Bhagwan Ram vs State Of Jharkhand And Ors

Heard learned counsel for the appellant and learned Additional A.G. for the State.

The appellant is aggrieved by the impugned order dated 20.7.2017, passed by the Hon'ble Single Judge, in WP(S) No.6598 of 2016, whereby the writ application filed by the appellant writ petitioner against the order of his dismissal from service, has been dismissed by the Writ Court.

The facts of this case are that the appellant was working as constable and he was dismissed from service vide order dated 29.9.1988 passed by the Disciplinary Authority. The order was challenged in the High Court in CWJC No.576 of 1996, which was dismissed as withdrawn on 20.5.1997. Thereafter, the appellant approached before the Appellate Authority, which also dismissed the appeal on 10.5.1999, maintaining the order passed by the Disciplinary Authority. The appellant again challenged the appellate order in the High Court in CWJC No.7999 of 1999, which was disposed of by order dated 21.01.2016, quashing the orders of punishment and directing to pass the order afresh within a period of four months, in view of the fact that in the meantime the appellant had been acquitted in the criminal case, instituted against him for the same charge. Thereafter the Appellate Authority again maintained the punishment order, by its order dated 08.06.2016.

The appellant was dismissed from service on the charge that while he was in service, he was implicated in a criminal case, being Goh P.S. Case No.15 of 1987, for the alleged offences under Sections 376, 511 and 488 of the Indian Penal Code, on the allegation that he had attempted to commit rape upon a victim, whose house was situated nearby the police station, where the appellant was posted. The memo of charge was served upon the appellant on 17.08.1987, which has been brought on record as Annexure-1 to the memo of appeal, wherein the only charge was that the appellant had attempted to commit rape upon the victim and upon the alarm raised, he fled away from the place of occurrence. As such, the charge in the disciplinary proceeding was the same, for which the FIR was lodged against him. The fact remains that in the trial, none of the witnesses, including the victim, supported the prosecution case and the criminal case ended in acquittal of the appellant. However, before the judgment of acquittal passed by the Trial Court, the appellant had already been dismissed from service pursuant to the departmental proceeding conducted against him.

The report of the Enquiry Officer has been brought on record as Annexure-8 to the memo of appeal, which clearly shows that during the departmental proceeding, only one witness was examined, who was the I.O. in the criminal case instituted against the appellant. This witness has only stated that the FIR was lodged against the appellant, he had investigated the case and had submitted the charge-sheet and the case was also supervised by the superior officers. The enquiry report, clearly shows that only this I.O. was examined and thereafter, the statements in the case diary and the supervision note in the case diary had been recorded by the enquiry officer and the appellant was found guilty of the charge. On the basis of the enquiry report, he was dismissed from service, which order was also upheld by the Appellate Authority. The enquiry report also clearly shows that the place of occurrence was situated nearby the police station itself, and the witnesses were also available in the nearby house, but none of the material witnesses were examined during the departmental proceeding.

The impugned order dated 20.07.2017 passed by the Writ Court in WP(S) No.6598 of 2016, shows that the writ application has been dismissed in view of the well settled principle of law that domestic enquiry and criminal trial can proceed simultaneously, and the decision in the criminal case would not materially affect the outcome of the domestic enquiry, as the nature of both the proceedings and the tests applied to reach a final conclusion in the matter, in both the proceedings are entirely different, and accordingly, the writ application was dismissed.

Learned counsel for the appellant has submitted that the impugned order passed by the Writ Court, cannot be sustained in the eyes of law, inasmuch as, only charge against the appellant in the disciplinary proceeding, was the same for which, the FIR was also lodged against him. He was put to trial in the criminal case, which had ended in the acquittal of the appellant due to not supporting the prosecution case by any witnesses, including the victim. It is submitted by the learned counsel that since facts in the FIR, was the sole charge against the appellant, and if the appellant was acquitted by the Trial Court, he was entitled to be reinstated in service.

On the other hand, learned Additional A.G., has opposed the prayer, and has submitted that there is no illegality in the impugned order passed by the Writ Court, inasmuch as, the appellant had been dismissed from service after a full-fledged departmental enquiry, which had nothing to do with the result in criminal case. Learned Additional A.G. accordingly, submitted that there is no merit in this appeal.

Having heard learned counsels for both the sides and upon going through the record, particularly the memo of charge and the enquiry report, we find that the only charge against the appellant was the same, for which the FIR was also lodged against him. The enquiry report shows that only the I.O. of the case was examined during the departmental proceeding, in which, he had only stated that upon investigation of the case, he found the case true against him and the matter was also supervised by the higher officials. No material witness, or the victim was examined, in spite of the fact that the place of occurrence was situated near the police station itself, and the material witnesses were also available to be examined in the departmental proceeding. Had the material witnesses been examined in the departmental proceeding, and based on the evidence of the witnesses, the appellant would have been found guilty in the departmental proceeding, the matter would have been entirely different, irrespective of the fact that the appellant was subsequently acquitted in the criminal case. But this is a case, where the respondent authorities have chosen not to examine any material witnesses of the case, in the disciplinary proceeding. Though the respondent authorities were entitled not to examine any material witnesses during the departmental proceeding, but in that case, the departmental proceeding must have awaited the outcome of the trial in the criminal case. This is a case, in which, in the disciplinary proceeding neither any material witness was examined, nor the disciplinary proceeding awaited the result of criminal trial. We are of the considered view that in such a situation, particularly when the criminal case against the appellant had resulted in clean acquittal due to none supporting of the prosecution case, even by the victim, the appellant was entitled to be reinstated in service, as the finding of guilt against the appellant in the disciplinary proceeding suffered from inherent illegality, and was based on practically no evidence.

In the aforesaid facts and circumstances of this case, we find that the punishment order passed against the appellant cannot be sustained in the eyes of law. We accordingly, set-aside the order dated 29.09.1988 passed by the Disciplinary Authority, as also the orders dated 10.05.1999 and 08.06.2016, passed by the Appellant Authority, as contained in Annexures 2, 5 and 7 to the memo of this appeal, respectively. We also hereby, set-aside the order dated 20.07.2017 passed by the Writ Court in WP(S) No.6598 of 2016 for the reasons as aforesaid.

We find from the record that the punishment order was passed against the appellant as back as on 28.9.1988 itself, when the State of Jharkhand was not separated from the State of Bihar, The appellant is out of service since then, which is now more than 30 years. It is admitted fact that the appellant has attained the age of superannuation in the meantime. In these backdrops of this case, we direct that the appellant shall not be entitled to any salary on the principle of 'no work no pay'. However, the period till his superannuation, from the date of order passed by the Disciplinary Authority, shall be treated to be in service, only for the post retiral benefits, as may be applicable to the appellant, in accordance with law, which shall be decided by the respondent authorities, within the period of six months from the date of representation made by the appellant, along with a copy of this order.

This appeal is accordingly, allowed, with the directions as above.