Baliram Prasad Vs. State of Jharkhand - Court Judgment

SooperKanoon Citationsooperkanoon.com/63466
CourtJharkhand High Court
Decided OnAug-06-2015
AppellantBaliram Prasad
RespondentState of Jharkhand
Excerpt:
in the high court of jharkhand at ranchi w.p.(s) no. 5254 of 2006 --- baliram prasad son of late ram khelawan ram resident of aama, p.o. dhobha bazar, police station bhojpur arrah muffasil, district bhojpur presently posted at dumka sadar court … … petitioner versus 1. state of jharkhand 2. director general & inspector general of police, jharkhand, ranchi 3. dy. inspector general of police, dumka 4. superintendent of police, dumka … … respondents --- coram : hon'ble mr. justice rongon mukhopadhyay --- for the petitioner : mr. vaibhav kumar, advocate for the respondents : mr. prabhat singh, j.c. to a.a.g --- c.a.v. on 16/04/2015 pronounced on 06/07/2015 in this writ application, the petitioner has prayed for quashing the order as contained in memo no. 2613 passed by the respondent no. 4 whereby and whereunder, punishment of reduction of time scale in pay to the minimum basic pay of rs. 3050/- for a period of two years has been inflicted upon the petitioner. the petitioner has also prayed for quashing the order dated 13.05.2006 as contained in memo no. 691 by which the punishment inflicted upon the petitioner by the disciplinary authority has been upheld.2. the petitioner was appointed as police constable on 20.09.1979 in the district of nalanda police force. while the petitioner was posted at hansdiah police station, a written complaint was made against the petitioner and another person by the officer in-charge of hansdiah police station with respect to illegal collection of money from the truck owners. pursuant to the said complaint, the petitioner was put under suspension and charge-sheet dated 02.12.2004 was submitted to him and he was directed to file a show cause failing which departmental proceeding would be initiated against the petitioner. show cause was submitted by the petitioner but on being dissatisfied with the explanation given by the petitioner another charge-sheet was issued by the respondent no. 3 wherein the petitioner was intimated that a departmental proceeding has been initiated against him. in course of -2- the departmental proceeding, the enquiry officer found the charges levelled against the petitioner to be proved and, thereafter, respondent no. 4 being disciplinary authority passed an order of punishment against the petitioner as contained in memo no. 261 dated 16.12.2005 by inflicting the punishment of reduction in time scale of pay to that of minimum basic pay of rs. 3050/- for a period of two years. the appeal which was preferred by the petitioner against the order of the disciplinary authority was rejected by the respondent no. 3 being the appellate authority vide order as contained in memo no. 691 dated 13.05.2006. a memorial was preferred by the petitioner against the order passed by the appellate authority but the petitioner was intimated that the same is not maintainable. having exhausted all his remedies under law the petitioner had approached this court by way of this writ application challenging the order of punishment and the subsequent dismissal of appeal.3. heard mr. vaibhav kumar, learned counsel appearing on behalf of the petitioner and mr. prabhat singh, learned j.c. to a.a.g.4. mr. vaibhav kumar, learned counsel for the petitioner has submitted that the entire disciplinary proceeding has been held by violating the basic norms and procedures. it has been submitted that a preliminary enquiry was also conducted against the petitioner by the officer in-charge, hansdiah police station and in the departmental enquiry it was the officer in-charge, hansdiah police station who had deposed as a witness. it has further been submitted that the petitioner was not aware of the preliminary enquiry as everything was kept under wraps in contravention to the principles of natural justice. the enquiry report was never submitted to the petitioner which caused a great prejudice to him as even prior to the order of punishment no show cause notice was served upon the petitioner. it has further been submitted that the inquiry officer instead of proving the case of the petitioner shifted the entire burden on the petitioner which view was also reiterated in the order of the disciplinary authority. it has further been submitted that since in terms of rule 828 of the jharkhand -3- police manual, the punishment imposed upon the petitioner is a major punishment as such prior to infliction of a major punishment it was incumbent upon the disciplinary authority to issue a show cause to the petitioner. it has further been submitted by the learned counsel for the petitioner by referring to annexure – 4 to the writ application which contains a representation of the petitioner requesting the enquiry officer to let him examine some residents within the jurisdiction of hansdiah police station.5. mr. prabhat singh, learned j.c. to a.a.g, on the other hand, has submitted that in the disciplinary proceeding the necessary procedures have duly been followed. it has further been submitted that there is very little scope for judicial review in a departmental proceeding. learned j.c. to a.a.g. further submits that non-supply of the enquiry report has not prejudiced the petitioner as no grounds have been submitted by the petitioner either before the disciplinary authority or before this court as to how prejudice has been caused to the petitioner.6. the allegations which were levelled against the petitioner was enquired into by the officer in-charge, hansdiah police station and a written report was also submitted by him as contained in memo no. 910/04 dated 08.11.2004. admittedly the preliminary enquiry which was conducted by the officer in-charge, hansdiah police station was left unknown to the petitioner as the petitioner was never directed to participate in the said enquiry nor a copy of the enquiry report was submitted to the petitioner. the officer in-charge, hansdiah police station was examined in the departmental proceeding when the said departmental proceeding was initiated at the instance of the officer in- charge, hansdiah police station.7. in this context reference may be made to the case of nirmala j.jhala v. state of gujarat and another reported in (2013) 4 scc301wherein it was held as follows:-“45. in view of the above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine -4- the persons examined in such inquiry is not given. using such evidence would be violative of the principles of natural justice.”8. the enquiry officer had committed gross illegality in taking on records the findings of the officer in-charge, hansdiah police station with respect to the preliminary enquiry as the petitioner was never in any form associated with the said enquiry.9. the enquiry would reveal that the same was conducted in a perfunctory manner as would be evident from the findings of the inquiry officer while finding the charges proved against the petitioner on the ground that the petitioner could not prove himself innocent either by producing witnesses or by making out a case of exoneration. the enquiry officer had thus shifted the burden of proof upon the petitioner in absence of any proof with respect to the involvement of the petitioner in forcibly collecting money from the truck owners. it was for the department which was to bring home the charge levelled against the petitioner but this fact has been totally ignored by the enquiry officer.10. in this context reference may be made to the case of m. v. bijlani v. union of india and others reported in (2006) 5 scc88wherein it was held as follows:-“25. it is true that the jurisdiction of the court in judicial review is limited. disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. while doing so, he cannot take into consideration any irrelevant fact. he cannot refuse to consider the relevant facts. he cannot shift the burden of proof. he cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. he cannot enquire into the allegations with which the delinquent officer had not been charged with. “ -5- 11. in order to find a person guilty in a departmental proceeding onus lies on the department to prove the charge. the department or the enquiry officer cannot be permitted to shift the onus on the delinquent employee for proving his innocence. as has been discussed above, the enquiry report itself smacks of arbitrariness since without there being any concrete proof with respect to the involvement of the petitioner in the collection of money from the truck owners only on the basis of purported preliminary enquiry to which the petitioner never participated and by shifting the burden of proof upon the petitioner he has been found guilty in the departmental proceeding. the disciplinary authority while inflicting the order of punishment upon the petitioner as contained in memo no. 2612 dated 16.12.2005 has agreed with the findings of the enquiry report and has also shifted the burden of proof upon the petitioner. the order of disciplinary authority shows total non-application of mind as although the petitioner was inflicted with the major punishment but prior to inflicting the same no show cause notice was ever given to the petitioner. moreover, the enquiry report was also not served upon the petitioner and the statement in the writ petition in that respect has not been controverted by the respondents in their counter affidavit.12. mr. prabhat singh, learned j.c. to a.a.g has referred to the case of state bank of bikaner and jaipur v. nemi chand nalwaya reported in (2011) 4 scc584to augment his argument that there cannot be any judicial review with respect to the finding in the enquiry report and the relevant portion of the judgment is quoted hereinbelow:-“7. it is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. if the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. therefore, courts will not interfere with finds of fact recorded in departmental enquiries, except where such findings are based on no evidence -6- or where they are clearly perverse. the test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. the courts will however interfere with the findings in disciplinary matter, 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. (vide b.c. chaturvedi v. union of india, union of india v. g. ganayutham, bank of india v. degala suryanarayana and high court of judicature at bombay v. shashikant s. patil.)”13. since the finding of the enquiry report is perverse and is in violation of principle of natural justice and since the burden of proof had been shifted upon the petitioner the judgment referred to by the learned j.c. to a.a.g. is not applicable in the facts and circumstances of the present case.14. in response to the contention of the petitioner that the petitioner was never supplied with the enquiry report reference has been made by the learned j.c. to a.a.g. to the case of burdwan central cooperative bank limited and another v. asim chatterjee and others reported in (2012) 2 scc641wherein it was held as follows:-“19. however, there is one aspect of the matter which cannot be ignored. in b. karunakar case despite holding that non-supply of a copy of the report of the enquiry officer to the employee facing a disciplinary proceeding, amounts to denial of natural justice, in the later part of the judgment it was observed that whether in fact, prejudice has been caused to the employee on account of non- furnishing of a copy of the enquiry report has to be considered in the facts of each case. it was observed that where the furnishing of the enquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the employee concerned to resume his duties and to get all consequential benefits.20. it was also observed in b. karunakar case that in the event the enquiry officer's report had not been furnished to the employee in the disciplinary proceedings, a copy of the same should be made available to him to enable him to explain as to what prejudice had been caused to him on account of non-supply of the report. it was held that the order -7- of punishment should not be set aside mechanically on the ground that the copy of the enquiry report had not ben supplied to the employee.”15. this judgment has been cited by the learned j.c. to a. a.g. to substantiate his argument that non-supply of the enquiry report has not caused any prejudice to the petitioner.16. since the enquiry itself is perverse and nonest in the eye of law in view of the reliance on a preliminary enquiry held behind the back of the petitioner and since the burden of proof of his innocence have been shifted upon the petitioner and since the order of the disciplinary authority itself shows total non-application of mind as the same is cryptic in such circumstances the question as to whether prejudice was caused for non-supply of the enquiry report to the petitioner is left upon.17. in view of the above findings since it has been held that the enquiry itself is perverse and has not been conducted in accordance with law and in violation of the principle of natural justice which has also not been considered by the appellate authority and, therefore, as a consequence of the finding arrived at the order dated 16.12.2005 as contained in memo no. 2612 passed by the respondent no. 4 as also the order dated 13.05.2006 as contained in memo no. 691 passed by the respondent no. 3 dismissing the appeal is, hereby, quashed and set aside. since on account of the setting aside the order of punishment, the petitioner's entitlement to all the consequential benefits shall be considered by the respondent no. 4 who is directed to pass necessary order on the same within a period of two months from the date of receipt/production of a copy of this order.18. this writ application is, accordingly, disposed of. (r. mukhopadhyay, j.) umesh/-
Judgment:

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5254 of 2006 --- Baliram Prasad son of Late Ram Khelawan Ram resident of Aama, P.O. Dhobha Bazar, Police Station Bhojpur Arrah Muffasil, District Bhojpur presently posted at Dumka Sadar Court … … Petitioner Versus 1. State of Jharkhand 2. Director General & Inspector General of Police, Jharkhand, Ranchi 3. Dy. Inspector General of Police, Dumka 4. Superintendent of Police, Dumka … … Respondents --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioner : Mr. Vaibhav Kumar, Advocate For the Respondents : Mr. Prabhat Singh, J.

C. to A.A.G --- C.A.V. On 16/04/2015 Pronounced on 06/07/2015 In this writ application, the petitioner has prayed for quashing the order as contained in Memo No. 2613 passed by the Respondent No. 4 whereby and whereunder, punishment of reduction of time scale in pay to the minimum basic pay of Rs. 3050/- for a period of two years has been inflicted upon the petitioner. The petitioner has also prayed for quashing the order dated 13.05.2006 as contained in Memo No. 691 by which the punishment inflicted upon the petitioner by the disciplinary authority has been upheld.

2. The petitioner was appointed as Police Constable on 20.09.1979 in the District of Nalanda Police Force. While the petitioner was posted at Hansdiah Police Station, a written complaint was made against the petitioner and another person by the Officer In-charge of Hansdiah Police Station with respect to illegal collection of money from the truck owners. Pursuant to the said complaint, the petitioner was put under suspension and charge-sheet dated 02.12.2004 was submitted to him and he was directed to file a show cause failing which departmental proceeding would be initiated against the petitioner. Show cause was submitted by the petitioner but on being dissatisfied with the explanation given by the petitioner another charge-sheet was issued by the respondent No. 3 wherein the petitioner was intimated that a departmental proceeding has been initiated against him. In course of -2- the departmental proceeding, the Enquiry Officer found the charges levelled against the petitioner to be proved and, thereafter, respondent no. 4 being disciplinary authority passed an order of punishment against the petitioner as contained in Memo No. 261 dated 16.12.2005 by inflicting the punishment of reduction in time scale of pay to that of minimum basic pay of Rs. 3050/- for a period of two years. The appeal which was preferred by the petitioner against the order of the disciplinary authority was rejected by the respondent no. 3 being the appellate authority vide order as contained in Memo No. 691 dated 13.05.2006. A memorial was preferred by the petitioner against the order passed by the appellate authority but the petitioner was intimated that the same is not maintainable. Having exhausted all his remedies under law the petitioner had approached this Court by way of this writ application challenging the order of punishment and the subsequent dismissal of appeal.

3. Heard Mr. Vaibhav Kumar, learned counsel appearing on behalf of the petitioner and Mr. Prabhat Singh, learned J.

C. to A.A.G.

4. Mr. Vaibhav Kumar, learned counsel for the petitioner has submitted that the entire disciplinary proceeding has been held by violating the basic norms and procedures. It has been submitted that a preliminary enquiry was also conducted against the petitioner by the Officer In-charge, Hansdiah Police Station and in the departmental enquiry it was the Officer In-charge, Hansdiah Police Station who had deposed as a witness. It has further been submitted that the petitioner was not aware of the preliminary enquiry as everything was kept under wraps in contravention to the principles of natural justice. The enquiry report was never submitted to the petitioner which caused a great prejudice to him as even prior to the order of punishment no show cause notice was served upon the petitioner. It has further been submitted that the Inquiry Officer instead of proving the case of the petitioner shifted the entire burden on the petitioner which view was also reiterated in the order of the disciplinary authority. It has further been submitted that since in terms of Rule 828 of the Jharkhand -3- Police Manual, the punishment imposed upon the petitioner is a major punishment as such prior to infliction of a major punishment it was incumbent upon the disciplinary authority to issue a show cause to the petitioner. It has further been submitted by the learned counsel for the petitioner by referring to Annexure – 4 to the writ application which contains a representation of the petitioner requesting the Enquiry Officer to let him examine some residents within the jurisdiction of Hansdiah Police Station.

5. Mr. Prabhat Singh, learned J.

C. to A.A.G, on the other hand, has submitted that in the disciplinary proceeding the necessary procedures have duly been followed. It has further been submitted that there is very little scope for judicial review in a departmental proceeding. Learned J.

C. to A.A.G. further submits that non-supply of the enquiry report has not prejudiced the petitioner as no grounds have been submitted by the petitioner either before the disciplinary authority or before this Court as to how prejudice has been caused to the petitioner.

6. The allegations which were levelled against the petitioner was enquired into by the Officer In-charge, Hansdiah Police Station and a written report was also submitted by him as contained in Memo No. 910/04 dated 08.11.2004. Admittedly the preliminary enquiry which was conducted by the Officer In-charge, Hansdiah Police Station was left unknown to the petitioner as the petitioner was never directed to participate in the said enquiry nor a copy of the enquiry report was submitted to the petitioner. The Officer In-charge, Hansdiah Police Station was examined in the departmental proceeding when the said departmental proceeding was initiated at the instance of the Officer In- charge, Hansdiah Police Station.

7. In this context reference may be made to the case of Nirmala J.

Jhala v. State of Gujarat and another reported in (2013) 4 SCC301wherein it was held as follows:-

“45. In view of the above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine -4- the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice.”

8. The Enquiry Officer had committed gross illegality in taking on records the findings of the Officer In-charge, Hansdiah Police Station with respect to the preliminary enquiry as the petitioner was never in any form associated with the said enquiry.

9. The enquiry would reveal that the same was conducted in a perfunctory manner as would be evident from the findings of the Inquiry Officer while finding the charges proved against the petitioner on the ground that the petitioner could not prove himself innocent either by producing witnesses or by making out a case of exoneration. The Enquiry Officer had thus shifted the burden of proof upon the petitioner in absence of any proof with respect to the involvement of the petitioner in forcibly collecting money from the truck owners. It was for the department which was to bring home the charge levelled against the petitioner but this fact has been totally ignored by the Enquiry Officer.

10. In this context reference may be made to the case of M. V. Bijlani v. Union of India and others reported in (2006) 5 SCC88wherein it was held as follows:-

“25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with. “ -5- 11. In order to find a person guilty in a departmental proceeding onus lies on the department to prove the charge. The department or the Enquiry Officer cannot be permitted to shift the onus on the delinquent employee for proving his innocence. As has been discussed above, the enquiry report itself smacks of arbitrariness since without there being any concrete proof with respect to the involvement of the petitioner in the collection of money from the truck owners only on the basis of purported preliminary enquiry to which the petitioner never participated and by shifting the burden of proof upon the petitioner he has been found guilty in the departmental proceeding. The disciplinary authority while inflicting the order of punishment upon the petitioner as contained in Memo No. 2612 dated 16.12.2005 has agreed with the findings of the enquiry report and has also shifted the burden of proof upon the petitioner. The order of disciplinary authority shows total non-application of mind as although the petitioner was inflicted with the major punishment but prior to inflicting the same no show cause notice was ever given to the petitioner. Moreover, the enquiry report was also not served upon the petitioner and the statement in the writ petition in that respect has not been controverted by the respondents in their counter affidavit.

12. Mr. Prabhat Singh, learned J.

C. to A.A.G has referred to the case of State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya reported in (2011) 4 SCC584to augment his argument that there cannot be any judicial review with respect to the finding in the enquiry report and the relevant portion of the judgment is quoted hereinbelow:-

“7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with finds of fact recorded in departmental enquiries, except where such findings are based on no evidence -6- or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matter, 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. (Vide B.C. Chaturvedi v. Union of India, Union of India v. G. Ganayutham, Bank of India v. Degala Suryanarayana and High Court of Judicature at Bombay v. Shashikant S. Patil.)”

13. Since the finding of the enquiry report is perverse and is in violation of principle of natural justice and since the burden of proof had been shifted upon the petitioner the judgment referred to by the learned J.

C. to A.A.G. is not applicable in the facts and circumstances of the present case.

14. In response to the contention of the petitioner that the petitioner was never supplied with the enquiry report reference has been made by the learned J.

C. to A.A.G. to the case of Burdwan Central Cooperative Bank Limited and another v. Asim Chatterjee and Others reported in (2012) 2 SCC641wherein it was held as follows:-

“19. However, there is one aspect of the matter which cannot be ignored. In B. Karunakar case despite holding that non-supply of a copy of the report of the enquiry officer to the employee facing a disciplinary proceeding, amounts to denial of natural justice, in the later part of the judgment it was observed that whether in fact, prejudice has been caused to the employee on account of non- furnishing of a copy of the enquiry report has to be considered in the facts of each case. It was observed that where the furnishing of the enquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the employee concerned to resume his duties and to get all consequential benefits.

20. It was also observed in B. Karunakar case that in the event the enquiry officer's report had not been furnished to the employee in the disciplinary proceedings, a copy of the same should be made available to him to enable him to explain as to what prejudice had been caused to him on account of non-supply of the report. It was held that the order -7- of punishment should not be set aside mechanically on the ground that the copy of the enquiry report had not ben supplied to the employee.”

15. This judgment has been cited by the learned J.C. to A. A.G. to substantiate his argument that non-supply of the enquiry report has not caused any prejudice to the petitioner.

16. Since the enquiry itself is perverse and nonest in the eye of law in view of the reliance on a preliminary enquiry held behind the back of the petitioner and since the burden of proof of his innocence have been shifted upon the petitioner and since the order of the disciplinary authority itself shows total non-application of mind as the same is cryptic in such circumstances the question as to whether prejudice was caused for non-supply of the enquiry report to the petitioner is left upon.

17. In view of the above findings since it has been held that the enquiry itself is perverse and has not been conducted in accordance with law and in violation of the principle of natural justice which has also not been considered by the appellate authority and, therefore, as a consequence of the finding arrived at the order dated 16.12.2005 as contained in Memo No. 2612 passed by the respondent no. 4 as also the order dated 13.05.2006 as contained in Memo No. 691 passed by the respondent no. 3 dismissing the appeal is, hereby, quashed and set aside. Since on account of the setting aside the order of punishment, the petitioner's entitlement to all the consequential benefits shall be considered by the respondent no. 4 who is directed to pass necessary order on the same within a period of two months from the date of receipt/production of a copy of this order.

18. This writ application is, accordingly, disposed of. (R. Mukhopadhyay, J.) Umesh/-