Jyotish Kumar Pasawan vs The State Of Jharkhand Through ...
2021 Latest Caselaw 3955 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      W.P.(S) No. 2511 of 2014
                               --------

   Jyotish Kumar Pasawan                        ..... Petitioner
                               Versus

1. The State of Jharkhand through Secretary, Home Department, Govt. of Jharkhand

2. The Director General of Police, JAP-1, Doranda, Ranchi

3. The Superintendent of Police, Chatra ..... Respondents

---------

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

---------

For the Petitioner : Mr. Gaurav Abhishek, Advocate For the Respondents : Mr. Shubham Mishra, A.C. to G.P.V

---------

08/22.10.2021 Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioner praying therein for quashing of the order as contained in Memo No.47 dated 09.01.2013 whereby the petitioner has been terminated from his service under Rule 68 (Ka) of the Jharkhand Police Manual.

3. The facts of the case lie in a narrow compass. The petitioner was appointed as a Constable at Chatra District Force on 31.12.2011 and after his proper training, he joined Police Centre, Chatra on 11.10.2012. All of a sudden, on 02.12.2012 a charge-sheet was issued against him with an allegation that the petitioner had not himself appeared in physical test and has connived with other persons to get him appointed. In this regard, an F.I.R. was also lodged on 02.11.2012; prior to issuance of charge-sheet. The petitioner filed his reply to show-cause denying the allegation and after receiving the show-cause reply filed by the petitioner; order of termination has been issued.

4. The grievance of the petitioner is that on one hand no full-fledged departmental proceeding was conducted by the respondents and on the other hand this order is punitive in nature, inasmuch as, the entire allegation has been recorded in the impugned order of termination; as such the provision under which the petitioner has been dismissed is unsustainable in the eye of law.

5. Mr. Gaurav Abhishek, learned counsel for the petitioner submits that though the petitioner was a probationer; however, since the order of termination is not a simpliciter dismissal and stigmatic in nature; as such a full- fledged departmental proceeding should have been conducted by the respondents and principles of natural justice should have been followed.

He further contended that for the same set of allegations; an F.I.R. was also lodged and in that case, the petitioner has been duly acquitted and the judgment of the trial court is annexed with the supplementary affidavit. Relying upon these two facts, the petitioner submits that this impugned order deserves to be quashed and set aside as it suffers from procedural irregularity.

He reiterated that since the order of termination is punitive in nature as such non-holding of full-fledged departmental enquiry is against the principles of natural justice. He further referred to Rule 844 of the Jharkhand Police Manual and submits that whenever any criminal case results into conviction or acquittal or discharge, it will be considered by the high ranking police officer. He further relied upon the judgment passed in G.M. Tank v. State of Gujarat reported in (2006) 5 SCC 446 wherein at Paragraph 20, 30 and 31, Hon'ble Apex Court has held as under:

"20. It is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The respondent failed to prove the charges levelled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the

appellant. In fact, the respondent did not produce any evidence in support of and/or about the alleged charges levelled against the appellant. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.

30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge- sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt

and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

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. "

He further referred to a judgment passed by the coordinate Bench of this court in Shileshwar Prasad Verma and others Versus State of Jharkhand & Others reported in (2009) 3 J.L.J.R. at page 437 wherein this court has held in

Paragraph 3 as under:

"3. Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that:

(i) Before passing order of termination of the services of the petitioners dated 7th March, 2009 by respondent no. 7, no notices were served to the petitioners and no opportunity of hearing were ever given to the petitioners. Thus, there is violation of principles of natural justice.

(ii) Looking to the termination order at Annexure 3, it appears that respondent no. 7 has presumed

the proof of charge, but, no chargesheet of departmental inquiry was ever served to the petitioners. Thus, charges have been levelled orally, they are presumed to have been proved and punishment has been inflicted dated 7th March, 2009 Annexure 3 to the memo of the present petition. All the three things namely chargesheet, inquiry and punishment can not be completed in one order dated 7th March, 2009 at Annexure 3 to the memo of the present petition, without serving any notice and without giving any opportunity of being heard to the petitioners and, therefore, I hereby quash and set aside the order passed by respondent no. 7 dated 7th March, 2009 Annexure 3 to the memo of the present petition. Nonetheless, liberty is reserved, with the respondents to initiate action, if necessary, against the present petitioners in accordance with law and at least after following the principles of natural justice."

6. Relying upon the aforesaid judgments, learned counsel submits that the impugned order deserves to be quashed and set aside on two counts.

(a) Since the termination order is not simpliciter and it is stigmatic in nature; as such full-fledged departmental proceeding should have been conducted by the respondents.

(b) For the same set of allegations an F.I.R. was also lodged and after full fledged criminal trial the petitioner has been acquitted of the charges on the ground of no evidence.

7. Mr. Shubham Mishra, learned counsel for the respondents supports the impugned order and referred to Rule 668 of Jharkhand Police Manual which stipulates the procedure for removal or reversion of officers appointed direct or promoted, on probation. Relying upon this rule, learned counsel contended that since the petitioner was a probationer, as such he was terminated

without full-fledged departmental proceeding in accordance with Rule 668(a).

Learned counsel further submits that even in the appointment letter said clause was mentioned that during probation he can be terminated for infirmity or irregularity and even during his physical verification he can be terminated without any show-cause notice; as such the action of the respondents are fully in accordance with the Police Manual. He lastly submits that the fact that the petitioner is acquitted in the criminal proceeding will not absolve him from the charges in the Departmental Proceeding; as such this writ petition deserves to be dismissed.

8. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein it appears that a charge-sheet was issued against the petitioner with an allegation that he has not himself appeared in the physical test and has connived with other persons to get appointed. It also appears that when the petitioner has been dismissed he was under probation and the respondents have terminated his services relying upon Rule 668 (a) of the Jharkhand Police Manual. In this regard, Rule 668(a) is required to be looked into which is quoted herein below.

"668. Removal or reversion of officers appointed direct or promoted, on probation.---The following Rules shall govern first appointments and the promotion of police and ministerial officers as detailed in Appendix 41 :--

(a) All officers shall in the first instance be appointed or promoted on probation. Where the period of probation is not otherwise provided for in the Rules it shall be for a period of two year in the case of executive officers and one year in the case of ministerial officers. The authority authorized to make such appointment or promotion may at any time during such probationary period and without the formalities laid down in Rule 828, remove an executive officer directly appointed or revert such an officer promoted who has not fulfilled the conditions of his appointment or who has shown himself unfit for such appointment or promotion. Similarly probationary period may also be extended without any show cause. No appeal shall lie in such cases."

After going through the aforesaid Rule it transpires that Respondent No.3 was having jurisdiction to terminate the service of the petitioner during probation without any show cause.

9. However, after going through the order of termination it appears that the same is punitive and stigmatic in nature and not a simpliciter termination. Recently, it has been held by Hon'ble Apex Court in Rajasthan High Court Versus Ved Priya and Another reported in 2020 SCC OnLine SC 337 that probationers have no indefeasible right to continue in employment until confirmed, and they can be relieved by the competent authority if found unsuitable, but probationers can seek protection under the principles of natural justice when they are removed in a manner which prejudices their future prospects in alternate fields or casts aspersions on their character or violates their constitutional rights.

Paragraph 19 and 21 of the aforesaid judgment is quoted hereinbelow:

"19. Probationers have no indefeasible right to continue in employment until confirmed, and they can be relieved by the competent authority if found unsuitable. Its only in a very limited category of cases that such probationers can seek protection under the principles of natural justice, say when they are 'removed' in a manner which prejudices their future prospects in alternate fields or casts aspersions on their character or violates their constitutional rights. In such cases of 'stigmatic' removal only that a reasonable opportunity of hearing is sine-qua- non. Way back in Parshotam Lal Dhingra v. Union of India6, a Constitution Bench opined that:

"28.... In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment

without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with."

21. True it is that the form of an order is not crucial to determine whether it is simpliciter or punitive in nature. An order of termination of service though innocuously worded may, in the facts and circumstances of a peculiar case, also be aimed at punishing the official on probation and in that case it would undoubtedly be an infraction of Article 311 of the Constitution. The Court in the process of judicial review of such order can always lift the veil to find out as to whether or not the order was meant to visit the probationer with penal consequences. If the Court finds that the real motive behind the order was to 'punish' the official, it may always strike down the same for want of reasonable opportunity of being heard."

In this regard, reference can also be made to the judgment passed by the Hon'ble Apex Court in the case of Dr. Vijayakumaran C.P.V. v. Central University of Kerala & Ors.

reported in 2020 SCC Online Supreme Court 91

10. By going through the aforesaid judgments it is clear that if the order of termination of a probationer is simpliciter in nature, the delinquent will not get the right for full-fledged enquiry. At the same time, if the order is stigmatic or punitive in nature then certainly the delinquent will have the right to be heard.

Now coming back to the facts of the case, it is an admitted fact that no full-fledged departmental proceeding was conducted by the respondents in view of Rule 668 (a) of the Jharkhand Police Manual; but the impugned order of termination is punitive and stigmatic in nature as the petitioner has been removed in a manner which will certainly prejudice his future

prospects in alternate fields and casted aspersions on his character.

11. It further transpires from records that for the same set of charge; an F.I.R. was also lodged prior to issuance of charge- sheet; wherein the respondents failed to produce any evidence and finally the competent court acquitted this petitioner on the ground of no evidence. It is true that departmental proceeding and criminal proceeding cannot be equated in the same line, however; the fact remains that if the charge is same and the petitioner has been acquitted in the criminal court then certainly in the interest of justice it is desirable that the petitioner should be heard by following principles of natural justice.

12. In view of the aforesaid discussions and the judicial pronouncements; the order of termination is held to be bad in law and consequently the impugned order as contained in Memo No.47 dated 09.01.2013 is quashed and set aside. The matter is remitted back to the competent authority with a direction to reinstate the petitioner in service.

However, the respondents are at liberty to initiate a fresh proceeding for the same charge, if so advised, and after holding a full-fledged departmental proceeding, pass an appropriate order.

13. With the aforesaid observation and direction the instant writ application stands allowed and disposed of.

(Deepak Roshan, J.)

sm/ AFR