Pramod Kumar @ Pramod Kumar Yadav … v. 2. Director General of Police, Jharkhand, Police Head Quarter, Dhurwa, Ranchi 3. Deputy Inspector
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1661 of 2014 Pramod Kumar @ Pramod Kumar Yadav …. Petitioner 1. The State of Jharkhand Vs. 2. Director General of Police, Jharkhand, Police Head Quarter, Dhurwa, Ranchi 3. Deputy Inspector General of Police, Kolhan Range, Chaibasa, Singhbhum West 4. Sr. Superintendent of Police, Jamshedpur, Sakchi, Singhbhum East … Respondents CORAM: THE HON'BLE DR. JUSTICE S.N.PATHAK ---------- For the Petitioner For the Respondents
Legal Reasoning
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 establish the accused is on the prosecution and if it fails to 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. 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. 8. Further, this Court sitting under Article 226 of the Constitution of India, refrain itself from re-appreciating the evidences, which has already been appreciated in the Enquiry by the Disciplinary Authority and thereafter, providing full opportunity, punishment order has been passed, which was 6 affirmed by the Appellate Authority as well as Revisional Authority. The Court cannot substitute its own finding, which has come from the Enquiry Officer or the Disciplinary Authority. The issue fell for consideration before the Hon’ble Apex Court in case of Pravin Kumar Vs. Union of India & Ors., reported in (2020) 9 SCC 471, relevant para is quoted hereinbelow :- Scope of judicial review in service matter for the 25. The learned counsel intention of highlighting the appellant spent considerable time taking us through the various evidence on lacunae and record with contradictions. We feel that such an exercise was in vain, as the threshold of interference in the present proceedings is quite high. The power of judicial review discharged by constitutional courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision-making process, and not the merits of the decision itself. Judicial review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome. [State of A.P. v. Mohd. Nasrullah Khan, (2006) 2 SCC 373, para 11 : 2006 SCC (L&S) 316] 9. Further, the Hon’ble Apex Court in case of B.C. Chaturvedi Vs. Union of India, reported in (1995 ) 6 SCC 749 and in case of State of A.P. Vs. Mohd. Nasrullah Khan, reported in (2006) 2 SCC 373 reiterated the same view. 10. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, there is no illegality or infirmity in the impugned orders and there is no merit in the instant case. Resultantly, writ petition stands dismissed. 11. Pending I.A., if any, also stands dismissed. Punit/- (Dr. S.N. Pathak, J.)
Arguments
: Mr. Manoj Tandon, Advocate Mr. Admya Kerketta, Advocate : Mr. Arun Kumar Dubey, Advocate ----------- 05/ 27.03.2023 The petitioner has approached this Court for quashing the order as contained in Memo NO.4852 dated 24.07.2010 passed by Sr. Superintendent of Police, Singhbhum East, Jamshedpur, whereby and whereunder, he has been dismissed from services. Further, prayer has been made for quashing the Appellate Order as contained in Memo NO.1083 dated 12.10.2012, passed by Deputy Inspector General of Police, Chaibasa as well as Revisional order as contained in Memo No.43 dated 28.02.2014, passed by Director General of Police-cum-Inspector, whereby and whereunder, the appeal and memorial respectively, preferred by the petitioner has been dismissed. Further, prayer has been made for a direction upon the respondent to reinstate the petitioner in services with all consequential benefits including the backwages. 2. As per the factual matrix, the case of the petitioner is that he was appointed as Constable in District Force, Jamshedpur (Singhbhum East) in the year, 1999 and was working to the satisfaction of the respondents. However, a FIR being Pursuidh P.S. Case No.146 of 2007 was registered on 24.08.2007 under Section 392 of the Indian Penal Code and on the same day, he was suspended and on the same set of charge, memo of charge was 2 framed against the petitioner, wherein it was stated that when the petitioner was posted as Reserve Guard on 24.08.2007 in Pursudih Police Station, in the night at 9.45 pm at Trimurthi Chowk, he took Rs.235/- from one Robin Pal illegally. The said Robin Pal was compelled to seat inside the vehicle for demand of Rs.1000/-. The amount being not paid, he was dropped off from the police vehicle at some distance. For this Pursudih P.S. Case No.146/2007 dated 24.08.2007 under Section 392 IPC was registered. This action of the petitioner amounts to dereliction and indiscipline in duty and the same amounts to unbecoming of a police personnel. 3. Pursuant to the same, the petitioner submitted his reply on 31.07.2008, denied the allegations levelled against him. Thereafter, the Inquiry was conducted and Inquiry Officer submitted his report on 28.09.2009, holding therein part of the charges, have been proved and petitioner was held guilty of the charges. Accordingly, the Disciplinary Authority without issuing any notice to the petitioner before differing with the finding of the Inquiry Officer, vide Memo No.3064 dated 04.05.2010 differed with the finding recorded by the Inquiry Officer and held the petitioner guilty of the charges and petitioner was directed to file his reply. On 13.05.2010, the petitioner filed an application before the Disciplinary Authority and sekking some time for filing his reply, but the petitioner could not file any reply. Thereafter, the Disciplinary Authority vide impugned order as contained in Memo No.4852 dated 24.07.2010 dismissed the petitioner from services. 4. Aggrieved by the order of punishment, the petitioner preferred an Appeal before the Deputy Inspector General of Police, Singhbhum West, Chaibasa, but the same was rejected vide impugned order dated 12.10.2012. Against the order of Appellate Authority, the petitioner preferred a memorial before the Director General-cum-Inspector General of Police, Jharkhand, Ranchi. During the pendency of the Memorial, the petitioner was acquitted in criminal trial by Competent Court of Criminal Jurisdiction vide judgement and order dated 21.02.2013. Thereafter, he informed the Director General of Police, Jharkhand, where the Memorial of the petitioner was pending, but the memorial was rejected vide Memo No.43 dated 28.02.2014. 3 Hence, the petitioner has been constrained to knock the door of this Court. 5. Mr. Manoj Tandon, learned counsel for the petitioner assails the impugned order of dismissal as well as Appellate Orders on the ground that when the same set of charge, same set of allegation and same set of evidence, criminal case was instituted against the petitioner and he was acquitted, the petitioner is entitled for reinstatement in services. The Departmental proceeding being a quasi judicial proceeding, the proceeding must be based on some sort of evidence, when the charges were not proved in the criminal trial, the petitioner ought to have been exonerated in the departmental proceeding also. He further submits that once the whole findings recorded by the Inquiry Officer on a particular point, was in favour of the petitioner, the Disciplinary Authority ought to have disagreed to the procedure established by law by giving a tentative reason of difference. Before differing with enquiry report, the petitioner was never show caused. In the inquiry, the petitioner was not allowed to cross-examine the complainant, who is the main and material witnesses and as such, there is procedural irregularities in the departmental proceeding. The complainant himself deposed before the inquiry officer that it was a dark night and he could not recognize the face of the petitioner, but the police officials were taking the name of Pramod (petitioner), hence, the complainant lodged a complaint against the petitioner, but the same was not considered by the Disciplinary Authority. The punishment order is disproportionate to the charge levelled against the petitioner. 6. On the other hand, counter-affidavit has been filed by the respondents. Mr. Arun Kumar Dubey, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that in the departmental proceeding, gross misconduct has been proved, which includes carelessness, indiscipline and spontaneous work by the petitioner during duty hours and the witnesses in the departmental proceeding also supported that the petitioner after registration of the case, absconded from the Reserve Guard and no explanation was given by him before the Enquiry Officer. The petitioner was a constable, it was his prime duty to protect the people, but the petitioner himself has taken money from 4 one Robin Paul illegally and beaten him. He further submits that the petitioner compromise with the complainant and on that basis he was acquitted in criminal case and as such, he was not acquitted on merits. The acquittal in criminal case does not nullify the decision in the departmental proceeding. The order of dismissal was affirmed up to the Memorial, there is no illegality or infirmity in the impugned order. 7. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it appears that the order of acquittal was placed before the Revisional Authority i.e., Director General of Police, Jharkhand and same has been considered and it was found that in the criminal case, the petitioner has not been acquitted Honorably rather on the basis of benefit of doubt, he was acquitted and accordingly, rejected the memorial of the petitioner and as such, there is no illegality or infirmity in the impugned order. Regarding submissions of the learned counsel for the petitioner that since the petitioner was exonerated in the criminal case, he ought to have been exonerated in the Departmental Proceeding also is concerned, the said argument of the learned counsel is not acceptable to this Court since the departmental proceeding as well as criminal proceeding are two different proceeding, one is based on evidences and the other is based on preponderance and same cannot be equated and merely because petitioner has been acquitted in the criminal case on the basis of benefit of doubt, he cannot be reinstated into services. The similar issue fell for consideration before Hon’ble Apex Court in case of D.I.G. of Police & Anr. Vs. S. Samuthiram, reported in (2013) 1 SCC 598, wherein it was held as under: 24. The meaning of the expression “honourable acquittal” came up for consideration before this Court in RBI v. Bhopal Singh Panchal6. 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 full acquitted”. When is acquitted after the accused 5 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.