Om Prakash Singh vs The State Of Jharkhand Through The ...
2021 Latest Caselaw 3175 Jhar

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No. 171 of 2019
        Om Prakash Singh                             ..... Petitioner
                                    Versus
        1.The State of Jharkhand through the Principal
          Secretary, Ministry of Home, office at Project Building,
          P.O. and P.S.-Dhurwa, District-Ranchi. (Jharkhand)
        2.The Home Secretary, Prison, Jharkhand, Office at
          Project Building, P.O. and P.S. Dhurwa,
          District-Ranchi.(Jharkhand)
        3.The Deputy Inspector General, P.O. and P.S.
          Dhurwa, District-Ranchi, Jharkhand
        4.The Superintendent of Police, P.O and P.S
           Dhurwa, District Ranchi, Jharkhand       .....  Respondents
                                    ---------

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

---------

For the Petitioner : Mr. Prashant Pallav, Advocate For the Respondents : Mr. M.K. Dubey, Advocate

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19/ 31.08.2021 Heard through V.C.

2. The instant writ application has been preferred by

the petitioner praying therein for quashing of the order dated

18.01.2018, whereby the petitioner has been inflicted with

punishment of compulsory retirement. The petitioner has

further assailed the order dated 23.08.2018, passed by the

appellate authority, whereby the appeal preferred by the

petitioner has been dismissed and the order of compulsory

retirement has been sustained.

3. The fact of the case as disclosed in the instant writ

application is that this petitioner along with one Parmeshwar

Singh stood as bailer of one Akhilesh Singh. Thereafter, the

Bail of Akhilesh Singh was cancelled; since he did not

surrender before the concerned Court. As a result, the Court

issued notice upon the petitioner and Parmeshwar Singh

directing them to ensure the attendance of Akhilesh Singh.

Subsequently, the Court of learned Additional Sessions Judge-I,

Jamshedpur vide order dated 21st of February 2017 in ST Case

No.445 of 2004 directed this petitioner and Parmeshwar Singh

to deposit a sum of Rs.50,000/- each in terms of the surety

provided by them and the bail bond furnished. Petitioner

deposited Rs.50,000/- and also submitted that he did not know

Akhilesh Singh (accused) personally when he stood as surety.

Subsequently, the Division Bench of this Court

while hearing the application preferred by the convict-Akhilesh

Singh observed that the petitioner and the other person stood as

surety despite not knowing the convict and thus has committed

serious misconduct and directed the department to proceed

against the petitioner and the other surety. Pursuant thereto; the

Departmental proceedings were initiated and charges were

framed as against both the persons and finally, the petitioner

was imposed punishment of compulsory retirement vide memo

bearing No. 189 dated 18th of January 2018; while the other

employee who stood as surety was inflicted lesser punishment.

4. Mr. Prashant Pallav, learned counsel appearing for

the petitioner submits that the Division Bench of this Court in

its order dated 6th March, 2017 passed in Cr. Appeal (D.B.)

No.280 of 2006 had directed the Director General of Police,

Jharkhand to initiate departmental proceedings against the

sureties as to why they became sureties without knowing the

convict, treating it to be serious misconduct on their part.

He further submits that the departmental authority

went one step ahead from the observation/direction of the

Division Bench and issued charge sheet against the petitioner

which is quoted herein below:

"ojh; iqfyl v/kh{kd] iwohZ flagHkwwe] te"ksniqj dk dk;kZy; i=kad&[email protected] xks0] fnukad& 11- 03-17 ds )kjk lwfpr fd;s fd [email protected] 539 vkseizdk"k flag] fo0 "kk0] >kj[k.M] jkWaph tks dq[;kr vijk/kdehZ vf[kys"k flag ds tekurnkj cus] ftlds dkj.k dq[;kr vijk/kdehZ vf[kys"k flag dks ekuuh; mPp U;k;ky;] >kj[k.M] jkWp as h ls fu;fer tekur izkIr dj tsy ls ckgj jgdj te"ksniqj U;k;ky; ifjlj esa misUnz flag ds gR;k lfgr vU; vkijkf/kd ?kVuk dkfjr djk;sA [email protected] 539 vkseizdk"k flag us ekuuh; U;k;ky; esa "kiFk&i= nk;j fd;s fd ;s dq[;kr vijk/kdehZ vf[kys"k flag dks futh :i ls ugha tkurs gS tcfd ;s dq[;kr vijk/kdehZ vf[kys"k flag ds firk Jh pUnzxIq r flag tks ljdkjh lsod] lfpo] >kj[k.M iqfyl ,lksfl,"ku esa iqfyl Fks dks tkurs gw, tekurnkj cus FksA blls Li'V gS fd vijk/kdehZ vf[kys"k flag ds }kjk dkfjr vijkf/kd ?kVuk dks c<kok nsus esa tekurnkj [email protected] 539 vkseizdk"k flag ennxkj jgs gSa] ftlls /kkjk&302 Hkk0 n0 fo0 ,oa 27 vkElZ ,DV esa ltk;kQzrk dq[;kr vijk/kdehZ vf[kys"k flag] ftls ;s futh :i ls ugha tkurs gS dk tekurnkj cus] ftlds dkj.k vf[kys"k flag tekur izkIr dj tsy ls ckgj jgdj te"ksniqj U;k;ky; ifjlj esa misUnz flag ds gR;k lfgr vU; vkijkf/kd ?kVuk dkfjr djus esa lQy jgs gSaAdjk;sA buds mDr d`R; ls iqfq yl foHkkx dh Nfo /kwfey gwbZ gS vkSj budk vkpj.k Hkh lafnX/k izrhr gksrk gSaA bl vkjksi esa bUgsa fo0 "kk0 vkns"k la0&[email protected] ds )kjk rRdky izHkko fnukad& 14-03-17 ls fuyafcr fd;k x;k gSA budk ;g d`R; ?kksj vuq"kklughurk] dRrZO;ghurk] euekusiu ,oa lafnX/k vkpj.k gksus dk gksus dk ?kksrd gSA"

While referring to the aforesaid charge, Mr. Pallav

submits that the charge framed in the departmental proceeding

is completely contrary to the observation made by the Division

Bench, inasmuch as, the Division Bench in its order has

categorically stated to initiate appropriate departmental

proceeding against both the sureties as to why they became

sureties without knowing the convict. However, it is not the

case of the Department that the petitioner did not knew the

convict; rather the case of the Department is that the petitioner

did not know the convict personally.

5. He further submits that though two persons were

proceeded departmentally as both of them stood as sureties

however, initially the other person was punished for a lesser

punishment. Thereafter, pursuant to the order dated 6th July,

2021 passed by this Court, a supplementary counter affidavit

has been filed in which the State has stated that subsequently

the punishment of the other surety has also been converted into

compulsory retirement.

Mr. Pallav, strenuously argued that this decision of

the State in the case of other person was just to improve their

case because admittedly; initially the other delinquent was

punished for a lower punishment.

6. Learned counsel reiterated that the direction passed

in the Criminal Appeal (DB) No.280 of 2006 was very specific

"as to why they became sureties without knowing the

convict"...

This specific finding in the order of Criminal Appeal

(DB) No.280/2006 transpires that the Hon'ble Court was of the

view that if the petitioner and the other person did not know the

convict; then why they became sureties but the fact remains

otherwise. The petitioner knew the convict-Akhilesh Singh as

he was son of his father's friend who was also in Police

department and he believed that becoming a bailer of any

convict should not be misconduct when he knew him.

Further, there was a direction of the Division Bench

itself while granting the Bail to the convict in the same case

that the surety should be Government servant.

7. He further submits that as per Section 446 of the

Criminal Procedure Code there is a specific provision with

respect to forfeitures of bail bond and for that the petitioner has

already been punished as his bail bond has been forfeited.

He further referred the judgment passed in the case

of Mohammed Kunju & Anr. Vs. State of Karnataka reported

in (1999) 8 SCC 660 wherein the Hon'ble Apex Court has laid

down the law with regard to the scope of a bailer and it has

been held that the responsibility of a bailer is only till the bond

and not thereafter and making the bailer permanently liable

tantamount to violation of his right under Article 21.

He further submits that in the case in hand the

petitioner in terms of the order of learned trial court deposited

the amount of surety of Rs.50,000/- and no provision of law

has been flouted by this petitioner. Since there was a specific

direction by the Hon'ble Court while granting Bail to the

convict that both the bailers has to be Government servant and

since he was knowing the convict as son of his father's friend

who was also a police personnel and that is the reason, he

became surety.

8. Learned counsel contended that the entire enquiry

proceeding has been conducted and proceeded with a

predetermined mind to hold the petitioner guilty for a serious

misconduct whereas the intention of the Hon'ble Court was

never like that. The charge itself is against the direction of

Hon'ble Court, inasmuch as, the Hon'ble Court has directed

that when the sureties did not know the accused; why they

became sureties. However, the charge as quoted herein above

clearly transpires that when the petitioner did not know the

accused personally, why he became surety.

9. Mr. Pallav, also made an alternative argument,

inasmuch as, admittedly the petitioner became surety after the

direction of this Court though he was not knowing the accused

personally, as such, for that conduct; punishment of

compulsory retirement is highly excessive and does not

commensurate with the charge committed by the petitioner. He

reiterated that the only misconduct, even admitted to be a

misconduct, is that he became surety of a convict who

committed crime after getting bail and does not appeared

before the Court and for that his bail amount has already been

forfeited; as such, there should not be double punishment for

one allegation against the petitioner.

In this view of the matter the impugned order of

compulsory retirement deserves to be quashed and set aside

and the disciplinary authority should revisit the matter and pass

an appropriate order on the quantum of punishment.

10. Mr. Mohan Kumar Dubey, learned counsel for the

respondent State submits that they have complied the order of

this Court passed in the Criminal Appeal, whereby the Division

Bench of this Court has directed to hold a departmental

proceeding for serious misconduct and therefore the petitioner

has been punished for compulsory retirement.

He further submits that so far as the other employee

is concerned; his punishment has also been converted from

lowering of two stage of scale to compulsory retirement.

However, Mr. Dubey could not substantiate as to

why this conversion of punishment of the other employee has

been done during the pendency of this case. This clearly goes

to show that the respondent wanted to improve their case

because in the counter affidavit they have admitted at

paragraph no.25 that though the charge against both the

delinquents are identical in nature; however, the other

delinquent was given the lenient punishment of three black

marks, whereas the petitioner has been punished for

compulsory retirement.

Mr. Dubey further submits that when this difference

was noticed by the Superintendent of Police, Special Branch,

he recommended vide its letter dated 26.03.2019 to the DIG,

Hazaribagh to review the punishment and finally, vide order

dated 17th March, 2020 his order was converted into

compulsory retirement. As such, it is not a case of

discrimination and the respondents have acted pursuant to the

order of this Court wherein it was directed to hold the

petitioner and other employee guilty for serious misconduct.

However, in any view of the matter, now the ground

of discrimination is not available to the petitioner, inasmuch as,

the other delinquent has also been punished with compulsory

retirement.

11. Having heard learned counsel for the parties and

after going through the documents available on record it

appears that pursuant to the order dated 24.01.2014 passed in

Criminal Appeal (DB) No.280 of 2006, this Court while

granting bail to one convict, namely, Akhilesh Singh directed

that the bailer must be government servant of the State of

Jharkhand.

It further appears that this petitioner and the other

employee stood as sureties. However, since the said convict did

not comply with the direction of the learned trial court and

committed a crime; as such, the surety given by the petitioner

and other employee was forfeited and further in the said

Criminal Appeal (DB) No.280 of 2006 vide order dated

06.03.2017 the Division Bench directed to hold enquiry against

the sureties. For brevity, relevant part of the order 06.03.2017 is

quoted herein below:

         "         We further direct the Director General of

         Police,   Jharkhand     to   initiate   appropriate

departmental proceedings against both the sureties,

who are Parmeshwar Singh, working as A.S.I. in

Jharkhand Police and Om Prakash Singh, working

as Constable in Jharkhand Police, as to why they

became sureties without knowing the convict,

treating it to be a serious misconduct on their part.

This departmental proceeding shall be in addition to

the action taken against these sureties by the Court

below in the judicial side.

Let a copy of this order be given to the learned counsel for the State for communication to the Director General of Police, Jharkhand, for the needful.

Let this appeal be again listed on 10th of April, 2017, by which date, we should be informed by the Director General of Police, Jharkhand, about the action taken against both the police officials and in the meantime, by that date, let a report be also called from the Court below, whether the production / surrender of the appellant in the Court below could be secured or not."

12. Pursuant thereto; charge was framed which clearly

transpires that the petitioner though not knowing the said

convict personally and due to this act of the petitioner he

became helpful in furtherance of the crime committed by the

main convict-Akhilesh Singh.

13. At this stage, it is pertinent to mention here that this

petitioner became bailer as there was a High Court's direction

that both the bailers should be Government servant. Further, in

Criminal Appeal (DB) No.280 of 2006, this Court directed the

Director General of Police to initiate departmental proceedings

against both the sureties as to why they become sureties

without knowing the convict, treating it to be serious

misconduct. However, there is no charge that the petitioner did

not know the convict; rather the charge is that the petitioner

does not know him personally which was never the intent of

the direction. Further, there is no charge of involvement that

intentionally the petitioner became Bailer in order to help the

convict in furtherance of such crime which was committed by

him.

In other words, since there was a direction of this

Court that the surety should be Government servant and since

the petitioner knew the said convict as son of his father's friend

who was also in police department; he stood as bailer.

However, since the condition was not fulfilled by the convict;

as per Section 446 of Criminal Procedure Code, the Bail Bond

of the petitioner was forfeited.

14. It is not a case of the Department and also there is

no finding to that effect that the petitioner is involved in

furtherance of the crime committed by the said convict; rather

the only charge against the petitioner is that since he became

surety of a dreaded criminal and the said convict without

complying the condition of bail has further committed the

crime; as such, the petitioner became helpful for the convict in

furtherance of the crime. Thus, the punishment of "Compulsory

Retirement" appears to be harsh and excessive, inasmuch as,

the main charge against the petitioner is that why he became a

bailer without knowing the convict personally.

Even otherwise, it appears that the entire

departmental proceeding was conducted with a pre determined

mindset, inasmuch as, the authorities had proceeded in the

proceeding with pre conceived notion that the action on part of

the petitioner amounts to grave misconduct and serious

dereliction of duty.

15. At this stage, it is pertinent to mention here that now

the law is no more res integra that the departmental proceeding

should be conducted in an independent manner and the enquiry

officer should not get prejudiced by any observation and

outside resources. However, as stated hereinabove; from the

entire departmental proceeding it appears that the authorities

had conducted it with a predetermined mindset.

16. At this stage, it is also relevant to state the judgment

of Madras High Court rendered in the case of Prakash & Anr.

Vs. Deepak Kumar & Anr. reported in 2018 0 Supreme (Mad)

4434 relying upon the decision of the Hon'ble Apex Court in

the case of Mohammed Kunju & Anr. Vs. State of Karnataka

reported in (1999) 8 SCC 660 wherein it has been held that the

responsibility of the bailer is only till the bond and not

thereafter, and as such, making the bailer permanently liable

tantamount to violation of his right under Article 21. In the

instant case also the surety amount of Rs.50,000/- submitted by

the bailer has already been forfeited.

17. Learned counsel for the State has argued that since

there was a direction of this Court to initiate proceeding of

serious misconduct and that is the reason the proceeding has

been initiated. This argument itself shows that the authorities

were having a predetermined notion to punish the petitioner.

The intention of the High Court was never as such and that is

the reason it has been directed to hold an enquiry of serious

misconduct. It never means that petitioner has to be punished

without any such reason.

18. The only finding given by the authorities is that the

petitioner became bailer and since he became surety of a

dreaded criminal and the said convict without complying the

condition of bail has further committed the crime; as such, the

petitioner became helpful for the convict in furtherance of the

crime. It is an admitted fact that the petitioner became Bailer

for which the petitioner has already been punished under the

specific provision of the Cr.P.C, whereby Rs.50,000/- has been

forfeited.

19. At the cost of repetition, the charge itself is beyond

the direction of the High Court order, inasmuch as, the Division

Bench has directed to initiate a departmental proceeding as to

why the petitioner has become surety without knowing the

convict; whereas the charge itself speaks that petitioner was

knowing the accused, however, he was not knowing him

personally.

Further, there is no finding to the effect that the

petitioner was involved in furtherance of the crime committed

by the said convict; rather the only finding against the

petitioner is that since he became surety of a dreaded criminal

and the said convict without complying the condition of bail

has further committed the crime; as such, the petitioner is held

guilty for arbitrariness, indiscipline, dereliction of duty and for

suspicious character. Obviously, this cannot be construed that

the petitioner was involved in furtherance of the crime

committed by the convict and even otherwise, since there was a

High Court's Order that both the surety should be government

servant and that is the reason the petitioner became bailer as he

knew the convict as he was son of another police personnel.

20. In view of the aforesaid discussions, this Court is of

the firm opinion that the punishment of compulsory retirement

is highly excessive which touches the conscious of this Court

and as such the disciplinary authority should revisit the order of

punishment.

Consequently, the instant writ application is allowed

and order dated 18.01.2018, passed by disciplinary authority &

order dated 23.08.2018, passed by the Appellate authority, is

hereby, quashed and set aside.

21. It has been informed that the petitioner has not

attained the age of superannuation; as such the Respondents are

directed to reinstate the petitioner in service; however, they

would be at liberty to pass a fresh order on the basis of

documents available on record and in the background of

aforesaid findings. The Respondents shall also take a decision

on the consequential benefits of the petitioner in accordance

with law and applicable rules.

With the aforesaid terms, the instant writ application

stands disposed of.

(Deepak Roshan, J.)

Pramanik/ AFR