Bhim Singh vs The State Of Jharkhand
2021 Latest Caselaw 2310 Jhar

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No.4529 of 2015
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        Bhim Singh                                   ...        ...     Petitioner
                                       Versus
        1.     The State of Jharkhand.

2. The Director General & Inspector General of Police, Jharkhand, P.O. & P.S.-Dhurwa, District-Ranchi.

3. The Deputy Inspector General of Police (Budget), Jharkhand, P.O. & P.S. Dhurwa, District-Ranchi.

4. The Deputy Inspector General of Police, Palamu Range, Daltonganj, P.O. & P.S.-Daltonganj, District- Palamu.

5. The Superintendent of Police, Garhwa, P.O., P.S. & District-Garhwa. ... ... Respondents

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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner :Mrs. Ritu Kumar, Adv. For the Respondents :Mr. Anil Kr. Singh, A.C to S.C.-V

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Through:- Video Conferencing

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16/13.07.2021 Heard learned counsel for the parties through

V.C.

2. The instant writ application has been preferred

by the petitioner praying therein for quashing and setting

aside the order as contained in Memo No.1353 dated

22.05.2001; whereby the petitioner was awarded

punishment of dismissal from service and also for quashing

the order passed by the Appellate Authority (respondent

No.4) vide Memo No.1311 dated 27.11.2001 whereby the

appeal preferred by the petitioner has been rejected.

Petitioner has also challenged the order passed by the

respondent No.2 whereby the memorial filed by the

petitioner was rejected.

3. The facts of the case as disclosed in the writ

application is that the petitioner was appointed as

Constable and joined the service on 18.01.1984 and he was

also given first time bound promotion in the year 1994. On

14.11.1995, he joined the post of Constable in the district

headquarter, Garhwa. He was also the office bearer of

District Police Men's Association.

On 30.12.1995, an F.I.R was lodged on the basis

of a written report of the Officer-in-Charge, Garhwa Police

Station against the petitioner alleging that on 30.12.1995

at Bazar Samittee Garhwa, in course of election of Office

bearers of Bihar Police Men's Association, sound of firing

was heard from the northern barrack of the office due to

which Election Officer started dispersing and upon

interrogation it could be known that the petitioner had fired

from his licensee rifle with a view to disturb the election

process.

In contemplation of the aforesaid activity, a

departmental proceeding being D.P. No.44/96 was also

initiated against this petitioner and a charge-sheet was

served upon him on 14.12.1996.

Thereafter, the petitioner filed a reply and duly

participated in the departmental proceeding and the

Inquiry Officer found the charges against this petitioner to

be proved and finally an order of termination from the

service has been passed by the Disciplinary Authority.

4. Petitioner had earlier moved before this Court in

W.P.(S) No.04/2002 which was disposed of with a liberty to

the petitioner to prefer memorial before the Director

General-cum-Inspector General of Police, Jharkhand to

decide the claim.

Petitioner had again moved before this Court in

W.P.(S) 661 of 2006 which was disposed of vide order dated

23.01.2015 by directing the Director General-cum-

Inspector General of Police, Jharkhand to decide the

memorial and pass speaking order in accordance with law.

Relevant paragraphs Nos. 18 to 21 are quoted herein

below:-

"18. The learned single judge while remitting the matter before the Director General-cum- Inspector General of Police, Jharkhand directed the Director General-cum-Inspector General of Police, Jharkhand to decide the memorial. It means that the authority who has been empowered to decide anything is supposed to have applied its mind and he cannot delegate such power and rely upon the decision taken by the subordinate authority. The power of appeal, review or memorial is statutory provision which has been conferred to an authority who is supposed to take decision after proper verification of the record and going through the entire records.

19. The learned single Judge in W.P.(S) No.4 of 2002 after taking into consideration this aspect of the matter had directed the Director General of Police to consider the memorial. But from perusal of the order as

contained in Annexure-5 the same has been issued on the order of Director General-cum- Inspector General of Police, Jharkhand but issued under the signature of Deputy Inspector General of Police (Headquarter).

20. In that view of the matter, the order dated 12.08.2003 passed in pursuance to W.P.(S) No.4 of 2002 is not sustainable in law or facts, hence, the same is, hereby, quashed.

21. The matter is remanded to the Director General-cum-Inspector General of Police, Jharkhand who shall decide the memorial and pass speaking order in accordance with law within eight weeks from the date of receipt of copy of this order."

5. Ms. Ritu Kumar, learned counsel for the

petitioner submits that the charge against this petitioner

was same and similar in the criminal case in which the

petitioner has been acquitted and this aspect of the matter

has not been considered either by the Disciplinary

Authority or the Superior Authorities. She further submits

that it is not only a case of procedural irregularities rather

it is a case of non-appreciation of evidence as well as the

settled law that when the delinquent employee is charged

in both disciplinary proceeding and criminal case and if he

is acquitted in criminal case then certainly the Disciplinary

Authority should not brushed aside the order passed in

criminal case and pass an order judiciously.

In support of her contention, learned counsel for

the petitioner relied upon the judgment passed in the case

of G.M.Tank Vs. State of Gujarat and others reported in

(2006) 5 SCC 446. She further relied upon the judgment in

the case of Deputy Inspector General of Police and

another Vs. S. Samuthiram reported in (2013) 1 SCC

598.

6. Mr. Anil Kr. Singh, learned counsel for the

respondent-State submits that there is no procedural

irregularity in the impugned order and the petitioner has

been given fair opportunity to defend himself. He further

submits that acquittal in the criminal case when seven

witnesses have been declared hostile; cannot be said that

the petitioner was honourably acquitted. He further

submits that it is true that the charges in the departmental

proceeding and the criminal case are one and the same and

in the criminal case he has been acquitted but only for the

sole reason that seven witnesses were declared hostile. He

further submits that the charge is very grave and the

petitioner being a police officer using his licensee rifle in

any election is unwarranted and for which the department

has rightly dismissed this petitioner from the service.

7. Having heard learned counsel for the parties and

after going through the documents available on record and

the averments made in the respective affidavits, it appears

that an F.I.R. was lodged on the basis of written report of

the Officer-in-Charge, Garhwa Police Station against the

petitioner on the allegation that on 30.12.1995 at Bazar

Samittee, Garhwa, in course of election of Office bearers of

Bihar Police Men's Association, a sound of firing was heard

from the northern Barrack of the office due to which

Election Officer started dispersing and upon interrogation it

could be known that the petitioner had fired from his

licensed rifle with a view to disturb the election process and

thus, an FIR was registered under Section 307 of the IPC

and also under Section 27 of Arms Act.

Thereafter, the petitioner was also proceeded

departmentally and was served with a charge-sheet on the

basis of allegation that the petitioner fired from his licensed

rifle and disturbed the peace and tranquility on 30.12.1995

and on the basis of such charge-sheet, a departmental

proceeding No.44/96 was initiated against the petitioner in

which an order of termination from the service has been

passed against this petitioner. The petitioner has further

challenged the order of punishment before the superior

authorities but unfortunately could not be succeed.

8. From record it further appears that in W.P(S)

No.661 of 2006 which was earlier filed by the petitioner, it

has been categorically held by this Court in paragraph

No.18 that the authority who has been empowered to

decide anything is supposed to have applied its mind and

he cannot delegate such power and rely upon the decision

taken by the subordinate authority. Thereafter, the matter

was remitted back to the Director General-cum-Inspector

General of Police, Jharkhand with a direction to decide the

memorial and pass a speaking order in accordance with

law. Thereafter speaking order has been passed wherein it

has been contended that merely because the delinquent is

acquitted in criminal case cannot absolve him from

departmental proceeding.

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

the departmental proceeding was initiated pursuant to the

FIR lodged against this petitioner and the charge in the

departmental proceeding was exactly same and similar with

that in the criminal case in which the petitioner has been

acquitted honourably, inasmuch as, the learned trial court

has held that in absence of cogent and reliable evidence the

accused is acquitted from the charges.

From the judgment passed in the criminal court

it appears that P.W.2-Bhuneshwar Ram who is the

informant-cum-first I.O. of the case was also the witness in

the departmental proceeding. It further transpires from the

order of trial court that the said witness had categorically

stated that he is not seen the accused at the time of firing

rather he is a hearsay witness. It further transpires that

the P.W.-3 in the criminal case was one Mahesh Tiwari,

Hawaldar who has deposed that he was posted as Election

Officer and at about 8 p.m some scuffle took place between

agents of the parties and the hall was closed from inside.

There was no firing at the time of counting nor has he seen

any one firing at the time of election.

On the basis of these witnesses, the learned trial

court acquitted the petitioner. For brevity, paragraph 10 of

the order passed in the criminal case is quoted herein

below:-

"10. In view of aforesaid discussions and appreciation of evidence available on record adduced from both sides, I am of the conclusion that prosecution worsely failed to establish the charges levelled against accused Bhim Singh. In absence of cogent and reliable evidence I am constrained to acquit the accused from the charges levelled against him. Accordingly accused Bhim Singh is acquitted from the aforesaid charges, he appears on bail, he is discharged from the liability of his bail bonds and set at liberty forthwith."

10. Way back in the year 1999, the Hon'ble Apex

Court in the case of Capt. M. Paul Anthony Vs. Bharat

Gold Mines Ltd. and Another reported in (1999) 3 SCC

679 has held that the criminal case was thrown out and

the appellant was acquitted in which same witnesses were

examined in criminal case who were also witnesses in the

departmental proceeding as such, it would be unjust and

unfair to allow the findings recorded at the departmental

proceedings to stand. Paragraph 34 of the said judgment is

quoted herein below:-

"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant

were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand."

Again, in the case of G.M. Tank (supra) the

Hon'ble Apex Court has reiterated the above proposition of

law in paragraph-31 as under:-

"31. In our opinion, such facts and evidence

in the departmental as well as criminal

proceedings were the same without there

being any iota of difference, the appellant

should succeed. The distinction which is

usually proved between the departmental and

criminal proceedings on the basis of the

approach and burden of proof would not be

applicable in the instant case. Though the

finding recorded in the domestic enquiry was

found to be valid by the courts below, when

there was an honourable acquittal of the

employee during the pendency of the

proceedings challenging the dismissal, the

same requires to be taken note of and the

decision in Paul Anthony case will apply. We,

therefore, hold that the appeal filed by the

appellant deserves to be allowed."

In the instant case too, the I.O was examined as

departmental witness as well as he was P.W.-2 in criminal

case, as such ignoring the judgment passed by the learned

trial court when the charge is same and similar will be

miscarriage of justice.

11. In the instant case, the revisional authority on

remand has rejected the claim of the petitioner for his

reinstatement and contended that merely because the

delinquent is acquitted in criminal case cannot absolve him

from departmental proceeding.

In this regard it is also pertinent to refer the

argument of the learned counsel for the state that acquittal

in the criminal case when seven witnesses have been

declared hostile; cannot be said that the petitioner was

honourably acquitted.

The word "honourable acquittal" came up for

consideration before the court in the case of RBI Vs.

Bhopal Singh Panchal reported in (1994) 1 SCC 541.

The said judgment was again relied by the Hon'ble Apex

Court in the case Deputy Inspector General of Police

and another Vs. Samuthiram reported in (2013) 1 SCC

598 wherein at paragraph 24 it has been held as under:-

                    "24.       The    meaning     of   the     expression
                    "honourable          acquittal"    came     up         for

consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."

12. As a matter of fact, in catena of judgments the

Hon'ble Apex Court has held that when the charge in

criminal case as well as in departmental proceeding are one

and the same and if the petitioner has been honourably

acquitted then certainly in the departmental proceeding;

the authority should not brushed aside the judgment of

trial court. In the instant case also the charge in the

departmental proceeding and criminal case are one and the

same, inasmuch as, the departmental proceeding was

initiated pursuant to the lodging of F.I.R. Further the I.O

who was witness on behalf of the department was also

prosecution witness in the criminal case in which he has

categorically stated that as per FIR itself he has not seen

the accused at the time of firing rather he is a hearsay

witness. He has deposed at paragraph No.4 that he draws

written report in accordance with the order of S.P. He

further stated that he cannot say that in which block of

Bazar Samittee place of occurrence is situated.

In nutshell, this Investigating Officer whose

evidence was demolished before the trial court was the

main witness in departmental proceeding and further the

Election Officer who was also prosecution witness in

criminal case has stated that there was no firing.

13. The Revisional Authority after direction of this

Court has held in its order that as per the Supreme Court

the accused who has been acquitted on the benefit of doubt

should not be benefited in departmental proceeding. This

part of order is perverse in the facts and circumstances of

this case, inasmuch as, even the Investigating Officer of the

case as well as the Election Officer has deposed that there

was no firing and only on the basis of those witnesses, the

criminal court has acquitted this petitioner.

14. Though it is very difficult to define precisely what

is meant by the expression "honourably acquitted" but in

the instant case when the accused is acquitted after full

consideration of prosecution evidence and that the

prosecution had miserably failed to prove the charges

leveled against this petitioner, it can possibly be said that

the petitioner was honourably acquitted.

15. In view of the aforesaid findings, the instant writ

application is, hereby, allowed and the order of punishment

of dismissal from service as contained in Memo No.1353

dated 22.05.2001 and all subsequent orders, are hereby

quashed and set aside.

16. It goes without saying that the petitioner will be

entitled for all consequential benefits. However, it is

clarified that so far as the issue of payment of salary from

the date of termination till the date of reinstatement is

concerned; a fresh order shall be passed as per the rule

and regulation of the Police Manual.

17. Consequently, the instant writ application

stands allowed.

(Deepak Roshan, J.) Fahim/-