Sushil Kumar Singh vs The State Of Jharkhand
2023 Latest Caselaw 3596 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
              (Letters Patent Appellate Jurisdiction)
                         L.P.A No. 118 of 2023
                                -------
Sushil Kumar Singh, aged about 37 years, s/o Prashid Narayan
Singh, r/o village-Kargarh, PO & PS- Bermo, District-Bokaro
                                                   ... Appellant
                            Versus
1. The State of Jharkhand
2. The Director General of Police, Jharkhand, Project Bhawan, PO-
Dhurwa, PS-Jagannathpur, District-Ranchi
3. The Superintendent of Police, Bokaro, PO and PS-Bokaro,
District-Bokaro
4. The Deputy Inspector General of Police, at Bokaro, PO, PS &
District-Bokaro
5. The Inspector General of Police, Bokaro Zone, PO, PS & District-
Bokaro                                            ... Respondents

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
     HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant               : Mr. Ajit Kumar, Sr. Advocate
                                  Mr. Kushal Kumar, Advocate
For the Respondent-State        : Mr. Sanjay Kumar Tiwari, SC-I
                                  Mr. Krishna Kumar Bhatt, AC to SC-I
                                --------
                                                      ORDER

21st September 2023 Per, Shree Chandrashekhar, J.

The appellant approached the writ Court to challenge the order of dismissal from service passed by the Superintendent of Police at Giridih on 25th July 2017. This order of dismissal from service was affirmed by the appellate authority by an order dated 12th February 2018 and the revisional authority on 28th June 2018.

2. The appellant is aggrieved of the order dated 2nd January 2023 by which W.P.(S) No. 353 of 2019 filed by him has been dismissed by the writ Court holding that the order of dismissal from service as affirmed by the appellate and revisional authorities is not illegal and, therefore, does not require interference of the writ Court.

3. The writ Court has held as under:

"6. After going through the record and the charge-sheet, I find that the allegation against the petitioner is grave. It is alleged that he took out Rs.400/- from the cash box of shop. One of the evidence is the CD of the footage of the CCTV. The Enquiry Officer after going through the footage of CCTV and other evidence concluded that it is this petitioner who had taken away the money from cash box while Rajesh Thakur, the colleague of this petitioner, was standing in

front of the gate. The charge against the petitioner thus stood proved. When CCTV footage clearly suggests that the petitioner has taken out money from the cash box, it is relevance whether the shop owner was examined or not. The petitioner who is in police service and is supposed to safeguard the property of a common man has himself took out money from the cash box, is an unpardonable misconduct. This fact has been proved from the CCTV footage and the evidence of the other witnesses. There is no illegality or irregularity in the entire departmental proceeding. The finding of fact is based on evidence.

7. So far as the compromise in the criminal case is concerned, the same cannot be considered in view of specific evidence which has been led in the departmental proceeding. This Court doubts the compromise but I am not entering into the aspect of the compromise in this case which arose out of a departmental proceeding, wherein there is sufficient evidence to prove the misconduct of this petitioner.

8. So far as parity is concerned, I find from the Enquiry Report that there is specific evidence that it is this petitioner who had taken out the money from the cash box while his colleague was standing outside. Thus, it cannot be said that the punishment is disproportionate. The punishment of dismissal is absolutely proportionate, which needs no interference.

9. Thus on what has been held above, I find no illegality in the impugned order of dismissal nor the order passed by the Appellate Authority or Revisional Authority, considering the degree of misconduct committed by the petitioner.

10. Thus this application stands dismissed."

4. A charge-memo dated 18th October 2016 was served upon the appellant on an allegation that in the intervening night of 2nd/3rd October 2016 he was found involved in theft of Rs.400/- from a shop while he was on surveillance as a member of the Tiger Mobile police party. The charge-memo dated 18th October 2016 was issued for the misconduct of dereliction of duty, indiscipline and delinquency which acts were unbecoming of a police constable. The aforesaid charge-memo was issued to the appellant after a preliminary enquiry was conducted by the Deputy Superintendent of Police (Headquarters) 1st at Giridih who had submitted a report vide Memo No. 536 dated 3rd October 2016.

5. Along with the charge-memo dated 18th October 2016, the delinquent police constable was provided a copy of CCTV footage, Giridih District Order No. 2205 of 2016 dated 3rd October 2016 and the department proposed to examine three witnesses to support the aforesaid charge against him. The enquiry report indicates that four witnesses were examined by the department in the domestic enquiry to support the allegations contained in charge-memo dated 18th October 2016 but the complainant was not examined in the departmental enquiry.

6. The stand taken by the appellant is that in the

departmental enquiry he was not afforded an opportunity to cross- examine the witnesses and, in fact, no date was fixed by the enquiring officer for examination of the witnesses. However, this is not a case set up by the delinquent police constable that a copy of the enquiry report was not served upon him or that the domestic enquiry was held in breach of the departmental rules. The disciplinary authority considered the show-cause reply submitted by the delinquent police constable and after having examined the materials on record came to a conclusion that the charge contained in charge-memo dated 18th October 2016 is proved and, accordingly, awarded the punishment of dismissal from service.

7. The appellate authority dealt with the grounds raised by the delinquent police constable against the order of dismissal from service and decided to affirm the order of the disciplinary authority dated 25th July 2017. This also needs a mention that the memorial preferred by the appellant has been dismissed by the revisional authority by an order dated 28th June 2018.

8. Mr. Ajit Kumar, the learned senior counsel for the appellant submits that the charge of theft even in a departmental enquiry is required to be proved to the hilt by adducing cogent and convincing evidence. To lay support to his submission that in a departmental enquiry the test applied on a charge of theft must be proved to the hilt, the learned senior counsel for the appellant has referred to the decision in "Union of India & Ors. v. Gyan Chand Chattar" (2009) 12 SCC 78.

9. On the other hand, Mr. Sanjay Kumar Tiwari, the learned SC-I would raise an objection to the challenge laid to the writ Court's order on a fundamental principle in law that in the matters of domestic enquiry the findings of fact recorded by the departmental authorities attain finality and no interference is warranted in exercise of the powers under Article 226 of the Constitution of India.

10. The powers of the writ Court under Article 226 of the Constitution of India are plenary in nature and exercised in furtherance of public good. This is by now well settled that notwithstanding limitations on the powers of the writ Court the technical objections are ignored wherever it is found that injustice

has been caused to a person. This is a rule of law developed through the judicial pronouncements that illegality, irrationality and proportionality in award of punishment are the grounds on which the writ Court may exercise its powers in appropriate cases. There are judgments such as "Hind Construction & Engineering Co. Ltd. v. Workmen" AIR 1965 SC 917 and "Ranjit Thakur v. Union of India" (1987) 4 SCC 611 whereunder the Hon'ble Supreme Court indicated that the writ Court shall interfere with the order of punishment wherever it is found that the same does not confirm to the principles of proportionality. While entertaining a challenge to the order of punishment this has to be kept in mind that approach of the authority in a disciplinary enquiry and the Court in a criminal trial; appreciation of evidence in a departmental enquiry and in the criminal trial and; the burden of proof in both the proceedings, are necessarily different. While strict rules of evidence are not applicable in the departmental enquiry and it is preponderance of probability which is the test applied in a departmental enquiry, in a criminal trial a charge must be proved beyond all shadow of reasonable doubt. However, we are in agreement to the proposition that in the case of charge of theft even in a departmental enquiry the test of preponderance of probability applied in the departmental enquiry should be akin to beyond all shadows of reasonable doubt.

11. The disciplinary authority after recording brief facts of the case and the show-cause of the delinquent police constable recorded his opinion that the delinquent police constable was required to inform Town PS which was not done by him and, on the contrary, he entered the shop and took out currency from cash counter which was captured in the CCTV camera. The appellate authority has simply extracted the comments provided by the Superintendent of Police who himself was the disciplinary authority and held that the delinquent police constable did not provide any indisputable facts so as to interfere with the order of punishment. Now this is a matter of record that the delinquent police constable took a defence that he was with his colleagues Dharmendra Kumar and Amit Kumar in the night of 2nd October 2016 while engaged in patrolling duty as the Tiger Mobile police party but these persons

were not produced by the department for their statement. This is also a matter of record that the charge of theft of Rs.400/- was made by the shop owner who himself did not tender evidence in the domestic enquiry. We further find that there are instances of prejudices caused to the appellant in the departmental enquiry. Mr. Ajit Kumar, the learned senior counsel for the appellant has informed the Court that the criminal case vide Giridih Town PS Case No. 280 of 2016 dated 4th October 2016 lodged at the instance of the shop owner has ended in compromise between the parties. Our attention has also been drawn to the order of punishment passed against co-delinquent Rajesh Kumar Thakur.

12. In "Commr. of Police v. Jai Bhagwan" (2011) 6 SCC 376 the Hon'ble Supreme Court observed that without examining the complainant who made an allegation of demand of money the charge against the delinquent government employee could not have been proved. The Hon'ble Supreme Court has observed as under:

"16. It also seems quite impracticable to presume that in the presence of so many passengers, the respondent could have extorted money. The allegation of receiving Rs. 100 as illegal gratification is framed on suspicions and possibilities while trying to link it up with the instance of returning back of Rs. 100 by the respondent to the complainant. There are many other shortcomings in the entire investigation and the enquiry like the statement of Mrs Ranjana Kapoor was not recorded by the Inspector and the Inspector also did not take down in writing and also attest the complaint made by her. The statement of S.P. Narang was also not recorded by the Inspector nor did the Inspector seize Rs. 100 note nor noted down its number. Mr Narang was also not examined during the course of departmental proceedings. Non-examination of the complainant and P.S. Narang during the departmental proceeding has denied the respondent of his right of cross- examination and thus caused violation of Rule 16(iii) of the Delhi Police (F&A) Rules, 1980.

17. In the absence of such a definite/clear proof supporting the case of the appellants it is difficult to draw a finding of taking illegal gratification by the respondent from the complainant. Therefore, as rightly held by the High Court the present case is a case of no evidence."

13. Having regard to the aforesaid facts and circumstances in the case, we are of the opinion that the punishment of dismissal from service is excessive and disproportionate to the charge framed against the appellant through charge-memo dated 18th October 2016.

14. Therefore, we are unable to approve the writ Court's order dated 2nd January 2023 passed in W.P.(S) No. 353 of 2019 and the same is hereby set aside. The order dated 12th February 2018 passed

by the appellate authority and the order dated 28th June 2018 passed by the revisional authority are also set aside.

15. The matter is remitted back to the appellate authority for deciding the quantum of punishment in the light of the aforementioned mitigating circumstances.

16. L.P.A No. 118 of 2023 is disposed of in the aforesaid terms.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) Amit