The High Court
Case Details
1 . IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 4978 of 2022 Ramanand Jha … … Petitioner V E R S U S 1. The State of Jharkhand, through Director General of Police, Government of Jharkhand, having office at Police Headquarters, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi. 2. Inspector General of Police, Bokaro, P.O. Bokaro, P.S. Bokaro, District Bokaro. 3. Deputy Inspector General of Police, Government of Jharkhand, North Chhotanagpur Region, Hazaribagh, P.O. Hazaribagh, P.S. Hazaribagh, District Hazaribagh. 4. Superintendent of Police, Giridih, P.O. Giridih, P.S. Giridih (T), District Giridih. 5. Deputy Superintendent of Police, Khori Mahua, Giridih, P.O. Giridhi, P.S. Giridih (T), District Giridih. …Respondents. CORAM: HON'BLE DR. JUSTICE S. N. PATHAK For Petitioner For the State
Legal Reasoning
Mr. Navin Singh, Advocate Ms. Pinky Tiwary, AC to AG 05/19.07.2023 2. Heard counsel for the parties. Petitioner has approached this Court with a prayer for quashing of the memo no. 2086/Sa.Sa. dated 27.09.2021 by which the recommendation of dismissal by respondent no. 4 issued vide memo no. 2985/Go. dated 16.07.2021 was approved and even the revision cum memorial was rejected on the ground of delay vide memo no. 264/D dated 26.10.2022. Further prayer has been made for payment of all consequential benefits along with the retiral benefits. 3. The factual exposition as has been delineated in the writ petition is that petitioner was appointed on 06.09.1981 to the post of Constable and for his satisfactory service, he was promoted to the post of Assistant Sub-Inspector in the year 2009. During his service period, one complaint was lodged before respondent no.4 who has directed to lodge criminal case and pursuant thereto Mahila P.S. Case No. 21 of 2016 dated 07.09.2016 was registered under Section 376(C) / 504 / 34 of Indian Penal Code. A departmental proceeding was also initiated against the petitioner on 2 . the basis of the complaint on the same facts and evidence. On the complaint dated 01.09.2016, a preliminary enquiry was conducted by the SDPO who has submitted the report on 07.09.2016, wherein it was found against the complainant that the family members of the complainant has lodged a complaint against her making an allegation that she has got illicit affair with other persons for settling out the dispute that the petitioner has committed rape upon her. It was also mentioned in the preliminary enquiry report that the complainant is a corrupt lady and flee away with another person and she is also a characterless lady. It is further case of the petitioner that charge was framed on 21.10.2016, wherein a wrong date of incidence has been mentioned. It is further case of the petitioner that prior to framing of the charge, an affidavit was filed by the complainant on 22.09.2016, where in paras-3 and 4, she has admitted that the allegation which has been leveled against the petitioner regarding rape was false and the same was done on misguidance of other person and the enquiry officer has not considered the ground taken by the petitioner in his show cause reply and none of the witnesses have whispered against the petitioner. Even the complainant and the person who has done the preliminary enquiry has not been called for cross-examination. The entire case was changed by the enquiry officer and it was held that the petitioner has visited the complainant's house and called her to the police station and committed rape, although, it is evident from Annexure-1 of the complainant that the complainant herself visited the Deori Police Station. The charges were framed and departmental proceeding initiated. The enquiry officer held the petitioner guilty of charge. Punishment of dismissal affirmed upto revision, case of the petitioner rejected arbitrarily and hence the present writ petition. 4. Mr. Navin Kumar Singh, learned counsel appearing on behalf of the petitioner submits that petitioner was in jail custody, since, 17.01.2018 and the enquiry proceeding was done behind his back. Learned counsel further argues that without providing him any opportunity of hearing and in gross violation of natural justice and without following the departmental rule, the Superintendent of Police, Giridih, on 16.07.2021 has recommended for dismissal of the petitioner. Thereafter, the 2nd show cause notice was asked by the DIG, North Chhotanagpur Division, Hazaribagh, on 13.09.2021, where the petitioner has given a "Bandi Patra" from jail and 3 . asked for time to give reply and that was totally ignored and on the recommendation of the Senior Superintendent of Police, Giridih, the DIG has confirmed the order of dismissal, although, it is apparent from the impugned order dated 27.09.2021 that the petitioner was in jail custody and three days prior to his retirement i.e. on 30.09.2021, the impugned order has been passed. Learned counsel further argues that not even this, in the criminal case also, because of conduct of the respondent-State that in spite of direction of Court below given to the DGP to produce the complainant before the court for examination, she was never produced and after almost 04 years, the petitioner was acquitted and, therefore, the appeal-cum- memorial preferred by him after coming from jail was also rejected on the nonest ground of delay. It is further submitted that the respondent failed to take into consideration that the petitioner was acquitted from the criminal case and none of the witnesses have deposed anything against him, but, this fact has been totally overlooked by the respondents for the reasons best known to them. Mr. Navin Kumar Singh further submits that if merely on the statement of any person, action be taken upon the public servant, then no public servant would be saved in future and work freely according to law, as the public could use it as a tool to get their illegal demand fulfilled in the garb of false case and it is also not in dispute that no appeal was preferred by the State of Jharkhand in the court against the judgment of acquittal passed by the Additional Sessions Judge. 5. To butteress his argument, Mr. Navin Kumar Singh, learned counsel appearing on behalf of the petitioner places reliance upon the judgment passed in the case of Captain M. Paul Anthony v. Bharat Gold Mines Ltd. reported in (1999) 3 SCC 679, wherein it has been held that when departmental proceeding and the criminal case are based on identical and similar set of facts and evidence and a person is acquitted in the criminal case, then departmental proceeding will not sustain and the same view was also taken by the Hon'ble Apex Court in the case of G.M. Tank v. State of Gujarat & Others reported in (2006) 5 SCC 446 and even the Division Bench vide order dated 14.03.2023 passed in L.P.A. No. 392 of 2022 has applied the same ratio. 6. Mr. Navin Kumar Singh vehemently submits that the order passed by the Division Bench of the Hon'ble Court in the case of State of 4 . Bihar & Others v. Javed Shaukat reported in 2002 (3) JCR 213 (Jhr.) is fully applicable in this case, as in that case also the complainant was not examined and merely on the basis of the First Information Report, statement under Section 164 Cr.P.C., the petitioner has been held guilty. 7. Ms. Pinky Tiwary, AC to learned AG appearing on behalf of the respondent-State submits that the victim lady has lodged a complaint on the basis of which Giridih Mahila P.S. Case No. 21 of 2018 was registered against the petitioner and one Pankaj Rai under Section 376(c), 506 / 34 of Indian Penal Code and the charge sheet has been filed against the petitioner only. During investigation, statement of the victim was recorded under Section 164 Cr.P.C. and she admits that the victim was not examined during the trial, but, other witnesses supported the case of prosecution and so far as Annexure-7 is concerned relating to affidavit of the victim shows that the petitioner has tried to tamper the evidence and obtain an affidavit from the victim in his favour. However, the State counsel has not been able to bring on record any cogent evidence to justify the said statement. Learned counsel further submits that there was a typographical error in the charge and the impugned order and after giving proper opportunity to the petitioner the order of dismissal was passed. 8. Be that as it may, after going through the rival submission of the parties and upon perusal of the documents brought on record, this court
Decision
is of the considered view that the writ petition requires interference as the impugned orders at the very face of it is bad in law and illegal and as such, fit to be quashed and set aside for the following facts and reasons: - The impugned order has been passed in complete violation of principles of natural justice as before passing the impugned order, the petitioner was not provided ample opportunity of hearing to defend his case as he was in jail custody. The petitioner was deprived to cross examine the witnesses in the departmental proceeding and the same was proved merely on the basis of preliminary enquiry in gross violation of the order of the Hon'ble Apex Court passed in the case of Nirmala J. Jhala v. State of Gujarat i. ii. reported in (2013) 4 SCC 301. iii. The petitioner was in jail because of the lethargic approach of the respondents as evident from the order dated 09.05.2022 that inspite of 5 . repeated order of the Court below to the DGP to produce the victim, she was not produced in the court by the prosecution. iv. It is evident from the enquiry report that none of the witnesses have v. vi. supported case of the respondent-State and even the enquiry officer has given a wrong finding that the petitioner had gone to the home of the victim and took her to the Police Station, rather, as per the complaint, it is apparent that the victim herself had gone to the Police Station. The departmental proceeding was conducted ex-parte and not a single proceeding has ever been initiated against the petitioner in his entire service career. Admittedly, the petitioner was acquitted in the criminal case while the entire departmental proceeding was conducted behind his back when he was languishing in jail custody and the termination order has been passed in a hurricane manner just three days prior to his retirement. From perusal of the alleged charges in the criminal case and that of the departmental proceeding, both appears to be same and similar. The complainant was not examined but on the basis of the FIR, statement under Section 164 Cr.P.C. and letters and report, the petitioner was held guilty. When on the same set of charges a criminal case is pending against the petitioner before competent court of law, it would have been desirable for the disciplinary authority to await for the decision before passing final order in the disciplinary proceeding. Since petitioner has been acquitted in the criminal case on the same set of charges, the order of punishment ought to have been recalled. Similar issue fell for consideration in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. And Another reported in (1999) 3 SCC 679 as also in the case of G.M. Tank Vs. State of Gujrat and others reported in (2006) 5 SCC 446. vii. Dismissal from service amounts to capital punishment in service jurisprudence which has admittedly been passed ex-parte and the complainant and the authority who has done the preliminary enquiry, both of them has not been examined by the enquiry officer nor the petitioner has been given an opportunity to cross-examine them and even on the similar set of charge in criminal case, the petitioner was 6 . acquitted and the order of acquittal of the petitioner has not been challenged by the respondent-State. viii. A decision must be arrived at on some evidence which is legally admissible, the provisions of Evidence Act may not be applicable in the departmental proceeding, but, the principles of natural justice will and mere denial for the sake of denial is not an answer to the specific statement made in the affidavit by the petitioner that too on the basis of the documentary evidence, but, that has totally been overlooked by the respondent-State. ix. Admittedly the disciplinary authority in the departmental proceeding did not consider these aspects of the matter that the complainant was never examined and on the other hand she gave in writing that the allegations are false and fabricated. Merely because there was statement under Section 164 Cr.P.C., the same could not have been proof for holding the petitioner guilty of the charges in absence of any examination of the complainant or cross examination by the petitioner. 9. As a sequitur of the aforesaid observation, rules, guidelines and legal proposition, the impugned orders dated 27.09.2021 (Annexure-12), passed by DIG confirming the recommendation order dated 16.07.2021 (Annexure-9), passed by Superintendent of Police, Giridih, and also the revision-cum-memorial dated 26.10.2022 (Annexure-15) passed by Inspector General of Police are hereby quashed and set aside. It appears that petitioner has already attained the age of superannuation and as such there cannot be an order for reinstatement. Petitioner is also entitled for consequential benefits/ pensionary benefits with 25% of the backwages within a period of 12 weeks from the date of receipt / production of the copy of this order. 10. 11. Resultantly, the instant writ petition stands allowed. Pending I.A., if any, also stands disposed of. (Dr. S.N. Pathak, J.)