Judgment:
1 W.P.(S)No.1073of2006 (InthematterofanapplicationunderArticle226ofthe ConstitutionofIndia) AnilKumarPandey Petitioner Versus 1.TheStateofJharkhand 2.TheDirectorGeneralofPolice,Jharkhand,Ranchi 3.TheDeputyInspectorGeneralofPolice,J.A.P.,Ranchi 4.TheCommandant,J.A.P.I,Ranchi ... Respondents ForthePetitioner :M/s.Dr.S.N.Pathak,SeniorAdvocate, BirjuThakur,FayyazAhmad, RishikeshGiri&RakeshKumarRoy, Advocate FortheRespondents :Mr.SaketUpadhyay,J.C.toA.G. Present HON'BLEMR.JUSTICESHREECHANDRASHEKHAR ByCourt: Thepetitionerhaschallengedthepenaltyorderdated 08.12.2003, the appellate order dated 29.04.2004 and the revisionalorderdated08.10.2005.
2. Thebrieffactsofthecasearethat,thepetitionerwas appointed as a Constable in Bihar Military Police and at the relevanttimeintheyear,2003,hewaspostedasConstableDriver withJharkhandArmedPoliceatHazaribagh. On05.07.2003and 18.07.2003oneRajKumarVermasubmittedacomplaintagainst the petitioner and on such complaint, a charge memo dated 16.08.2003wasserveduponthepetitionerontheallegationthat he had offered to purchase the Ambassador Car bearing no. BRN/6516 belonging to the complainant Raj Kumar Verma for Rs.50,000/. HegaveanadvanceofRs.101/andpromisedto pay the balance amount. However, after much effort he paid Rs. 20,000/ to the complainant and refused to pay the balance amountofRs.30,000/,andtherefore,hecommittedcheatingand unauthorisedlyretainedthecarwithhimselfandthus,committed 2 misconduct. Along with the charge memo the complaint dated 05.07.2003and18.07.2003ofthesaidRajKumarVerma,acopyof the inquiry report dated 11.08.2003 conducted by one Sri Alok, DeputySuperintendentofPoliceandthestatementofRajKumar Verma,weresuppliedtothepetitioner.Insupportofitscase,the departmentproposedtoexamineaswitnessesRajKumarVerma, UpenSinghandBrajeshSingh.Aninquirywasconductedandthe inquiryreportwassubmittedwhereundertheinquiryofficeropined thatinviewofthematerialsonrecordtheallegationagainstthe petitionerbecomesdoubtfulandtherefore,thebenefitofdoubtcan be given to the petitioner. However, by an order dated 08.12.2003,thedisciplinaryauthorityheldthatthechargesagainst the petitioner are proved and therefore, he inflicted the punishmentofdismissalfromservice. Theappealaswellasthe revisionpetitionpreferredbythepetitionerwerealsodismissedby orders dated 29.04.2004 and 08.10.2005 and therefore, the petitionerapproachedthisCourtbyfilingthepresentapplication.
3. Acounteraffidavithasbeenfiledstatingasunder:
6. That at the outset it is stated that while the petitioner i.e. constable 1154 Driver Anil Kumar PandeywaspostedatJap7,Hazaribagh,hemadean offer to one Raj Kumar Verma of Mahabir Chowk, HazaribaghtopurchasehisAmbassadorCarbearing not B.R.N.6515atthecostofRs.50,000/andafter givingadvanceofRs.101/hetookawaythecarand assuredtomakepaymentofbalanceamount.Atthat time one of the friend of the petitioner who is presentlypostedinJAP9,Sahebganjwasalsopresent. Aftertakingoveroftheambassadorcar,thepetitioner did not turn up nor make payment. After much requestandpersuasionmadebytheownerofthecar 3 namelyRajKumarVerma,thepetitionerpaidonlyRs. 20,000/andrestbalanceamounthasnotbeenpaid tilldate. Thepetitionerbeingmemberofdisciplined force,keptthecarforciblywithoutmakingpaymentof thesamebyplayingfraudandsuchconduct onhis part is indicative of indiscipline, misconduct and doubtfulcharacter.
7. Thatfortheaforesaidallegations,departmental proceeding no. 29/2003 was initiated against the petitioner. During the course of conduction of the departmental proceeding, the car owner namely Raj KumarVermaappearedandstatedthatonaccountof marriageofhisdaughter,hewasinneedofmoney andtherefore,hedecidedtosalethecarandinthis process,constableno.1154AnilKumarPandeywho is friend of his younger brother, showed his willingnesstopurchasethecar.Sincepetitioner,Anil KumarPandey,wasthefriendofhisyoungerbrother, andhence,aftertakingRs.101/asadvance,he(Raj KumarVerma)handedoverthekeyofthecartothe petitioner with stipulation that he will pay Rs. 50,000/i.e.thecostofthevehicle. Aftertakingof thecar,thepetitionerdidnotmakepaymentofthe amountfor a longtime and thereafterthe said Raj Kumar Verma met the petitioner in the premises of JAP7, Hazaribagh and after much request, the petitioner has made payment of Rs. 10,000/ (Ten Thousand only) and the petitioner asked said Raj KumarVermathatrestamountwillbepaidonlyafter he(RajKumarVerma)willsignthesaleletter.Since constable Anil Kumar Pandey was friend of his youngerbrother,therefore,ingoodfaith,hesignedon 4 thesaleletter.Hefurtherstatedthathewasmaking his demand for payment of rest amount and the petitioner haspaidfurtherRs.8,000/and2,000/ respectively. This way,thepetitionerhaspaidonly Rs.20,000/outofRs.50,000/. In the meantime, the petitioner, Anil Kumar Pandey was transferred from JAP7, Hazaribagh to JAP1, Ranchi. Due to nonpayment of balance amountofthecar,he(RajKumarVerma)madean applicationtotheCommandant,JAP1,Ranchiandin lightoftheapplicationmadebythecarowner,the Commandant,JAP1,RanchidirectedthethenDeputy Superintendent of Police Shri Alok to make inquiry whoaftermakingenquirysubmittedhisreportstating therein that Driver constable no. 1154 Anil Kumar PandeyhaskeptthecarofRajKumarVermaforcibly byplayingfraud.
8. Thatduringcourseofdepartmentalproceeding, thepetitionersubmittedhisreply. Sincethecharges levelledagainstthepetitionerwasproved,therefore, thepetitioner wasissuedsecondshowcauseagainst the proposed punishment of dismissal from service. Copyoftheenquiryreportwasalsoenclosedwiththe saidshowcause.
9. Thatinordertolingerthematter,thepetitioner madeanapplicationon04.12.2003prayingtherein tograntfurthertimeforfilingsecondshowcauseand thesaidapplicationofthepetitionerwasrejectedon thesamedateandcommunicatedtohimvideMemo No.556dated04.12.2003.
4. A supplementary affidavit dated 04.05.2010 has also beenfiledbytherespondentno.4statingasunder:
5. 10. Thatitisfurtherstatedandsubmittedthatit clearly reveals from the service book/record of Anil KumarPandeythatin11yearsofservice,hehasfaced 13 minor and 4 major punishments for his indisciplined behaviour, fraud nature and dubious character. It is further stated and submitted that from theserecords,itapparentlyexplainsthatthepetitioner isofcriminalnature,whousedtoshowthepowerof uniform and indulge in illegal and indisciplined activities. Although department gave him several times opportunity to improve himself but still there wasnochangeinhisbehavioursandcharacterand same cannot be expected from him in future. His negative personality could affect the department's reputationandcouldalsosendnegativevibesamong others.Therefore,theonlyalternativewastodismiss himfromtheservice.
5. Heard learned counsel appearing for the parties and perusedthedocumentsonrecord.
6. ThelearnedSeniorcounselappearingforthepetitioner hassubmittedthatsincethechargelevelledagainstthepetitioneris cheatingthecomplainantbynotpayinghimthebalanceamountof Rs.30,000/andretainingthecarunauthorisedly,thetestinthe departmental proceeding should not be the preponderance of probabilityrather,asheldbytheHon'bleSupremeCourtinUnion ofIndiaVs.GyanChandChattar,reportedin(2009)12SCC78it should be beyond all reasonable doubts and since the inquiry officerhimselfhasrecordedhisopinionthatthepetitionercanbe grantedbenefitofdoubtandasthedisciplinaryauthorityhasfailed to record any reason how the charges against the petitioner are proved,theorderofpenaltyandthesubsequentordersrejecting 6 theappealaswellastherevisionpreferredbythepetitionerare liabletobequashed.Hehasfurthersubmittedthatinviewofthe specificprovisionunderRule826oftheJharkhandPoliceManual and the specific defence taken by the petitioner, the penalty imposeduponthepetitionerisliabletobequashed. Rule826of theJharkhandPoliceManualreadsasunder: Rule 826: Discrimination necessary in awarding punishments.Thepunishmentawardedshouldbein confirmitywiththegravityofoffencewithwhichthe officer is charged and offences involving moral turpitudeshallbecarefullydiscriminatedfromsmaller wrongdoings.Itshouldalsobeborneinmindthatthe previousrecordofserviceoftheofficerconcerned,ifit isnotalreadyincludedinthechargeoftheproceeding shall not be taken into account for determining the quantumofpunishment. Theobjectiveofawardingpunishmentisfirstly tokeeparecordofthewrongdoingsoftheofficer andsecondlyasameasureofcorrectiontoalerthim to improve his work and conduct. Several punishments awarded in one lot such as during inspectionswhichdonotprovideanopportunityto the delinquent officer to improve himself are not likely to be helpful. In any case, the punishment cannotbeawardedwithoutcarefullyconsideringthe defenceofthedelinquentofficer. Beforeissuingordersofminorpunishment,itis necessarytoapprisethedelinquentofthesubstance ofthechargesagainsthimandheshouldbegiven adequateopportunityfordefence.Afterthishasbeen ensured,thepunishmentcanbeawarded.However in the case of major punishments (see Rule
828) 7 formalproceedingsinP.M.Formno.178willhave tobedrawnup.
7. ThelearnedSeniorcounselhasreliedonthedecisions oftheHon'bleSupremeCourtinNarinderMohanAryaVs.United India Insurance Company Ltd., reported in (2006) 4 SCC 713.Roop Singh Negi Vs. Punjab National Bank & Ors., reported in (2009)2SCC570andBhagatRamVs.StateofHimachalPradesh andOthers,reportedin (1983)2SCC442.In RoopSinghNegi (supra)Hon'bleSupremeCourthasheldasunder, 23. Furthermore, the order of the disciplinary authority as also the appellate authorityarenotsupportedbyanyreason. As the orders passed by them have severe civil consequences, appropriate reasonsshouldhave beenassigned. Iftheenquiryofficerhadrelied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basisofselfsameevidenceshouldnothavebeen taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. TheprovisionsoftheEvidenceAct may not be applicable in a departmental proceedingbuttheprinciplesofnaturaljustice are. As the report of the enquiry officer was basedonmerelyipsedixitasalsosurmisesand conjectures, the same could not have been sustained.Theinferencesdrawnbytheenquiry officer apparently were not supported by any evidence.Suspicion,asiswellknown,however 8 high may be, can under no circumstances be heldtobeasubstituteforlegalproof.
8. As against the above, Mr. Saket Upadhyay, learned counselappearingfortherespondentshassubmittedthatthereare witnesses to the transaction and those witnesses namely, Upen Singh and Brajesh Singh have categorically stated before the inquiry officer the factum of the transaction and therefore, the transactionstandsadmitted. Nowherethepetitionerhasdeclined thetransactionhimselfandthus,thisisanadmittedcasethatthe petitioner has failed to pay Rs. 30,000/. He has committed misconductandhehasbeenaccordinglyfoundguiltyofthesaid misconduct and therefore, the penalty imposed upon him is just andproper. Theorderoftheappellateauthoritydoesnotsuffer fromnonapplicationofmindandtherevisionalauthorityhasalso dismissedtherevisionpetitionandtherefore,thisisnotamatter whichrequiresinterferencebythisCourtinexerciseofjurisdiction underArticle226ofConstitutionofIndia.Thelearnedcounselin support of his contention relies on the judgments in the case of MaanSinghVs.UnionofIndia&Ors.,reportedin(2003)3SCC 464.UnionofIndia&Ors.Vs.BishamberDasDogra,reportedin (2009)13SCC102andStateBankofBikanerandJaipurVs.Nemi ChandNalwaya,reportedin(2011)4SCC584.InStateBankof Bikaner and Jaipur (supra) Hon'ble Supreme Court has held as under, 7. Itisnowwellsettledthatthecourtswill notactasanappellatecourtandreassessthe evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiryhasbeenfairlyandproperlyheldand thefindingsarebasedonevidence,thequestion of adequacy of the evidence or the reliable 9 natureoftheevidencewillnotbegroundsfor interfering with the findings in departmental inquiries. Therefore, courts will not interfere withfindingsoffactrecordedindepartmental enquiries,exceptwheresuchfindingsarebased on no evidence or where they are clearly perverse.Thetesttofindoutperversityistosee whetheratribunalactingreasonablycouldhave arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.
9. Adverting to the contentions raised on behalf of the petitioner, I find that the charge against the petitioner is of cheating and retaining the car without making payment of Rs.30,000/tothecomplainantnamely,RajKumarVerma.Before the inquiry officer, the witnesses namely Upen Singh as well as Brajesh Singh both have expressed their ignorance about the consideration amount for which the car was purchased. The petitioner took a specific defence before the inquiry officer that whiledrivingthecarithadbrokendownandthepetitionerhadto leavethecaratKodermaPoliceStation.Hehasspecificallyputa defencethatafaultycarwassoldandhandedovertohim. The inquiryofficerhimselfrecordedthefindingthatsincethereisno evidenceregardingtransactionandevidencesbroughtonrecorddo notestablishconclusivelynonpaymentofthebalanceamount,if any, to the complainant, the allegation levelled against the petitioner becomes doubtful, and therefore, the benefit of doubt 10 canbegiventothepetitioner. Ifurtherfindthatexceptreciting thechargesagainstthepetitioner,thedisciplinaryauthorityhasnot givenanyreasonforrecordingafindingthatthechargesagainst thepetitionerareproved. Thedisciplinaryauthorityhasfailedto consider or even refer to the findings recorded by the inquiry officerandwithoutconsideringthedefenceofthepetitionerand withoutassigninganyreasonthepenaltyorderdated08.12.2003 hasbeenpassed. Thedisciplinaryauthorityhasmerelyrecorded thatsincethepetitionerfailedtosubmithisreplytothesecond showcausenotice,itispresumedthathehasnothingtosayinhis defence; I find that an erroneous approach was adopted by the disciplinaryauthority,asthelawrequiresthedisciplinaryauthority toconsiderthefindingsrecordedbytheinquiryofficerandtogive reasons while disagreeing with the conclusion recorded by the inquiryofficerwhichadmittedlyhasnotbeendoneinthepresent case.
10. Moreover,thefactthatthepetitionerpaidanamount ofRs.20,000/goestoindicatethathehadinitiallynointentionof not paying the consideration amount and thus, cheating the complainant,andtherefore,thefindingrecordedbythedisciplinary authoritythatthechargeofcheatingandforcefullyretainingthe caragainstthepetitionerstoodproved,isdefinitelynotsupported bytheevidencebroughtonrecord.Further,inUnionofIndiaVs. GyanChandChattar,reportedin (2009)12SCC78,ithasbeen clearlyheldbytheHon'bleSupremecourtthatincasesofcriminal nature,testwhichshouldbeadoptedisproofbeyondreasonable doubt.Ithasbeenheld:
20. So far as Charge 6 i.e. asking for 1% commission for making the payment of pay allowances is concerned, the learned Single Judge has appreciated the evidence of all the 11 witnessesexaminedinthisregardandcameto the conclusion that not a single person had deposed before the enquiry officer that the respondent employee had asked any person to pay 1% commission for making payment of their allowances. It was based on hearsay statements. All the witnesses stated that this couldbethemotive/reasonfornotmakingthe payment.
21. Such a serious charge of corruption requirestobeprovedtothehiltasitbringscivil and criminal consequences upon the employee concerned.Hewouldbeliabletobeprosecuted and would also be liable to suffer severest penaltyawardableinsuchcases.Therefore,such a grave charge of quasicriminal nature was required to be proved beyond any shadow of doubt andtothehilt. Itcannotbe provedon mereprobabilities.
13. Nowcomingtothecontentionsraisedbythelearned counsel appearing for the respondent, I find that there was no charge against the petitioner having committed misconduct previouslynortheincidentsofpreviousmisconducthavebeenput tothenoticeofthepetitionereitherduringtheinquiryoratthe stageofthesecondshowcause.Itissettledlawthatiftheprevious misconduct of a delinquent employee is to be considered before imposingthepenalty,itmustbeputtothenoticeofthedelinquent employeewhichadmittedlyhasnotbeendoneinthepresentcase, andtherefore,thesupplementaryaffidavitdated04.05.2010filed bytherespondentno.4cannotbeconsideredbythisCourt. In 12 Mohd.YunusKhanVs.StateofUttarPradesh&Ors.,reportedin (2010)10SCC539,theHon'bleSupremeCourthasheldasunder, 34. The courts below and the statutory authorities failed to appreciate that if the disciplinaryauthoritywantstoconsiderthepast conduct of the employee in imposing a punishment,thedelinquentisentitledtonotice thereof and generally the chargesheet should containsuchanarticleoratleastheshouldbe informedofthesameatthestageoftheshow causenotice,beforeimposingthepunishment.
14. Onaconsiderationofthematerialsonrecord,itisquite evidentthatthereisnoevidenceexcepttheevidencegivenbythe complainant namely, Raj Kumar Verma to prove that the total consideration amount was Rs. 50,000/. The inquiry officer has recorded his opinion that allegation levelled by the complainant against the petitioner is doubtful. However, the disciplinary authoritywithoutrecordinganyreason,hasheldthatthecharges against the petitioner are proved which definitely cannot be sustainedinlaw. Neitherthedefencetakenbythepetitionerhas been discussed by the disciplinary authority nor the findings recordedbytheinquiryofficerhasbeenadvertedtoanddiscussed by the disciplinary authority. The charge against the petitioner cannotbesaidtohavebeenprovedbeyonddoubt. Further,the provision of Rule 826 of the Jharkhand Police Manual which mandates careful consideration of the defence of the delinquent officer has not been followed by the disciplinary authority. By filingasupplementarycounteraffidavit,therespondentshavetried tojustifytheorderspassedagainstthepetitionerbybringingon recordthepreviousincidenceofmisconductwhichinviewofthe settledlaw,asnoticedabove,cannotbepermitted”
15. Inviewoftheaforesaid,thewritpetitionisallowed. The impugned orders are quashed. The respondent no. 4 is directed to pass a fresh order after considering the materials on recordwithinaperiodof12weeksfromthedatewhenacopyof thisorderisproducedbeforehim.
16. Thiswritpetitionisallowedintheaforesaidterms. (ShreeChandrashekhar,J.) JharkhandHighCourtatRanchi The23rddayofAugust,2013 R.Shekhar/AFR/Cp.2