Sanjeev Kumar Singh vs State of Jharkhand and Others

Pramath Patnaik, J.—In the accompanied writ application, the petitioner, inter-alia, has prayed for issuance of writ of certiorari for quashing the order dated 23.12.2011 passed by the Disciplinary Authority and the order dated 10.07.2012 passed by the Appellate Authority pertaining to dismissal from services.

Sans detail facts as averred in the writ application in a nutshell is that the petitioner was appointed as police constable posted in JAP-9 on 19.02.2008 while the petitioner was posted at Sahebganj suffered from Brain Malaria and on this ground he was posted in the district of Ranchi for getting better treatment in RIMS, Ranchi. On 16.04.2010 the petitioner was posted in JAP-10 Mahila Battalion. The Medical Officer of the Mahila Battalion referred the petitioner to RINPAS, Ranchi for treatment of his mental problem on 30.09.2010. After his treatment, the petitioner was referred to RIMS, Ranchi and later on referred to AIIMS, New Delhi on 13.10.2010. After operation at AIIMS, New Delhi, the petitioner resumed his duty on 29.3.2011. On 30.3.2011 while the petitioner was on duty accidentally a shot was fired from the rifle which he was carrying but nobody was injured and the matter was reported to the higher authority by the father of the petitioner himself and incident was brought to the knowledge of the higher authority. On the basis of report an First Information Report was lodged as Sadar P.S. Case No. 87/11 dated 31.03.2011 under sections 307 , 504 and 506 of the Indian Penal Code. On the said charges a departmental proceedings was also initiated against the petitioner. The petitioner replied to the charges stating therein that the charges levelled against him is false and everything happened by way of accident and not intentionally.

Inquiry Officer submitted his report on 25.07.2011 and holding the petitioner guilty of the charges. The Commandant-cum-Departmental Authority JAP-10 on the basis of the report of the Inquiry Officer, passed an order of dismissal vide order dated 23.12.2011 vide Annexure-6 to the writ application. Being aggrieved by the order of Disciplinary Authority, the petitioner preferred an appeal before the Appellate Authority and the Appellate Authority affirmed the order of dismissal passed by the Disciplinary Authority vide Annexure-8 to the writ petition.

Being aggrieved by the order of Disciplinary Authority dated 23.12.2011 as well as the order of the Appellate Authority dated 10.07.2012 left with no other efficacious alternative remedy the petitioner invoked the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for redressal of his grievance.

Per Contra a counter-affidavit has been filed on behalf of the respondents controverting the averments made in the writ application, it has been contended in the counter affidavit that it is not a fact that on 30.3.2011 accidentally a shot was fired from the rifle of the petitioner but before that there was scuffle and hot altercation with Kesho Singh and after that he deliberately took out his rifle aiming at the said Kesho Singh but by timely intervention of other constables the shot fired could not hit the said Keshav Singh vide statement made by Havaldar Shyam Kishore Singh which was annexed as First Information Report of Sadar P.S. Case No. 87/11 under sections 307 /504 /506 of the Indian Penal Code and under section 27 of the Arms Act. It has further been submitted that charges brought against the petitioner have been supported by the evidence whose statement was recorded by the Inquiry Officer during departmental proceeding No. 19/11 by which the charges was proved. This departmental proceeding was conducted in the presence of the delinquent petitioner and he was afforded opportunity to defend himself and the impugned order passed by the respondent Nos. 4 and 5 in accordance with law, rules, and norms in consonance with the law relating to natural justice.

Heard Mr. S.N. Pathak, learned senior counsel for the petitioner and J.C. to A.G. for the respondents.

Learned senior counsel during course of arguments referred Annexure-9 to the supplementary affidavit dated 15.10.2012, the judgment passed by the Judicial Commissioner-IV, Ranchi on 28th July, 2014 in Sessions Trial No. 792 of 2012 wherein the petitioner has been acquitted from the alleged charges and vide Annexure-9 to the said supplementary affidavit, the petitioner has submitted a representation to Commandant, Jharkhand Armed Police-10 praying, inter-alia, for reinstatement in services in pursuance to acquittal in the aforesaid criminal case.

Learned senior counsel strenuously submitted that the impugned order of punishment is grossly disproportionate to the alleged charges, because the order of dismissal is not warranted in view of the overwhelming evidence of medical report regarding the mental condition of the petitioner. The action of the respondents is violative of articles 14 and 16 of the Constitution of India.

As against this, learned counsel for the respondents submits that the impugned order of punishment of dismissal has been passed by the Disciplinary Authority vide order dated. 23.12.2011 i.e. by Commandant, Jharkhand Armed Police-10 which has been confirmed by the Appellate Authority vide 10.07.2012 and it is not a case where due procedure has not been followed so far as disciplinary proceeding is concerned nor the proceeding was based on no evidence, therefore, the impugned order of punishment of dismissal being confirmed by the appellate authority is legal and justified.

After hearing, the learned counsel for the respective parties at length and on perusal of the records the impugned order of punishment of dismissal vide order dated 23.12.2011 passed by the Disciplinary Authority and the order affirmed by the Appellate Authority on 10.07.2012 is illegal and not sustainable in view of the following facts, judicial pronouncements:

i) Admittedly, in the instant case, the lodging of criminal case is the basis for initiation of departmental proceeding and the petitioner has been acquitted in Sessions Trial No. 792 of 2012 passed by the Judicial Commissioner-IV, Ranchi on 28.07.2014 and the writ petitioner has also submitted a representation to that effect before the respondent-5, the competent authority, for reinstatement in services. Therefore, in the fitness of things, considering the changing circumstances of acquittal in criminal case, it would be in the interest of justice to remit back the matter to the disciplinary authority to pass appropriate order on the quantum of punishment proved charges in departmental proceeding as well as acquitted in criminal case.

ii) In the instant case, admittedly the petitioner has suffered from mental ailments and he has been treated in RIMS, Ranchi later on AIIMS, New Delhi prior to initiation of charges. The accidental firing of shot from his rifle has led to lodging of First Information Report setting into motion that lead to the criminal case and initiation of departmental proceeding. Once the petitioner has been acquitted in the criminal case where the standards of proof is proved beyond reasonable doubts and he has been honourably acquitted from the said charges and the matter is left open to the discretion of the Disciplinary Authority to consider on the quantum punishment commensurate with the proved charges."

As the Hon''ble Apex Court in the case of The Deputy Inspector General of Police and Another Vs. S. Samuthiram, The meaning of the expression "honourable acquittal" was discussed by this Court in detail in the case of Deputy Inspector General of Police & Anr. v. S. Samuthiram, the relevant para from the said case reads as under:--

"24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."

(Emphasis laid by this Court)

After examining the principles laid down in the above said case, the same was reiterated by the Hon''ble Apex Court in a recent decision in the case of Joginder Singh v. Union Territory of Chandigarh & Ors.

The meaning of the expression ''honourable acquittal'' came up for consideration before this Court in The Management of Reserve Bank of India, New Delhi Vs. Bhopal Singh Panchal, . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions ''honourable acquittal'', ''acquitted of blame'', ''fully exonerated'' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression ''honourably acquitted''. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. 27.: In R.P. Kapur Vs. Union of India (UOI) and Another, , it was held even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam and another v. Raghava Rajgopalachari reported in 1972 SLR 45, this Court quoted with approval the views expressed by Lord Williams, J. in (1934) 61 ILR Cal. 168 which is as follows:

"The expression "honourably acquitted" is one which is unknown to court of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term ''honourably acquitted''".

Hon''ble Apex Court in the case of S. Bhaskar Reddy Vs. Superintendent of Police, has been held in the paragraphs 23 and 24 which reads as under:

Further, in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. this Court has held as under (SCC p. 695 paras 34-35):--

"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, ''the raid conducted at the appellant''s residence and recovery of incriminating articles there from''. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.

Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.

"24. Further, in the case of G.M. Tank Vs. State of Gujarat and Another, Hon''ble Apex Court has been pleased to observe in paras 20, 30-31 as under

"20.......... Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.

The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law......... It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant''s residence, recovery of articles therefrom. The Investigating Officer Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."

(emphasis supplied)

After examining the principles laid down in the aforesaid cases the same was reiterated by the Hon''ble Court in decision of Joginder Singh Vs. Union Territory of Chandigarh, .

In S. Bhaskar Reddy Vs. Superintendent of Police, Hon''ble Apex Court by referring the aforesaid judgments has been pleased to set aside the order of dismissal by modifying the same to compulsory retirement and for payment of pensionary benefits including arrears.

On cumulative facts of the reasons of judicial pronouncements, the impugned order dated 23.12.2011 passed by the Disciplinary Authority and the order dated 10.07.2012 passed by the Appellate Authority is hereby quashed and the matter is remit back to the disciplinary authority to consider the case afresh in the light of acquittal of petitioner from criminal case and on the question of quantum of punishment strictly in accordance with law within a period of two months from the date of receipt of the copy of this order.

Hence, with the aforesaid direction the writ petition is disposed of.