Lakhan Hansda v. The State of Jharkhand

and Mishri Lal Marandi was decided by a common judgment dated 30th November 2006 and the conviction and sentence awarded to the appellant in T.R. Case No. 20 of 1993 were set aside by the appellate Court. 3. At the time when the departmental proceeding was conducted against the appellant, he was facing criminal trial in G.R. Case No. 822 of 2 L.P.A. No. 295 of 2023 1985 corresponding to T.R. No. 20 of 1993. This is the case set up by the appellant that after his acquittal in the criminal case he moved an application for reinstatement in service but the departmental authority did not accede to his request and, therefore, he approached this Court in W.P. (S) No. 5443 of 2007. The writ petition was disposed of by an order dated 29th February 2008 with a liberty to the appellant to file a representation with supporting documents before the Superintendent of Police at Dumka. In compliance of the writ Court’s order, the Superintendent of Police passed an order on 8th July 2008 observing that this shall not be proper to take the appellant back in service. The appellant therefore approached this Court in W.P. (S) No. 5358 of 2008 which was disposed of with a direction to the Superintendent of Police to pass a speaking order. The writ Court made the following observations in the order dated 3rd November 2014: “After the order passed by the S.P., Dumka (Annexure-9) while rejecting the representation of the petitioner, no reason has been assigned by him. It is settled principle that the authority before whom any application is filed he supposed to consider the same by making proper application of his mind. It is further settled proposition of law that whatever going in the mind of the authority concerned the same must be reflected in the order. The respondent no.2 had been directed to consider and determine the claim of the petitioner and pass an appropriate order. The meaning of consideration is of wide implication as has been discussed by the Hon'ble Supreme Court in the case of Chairman Life Insurance Corporation of India and others Vs. A. Masilamani [ 2013(6)SCC 530] wherein at para 19 it has been held that; The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order. (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar and Bhikhubhai Vithlabhai Patel v. State of Gujarat). Thus, in my view the Superintendent of Police, Dumka while passing the order impugned had not applied its mind and the ground which has been taken by the petitioner has not at all been considered. In that view of the matter impugned order dated 8.7.2008 (Annexure-9) is not sustainable hence, the same is hereby quashed and matter is being remitted back before the S.P. ,Dumka for passing afresh order on the basis of fresh representation if filed on behalf of petitioner 3 L.P.A. No. 295 of 2023 within three weeks from the date of receipt of copy of this order along with all the facts, Rules and the judgments pronounced by the various Courts and on receipt of the same the Superintendent of Police, Dumka is directed to pass a speaking order within four weeks thereafter and communicate the same to the petitioner soon thereafter. Writ petition is disposed of in terms indicated hereinabove.”

4. Mr. Onkar Nath Tiwary, the learned counsel for the appellant submits that the departmental proceeding against the appellant was conducted in the breach of natural justice and the appellant had no opportunity to defend himself as he was in judicial custody when the departmental proceeding was concluded. The learned counsel for the appellant further submits that the departmental authority has passed cryptic orders notwithstanding repeated directions issued by the writ Court in W.P. (S) No. 5443 of 2007 and W.P. (S) No. 5358 of 2008 and for that reason the order dated 30th September 2015 has become unsustainable and is liable to be quashed. The learned counsel for the appellant has also referred to Rules 828, 844, 848, 851 and 853 of the Police Manual to submit that statutory provisions under the Jharkhand Police Manual were not followed in the present case and for that reason the order of dismissal of the appellant is liable to be set aside. 5. To support the above submissions, the learned counsel for the appellant has referred to the following judgments:- (i) (ii) (iii) (iv) (2009) 2 SCC 570 “Roop Singh Negi versus Punjab National Bank and Others” paragraph nos.-14, 15, 23, 24; (2010) 2 SCC 772 “State of Uttar Pradesh and Others versus Saroj Kumar Sinha” paragraph nos.-26, 27, 28, 29, 30, 33; (2006) 5 SCC 446 “G.M. Tank versus State of Gujarat and Others” paragraph nos.-20, 30, 31; (1993) 3 SCC 679 “Capt. M. Paul Anthony versus Bharat Gold Mines Ltd. and Another” paragraph nos.- 13, 22, 34, 35,

6. The appellant who suffered the punishment order on 06th February 1987 remained quiet for about two decades and approached departmental authority with a representation for reinstatement in service, after the judgment in Criminal Appeal No. 170 of 1993 was delivered on 30th November 2006. He approached the writ Court in 2007 with a grievance that his representation should have been decided by the 4 L.P.A. No. 295 of 2023 departmental authority. Being aggrieved of rejection of his representation, he again came back to this Court by filing W.P. (S) No. 5358 of 2008. The order of dismissal from service was therefore not challenged by the appellant for about two decades and he approached the writ Court in the year 2007 only with a “representation-disposal” prayer. In circumstances of the case, the submission raised on behalf of the appellant that in the departmental proceeding he had no opportunity to defend himself as he was in judicial custody is therefore not a ground to interfere the order of punishment awarded in a properly constituted departmental inquiry. This is by now well-settled that the departmental authority is entitled to pass an order of punishment on the basis of the materials available on record; even in ex-parte proceeding. In the matters of departmental proceeding, the decision of the employer to award punishment on the delinquent employee cannot be interfered lightly. This is the absolute discretion of the employer to make a decision whether or not to keep in the service an employee who was involved in a criminal case. The acquittal of the appellant in the criminal case is definitely not a ground to take him back in service and, that too, when he was acquitted long after his dismissal from service. 7. The law is well-settled that acquittal in the criminal case is not a ground to interfere with the order passed in the departmental inquiry. The proceedings in a criminal Court and in the domestic inquiry are entirely different and the tests applied in both the proceedings are also different. While proof beyond reasonable doubt is the test applied in the criminal trial, it is the preponderance of probability which is to be kept in mind when weighing the materials laid in a domestic inquiry. Therefore, the degree of proof which is necessary to record an order of conviction is different from the degree of proof necessary to record a finding that the misconduct alleged has been proved. Similarly, appreciation of evidence in both proceedings is also not similar. In fact, the purpose of departmental enquiry and prosecution of an accused are two different and distinct aspects. In “Union of India versus Sardar Bahadur” (1972) 4 SCC 618 the Hon'ble Supreme Court held that a disciplinary proceeding is not a criminal trial and, the standard of proof required is that of preponderance of probabilities and not proof beyond reasonable doubt. In “Nirmala J. Jhala 5 L.P.A. No. 295 of 2023 versus State of Gujarat & Anr.” (2013) 4 SCC 301, the decision on which heavy reliance was placed by the learned counsel for the petitioner, the Hon'ble Supreme Court has held as under;

17. “In view of the above, the law on the issue can be summarised to the effect that the disciplinary proceedings are not a criminal trial, and in spite of the fact that the same are quasi-judicial and quasi-criminal, doctrine of proof beyond reasonable doubt, does not apply in such cases, but the principle of preponderance of probabilities would apply. The Court has to see whether there is evidence on record to reach the conclusion that the delinquent had committed a misconduct. However, the said conclusion should be reached on the basis of test of what a prudent person would have done..............”

8. This is also well-settled that the powers of judicial review under Article 226 of the Constitution of India is very limited. The writ Court in exercise of the powers under Article 226 of the Constitution of India shall not interfere with the findings of fact recorded by the departmental authority. This is also too well-settled a law that sufficiency or insufficiency of the materials laid in the departmental proceeding is not an issue that can be agitated in a proceeding for certiorari. This may further be indicated that some error in law or of fact is also not the matter which can be agitated in a writ proceeding. The reference of the provisions under the Jharkhand Police Manual to challenge the procedure adopted by the Department in the departmental inquiry against the respondent is merely a desperate attempt but in vain. The validity of the departmental inquiry cannot be tested dehors the facts of the case and, that too, about 37 years after the order of dismissal was passed against the appellant. 9. In “B.C. Chaturvedi versus Union of India” (1995) 6 SCC 749 the Hon’ble Supreme Court held as under: “12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the 6 L.P.A. No. 295 of 2023 charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel, this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.”

10. “Capt. M. Paul Anthony” and “G.M. Tank” are the decisions which would turn on their own facts and there is no similarity of facts or issue involved in the present case. The order dated 29th February 2008 passed in W.P. (S) No. 5443 of 2007 clearly indicates that the appellant did not even challenge the order of punishment and his grievance was emanating from non-consideration of the representation moved by him before the Superintendent of Police. For the first time he challenged the order of dismissal dated 06th February 1987 in W.P. (S) No. 5358 of 2008 that is more than two decade after he was dismissed from service. The observations in W.P. (S) Nos. 5443 of 2007 and 5358 of 2008 would not clothe the appellant with a vested right to claim appointment. In this context, this also we need to indicate that as on 18th May 2023 the appellant had attained the age of 73 years. The writ Court in the order dated 17th October 2019 referred to the judgments in “Management of Krishnakali Tea Estate versus Akhil Bhartiya Chah Mazdoor Sangh” (2004) 8 SCC 200, “State of Rajasthan versus B.K. Meena” (1996) 6 SCC 417, “Deputy Inspector General of Police & Anr. versus S. Samuthiram” (2013) 1 SCC 598 and “Karnataka Power Transmission Corporation Limited, represented by Managing Director (Admin. and HR) versus Sri C. Nagaraju & Anr.” (2019) 10 SCC 367 to fortify its conclusion that no interference is required with the order dated 30th September 2015. The 7 L.P.A. No. 295 of 2023 order dated 17th October 2019 passed in W.P. (S) No. 5033 of 2016 is reproduced as under:- “Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered opinion that no case is made out for interference. It is settled principle of law that acquittal by a criminal court would not debar an employer from holding departmental proceedings and disciplinary authority would not be bound by the judgment of criminal court if evidence produced in departmental inquiry is different from that which is produced during the criminal trial. Object of a departmental inquiry is to find out if the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be allowed to continue in service or not. The standard of proof in a departmental inquiry is also different and is not strictly based on the rules of evidence. Hence, order of dismissal, based on evidence led in disciplinary proceedings, which is different from the evidence available in criminal court, is justified. The case relied upon the petitioner is of no help to him as in the aforesaid cases, it was held that it is desirable to stay departmental inquiry till conclusion of the criminal case if the departmental proceedings and 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. On the facts of the said case, it was found that the criminal case and the departmental proceedings were based on identical set of facts and the evidence before the Criminal Court and the departmental inquiry was the same. Further, in the said case the departmental inquiry was conducted ex parte. In such circumstances, this Court held that the ex parte departmental proceedings cannot be permitted to stand in view of the acquittal of the delinquent by the Criminal Court on the same set of facts and evidence. The said judgment is not applicable to the facts of this case. In the present case, the petitioner is acquitted by the criminal court on the ground that prosecution did not produce any credible evidence to prove the charge. The evidence available in the Departmental enquiry is completely different from what is led by the prosecution in criminal trial and as such, the fact of the instant case is entirely different from the cases relied upon by the petitioner. The Hon’ble Apex Court in case of Management of Krishnakali Tea Estate Vs. Akhil Bhartiya Chah Mazdoor Sangh, reported in JT 2004 (7) SC 333, has held that “this Court was concerned with the validity of the termination of the services of workmen after acquittal by the Criminal Court. Dealing with a situation similar to the one in this case, where the acquittal was due to lack of evidence before criminal court and sufficient evidence was available before the Labour Court, this Court was of the opinion that the judgment in Captain M. Paul Anthony’s case (supra) cannot come to the rescue of the workmen.” Further, the Hon’ble Apex Court in case of State of Rajasthan Vs. B.K. Meena, reported in JT (1996) 8 SC 684, has held that “Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the Respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the 8 L.P.A. No. 295 of 2023 question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different.” Further, the Hon’ble Apex Court in case of Deputy Inspector General of Police & Anr. Vs. S. Samuthiram, reported in (2013) 1 SCC 598, in para 24 has held thus :- “24. The meaning of expression ‘honourable acquittal’ came up for consideration before this Court in RBI Vs. Bhopal Singh Panchal, reported in (1994) 1 SCC 541. 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 ‘honourable acquittal’, to be honourable. The expressions ‘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 acquitted’. When the accused is acquitted after full 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.” Further, the Hon’ble Apex Court in case of Karnataka Power Transmission Corporation Limited, represented by Managing Director (Admin. and HR) Vs. Sri C. Nagaraju & Anr. Reported in JT 2019 (9) SC 338 has reiterated the same view and held that “any order of dismissal, which is based on evidence led in disciplinary proceedings, which is different from the evidence available in criminal court, is justified. High Court erred in interfering with the same.” As a sequel to the aforesaid observation, judicial pronouncement and legal proposition and since the petitioner was afforded ample opportunity to defend the charges levelled against him and as the petitioner did not avail the statutory remedy to file review after acquittal, the impugned order rejecting the reinstatement of the petitioner after acquittal is fully justified and as such, no interference is warranted in the instant case. Resultantly, writ petition stands dismissed.”

11. After having thus examined the materials on record, we also do not find any reason to differ with the writ Court’s opinion and, accordingly, L.P.A. No. 295 of 2023 is dismissed. (Shree Chandrashekhar, A.C.J.) (Anubha Rawat Choudhary, J.) Binit