Bikash Chettri vs The State Of Jharkhand Through Its ...
2021 Latest Caselaw 2140 Jhar

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P.(S) No.6270 of 2015
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        Bikash Chettri                               ...   ...        Petitioner
                                        Versus
        1.     The   State   of   Jharkhand         through   its   Secretary,

Department of Home, Government of Jharkhand.

2. The Secretary, Department of Home, Government of Jharkhand.

3. The Deputy Inspector General of Police, Jharkhand Armed Police, Ranchi, Jharkhand.

4. Commandant, Jharkhand Armed Police-1, Ranchi, Jharkhand. ... ... Respondents

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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner :Mr. Sheresth Gautam, Adv. For the Res.State :Mr. Anil Kr. Singh, A.C. to ....

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Through:- Video Conferencing

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09/01.07.2021 Heard learned counsel for the parties through

V.C.

2. The instant writ application has been preferred

by the petitioner praying therein for quashing the order as

contained in Memo No.231/Go dated 31.08.2015 passed by

respondent No.4; whereby the petitioner has been

dismissed from his service and also for quashing the order

as contained in Memo No.2734/Sa.Sha dated 04.12.2015

passed by the respondent No.3 whereby the appeal

preferred by the petitioner was rejected.

3. The brief facts as disclosed in the writ

application lie in a narrow compass. The petitioner was

appointed as Constable in JAP-1 on 27.12.2001.

Subsequently, he was deputed to S.T.F Jharkhand Jaguar.

During his service period in S.T.F, he was deputed with

search team against Naxal at Jhoomara Pahari,

Hazaribagh, where from he was trained as N.S.G

Commando. Thereafter he was again sent back to JAP-1,

Ranchi.

While he was posted at Ranchi, a charge-sheet

was issued against him with respect to selling of 7 live

cartridges. There was specific allegation that he sold seven

live cartridges to one Ashish Kumar Mothe after taking

money; for which an F.I.R. was also lodged being Chutia

P.S. Case No.230/2014.

The petitioner duly replied to the charge-sheet

accepting the fact that he has given seven live cartridges to

Ashish Kumar Mothe in good faith who happens to be his

friend and son of other police personnel; however

specifically denied the charge that he has taken money or

is doing business of selling of live cartages with Naxal and

antisocial element.

Thereafter, a departmental proceeding was

conducted and the petitioner duly appeared and put forth

his stand. Finally, the Inquiry Officer after holding that

though the petitioner has given seven live cartridges to

Ashish Kumar Mothe; however, selling of live cartridges to

Mr. Mothe or doing business of cartridges has not been

proved.

The Inquiry Officer submitted the enquiry report

and the disciplinary authority after accepting the enquiry

report passed the order of dismissal against this petitioner.

The petitioner further challenged the order of dismissal

before the Appellate Authority; however the same was also

rejected.

4. Mr. Sheresth Gautam, learned counsel for the

petitioner submits that the charge is vague, inasmuch as, it

has not been indicated that on what premises the petitioner

has been held to be involved in business of selling of live

cartridges. He further submits that the petitioner is not

involved in business of selling or purchasing arms and

ammunition or live cartridges; rather due to friendship he

handed over seven live cartridges to Ashish Kumar Mothe

without knowing anything about his profession; rather the

petitioner became friend of Mr. Mothe due to the fact that

he was son of other police personnel.

Learned counsel further submits that though the

Inquiry Officer in categorical words after referring the

statement of Officer-in-Charge, Chutia police station, who

was investigating the P.S. Case No.230/2014, has stated

that it is true that the petitioner has handed over seven live

cartridges to Mr. Ashish Kumar Mothe, however it has not

been proved that he has received any amount in lieu of

handing over seven cartridges. However, the Disciplinary

Authority after accepting the enquiry report has held that

the petitioner is involved in illegal selling of live cartridges

which is absolutely a perverse finding.

5. Learned counsel further referred to the

supplementary affidavit wherein he tried to impress this

Court that the petitioner was a very efficient Officer and he

was in special police force unit of the Andhra Pradesh

Police (Greyhounds) which has been described as the best

anti insurgency force. He further submits that this

petitioner was sent to Manesar for special training of Bomb

Disposal Course and during his entire service career he

received 36 rewards for his good performance in service; as

such, only for one misconduct of giving seven live

cartridges to Mr. Ashish Kumar Mothe and that too in good

faith and not handing over the same to his Superior; is

admittedly a misconduct but for that termination of service

is highly harsh and disproportionate.

He concluded his argument by submitting that

the impugned order of termination is based on conjectures

and surmises and mere confession is not admissible

evidence unless other evidence is required to be

corroborated.

6. He relied upon the judgment passed in the case

of Punjab National Bank and Ors. Vs. Kunj Behari

Misra, reported in (1998) 7 SCC 84, wherein it has been

held that if the disciplinary authority is differing with the

view of inquiry officer, a notice giving details for differing

with the opinion of inquiry officer is required to be issued

prior to imposition of penalty. Relevant paragraph No. 19 is

quoted hereinbelow;-

"19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

He further relied upon the judgment passed in

the case of Sawai Singh Vs. State of Rajasthan, reported

in (1986) 3 SCC 454 on vagueness of charge. Relevant

paragraph Nos. 14to16 are quoted hereinbelow:-

"14. Quite apart from that fact, it appears to us that the charges were vague and it was difficult to meet the charges fairly by any accused. Evidence

adduced was perfunctory and did not at all bring home the guilt of the accused.

15. Shri B.D. Sharma, learned advocate for the respondent, contended that no allegations had been made before the enquiry officer or before the High Court, that the charges were vague. In fact the appellant had participated in the enquiry. That does not by itself exonerate the department to bring home the charges.

16. It has been observed by this Court in Surath Chandra Chakrabarty v. State of W.B. that charges involving consequences of termination of service must be specific, though a departmental enquiry is not like a criminal trial as was noted by this Court in the case of State of A.P. v. S. Sree Rama Rao and as such there is no such rule that an offence is not established unless it is proved beyond doubt. But in a departmental enquiry entailing consequences like loss of job which nowadays means loss of livelihood, there must be fair play in action; in respect of an order involving adverse or penal consequences against an employee, there must be investigations to the charges consistent with the requirement of the situation in accordance with the principles of natural justice insofar as these are applicable in a particular situation."

7. Mr. Anil Kumar Singh, learned counsel for the

respondent-State vehemently opposed the prayer of the

petitioner and submits that petitioner himself has admitted

that he has handed over live cartridges to Mr. Mothe who in

turn confessed before the police that he is involved in

selling of cartridges to Naxal. He further submits that the

petitioner himself has admitted that he was under

impression that he will get the land in low cost. Therefore it

can be said that the petitioner has done business of live

cartridges. He further submits that it is an open-and-shut

case where termination is the only punishment because a

police officer is not suppose to do business with Naxal that

too of selling of live cartridges.

He concluded his argument by submitting that it

is true that the petitioner was a good officer and has been

awarded for his work but that cannot absolve him for doing

business of live cartridges.

8. Having heard learned counsel for the parties and

after going through the documents annexed and the

averments made in the respective affidavits it appears that

the Inquiry Officer after dealing in details with the

deposition of the witnesses and the reply of the petitioner;

himself came to specific finding that the petitioner has

handed over seven live cartridges of A.K.47 to Mr. Ashish

Kumar Mothe but was not involved in the business of

illegal selling of arms and ammunition. He has further

specifically held that the Officer-in-Charge-Mr. Vijay Kumar

Singh of Chutia Police Station, who was occupied in

investigating the police case which was lodged for the issue

in question, has stated that seven live cartridges of A.K.47

was handed over by the petitioner to Ashish Kumar Mothe;

however nothing is on record to show that the petitioner

has taken any money from Mr. Ashish Kumar Mothe or

otherwise is involved in the business of selling arms and

ammunition.

From record it further transpires that the

Disciplinary Authority while holding the petitioner guilty,

without differing with the view of the Inquiry Officer, has

held that the petitioner is involved in business of selling of

illegal cartridges. This makes the order perverse

For better appreciation the relevant portion of

Inquiry Report is quoted hereinbelow:-

"ijUrq foHkkxh; dk;Zokgh la[;k [email protected] ds fu"iknu ds dze esa pqfV;k Fkkuk vUrxZr dk.M la[;k 230 @14 ds tkWap inkf/kdkjh Jh fot; dqekj flag] Fkkuk izHkkjh] pqfV;k] jkWaph }kjk vius c;ku esa mYys[k fd;k x;k gS fd AK 47 dh 07 ¼lkr½ xksfy;kW vk"kh'k dqekj eksFks ds dkQh ekWaxus ij gh vipkjh vkj{kh 1152 fodkl {ks=h }kjk miyC/k djk;k x;k Fkk] ijUrq ;gkWa Li"V ughsa gks ik;k gS fd mDr xksfy;ksa ds ,ot esa vipkjh }kjk iSlk fy;k x;k ;k ugh fy;k x;k rFkk ;g Hkh Li"V ugha gks ik;k fd iwoZ esa Hkh vipkjh }kjk xksyh cspus dk dk;Z fd;k gks A"

Relevant portion of Disciplinary Authority is also

quoted herein below:-

"mYys[kuh; gS fd vij iqfyl egkfuns"kd fo"ks'k "kk[kk] >kj[k.M] jkWaph ,oa iqfyl vf/k{kd uxj] jkWaph )kjk iszf'kr i=ksa ds }kjk vipkjh ds voS/k xkSfy;ksa ds dkjksckj esa lafyIr jgus dh iqf'V gksrh gS ftls vipkjh )kjk Hkh Lo;a vius Li'Vhdj.k esa Lohdkj fd;k gS fd buds )kjk vk"kh'k dqekj eksFks dks ,0ds0 47 dh 07 pdz fn;k x;k Fkk A mDr vkjksi laxkh.k vijk/k dh Js.kh esa vkrs gSaA ,d vuq"kkflr cy ds dehZ dk mxzokfn;ksa ds lkFk lEidZ esa jgus okys lfnX/k O;fDr ds lkFk xkSfy;ksa ds voS/k dkjksckj esa lafyIrrk ik;k tkuk vR;ar dh xaHkhj fc'k; gSaA blls okfguh ds lkFk&lkFk iqfyl cy ds fo"olfu;rk ij Hkh iz"u fpUg yxus dh laHkkouk curh gSaA bl izdkj ds lafnX/k vkpj.k okys iqfyl dehZ dks lsok esa cuk;s j[kuk okfguh ,oa foHkkx ds fgr esa mfpr ugha gksxkA"

9. After going through the aforesaid finding of

respective authorities it is clear that the Disciplinary

Authority only on the basis of letter of Director General of

Police and Superintendent of Police has held that the

petitioner is doing business of selling live cartridges and

also held that the petitioner has admitted this fact.

However, the fact remains that though the petitioner has

admitted that he has handed over seven live cartridges to

Mr. Mothe; however, it has been categorically held by the

Inquiry Officer that as per the statement of Officer-in-

Charge, Chutia Police Station, who was investigating the

case, the petitioner is not involved in doing business of

illegal live cartridges or has taken money from Mr. Mothe in

lieu of handing over the 7 live cartridges.

10. In this view of the matter; certainly, the act of

the petitioner of not handing over the live cartridges to his

superior after he was deputed to Ranchi from the

operation; is a misconduct which cannot be said to be a

minor misconduct. However, the allegation of doing

business of illegal live cartridges has not been proved as

such; termination of service of this petitioner is not

proportionate especially in the background that the

petitioner has been awarded by the Government itself to

the tune of 36 awards and further he is a trained police

personnel under N.S.G and Jharkhand Jaguar S.T.F; as

such, in the interest of justice it is necessary that the

disciplinary authority should re-visit the matter and pass a

fresh order on quantum of punishment for the misconduct

committed by the petitioner of not handing over the live

cartridges to his superior after he was deputed to Ranchi

from the operation.

11. Consequently, the impugned order as contained

in Memo No.231/Go dated 31.08.2015 passed by the

respondent No.4 and the appellate order as contained in

Memo No.2734/Sa.Sha dated 04.12.2015 passed by the

respondent No.3, are hereby, quashed and set aside and

the matter is remitted back to the Disciplinary Authority

i.e. respondent No.4, to look into the matter and pass a

fresh order only on the quantum of punishment since the

petitioner has not been found guilty by the Inquiry Officer

of doing business of selling illegal cartridges; rather he has

been found guilty for not handing over the live cartridges to

his superior.

12. Since the matter is very old; as such the

Disciplinary Authority shall pass a fresh order of

punishment within a period of 12 weeks from the date of

receipt of a copy of this order.

13. With the aforesaid finding, the instant writ

application stands partly allowed.

(Deepak Roshan, J.) Fahim/-

AFR