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W. P. (S) No. 6790 of 2004
In the matter of an application under Article 226 of the Constitution of India
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Constable No. 41, Dilip Kumar Singh
... ... Petitioner
Versus
1. The State of Jharkhand 2. Commandant Jharkhand Armed Police­7,
(JAP­7), Hazaribagh
3. The D.I.G., Jharkhand Armed Police, Ranchi
4. Shri Suresh Prasad Sharma, Enquiry Officer, Jharkhand Armed Police­7 (JAP­7), Hazaribagh ... Respondents
­­­­­
For the Petitioner : Mr. Manish Kumar, Advocate
For the Respondents : Mr. Jalisur Rahman, J.C. to G.P. III
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P R E S E N T
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR ­­­­­
By Court: Challenging order dated 27.05.2004, whereby the petitioner has been compulsorily retired from service and the appellate order dated 21.09.2004, the petitioner has approached this Court. 2.
Heard the learned counsel for the parties and perused the documents on record. 3.
The brief facts of the case as disclosed in the writ petition are that, the petitioner was appointed as Constable in B.M.P.­15 in the year, 1984. A charge­memo dated 14.08.2003 was served upon the petitioner on the allegation that, he did not comply with order dated 19.07.2003 passed in Case No. 33 of 1992 (T.R. No. 286 of 1997) whereby he was directed to make payment of Rs. 485/­ to one Phool Kumari Devi and her two children. It was also alleged that since the name of one Mala Singh has been recorded in the service­book as the wife of the petitioner, the said Phool Kumari Devi was either illegal wife or concubine of the petitioner. The petitioner submitted his reply denying that the said Phool Kumari Devi was his wife. However, the reply of the petitioner was not found satisfactory and a departmental proceeding was initiated, on the conclusion of which an enquiry report dated 15.02.2004 2
was submitted. The petitioner was issued second show­cause notice on 12.04.2004, to which the petitioner submitted his reply on 17.05.2004 however, the impugned order of penalty dated 27.05.2004, compulsorily retiring the petitioner from service was passed. 4.
A counter­affidavit has been filed on behalf of respondent no. 2 stating as under:
7. “That with regard to the statements made in para­9, 22 of the writ petition it is stated that this respondent has no knowledge of the said title suit pending in a Muzaffarpur, Bihar Court. However, a notice dated 29.07.2003 was received in this respondent's office from Principal Judge, Family Court along with other papers which disclosed that the petitioner has filed a criminal revision petition no.92/97 against the order of the Family Court directing petitioner to pay maintenance to one Phool Kumari Devi in maintenance case no.33/92. This revision petition was dismissed by 2nd Additional Sessions Judge, Muzaffarpur. After this the petitioner also filed a Criminal Miscellaneous writ petition no.9985/2001 before the Hon'ble High Court, Patna which was also rejected.
8. That with regard to the statements made in para­12 of the writ petition it is stated that the departmental proceeding no.33/03 initiated against petitioner was conducted by the conducting officer (Ref. As “Enquiry Officer” in this para) according to rules and procedures laid down for the same. The petitioner was given notices by conducting officer well in advance regarding the dates of recording of evidence of the witnesses. The petitioner in fact appeared only on one such date i.e. 03.01.2004 and he was also given opportunity to conducting officer to cross­examine one of the only two witnesses of the departmental proceeding namely Reserve Officer of the battalion. He was also given notice well in time to appear before the conducting officer during examination of the last and prime witness 3
Phool Kumari Devi on 06.01.2003 but petitioner deliberately abstained during recording of the evidence of Phool Kumari Devi by conducting officer on the above mentioned date.
9. That with regard to the statements made in para­13 of the writ petition it is stated that the charges against the petitioner in departmental proceeding no.33/03 mainly relate to his misconduct pertaining to his illicit relation with a lady namely Phool Kumari Devi. Hence it was irrelevant to consider during conduction of the departmental proceeding as to who was the legitimate husband of the said Phool Kumari Devi.
10. That with regard to the statements made in para­14 of the writ petition it is stated that while giving his findings the conducting officer of the departmental proceeding did not rely on the statement of Phool Kumari Devi alone but on the entire facts and circumstances of the cases and evidence adduced from the records of the departmental proceeding. In fact the petitioner has also accepted himself in his written explanations to this respondent and the conducting officer that he used to visit Phool Kumari Devi when he was under training at Muzaffarpur.”
5.
The learned counsel appearing for the petitioner has submitted that the impugned order dated 27.05.2004 compulsorily retiring the petitioner from service has been passed only on the basis of an order passed by the trial court in Case No. 33 of 1992 (T.R. No. 286 of 1997) and during the departmental proceeding only two witnesses were examined, out of which one was a formal witness. The complainant namely, Phool Kumari Devi has been examined as the sole witness in support of the charge framed against the petitioner. It is thus, evident that the petitioner has been compulsorily retired from service only on the ground of suspension. The wife of the petitioner namely, Mala Singh has not 4
raised any grievance or has not made any complaint to any of the departmental authorities. No other witness was examined by the department nor the wife of the petitioner namely, Mala Singh has been examined during the departmental enquiry and therefore, the procedure adopted by the departmental authorities for reaching to a conclusion that the charge levelled against the petitioner is proved, was erroneous. 6. As against the above, the learned counsel appearing for the respondents has raised a preliminary objection that in view of Rule 853 of the Jharkhand Police Manual, the petitioner should have first availed of the statutory remedy of memorial/revision before the competent authority. He has further submitted that even during the enquiry, it has come on record that the petitioner himself has admitted that he used to visit the shop of said Phool Kumari Devi and during the proceeding under Section 125 Cr.P.C., a photo of the petitioner along with the said Phool Kumari Devi was also exhibited and thus, the charge against the petitioner stood proved. The learned counsel for the respondents has supported the impugned order and submitted that since the petitioner failed to cross­examine the lady namely, Phool Kumari Devi, it is not open to the petitioner to controvert the evidence given by the said Phool Kumari Devi before the enquiry officer, at this stage. 7.
A perusal of the charge­memo dated 14.08.2003 would indicate that two specific charges were framed against the petitioner. The petitioner has been alleged to have not complied order dated 19.07.2003 passed in Case No. 33 of 1992 (T.R. No. 286 of 1997) whereby he was directed to make payment of interim maintenance to the said Phool Kumari Devi. Another charge has been framed alleging that the name of one Mala Singh has been recorded in the service­book of the petitioner as his wife and thus, the said Phool Kumari Devi was his illegal wife and therefore, his conduct was against the service conduce Rules. 5
During the enquiry, only two witnesses were examined in support of the charge framed against the petitioner. The petitioner has taken a specific defence that the said Phool Kumari Devi was the wife of one Badri Paswan and she was not his wife. In support of his defence, the petitioner has produced a copy of the voter­list in which the name of the said Phool Kumari Devi appeared as the wife of one Badri Paswan. He has also produced a copy of the Mithanpura P.S. Case No. 104/1995 and Charge­sheet No. 153/1999 in which the name of said Phool Kumari Devi has appeared as a witness and whereunder also, she has been shown as wife of one Badri Paswan. These documentary evidence produced on behalf of the petitioner has not been controverted during the departmental enquiry nor a finding has been recorded by the departmental authorities that the plea taken by the petitioner that the said Phool Kumari Devi was the wife of Badri Paswan is not true. I find that the complainant namely, Phool Kumari Devi who had moved the Court seeking maintenance under Section 125 Cr.P.C., is the only material witness who has been examined during the departmental enquiry in support of the charge framed against the petitioner. The departmental authorities have concluded only on the basis of order passed on 19.07.2003 in Case No. 33 of 1992 (T.R. No. 286 of 1997) that the petitioner had illicit relationship with the said Phool Kumari Devi. The petitioner has also raised a plea that the order passed in Case No. 33 of 1992 (T.R. No. 286 of 1997) on 19.07.2003 was an ex­parte order against which a revision was filed and though the revision was dismissed however, the Cr. Misc. No. 30414 of 2003 preferred by the petitioner has been admitted by the Hon'ble Patna High Court. The petitioner has also taken a plea that he has filed a Title Suit seeking declaration that the said Phool Kumari Devi is not his wife and it is still pending. The order retiring the petitioner compulsorily from service is a major punishment. 6
8.
In “State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede” reported in (2009) 15 SCC 200, the Hon'ble Supreme Court has held as under:
16.“Indisputably, the demand of illegal gratification is a sine qua non for constitution of an
offence under the provisions of the Act. For arriving at the conclusion as to whether all the
ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal
gratification have been satisfied or not, the court must take into consideration the facts and
circumstances brought on the record in their entirety. For the said purpose, indisputably,
the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into
consideration but then in respect thereof, it is trite, the standard of burden of proof on the
accused vis-à-vis the standard of burden of proof on the prosecution would differ. Before,
however, the accused is called upon to explain as to how the amount in question was found
in his possession, the foundational facts must be established by the prosecution. Even while
invoking the provisions of Section 20 of the Act, the court is required to consider the
explanation offered by the accused, if any, only on the touchstone of preponderance of
probability and not on the touchstone of proof beyond all reasonable doubt.”
9.
From the narration of facts, I find that only on a presumption raised by the departmental authorities on the basis of order dated 19.07.2003, the impugned order of compulsory retirement has been passed against the petitioner. The suspension howsoever cannot take place of evidence. Except the evidence of the said Phool Kumari Devi, I do not find any other evidence which would improbablise the defence taken by the petitioner. 10.
In “Nand Kishore Prasad Vs. The State of Bihar & Ors.”, reported in AIR 1978 SC 1277, the Hon'ble Supreme Court has held as under: 18. “Before dealing with the contentions canvassed, we may remind ourselves of the principles, in point, crystallised by judicial decisions. The first of these principles is that disciplinary proceedings before a domestic tribunal are of a quasi­judicial character; therefore, the minimum requirement of the rules of natural justice is that the tribunal should arrive at its conclusion on the basis of some evidence, i.e. evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take the place of proof even in domestic inquiries. As pointed out by this Court in Union of India Vs. H. C. Goel, AIR 1964 SC 364, “the principle that 7
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in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules”
In the case of “Anil Kumar Singh Vs. State of Bihar”, reported in (2003) 9 SCC 67, the Hon'ble Supreme court while stressing the need to be cautious and avoid the risk of allowing suspicion to take the place of proof, has held thus, 8. “............. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof.”
12.
I further find that the appellate authority has failed to consider the defence of the petitioner and erroneously it has been recorded by the appellate authority that the petitioner has failed to raise any other new point. 13.
In view of the aforesaid discussion, the impugned orders are liable to be quashed and are hereby quashed. Jharkhand High Court at Ranchi
The 2nd day of January, 2014
Manish/A.F.R.
(Shree Chandrashekhar, J.)