Jharkhand High Court
Havildar Sunil Kumar vs The State Of Jharkhand on 27 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 826 of 2016
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Havildar Sunil Kumar ......... Petitioner.
Versus
1.The State of Jharkhand
2.The Director General of Police, Jharkhand, Ranchi.
3.The Deputy Inspector of Police, Jharkhand Armed Police, Ranchi.
4.The Commandant, Jharkhand Armed Police Mahila Battalion-10,
Hotwar, Ranchi.
.......... Respondents.
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
(Through: Video Conferencing)
For the Petitioner : Mr. Sanjay Prasad, Advocate
For the State : Mr. Navneet Toppo, AC to SC-V
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09/ 27.09.2021 Heard the parties.
2. In the instant case, prayer has been made for quashing the order dated
13.03.2014, whereby respondent No. 4 has awarded punishment of withholding
of six months' annual increment against the petitioner, which is equivalent to one
Black Mark.
Further prayer has been made for quashing the order dated 19.05.2014, by
which the appeal preferred by the petitioner has been dismissed by the Appellate
Authority.
3. As per the factual matrix, while the petitioner was posted as Havildar at
Jharkhand Armed Police-10, a written complaint was made by trainee lady police
constable namely, Babita Devi on 20.10.2013 against one trainer Havildar,
Keshav Mahaldar but the petitioner failed to place the complaint of Babita Devi,
before the appropriate authority for taking necessary action against the erring
Police Personnel and after four days, returned the same to the complainant. For
this act of negligence towards his duties, the respondent No. 4 issued order for
preliminary enquiry against the petitioner, in which the petitioner was found
guilty. Thereafter, the respondent No. 4 framed charges against the petitioner vide
charge-sheet dated 28.12.2013 and asked the petitioner to submit his explanation
to the charges levelled against him. Upon receipt of copy of charge-sheet, the
petitioner submitted his reply and the respondent No. 4 finding the reply
submitted by the petitioner not satisfactory, passed order for initiation of
departmental proceeding against the petitioner by appointing Enquiry Officer.
Thereafter, the Enquiry Officer conducted the enquiry in which the petitioner duly
appeared and presented his case. In the departmental proceeding, witnesses were
also examined and petitioner was provided opportunity to cross-examine them.
After conclusion of the departmental proceeding, the Enquiry Officer vide his
report dated 28.02.2014 held the petitioner innocent and exonerated from the
charges levelled against him.
4. Thereafter, the Commandant considered the enquiry report as well as
explanation submitted by the petitioner and came to the conclusion that the
petitioner had committed grave misconduct and hence, differing with the enquiry
report, passed the order of punishment dated 13.03.2014, withholding six months'
annual increment against the petitioner. The petitioner challenged the order of
punishment before the appellate authority and the appellate authority vide its
order dated 19.05.2014 dismissed the appeal and affirmed the order of
punishment.
In the instant writ application, throwing challenge to the aforesaid orders,
the petitioner has knocked the door of this Court.
5. Mr. Sanjay Prasad, learned counsel appearing for the petitioner strenuously
urges that the order of punishment passed by the respondent No. 4 is highly
illegal, arbitrary and unconstitutional as the same is based on presumption and
against the material on record. Learned counsel further argues that the
disciplinary authority has failed to consider that in absence of any intention or
mens rea for committing any act, the same cannot amount to any overt act or
constitute misconduct. Learned counsel further argues that the charges framed
against the petitioner are prima facie arbitrary and in colourable exercise of
power in order to lower down and harass a subordinate employee. Learned
counsel submits that though the Enquiry Officer has exonerated the petitioner
from the charges levelled against him but the disciplinary authority without
considering the enquiry report and the explanation submitted by the petitioner,
has passed the order of punishment of withholding of six months' annual
increment, which is equivalent to one Black mark. Learned counsel further
submits that in the impugned order of punishment, the disciplinary authority has
not assigned any reason for differing with the enquiry report and as such, the
same is not tenable in the eyes of law and fit to be quashed and set aside.
6. Per contra counter-affidavit has been filed. Mr. Navneet Toppo, learned
counsel appearing for the respondent-State vehemently opposes the contention of
learned counsel for the petitioner and submits that there is no illegality in the
impugned order of punishment, inasmuch as the disciplinary authority finding the
petitioner guilty of the charges levelled against him, awarded the punishment of
withholding of six months' increment. Learned counsel submits that the petitioner
has intentionally supported accused, Havildar Keshav Mahaldar against whom,
the victim, lady trainee Police Constable namely, Babita Devi had submitted a
written complaint and though the petitioner was required to place the complaint
before the competent authority for taking necessary action but he kept the same
with him and after four days returned the same to the said Babita Devi. The said
act of the petitioner amounts to negligence towards his duties and therefore, the
disciplinary authority after perusing the enquiry report and the reply submitted by
the petitioner, has found the petitioner guilty of the charges and imposed penalty
of withholding of six months' annual increment. Against the punishment order,
the petitioner also preferred appeal and the appellate authority rejected the appeal
preferred by the petitioner affirming the punishment order awarded to the
petitioner. Learned counsel accordingly submits that for the aforesaid reasons,
there is no merit in the instant writ application and the same is fit to be dismissed.
7. Be that as it may, having heard the rival submissions of the parties and
upon perusal of the documents brought on record, this Court is of the considered
view that no interference is warranted in the instant writ application.
8. From perusal of the charge-sheet it appears that the charges levelled
against the petitioner are serious in nature inasmuch as the charge of outraging
the modesty of a lady constable by one trainee Hav. Keshav Mahaldar was not
taken seriously and rather, to save him interpolation in the date of the report was
done by the petitioner and also the same was not placed before competent
authority within the stipulated period rather same was returned to complainant
herself which speaks of malafide and amounts to unbecoming of a Police Officer
and as such, dereliction in duty and indiscipline cannot be routed-out. Since there
is concurrent findings of disciplinary authority and appellate authority, this Court
sitting under Article 226 of the Constitution seldom interfere unless it is proved
that the findings of the two authorities are perverse.
9. The Hon'ble Apex Court in case of Apparel Export Promotion Council v.
A.K. Chopra, reported in (1999) 1 SCC 759 has held as under:
16. The High Court appears to have overlooked the settled
position that in departmental proceedings, the disciplinary
authority is the sole judge of facts and in case an appeal is
presented to the appellate authority, the appellate authority
has also the power/and jurisdiction to reappreciate the
evidence and come to its own conclusion, on facts, being the
sole fact-finding authorities. Once findings of fact, based on
appreciation of evidence are recorded, the High Court in writ
jurisdiction may not normally interfere with those factual
findings unless it finds that the recorded findings were based
either on no evidence or that the findings were wholly perverse
and/or legally untenable. The adequacy or inadequacy of the
evidence is not permitted to be canvassed before the High
Court. Since the High Court does not sit as an appellate
authority over the factual findings recorded during
departmental proceedings, while exercising the power of
judicial review, the High Court cannot, normally speaking,
substitute its own conclusion, with regard to the guilt of the
delinquent, for that of the departmental authorities. Even
insofar as imposition of penalty or punishment is concerned,
unless the punishment or penalty imposed by the disciplinary
or the departmental appellate authority, is either
impermissible or such that it shocks the conscience of the High
Court, it should not normally substitute its own opinion and
impose some other punishment or penalty. Both the learned
Single Judge and the Division Bench of the High Court, it
appears, ignored the well-settled principle that even though
judicial review of administrative action must remain flexible
and its dimension not closed, yet the court, in exercise of the
power of judicial review, is not concerned with the correctness
of the findings of fact on the basis of which the orders are
made so long as those findings are reasonably supported by
evidence and have been arrived at through proceedings which
cannot be faulted with for procedural illegalities or
irregularities which vitiate the process by which the decision
was arrived at. Judicial review, it must be remembered, is
directed not against the decision, but is confined to the
examination of the decision-making process. Lord Hailsham in
Chief Constable of the North Wales Police v. Evans1 observed:
"The purpose of judicial review is to ensure that the individual
receives fair treatment, and not to ensure that the authority,
after according fair treatment, reaches, on a matter which it is
authorized or enjoined by law to decide for itself, a conclusion
which is correct in the eyes of the court."
22. In the established facts and circumstances of this case, we
have no hesitation to hold, at the outset, that both the learned
Single Judge and the Division Bench of the High Court fell
into patent error in interfering with the findings of fact
recorded by the departmental authorities and interfering with
the quantum of punishment, as if the High Court was sitting in
appellate jurisdiction. From the judgments of the learned
Single Judge as well as the Division Bench, it is quite obvious
that the findings with regard to an "unbecoming act"
committed by the respondent, as found by the departmental
authorities, were not found fault with even on reappreciation
of evidence. The High Court did not find that the occurrence,
as alleged by the complainant, had not taken place. Neither
the learned Single Judge nor the Division Bench found that the
findings recorded by the enquiry officer or the departmental
appellate authority were either arbitrary or even perverse. As
a matter of fact, the High Court found no fault whatsoever
with the conduct of enquiry. The direction of the learned Single
Judge to the effect that the respondent was not entitled to back
wages and was to be posted outside the city for at least two
years, which was upheld by the Division Bench, itself
demonstrates that the High Court believed the complainant's
case fully for otherwise, neither the withholding of back wages
nor a direction to post the respondent outside the city for at
least two years was necessary. The High Court in our opinion
fell in error in interfering with the punishment, which could be
lawfully imposed by the departmental authorities on the
respondent for his proven misconduct. To hold that since the
respondent had not "actually molested" Miss X and that he
had only "tried to molest" her and had "not managed" to
make physical contact with her, the punishment of removal
from service was not justified, was erroneous. The High Court
should not have substituted its own discretion for that of the
authority. What punishment was required to be imposed, in the
facts and circumstances of the case, was a matter which fell
exclusively within the jurisdiction of the competent authority
and did not warrant any interference by the High Court. The
entire approach of the High Court has been faulty. The
impugned order of the High Court cannot be sustained on this
ground alone. But there is another aspect of the case which is
fundamental and goes to the root of the case and concerns the
approach of the Court while dealing with cases of sexual
harassment at the place of work of female employees.
10. In absence of any pleadings and arguments regarding perversity of the
findings recorded by two Authorities, this Court is in full agreement with the
views expressed by the Disciplinary Authority as well as the Appellate Authority.
11. Further, from perusal of the order of the disciplinary authority it appears
that the disciplinary authority has assigned cogent reasons for differing with the
enquiry report. Law is well settled that if the disciplinary authority does not agree
with the enquiry report, he is empowered to do so but has to assign cogent
reasons and in view of the ratio laid down by the Hon'ble Apex Court, there is no
illegality in the order of punishment passed by the disciplinary authority, which
has also been affirmed by the appellate authority.
The petitioner holding the charge of Mahila Battalion cannot be allowed to
break the discipline in any manner. In case of serious allegations levelled by the
complainant, the matter ought to have been reported immediately before the
competent authority but the same was not done by the petitioner, which is proved
in the departmental enquiry conducted by the Deputy Superintendent of Police,
Ella Tigga of Mahila Battalion and also by Sargent Trainee. This itself amounts to
indiscipline and gross misconduct on the part of the petitioner. The same could
not have been overlooked by the Enquiry Officer.
12. This Court is of the view that no illegality or any infirmity has been
committed by the respondents in inflicting the punishment of withholding of six
months' annual increment. The Police Force is a disciplined force and each and
every Police Personnel is required to maintain discipline. Even iota of indiscipline
attracts punishment.
13. As a sequel to the aforesaid observations, judicial pronouncements and
legal propositions, the writ petition merits dismissal and the same is hereby
dismissed.
(Dr. S.N. Pathak, J.)
Kunal/-
