Md. Jahid Khan vs The Union of India & Ors

The petitioner has prayed for the following reliefs:

“(i) For quashing/setting aside the order of the Inspector General of Police, Bihar Sector, C.R.P.F., Patna under the signature of Additional

Director General of Police dated 10.05.2016 by which he has been pleased to reject/dismissed the revision petition dated 08.02.2016 submitted by the

petitioner.

(ii) For quashing/setting the Office order of the D.I.G.P. Group Centre, C.R.P.F., Mokamaghat, Patna by which he has been pleased to reject the

appeal dated 08.02.2016 filed by the petitioner.

(iii) For quashing/setting aside the order of the Deputy Inspector General of Police, Group Centre, C.R.P.F., Bihar, Patna dated 03.02.2016 under the

signature of the Commandant by which he has been pleased to dismissed from service of the petitioner and further no work, no pay relieving the

petitioner.

(iv) For direction/directions to the respondents to reinstate the petitioner and make the payment of all financial benefit for the date of his entitlement.

(v) For any other relief/reliefs to which entitle under the law.â€​

With the consent of the parties the writ petition has been heard with the view to final disposal at the stage of admission.

Facts of the case briefly stated is that the petitioner was appointed as a Constable in Group Centre, C.R.P.F. Mokamaghat in the year 1991. The

alleged misconduct relates to the year 2005 when the petitioner along with Constable A.K. Mishra, Constable, Chaturbhuj Sharma and Hawaldar Md.

Latif were deployed at the residence of Additional D.I.G., C.R.P.F., Mokamaghat with effect from 6 P.M. on 19.1.2005 to 6 A.M. on 20.01.2005.

The two allegations which faces the petitioner as manifest from the charge memo at Annexure 1 is, that:

(a) He exchanged his duty with Constable Chaturbhuj Sharma from 23.59 hours - 02.00 hours in the intervening night on 19.1.2005 to 04.00 hours -

06.00 hours on the following day;

(b) That he received an S.L.R bearing Butt No. 249, Body No.16046380 along with Magazine and 20 rounds of cartridges from Constable (G.D) A.K.

Mishra for deposit in the ‘Kote’ but instead he hand it over to a civilian, namely Bablu.

After holding enquiry the Enquiry Officer submitted his report, a copy of which is at Annexure 10 to the writ petition and the charges were upheld.

According to the petitioner, the enquiry was ex parte and without opportunity to the petitioner to defend himself. The disciplinary authority on

consideration of the finding of the Enquiry Officer passed the order of punishment dismissing the petitioner from service vide order passed by the

Commandant dated 03.02.2016 impugned at Annexure-11. The appeal preferred by the petitioner was also dismissed vide order passed on 14.03.2016

by the D.I.G. dated 14.03.2016 at Annexure-12. The revision application of the petitioner was similarly dismissed by the Additional D.G.P. on

10.05.2016 impugned at Annexure-13. Feeling aggrieved the petitioner is before this Court.

It is the argument of Mr. Md. Shamimul Hoda learned counsel appearing for the petitioner that the petitioner has been dismissed from service for a

misconduct not attributable to him and even in absence of any evidence to support the alleged misconduct. According to learned counsel it is not a

case where the petitioner left his duty rather he merely exchanged his duty with a fellow Constable and thus there is no dereliction of duty to invite a

punishment of dismissal. In response to the second charge of not depositing the S.L.R of Constable A.K. Mishra in the ‘Kote’, it is submitted

that there is no evidence that the petitioner accepted this responsibility rather it was the responsibility of the Constable concerned to deposit his S.L.R.

same in the ‘Kote’. It is the argument of Mr. Hoda that while there is no dispute that the petitioner deposited his own S.L.R. in the

‘Kote’ after his guard duty, he has been punished because the fellow Constable failed to discharge his duty of depositing the same in the

‘Kote’ and attributed the lapse to the petitioner. It is submitted that although a charge is made that the petitioner handed over S.L.R. to the

civilian Bablu but the undisputed fact is that the S.L.R. was recovered from within the premises of the Force and not recovered from any individual.

It is thus argued that the petitioner has unnecessarily been framed in the case even in absence of any charge for which the petitioner can be held

accountable. It is also the argument of Mr. Hoda that the confession relied upon by the Department to uphold the charge is one made by the petitioner

while in police custody and which has no evidentiary value inasmuch as it is on coercion that such statement was extracted from the petitioner. It is

submitted that the charge is based on no evidence and no witness was led to demonstrate that the rifle/ S.L.R. was handed over to the petitioner by

Constable A.K. Mishra and/or that the petitioners undertook to deposit the said S.L.R.

It is argued that raising all these issues, the petitioner had come before this Court in C.W.J.C. No. 7169 of 2011 and drawn the attention of this Court

to the orders passed without reasonable opportunity to the petitioner to defend himself during the course of the proceedings or even thereafter

inasmuch as not even the enquiry report was supplied to him before the orders were passed. It is informed that the contention of the petitioner was

upheld and the earlier punishment order(s) dated 9.8.2005 together with the order passed on appeal dated 23.3.2010 and on revision dated 4.10.2010,

was set aside. The petitioner was directed to be reinstated with further directions to the disciplinary authority to pass fresh order in accordance with

law after serving the copy of the Enquiry report to the petitioner and enabling him to file his defence. A copy of the judgment/order passed by this

Court is at Annexure 8.

 It is submitted that following the order of this Court that the copy of the enquiry report was supplied through letter dated 19.12.2015 at Annexure-9

and though the petitioner questioned the veracity of the finding of the Enquiry Officer but the stand was rejected by the disciplinary authority and the

order of punishment of dismissal was again passed which has been confirmed in appeal and in revision. According to learned counsel the order passed

by the disciplinary Authority as affirmed by the appellate authority and the revisional authority, are non speaking and do not deal with the issues raised

by the petitioner. In support learned counsel has relied upon the judgments reported in 2014 (3) PLJR 393 (Ram Kishore Prasad versus the Chairman,

Madhya Bihar Gramin Bank & Anr.). Learned counsel in support of his submission that there has to be a definite evidence to connect the delinquent

to a charge, has relied upon a judgment reported in 2018(1)PLJR 95 (Aman Kumar versus the Chairman, Uttar Bihar Gramin Bank & Ors.).

The arguments of Mr. Hoda has been contested by Mr. Awadhesh Kumar Pandey learned Senior Central Government Counsel for the Union of India

appearing along with Mr. R.K. Sharma, learned Central Government Counsel. It is the argument of Mr. Pandey that the fault entirely lies with the

petitioner who never chose to participate in the proceeding and thus he cannot turn around to question the proceeding on any ground. It is submitted

that not only the petitioner had no business to exchange duty, the other charge is very serious for a loss/misplacement of firearm is a serious

misconduct. It is submitted that the petitioner having taken the responsibility to deposit the S.L.R of Constable A.K. Mishra should have ensured its

deposit. It is submitted that the recovery of the firearm would not undermine the charge and which is established by the confessional statement made

by the petitioner before the police in the criminal case so instituted against him. Mr. Pandey on grounds of deliberate non participation by the petitioner

in the proceeding as well as the evidence led by the department during the course of the proceeding has chosen to submit that there is enough

evidence on record supportive of the misconduct of the petitioner. In support of his submission regarding limited scope of interference in disciplinary

cases, learned counsel has relied upon the following judgments:

(i) 2000(1)PLJR 686 (Bipin Kumar Prasad versus the State of Bihar & Ors.)

(ii) 2003(9)SCC 286 (State of Rajasthan & Ors. versus Sujata Malhotra)

I have heard learned counsel for the parties and I have perused the records.

As already discussed, there are two charges facing the petitioner namely; (a) Exchanging duties with Constable Chaturbhuj Sharma; and (b) Failure to

deposit the S.L.R. of Constable A.K. Mishra.

In so far as the charge no.1 is concerned, even if it be an irregularity, it certainly is not an item of misconduct because there is neither any

disobedience by the petitioner of any directions nor the petitioner has been found guilty of dereliction of duty rather the charge is of exchange and the

reasons accompanying is that the petitioner suffered abdominal pain to seek such exchange. The evidence on record confirms that on oral permission

being given by the Group Commander that Constable Chaturbhuj Sharma agreed to exchange duties with the petitioner and thus the exchange cannot

constitute a misconduct even if there may be a procedural lacunae to the technicalities attached for such exchange. In any view, a mere exchange in

duty with or without permission may invite a reprimand but cannot be termed a ‘misconduct’ for inviting a proceeding. I would now consider the

second charge facing the petitioner of allegedly not depositing the S.L.R. of Constable A.K. Mishra in the ‘Kote’. No doubt the alleged charge

of failure of the petitioner to deposit the S.L.R. of Constable A.K. Mishra in the ‘Kote’ is very serious provided, the petitioner had taken up this

responsibility or was under an obligation to do the same. I find the charge itself rather strange for it is not the failure of the petitioner to deposit his

own S.L.R. in the ‘Kote’, which has undisputedly been deposited by him after completion of his guard duty rather he is being proceeded

because his fellow Constable A.K. Mishra failed to similarly discharge his duty to deposit his S.L.R. in the ‘Kote’ and attributed the lapse on

the petitioner. The evidence relied upon by the department to uphold the charge is the confession made by the petitioner before the police under

Section 161 of the Cr.P.C. which has no evidentiary value.

The records of the proceeding has been produced by Mr. Pandey and the evidence recorded on the issue, gives a very interesting picture. The

Hawaldar D.K. Pathak in his evidence has stated that during the course of enquiry Constable A.K. Mishra told him that he handed over his firearm to

the petitioner at 4.00 hours early morning for its deposit in the ‘Kote’ but the petitioner has denied the responsibility. The relevant extract of

evidence of D.K.

Pathak runs under:

“………..iqN&rkN ds nkSjku flikgh@th-Mh- ,-ds-feJk us crk;k dh mlus viuk gfFk;kj flikgh@Vsyj tkghn [kku dks lqcg 04-00 cts viuh M~;wVh

lekIr djus ds ckn dksr es a tek djus ds fy, fn;k Fkk A ysfdu flikgh@Vsyj tkghn [kku us bl ckr dks budkj fd;k ………..**

Similarly Hawaldar Nishikant Sinde has also in his evidence reiterated the denial by this petitioner to the statement of Constable A.K. Mishra that he

had given his firearm to the petitioner for deposit in the ‘Kote’.

The evidence of the Constable A.K. Mishra is relevant and which in my opinion is enough to drop the charge against the petitioner inasmuch as he

admits that at 2.00 hours he requested Chaturbhuj Sharma to deposit his firearm but was told to handover the firearm to the petitioner on undertaking

that he (Chaturbhuj Sharma) would take the firearm from the petitioner and deposit it in the ‘Kote’. The relevant extract of the evidence of

A.K. Mishra which

clarifies the position is reproduced hereinbelow:

prqHkZqt “kekZ ls M~;wVh fy;k Fkk rc mlh le; mls crk;k Fkk fd eSa vLoLFk g wW vr% M~;wVh ds ckn fuR; fdz;k ,oa vkjke gsrq viuk vkokl

tkmWaxk gks ldrk gS eSa 06-00 cts rd u vk ld]wW vr% esjk gfFk;kj dksr es a tek djok nsuk bl ij flikgh@dkjisVa j prqHkZt “kekZ us crk;k fd vki

M;wVh dj ds gfFk;kj flikgh@Vsyj tkghn [kku dks ns nsuk] eSa mlls gfFk;kj ysdj ds dksr es a tek djok nqWxk A…………….â€​

 The evidence of Constable Chaturbhuj Sharma confirms the statement of the petitioner that the exchange of duty was with due permission of the

Guard Commander Md. Latif who later on has retracted from such permission. The said Constable has also stated that on 25.1.2005 around 10.30

A.M. he came to know that firearm was recovered behind the head office near the boundary wall. Although Constable Chaturbhuj Sharma has stated

about handing over the duty to Constable A.K. Mishra but he has not endorsed the statement of A.K. Mishra regarding giving any undertaking to

deposit of the firearm rather he has mentioned that on query, the petitioner informed that the said Constable A.K. Mishra had gone to deposit his

firearm. A similar statement has also been made by Guard Commander Md. Latif in his cross- examination.

A plain look at the evidence on record would confirm that while it is the submission of Constable A.K. Mishra that he handed over his firearm to the

petitioner for deposit, the statement is denied by the petitioner. In fact, Constable A.K. Mishra has admitted in his evidence that he requested

Constable Chaturbhuj Sharma to deposit the firearm and not the petitioner, but Constable Sharma in turn asked him to hand over the same to the

petitioner. The petitioner in his evidence had denied its acceptance. Fact remains that it was the bounden duty of Constable A.K. Mishra to deposit his

firearm and even if he has tried to shift this responsibility on the petitioner, certainly any misplacement thereof cannot be attributed to the petitioner

either to invite a disciplinary proceeding muchless a penalty of dismissal.

It is undisputed that while the petitioner and others, after their respective duty had deposited their respective firearm in the ‘Kote’, it is the

firearm of Constable A.K. Mishra which went missing though recovered later on. The Enquiry Officer has upheld the charge simply believing the

statement of the defaulting constable A.K. Mishra, who alone was accountable for his missing firearm, without bothering to appreciate whether at all

the petitioner can be held responsible for a lapse in duty by another. It is rather surprising that neither the disciplinary nor the appellate authority or the

revisional authority have bothered to appreciate that even if the charge is accepted on face value yet it can not constitute an act of misconduct against

the petitioner because the duty to deposit the firearm after completion of duty hours, was upon the person particular and which responsibility cannot be

shifted. It is simply on the basis of the evidence of the defaulting constable that unnecessarily the petitioner has been subjected to the harassment of a

disciplinary proceeding as well as a police case even when he can not be held responsible for the default of.

Reference is made to the judgment reported in AIR 1992 SC 2188 (State of Punjab versus Ram Singh) where the Supreme Court after taking note of

the dictionary meaning of the word ‘misconduct’ has held that even though the term is incapable of a precise definition, it would definitely be an

act affecting a discipline expected, the nature of a duty expected to be performed and the violation thereof. It was held that a mere error of judgment,

carelessness and negligence in performance of duty simplicitor would not constitute a misconduct.

Para 4 and 5 of the judgment reads thus:

“4. Misconduct has been defined in Black’s Law dictionary, Sixth Edition at page 999 thus:

‘A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character,

improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not

negligence or carelessness.’ Misconduct in office has been defined as: “Any unlawful behaviour by a public officer in relation to the duties of

his office, willful in character. The term embraces acts which the office-holder had no right to perform, acts performed improperly, and failure to act

in the face of an affirmative duty to act.’

In P. Ramanatha Aiyar’s the Law Lexicon, Reprint Edition 1987 at p.821, ‘misconduct’ defines thus:

“The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct

involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context

wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or

improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion if left,

except what necessity may demand and carelessness, negligence and unskillfulness are transgressions of some established, but indefinite, rule of

action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an

indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be

defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.â€​

Thus it could be seen that the word ‘misconduct’ though not capable of precise definition, its reflection receive its connotation from the

context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be

improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code

of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or

character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope

of the statute and the public purpose it seeks to serve. ……….â€​

In my opinion the charge as framed itself was incapable of providing a foundation for inviting a disciplinary proceeding muchless an extreme penalty of

dismissal because it is neither attributable to a discharge of duty of the petitioner nor constitutes a breach of discipline. The petitioner conformingly has

been made an escapegoat in an unwarranted proceeding and also punished despite the recovery of the firearm, despite no fault or lapse attributable to

him rather for a misconduct of some other.

In consequence the entire proceedings initiated against the petitioner including the order of dismissal passed by the disciplinary authority i.e Deputy

Inspector General of Police, Group Centre,

C.R.P.F., Bihar, Patna vide order dated 03.02.2016 impugned at Annexure 11, the appellate authority i.e D.I.G.P. Group Centre,

C.R.P.F., Mokamaghat, Patna vide order dated 14.3.2016 impugned at Annexure 12 and the order of revisional authority dated 10.05.2016 impugned

at Annexure 13 cannot be upheld and are accordingly quashed and set aside. The petitioner is reinstated in service with full back wages and all

consequential benefits which should be provided within 3 months from the date of receipt production of a copy of the judgment.

Let the records so produced by Awadhesh Kumar Pandey learned Senior Central Government Counsel be returned to him for being transmitted to the

respondent department.

The writ petition is allowed with no order as to costs.