W.P. (S) No. 140 of 2007 with W.P.(S) No. 218 of 2007
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In the matter of an application under Article 226 of the Constitution of India.
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Prafulla Kumar Jha (WPS 140/07)
Sanjay Kumar Singh (WPS 218/07) Petitioners
Versus
1. The State of Jharkhand
2. Director General of Police, Jharkhand, Ranchi
3. Dy. Inspector General, Kolhan Range, West Singbhum, Chaibasa
4. Superintendent of Police, Jamshedpur
5. Additional Superintendent of Police, Jamshedpur (WPS 140/07)
1. The State of Jharkhand through the Secretary, Department
of Home, Government of Jharkhand, Ranchi
2. D.I.G. Police, Singhbhum (Kolhan) Area at Chaibasa
3. Superintendent of Police, Singhbhum (East), Jamshedpur
4. Additional Superintendent of Police, East Singhbhum, Jamshedpur
5. Police Inspector (Traffic)-cum-Conducting Officer,
Singhbhum (East), Jamshedpur (WPS 218/07) Respondents
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For the Petitioners: Dr. (Mr.) S.N. Pathak and Mr. Deepak Kumar, Advocates
For the Respondents: Mr. D.K. Dubey, SC (Mines)
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CAV JUDGMENT
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Reserved on: 19.03.2010 Pronounced on: 26 .03.2010
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PRESENT
Hon'ble Mr. Justice D.G.R. Patnaik
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D.G.R. Patnaik, J: Both these writ applications based on identical facts and common grounds, are
taken up together for disposal.
2. Heard counsel for the petitioners and the counsel for the respondents.
3. The petitioner Prafulla Kumar Jha in WPS No. 140 of 2007 has prayed for
quashing the order dated 24.7.2006 (Annexure-7), passed by the Disciplinary Authority
whereby, the petitioner was terminated from service. Further prayer has also been made
for quashing the order dated 14.11.2006 (Annexure-5), passed by the Appellate Authority
whereby, the appeal preferred by the petitioner against the impugned order of the
Disciplinary Authority, was dismissed.
The petitioner Sanjay Kumar Singh in WPS No. 218 of 2007 has challenged the
order dated 19.6.2006 passed by the Disciplinary Authority whereby, the petitioner’s
service was terminated. Challenge is also made to the order dated 12.9.2006 passed by
the Appellate Authority whereby, the appeal preferred by the petitioner against the
impugned order of the Disciplinary Authority, was dismissed.
4. Facts of the case of the petitioners in brief is as follows:
Both the petitioners were posted as constables in the district of East Singhbhum at
MGM Police Station at Jamshedpur. A departmental proceeding was initiated against
them upon certain charges and on the accusation that on 12.11.2005, the Additional
Superintendent of Police, Jamshedpur, in course of his search of the MGM Police Station
Mobile Van on National Highway-33, in between Dimna-Belajudi, found the Mobile
Van parked near Belajudi Kali Temple. The Additional Superintendent of Police saw
ASI Ram Kumar Prasad standing behind the Mobile Jeep while Constables Prafulla
Kumar Jha (Petitioner) and Ashok Kumar Chourasia were collecting money from drivers
of trucks. Two other constables namely, constable Bahadur Singh and constable Sanjay
Kumar Singh (Petitioner) were also standing nearby. It was alleged that though, these
police personnel were assigned the duty of conducting investigation in respect of a case
at Uuria Basti, but without being assigned any duty for checking vehicles, these
petitioners along with the two other constables and the ASI were found stopping trucks
and realizing money from the truck drivers. With these allegations, the Additional
Superintendent of Police submitted a written complaint on 13.11.2005 to the
Superintendent of Police.
5. The petitioners submitted their respective show-cause replies in response to the
charges, but being not satisfied with the same, the departmental proceeding was initiated
against them.
In the departmental proceeding, the statement of the complainant Sudhir Kumar
Jha, Additional Superintendent of Police, was recorded upon his examination by the
prosecution and cross-examination on behalf of the proceedees.
6. On the basis of the statements of the solitary witness, the Enquiry Officer
recorded his findings that the charge stood proved against the proceedees.
On the basis of the inquiry report, the Superintendent of Police being the
Disciplinary Authority, issued second show-cause notice upon the petitioners to which,
they responded by filing their show-cause replies, but being not satisfied with the same,
the Disciplinary Authority by his impugned order, recorded the punishment of dismissal
of the present petitioners from service.
7. The appeal preferred by the petitioners against the impugned order of their
dismissal, was dismissed by the Appellate Authority by his order impugned.
The impugned order of dismissal passed by the Disciplinary Authority and that of
the Appellate Authority, have been challenged by the petitioners on the following
grounds:
i. The findings of the Inquiry Officer are perverse and based on
conjectures and surmises and entirely on hearsay evidence and
is also against the weight of evidence on record.
ii. The Disciplinary Authority and the Appellate Authority
have passed the impugned orders without application of mind
in a most mechanical manner.
iii. The punishment of dismissal from service is highly
disproportionate to the charges and is also discriminatory in as
much as, the other police constable namely, Mahendra Rai who
was also found guilty of the charges, has been awarded a lesser
punishment and the ASI, who is the superior officer with
whom the petitioners were attached at the relevant time, has
been left scot free.
iv. Material witnesses including the drivers of the trucks from
whom money was realized, have not been examined, nor has
any complaint been filed by any such driver and neither the
names of any driver, nor registration number of any truck
which were allegedly stopped, was disclosed.
8. Elaborating the grounds, learned counsel for the petitioners would submit that
though, the Additional Superintendent of Police, on whose complaint the departmental
proceeding was initiated, was examined but his evidence is entirely vague and
unspecific. His statement does not confirm as to from whom did the petitioners realize
money and what was the amount realized, if any and neither does he inform as to why, if
he had at all seen the petitioners indulging in such acts of misconduct, did he not take
any prompt action if he was present at the spot. No explanation has been offered by the
witness as to why no written complaint was received or even oral complaint was
obtained and recorded by him at the spot. Learned counsel adds further that even as per
the allegations, the petitioners were attached to the ASI as members of the patrolling
party and the entire responsibility of the patrolling party was on the ASI who is supposed
to be the immediate controlling authority of the petitioners and if the patrolling party had
unauthorizedly indulged in acts which were not assigned as part of their duty, the entire
responsibility was on the Assistant Sub Inspector. There is no reason assigned as to why
the Assistant Sub Inspector has been totally exonerated from the charges. Likewise, there
is no explanation as to why the other constable namely, Mahendra Rai, who is alleged to
be present at the spot during the checking of the vehicles, has been left with a minor
punishment of black mark.
9. Counsel for the respondents State, on the other hand, would refute the entire
grounds advanced by the petitioners and submit that the inquiry against the petitioners
was conducted in a fair and just manner and in which the petitioners were given
reasonable and adequate opportunity of defending their cases. The finding of guilt
against the present petitioners, as recorded by the Inquiry Officer, is based on the
evidences of Senior Police Officer who is an eyewitness to the acts of misconduct of the
petitioners.
10. Upon hearing the counsel for the parties and considering the specific ground of
the petitioners that the findings of the Inquiry Officer are perverse and based on hearsay
evidence, I have gone through the Enquiry Report and the evidence of the witness. The
gist of the statement of the witness is that on 12.11.2005, upon receiving telephonic
instructions from the Superintendent of Police, he went in search of the MGM Patrolling
Jeep on a private vehicle and he found the Patrolling jeep parked near the temple. He saw
a few trucks parked by the side of the road. He claims to have seen the present petitioner
Prafulla Kumar Jha and Constable Sanjay Kumar Singh collecting money from the truck
drivers. Thereafter, he followed the patrolling jeep to the police station and made
inquiries from the ASI and recorded his statement. Beyond the above statement, this
witness has not informed the name or identity of any of the truck drivers from whom
money was claimed to have been realized by the petitioners, nor the registration number
of the trucks which were allegedly stopped by the petitioners. He is not able to inform as
to why he has not obtained any written or oral complaint from any of the truck drivers.
He is not able to inform as to what amount did the petitioners realize from any of the
truck drivers. He is not able to inform as to why, he being the senior police officer of the
rank of Additional Superintendent of Police, he did not take prompt action against the
petitioners at the spot. He does not inform as to why no money was seized from the
possession of the petitioners if they had realized any money from any of the truck
drivers. If the senior police officer was at all present at the spot and had seen what he has
claimed to have seen, then it was a logical and reasonable expectation of him that in
exercise of his authority he would immediately arrest the delinquent police personnel and
detain them, recover the extorted money from their possession, record a complaint of the
truck drivers from whom money was allegedly extorted, note down their names and
identity and also the registration numbers of the vehicles. The fact that he has not done
any of such acts and has not offered any reasonable explanation for his failure to do so,
would certainly lead to a reasonable inference that he was not present at the spot and if at
all, he had seen from a distance some trucks parked by the roadside and the petitioners
present near the trucks, he has inferred on the basis of conjectures and surmises that the
police personnel were realizing money from the truck drivers. The cryptic evidence of
the witness needs much to be answered and could not have been more vague in the
context of the charges framed against the petitioners. Such evidence cannot be deemed
sufficient by any stretch of inferences, except on the basis of conjectures and surmises, to
hold that the petitioners had unauthorizedly stopped the vehicles on the road and were
illegally realizing money from the truck drivers.
The only inference which could be drawn on the basis of the evidence of this witness
is that the escort party comprising of the constables including the present petitioners and
headed by the ASI of Police, had committed acts of dereliction of duty in as much as,
instead of proceeding to attend the assigned duty of investigation at Uuria Basti, they were
found present at a totally different place for which they had not offered any explanation. The
liability for such acts of dereliction of duty would therefore extend not only to the present
petitioners, but to the entire team including the team leader ASI of Police and the other two
constables.
11. The Inquiring Officer appears to have allowed himself to be persuaded by the
statement of the senior police officer attaching undue weight to his evidence without
considering the fact that even going by the entire evidence of the witness, no conclusive
inference could be drawn that the petitioners had stopped any vehicle and had illegally
realized money from any truck driver. There appears just and sufficient ground to hold
that the findings of the Inquiry Officer are perverse, misconceived and not based upon
unbiased and reasonable appreciation of evidence on record.
12. It is established principle of law that in the departmental proceeding, even though,
the provisions of the Indian Evidence Act may not be called for strict application, but the
basic principles of natural justice cannot be ignored. It is one of the basic principles of
evidence that the charge has to be proved by direct evidence or such evidence which has
a definite bearing and relevance to the facts and issue. It is also a Rule of law relating to
proof of charge in the departmental proceeding the suspicion howsoever high, cannot be
substitute for legal proof. The departmental proceeding is a quasi judicial proceeding and
the Inquiry Officer performs a quasi judicial function. The Inquiry Officer has a duty to
arrive at a finding upon taking into consideration the materials brought on record by the
parties and the findings in respect of guilt or otherwise of the charges, should be recorded
on the basis of the weight of evidence on record.
13. It appears from the impugned order of the Disciplinary Authority, as also that of
the Appellate Authority that both the officers have accepted the findings of the Inquiry
Officer in a mechanical manner without application of mind to the relevant issues raised
by the petitioners in their respective show-cause replies / explanations that in absence of
a definite and conclusive proof of the allegations that the petitioners had stopped vehicles
and had realized money from the truck drivers, the findings of the Enquiry Officer are
misconceived. The only act of misconduct which, even if taken into consideration and
which if commonly applied to all the police personnel constituting the patrolling party
including the group leader namely, the ASI and the constables attached with him is that
they had committed dereliction of duty. If the acceptable portion of the evidence is to
commonly apply to each and every member of the patrolling party and yet, the ASI can
be exonerated from the charges and the other constable be given a lesser punishment,
there was no reason why a different treatment should be given to the petitioners in the
matter of punishment.
14. Considering the facts and circumstances of the case and in the light of the
discussions made above, in my view, the punishment of dismissal of the petitioners from
service is highly disproportionate to the nature of charges levelled against them and is
harsh.
The impugned orders of punishment as passed against the petitioners by the
Disciplinary Authority and the impugned order passed by the Appellate Authority, are
therefore hereby quashed. The matter is remitted back to the Disciplinary Authority for
reconsideration on the quantum of punishment other than dismissal from service, to the
same extent as awarded to the other constable namely, Mahendra Rai. Both the
petitioners shall be entitled to be reinstated in service forthwith. The period between the
date of their termination from service and the date of their reinstatement, shall be deemed
as period spent on duty, for the purpose of computing their pension and other retiral
benefits. However, in absence of any specific pleading that during this entire period they
were not gainfully employed, the petitioners shall not be entitled to claim back wages.
Both these writ applications are disposed of accordingly.
(D.G.R. Patnaik, J)
Jharkhand High Court, Ranchi
Dated 26th March 2010
Ranjeet/A.F.R.