substitute its own conclusion on the quantum of punishment to that of the disciplinary authority. Hence, it would be appropriate to remit back the matter to the disciplinary authority on the quantum of punishment. 10. As a sequitur to the aforesaid rules, regulations, guidelines and judicial pronouncements, the impugned order contained in Memo No. 4958 dated 30.08.2010 passed by the Superintendent of Police, Dhanbad, and the appellate order dated 27.12.2010, as also the revisional order dated 14.10.2011 are hereby quashed and set aside. However, the matter is remitted back with the direction to the disciplinary authority to consider the case of the petitioner for grant of lesser punishment other than an order of removal or dismissal or compulsory retirement, considering the aforesaid facts and situation, in accordance with law. 11.
Decision
Resultantly, this writ petition stands disposed of, with the above directions and observations. R.Kr. (Dr. S.N. Pathak, J.)