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Judgment
This writ application was filed on 26.04.2017 seeking quashing of the departmental proceeding No. 15 of 2016, initiated against the petitioner
through a charge sheet dated 04.02.2016, issued by the Superintendent of Police, Samastipur, mainly on the ground that since the initiation of the
departmental proceeding was based on a criminal case (trap case), the disciplinary proceeding should have awaited the decision in the criminal case.
During the pendency of the writ application, the departmental proceeding, initiated against the petitioner, has concluded with the submission of the
report of the Enquiry Officer, holding the petitioner guilty of the charge framed against him. Based on the finding of the Enquiry Officer, the
disciplinary authority has, agreeing with the finding so recorded, imposed upon the petitioner punishment of dismissal from service by his order dated
15.04.2019.
So as to question the correctness of the order of the disciplinary authority, dated 15.04.2019, an interlocutory application, being I.A. No. 1 of 2019,
has been filed seeking amendment in the writ application.
Considering the circumstance that the subsequent impugned action of the respondents is integrally connected with the original relief sought for in the
writ application, I.A. No. 1 of 2019 is allowed.
The contents of I.A. No. 1 of 2019 have been treated as part of the main writ application. The petitioner is, thus, allowed to question the
correctness of the order of dismissal.
Before I come to the legal issues involved and the stand, which has been taken on behalf of the petitioner to question the impugned action of the
respondents, I need to take note of certain relevant facts, which are undisputed and uncontroverted.
The petitioner, at the relevant point of time, was posted as Sub Inspector of Police in Bibhutipur Police Station in the district of Samastipur. He was
assigned with investigation of a case, registered under Section 156(3) of the Code of Criminal Procedure, as Bibhutipur P.S. Case No. 8 of 2016 for
the offences punishable under Sections 323, 379 and 436 of the Indian Penal Code and Section 3/4 of the Immoral Traffic (Prevention) Act, 1956, by
the Station House Officer of the said Police Station. The Inspector of Police, Rosera, had supervised the case and issued a supervision note on
25.01.2016 recording his opinion that no offence under Sections 323, 379 and 436 of the Indian Penal Code and Section 3/4 of the Immoral Traffic
(Prevention) Act, 1956, was made out. He directed the petitioner to submit his final form in the case for the offences, punishable under Sections 504
and 506 of the Indian Penal Code, instead, which are non-cognizable offences. Subsequently, on report-2 of the Superintendent of Police, Samastipur,
directing the petitioner to submit final form as directed by the Inspector of Police, he submitted the final report on 31.01.2016 for the offences,
punishable under Sections 504 and 506 of the Indian Penal Code.
In the meanwhile, on the basis of a complaint received by the Vigilance Police Station, Patna, to the effect that the petitioner was demanding bribe
to favour the complainant/informant of the Bibhutipur P.S. Case No. 8 of 2016, a trap was arranged and the petitioner was apprehended on
04.02.2016, allegedly, accepting bribe from the complainant by the Vigilance police officials.
His arrest led to registration of a criminal case against the petitioner and initiation of departmental proceeding with issuance of a charge sheet in
‘Prapatra-Ka’ on 04.02.2016 itself. The charge, which was framed against the petitioner, is of significance for the present adjudication and is,
therefore, being quoted hereinbelow :
“ ,
0 183/13, 15.03.13
08/16, 10.01.16 ।
299/10, 04.02.2016
04.02.2016 12:45
, 00 , 00
, ,
।
,
, , , ।â€
English translation of the above would read as under : -
“You, Umesh Thakur, S/o Ram Uchit Thakur, are the Investigating Officer of Bibhtipur P.S. Case No. 08/16 dated 10.01.16 in
connection with complaint letter no.183/13 dated 15.03.13 vs. Bhukhli Devi alias Fulan Devi, d/o Thakaa Sahni filed in the Court
ACJM, Rosera.
S.H.O., Bibhutipur P.S. has submitted report against you vide his Memo No.299/10 dated 04.02.2016 that on 04.02.2016 at 12:45 in the
day you were trapped and taken away by the officers of the Vigilance Department namely DSP Arun Kumar Shukla, Inspector of Police
Atanu Dutta, Inspector of Police Mukesh Kumar and Sanjay Chaturvei and other members of the team on the complaint of Umesh
Thakur, S/o Ram Uchit Thakur, , r/o Singhiaghat, P.S.-Bibhutipur.
The image of the department has been tarnished by this action of Vigilance Department taken against you which clearly indicates your
suspicious conduct, dereliction of duty, indiscipline and reflects you as a whimsical Police Officer.â€
An Enquiry Officer was appointed, who submitted his report on 30.05.2017, holding the petitioner guilty of the charge framed against him. The
report of the Enquiry Officer has been brought on record by way of Annexure-1 to a supplementary affidavit filed on behalf of the petitioner. It
transpires from the report of the Enquiry Officer that two witnesses were produced for examination to prove the charge against the petitioner. One
Sub Inspector of Police, Chaturvedi Sudhir Kumar, who was, at the relevant point of time, posted as the In-charge (Station House Officer) of the
Police Station, deposed in his evidence that on hearing confused loud noise near the residence of the petitioner, he had come out of his residence when
he found certain people holding the petitioner’s hand and pulling him away. On enquiry, he learnt that they were from Vigilance Department. In
the meanwhile, other officials of the Vigilance Department came in a ‘Scorpio’ vehicle, who told the witness that they had arrested the
petitioner. He, subsequently, learnt that on the basis of certain complaint, the trap was laid. He informed the Superintendent of Police about the
occurrence thereafter, through Memo. No. 299 dated 04.02.2016, which he proved in the departmental proceeding. He categorically said that neither
any seizure list was prepared nor any amount was recovered from the petitioner’s possession in his presence.
The second witness, Dinesh Mahto, at the relevant point of time, was working as Confidential Reader in the office of the Superintendent of Police.
He proved the factum of receipt of the communication through Memo. No. 299 of 2016 dated 04.02.2016 of the Officer In-charge of the Police
Station regarding arrest of the petitioner in a trap case and subsequent order of the Superintendent of Police dated 04.02.2016, whereby the petitioner
was put under suspension and a decision was taken to initiate a departmental enquiry.
The petitioner, in his defence before the Enquiry Officer, alleged that the entire trap case was stage managed. He denied the allegation of any
demand having been made or any money having been received by him. He alleged that the Vigilance officials, for the oblique reasons, under the
influence of the complainant, who had filed a false criminal case, had got the petitioner implicated in the trap case.
The Enquiry Officer submitted his report on 30.05.2017 with his finding that the charge framed against the petitioner stood proved. The disciplinary
authority, while considering the report of the Enquiry Officer, however, formed his opinion that the charge against the petitioner in the departmental
proceeding was not framed properly on the basis of material facts and it did not contain misconduct of the petitioner as a public servant, which ought
to have been mentioned. He also noticed that the quality of the departmental enquiry was also poor and superficial. He, accordingly, asked the
Superintendent of Police, Samastipur, to re-conduct the departmental enquiry after framing the charges on the basis of material facts, after supplying
to the petitioner the documents and names of the witnesses in support of the charge so framed.
Though there was direction by the Deputy Inspector General of Police, Darbhanga, to re-frame the charge, which was not duly framed according
to him, there is no material or pleading on record to suggest that in the light of the opinion of the Deputy Inspector General of Police, Darbhanga, in his
letter dated 17.07.2017 (Annexure-P/5), the charge against the petitioner was ever re-framed and communicated to the petitioner. It, however,
transpires that further enquiry was held into the charge levelled against the petitioner. In the subsequent enquiry, in addition to the two witnesses,
namely, Chaturvedi Sudhir Kumar, Officer In- charge of the Police Station, and Dinesh Mahto, Confidential Reader of the Superintendent of Police,
Samastipur, some of the members of the raiding party, which had conducted the trap, were also examined, who deposed that the petitioner was caught
red handed while accepting a bribe of Rs.9,000/-. The petitioner had got examined witnesses in his support to prove his case that their signatures were
obtained on post trap memorandum, though they were not, in fact, the witnesses of such occurrence.
It appears that the complainant has not supported the case of the prosecution in the trap case that the bribe money was given by him to the
petitioner rather, according to him, he had seen the vigilance personnel apprehending the petitioner and taking him in a ‘Scorpio’ vehicle. The
complainant of the trap case has been declared hostile to the department’s case, as is evident from the report of the Enquiry Officer. The Enquiry
Officer has this time held the charge to be partially proved, on the standards of preponderance of probabilities on the basis of materials available on
record. The petitioner was supplied a copy of the enquiry report through letter dated 27.02.2019 with the second show cause notice asking him to
explain as to why punishment of dismissal from service be not imposed on him. The petitioner submitted his explanation accordingly. The disciplinary
authority by his order dated 15.04.2019 has imposed the order of punishment of dismissal from service, which is under challenge in the present writ
application.
Mr. Prabhakar Singh, learned counsel appearing on behalf of the petitioner, has argued that since the criminal case has been instituted against the
petitioner on the basis of alleged trap and the present departmental enquiry are based on same identical set of facts, the departmental proceeding
should have awaited the decision in the criminal case. He has further submitted that the materials available on the record of the departmental enquiry
do not prove even on the standard of preponderance of probabilities, the fact that the petitioner was found taking any bribe from the informant Umesh
Thakur.
Mr. H.S. Roy, learned A.C. to the learned Advocate General, has, on the other hand, submitted that there has been no procedural irregularities in
the conduct of the departmental proceeding. He has submitted that it is evident from the report of the Enquiry Officer, which is the basis for imposition
of punishment of dismissal from service, that there are certain materials, which were adequate to hold the petitioner guilty of the charge framed
against him. According to him, once the Enquiry Officer has, upon appreciation of evidence, found the charge framed against the petitioner to be
proved, which finding has been concurred by the disciplinary authority on due application of mind, this Court, exercising writ jurisdiction, under Article
226 of the Constitution of India, may not interfere with the impugned action.
I am conscious of the fact that the petitioner has alternative remedy of appeal against the impugned order of dismissal before the appellate
authority in accordance with the Rules, which govern his service conditions. Normally, I would have relegated him to the forum of appeal to question
the correctness of the impugned order. However, since, in my view, the framing of charge in the present case, which goes to the root of the matter, is
itself defective, which aspect has been taken note of even by the Deputy Inspector General of Police, Darbhanga-cum- disciplinary authority in his
letter issued vide Memo. No. 892 dated 17.07.2017 (Annexure-P/5), that I have considered it apt to interfere with the impugned action. This is
precisely the reason, why I have quoted the charge verbatim at the outset. The charge against the petitioner, if carefully read, is that he was arrested
by the officials of the Vigilance Department from his residence on a complaint made by one Umesh Thakur. The arrest of the petitioner by the
Vigilance officials, and not his act, has been treated by the disciplinary authority to be a misconduct. The charge does not refer to the act of the
petitioner for which he was arrested. The charge was apparently framed in utter haste on the same day, on the basis of report of the Station House
Officer that the petitioner was arrested by the Vigilance officials. It was correctly pointed out by the disciplinary authority, in his memo No. 892 dated
17.07.2017 (Annexure-P/5), that misconduct of the petitioner, as public servant, was not mentioned in the charge framed in the departmental
proceeding. Despite such opinion having been framed by no less than the disciplinary authority himself, no corrective measures were taken to re-
frame the charge and the departmental enquiry was again conducted with reference to the same charge.
Apart from this, there are certain facts, which cannot be lost sight of. The said trap, it is said, was laid on a complaint filed by Umesh Thakur, who
had alleged that money was being demanded by the petitioner for effecting arrest of persons accused in Bibhutipur P.S. Case No, 8 of 2016, which
was registered under Section 156(3) of the Code of Criminal Procedure on the basis of a Complaint Case No. 183 of 2013 filed by him (Umesh
Thakur). He had alleged commission of offences under Sections 323, 379 and 436 of the Indian Penal Code and Section 3/4 of the Immoral Traffic
(Prevention) Act, 1956. The allegations were not found to be true by the supervising Police Officers and under their direction, final form was
submitted by the petitioner as the Investigating Officer on 31.01.2016 for the non-cognizable offences punishable under Sections 504 and 506 of the
Indian Penal Code. Raid was conducted after submission of the final form, in the background of the allegation that the petitioner was demanding
money to arrest the persons named in the said case, whereas final form was already submitted for non-cognizable offences. The complainant was
neither cited nor examined as witness in support of the charge, who is said to have been declared hostile to the prosecution at the trial in the vigilance
case.
Noticing above lacunae in the departmental proceeding, I am of the considered view that the impugned action deserves interference by this Court,
as the charge, which has been framed against the petitioner, cannot be said to be in relation to specific misconduct. I reiterate here that arrest of a
Government servant itself will not be a misconduct for initiation of disciplinary action, though his conduct, leading to his arrest, can be a subject matter
of disciplinary action against him.
In view of the discussions as above, the impugned order, dated 15.04.2019, imposing punishment of dismissal from service upon the petitioner, is
hereby quashed. Consequent upon quashing of the impugned order, the petitioner shall be required to be reinstated forthwith with all consequential
benefits including his back wages for the period during which he had remained out of service because of the illegal impugned action.
Before I part with the present judgment and order, I must indicate that this judgment and order should not be treated as clean chit having been
given to the petitioner in respect of the occurrence leading to lodging of the criminal case. It will be open for the disciplinary authority either to proceed
against him with definite charge of misconduct in accordance with law.
This writ application is allowed.
There shall be no order as to costs.