Ashok Ram … v. 1. The State of Jharkhand 2. The Secretary, Department of Home, Govt. of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 4088 of 2013 ............ Ashok Ram ….. Petitioner Versus 1. The State of Jharkhand 2. The Secretary, Department of Home, Govt. of Jharkhand, Dhurwa, Ranchi. 3. The Director General of Police, Govt. of Jharkhand, Dhurwa, Ranchi. 4. The Deputy Inspector General of Police, North Chhotanagpur Range, Bokaro. 5. The Superintendent of Police, Koderma. 6. The Head Master, Govt. Middle School, Jhumra, Muffashil, Hazaribagh. 7. The Principal, Maheshra High School, Maheshra, Daru, Hazaribagh. ----------- ..... Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR ............. For the Petitioner For the Respondents
Legal Reasoning
8. “It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere 8 suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof.” 10. In “Narinder Mohan Arya v. United India Insurance Co. Ltd. And others”, reported in (2006) 4 SCC 713, the Hon'ble Supreme Court has held as under : 26. “.................(6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. (See Central Bank of India Ltd. v. Prakash Chand Jain, Kuldeep Singh v. Commr. of Police.” 11. In view of the aforesaid, I hold that the order of termination was wholly unjustified and therefore, the impugned orders are quashed. The petitioner is reinstated in service with full back wages. Tanuj/N.A.F.R. (Shree Chandrashekhar, J.)
Arguments
: Mr. Rupesh Singh, Mr. Amrendra Pradhan, Advocates : Mr. Pankaj Kumar, J.C. to G.P. VI. ............ 03/20.11.2013 Challenging the penalty orders dated 28.01.2013 and 01.02.2013 and the appellate order dated 02.05.2013, the petitioner has approached this Court. 2. The brief facts of the case as disclosed in the writ petition are that, the petitioner pursuant to an advertisement issued on 25.03.2010 inviting application for appointment on the post of constable, participated in the selection process and he was selected. The petitioner was appointed on the post of constable on 05.06.2012. A show-cause notice was issued to the petitioner on 28.12.2012 and 2 the petitioner submitted his reply on 08.01.2013. The order of dismissal from service dated 28.01.2013 was affirmed by appellate authority by modifying the order of dismissal into an order of removal from service by order dated 02.05.2013. 3. A counter-affidavit has been filed stating as under : 12. “With reference to the statement made in paragraph-9 of said writ application under reply, it is stated and submitted that the show cause notice has been issued to the petitioner on basis of information given by the superintendent of Education, Hazaribag by vide Memo no. 2764 dated 18.10.2012. 13. With reference to the statement made in paragraph-10 of said writ application under reply, it is stated that in compliance of the direction given by the Superintendent of Police, Koderma by vide Memo no. 1935 dated 18.02.2012 the Police Inspector, Mica Circle, Koderma submitted his report by vide Memo no. 608/mica circle dated 23.12.2012 and recommended to take action against the petitioner. 14. With reference to the statement made in paragraph-11 of said writ application under reply, it is stated that it is matter of record, the petitioner submitted his reply on 08.01.2013 regarding the charges leveled against him but the petitioner not given any clarification regarding the half cutting of school leaving certificate is not available in the office record of Maheshra High School. 15. With reference to the statement made in paragraph-12 to 15 of said writ application 3 under reply, it is stated that it is matter of record, the averment made by the petitioner in these paragraphs are related to 7th class but the petitioner submitted his school leaving certificate of 8th class issued from Maheshra High School, Maheshra along with application form for the appointment on the post of constable. 16. With reference to the statement made in paragraph-16 to 22 of said writ application under reply, it is stated that it is matter of record, but on the basis of information/report given by the Superintendent of Education, Hazaribag it is clear that the school leaving certificate submitted by the petitioner along with the application form is suspicious/not genuine. 17. With reference to the statement made in paragraph-23 of said writ application under reply, it is stated that it is matter of record, that the order of removal of service of the petitioner as well as Koderma District order no. 585/2013 dated 02.05.2013 have been passed against the petitioner after proper inquiry. 18. With reference to the statement made in paragraph-24 of said writ application under reply, it is stated that it is matter of record, on the basis of order passed by Superintendent of Police, Koderma vide order dated 28.01.2013 accordingly Superintendent of Police, Padma training centre, Hazaribag issued training District order no. 20/13 vide memo no. 158 dated 01.02.2013 since that relevant time the petitioner was under training in Padma Training Centre, Hazaribag.” 4 4. Mr. Rupesh Singh, the learned counsel appearing for the petitioner has raised two contentions, (i) the report which was obtained by the department from the District Education Officer and the verification reports, were never served upon the petitioner along with the show-cause notice and therefore, those documents could not have been considered for dismissing the petitioner from service, and (ii) from the record of the case it is apparent that the petitioner has been terminated from service only on the basis of suspicion and therefore, the impugned orders are liable to be quashed. 5. As against the above, Mr. Pankaj Kumar, the learned counsel for the respondents has submitted that on verification from the school, it was found that the record kept in the school indicated over-writing in the name of the father of the petitioner and whitener was applied on the date of birth. This was sufficient to raise a presumption that the certificate submitted by the petitioner was forged and therefore, the order of termination from service has rightly been passed by the department. 6. On perusal of the documents on record, I find that a show-cause notice dated 28.12.2012 was issued to the petitioner on the allegation that on verification the District Superintendent of Education, Hazaribagh by letter dated 18.10.2012 reported that in the school register, there was over-writing over the name of the father of 5 the petitioner and whitener was applied on the date of birth of the petitioners. From the record, I find that alongwith the show-cause notice, the letter dated 18.10.2012 was not served upon the petitioner. I further find that alongwith the counter-affidavit, the respondents have filed copies of letter dated 15.09.2012 and the report dated 18.12.2012 along with the verification report dated 23.12.2012. It is an admitted fact that except the show-cause notice dated 28.12.2012, no other document was furnished to the petitioner and therefore, it is apparent that copies of the documents which have been relied upon by the respondents, were never served upon the petitioner. It is settled by a catena of judgments of the Hon'ble Supreme Court that the documents relied upon by the department for taking action against the delinquent employee must be served upon the delinquent employee and if the document on the basis of which order of termination has been passed, was not served upon the employee, the order of termination is liable to be interferred with [“Kuldeep Singh v. Commissioner of Police and others”, reported in (1999) 2 SCC10]. 7. I further find from the documents which have been filed along with the counter-affidavit that in the verification report dated 18.10.2012, the District Superintendent of Education opined that “certificate appears to be suspicious”. From the document dated 15.09.2012, I find that the Block Education Extension Officer has reported that in the admission register there was cutting at the place 6 where the name of the father of the petitioner was recorded and whitener was applied on the date of birth of the petitioner. The report dated 23.12.2012 would also indicate that the Inspector of Police, Mica Circle, Koderma has also stated that “certificate appears to be suspicious”. From the aforesaid documents, I find that there was no material to conclude that the petitioner had submitted a forged certificate. Moreover, the charge against the petitioner is not of furnishing forged certificate. Merely because the officer concerned opined that the certificate appears to be suspicious, it would not give rise to a presumption that the certificate was forged. Suspicion howsoever strong cannot take the place of legal proof. Merely on the basis of suspicion and presumption, an order of termination cannot be passed. Admittedly, the petitioner cannot have the custody of the record of the school. If there is over-writing in the school record or counter-foil was not available, the petitioner cannot be held responsible for the same. It is not indicated in the impugned order that the petitioner has been benefited by over-writing etc. in the school register. 8. In “Abdulla Mohd. Pagarkar v. State (Union Territory of Goa, Daman and Diu) ", reported in (1980) 3 SCC 110, the Hon'ble Supreme Court has held as under : 20. “The mind of the learned Special Judge in coming to the finding about the value of the work done being no more than Rs 32,287.75 7 appears to have been influenced by the gross irregularities committed by the appellants in the execution of the work, specially their failure to prepare vouchers relating to all the payments as also a proper muster roll. These irregularities no doubt furnish a circumstance giving rise to a strong suspicion in regard to the bona fides of the appellants in the matter of the execution of the work but suspicion, however strong, cannot be a substitute for proof. And it is certainly not permissible to place the burden of proof of innocence on the person accused of a criminal charge. However, that is precisely what the Special Judge appears to have done while observing that “it was for A-2 to prove that he had spent amounts besides those proved by the prosecution which A-2 had failed to do.” 9. In “Anil Kumar Singh v. State of Bihar”, reported in (2003) 9 SCC 67, the Hon'ble Supreme has held as under :