D.G.R. Patnaik, J.
1. Heard counsel for the parties.
2. The petitioner in this writ application has prayed for quashing the order dated 27.02.2004 (Annexure-9) passed by the Superintendent of Police, East Singhbhum, Jamshedpur, in the Departmental Proceeding No. 106 of 2001, whereby the petitioner was dismissed from service.
A further prayer has also been made for quashing the order dated 06.08.2004 (Annexure-10) passed by the Dy. Inspector General of Police, Singhbhum, Kolhan Range, Chaibasa, whereby the appeal preferred against the impugned order of dismissal, was rejected.
3. Facts of the petitioner's case in brief are as follows:
The petitioner was working as a Homeguard. In response to the advertisement issued by the police department, he offered his candidature for selection to the post of Constable, by filing applications not only for the selection in the district police at Jamshedpur, but also in the district police at Bhagalpur.
In the test pertaining to the district police at Jamshedpur, he participated and was selected.
In the test which was conducted at Bhagalpur, it was detected by the authorities conducting the test that, by using the admit card and photograph of the petitioner, another person had participated in the Physical Test. On the inference that the other person who had impersonated the petitioner, had committed offences punishable under Sections 418, 420 and 120-B of the Indian Penal Code with the aide and abetment of the petitioner and in furtherance of the conspiracy hatched out by the present petitioner, an F.I.R. was lodged not only against the said impersonator, but also against the present petitioner.
4. On the same allegations, a departmental proceeding was initiated against the petitioner after serving him the memorandum of charge and upon being not satisfied with the show cause replies submitted by him.
5. It appears that in the departmental proceeding, though two witnesses were sought to be examined by the prosecution, but one witness who happened to be the Informant of the F.I.R. lodged at Bhagalpur Police Station, were examined and copy of the F.I.R. was adduced in evidence. The other witness who was sought to be examined, namely, the Investigating Officer of the case, did not appear and consequently, could not be examined.
6. The Inquiry Officer, basing his inferences on the statements contained in the allegations in the F.I.R. and the corroborative statements of the informant, recorded his finding that the charge against the petitioner was proved.
7. The Disciplinary Authority upon considering the findings of the Inquiry Officer, proceeded to record the order of punishment by way of dismissal of the petitioner from service. Such order of punishment was passed after issuing a second show cause notice upon the petitioner and obtaining his explanations thereon.
8. The petitioner has challenged the impugned order of punishment on the following grounds:
(i) The findings of the Inquiry Officer are perverse and entirely based on conjectures and surmises and without application of mind.
(ii) The Disciplinary Authority has erred in failing to appreciate the fact that for the same charges, a criminal proceeding was also initiated against the petitioner and the witnesses in the criminal proceeding were the same as that in the department proceeding and under such circumstances, even as per the ratio decided in several judgments by the Supreme court and the High Courts, the departmental proceeding ought to have been stayed till the final conclusion of the criminal trial.
(iii) The Disciplinary Authority had also acted in a most mechanical manner and without application of mind and, therefore, the impugned order of dismissal is perverse.
9. Counsel for the petitioner submits that even the appellate authority had not considered the factual aspects of the petitioner's case in proper perspective and he too, had acted in a most mechanical manner by merely adopting the findings of the Inquiry Officer, although such findings were recorded entirely on the basis of conjectures and surmises.
10. Per contra, counsel for the Respondents argues in support of the impugned order of dismissal passed by the Disciplinary Authority and the impugned order passed by the Appellate Authority.
Counsel for the Respondents would submit that the petitioner cannot plead that he was not offered reasonable and adequate opportunity to defend his case and in fact, the petitioner was given adequate opportunity not only to submit his replies to the show cause notices both at the stage of initiation of the Departmental Proceeding but also before the Disciplinary Authority had proceeded to award punishment.
Learned Counsel further submits that from the facts of the case as appearing and which has been virtually admitted by the petitioner, it transpires that with the connivance of the petitioner, another person had represented him by way of impersonation on the basis of the petitioner's photograph and admit card and had participated in the Physical Test at Bhagalpur, in place of the petitioner.
11. I have heard counsel for the parties and have also gone through the inquiry report of the Inquiry Officer as also the impugned order of the Disciplinary Authority and that of the Appellate Authority.
12. From the inquiry report, it appears that the charge against the petitioner was on the basis of certain facts namely, that another person had appeared at the Physical Test at Bhagalpur, in place of the petitioner and in doing so, the other person had used the petitioner's admit card and photograph, with the petitioner's connivance.
The petitioner in his show cause replies, had sought to explain that because of the fact that he had already succeeded in the test at Jamshedpur, much prior to the date when the test was conducted at Bhagalpur and, therefore, he did not need to appear at the test at Bhagalpur and further, that he had no acquaintance or concern whatsoever with the other purported impersonator.
13. It appears that on the basis of the alleged fact that another person, by using the petitioner's photograph and admit card, had appeared at the Physical Test, an inference was drawn that the other person could not have appeared at the test by using the petitioner's photograph and admit card without the connivance of the petitioner.
14. It may be observed that in the criminal proceeding the corresponding charges were for the offences under Sections 418, 420 and 120B of the Indian Penal Code. Apparently, the charge against the petitioner in the criminal proceeding was based on the allegation of conspiracy punishable under Section 120 of the Indian Penal Code. The charge in the departmental proceeding being identical, the thrust of the charge was in respect of the alleged connivance of the petitioner with the other accused.
15. From the inquiry report and the evidences of the witnesses, it does not appear that any evidence has been adduced in respect of the charge of conspiracy with the petitioner's active connivance intentionally and dishonestly. On the contrary, an inference of the petitioner's connivance appears to have been drawn merely on the basis of conjectures and surmises and only on the ground that the other person was found using the photograph and admit card of the petitioner. No evidence has been led to confirm that the petitioner had in fact, received the admit card containing his photograph to enable his appearance at the test at Bhagalpur. No evidence has been adduced to suggest that the petitioner had in fact, knowingly and intentionally allowed the other person to use his photograph or admit card. The evidence in the above context, was certainly deficient to draw any conclusive inference about the petitioner's connivance in the acts of offence committed by the other person.
16. It is well settled that in the departmental proceeding, the Inquiry Officer performs a quasi judicial function and it is, therefore an obligation on him that he should record his findings only by application of judicial mind on the basis of the evidences brought on record. The inference of guilt cannot be drawn on presumption.
17. I am satisfied that the findings of guilt of the petitioner in respect of the charge, is based entirely on conjectures and surmises and not on any reliable and cogent evidence which could support the charge of conspiracy or connivance, against the petitioner. This is a case, in my opinion, which reflects non-application of mind and is against the weight of evidence on record.
18. From the impugned order of the Disciplinary Authority as also that of the Appellate Authority, I find that both the authorities have merely adopted the findings of the Inquiry Officer without proper application of mind and relying more on conjectures and surmises to draw the inference of guilt against the petitioner.
19. In the light of the above facts and circumstances and the discussions made above, I find merit in this application. As such, this application is allowed. The impugned order (Annexure-9), passed by the Disciplinary Authority, as also the impugned order (Annexure-10), passed by the Appellate Authority, are hereby set aside. The petitioner being entitled to re-instatement in service, the concerned authorities of the Respondents shall pass an appropriate order for the petitioner's re-instatement in service, within one month from the date of receipt/production of a copy of this order.
20. However, in absence of any specific pleading that the petitioner was not gainfully employed during the period commencing from the date of termination of his service, there shall be no order for payment of back wages, although such period shall be treated as period spent on duty for the purposes of computing his pension and other retiral benefits.
Let a copy of this order be given to the counsel for the Respondents.