Jeetu Ram Yadav Vs State Of Chhattisgarh

---- Respondents ____________________________________________________________________ For Petitioner : Mr. Manoj Paranjape, Advocate appears along with Mr. Kabir Kalwani, Advocate For State/Respondents : Mr. Ruhul Ameen, Panel Lawyer

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Single Bench : Hon'ble Shri Justice Sanjay S. Agrawal

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CAV Order

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1 . By virtue of this petition, the petitioner is questioning the legality and propriety of the order (undated)/Annexure (P-1), whereby, the respondent No.2- Director General of Police, while affirming the order dated 30.07.2016

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(Annexure P-2) and 10.06.2016 (Annexure P-3) passed by the Inspector General of Police, Surguja Range and the Superintendent of Police, Surajpur, respectively, has dismissed the mercy petition while upholding the termination of petitioner’s services from the post of Constable.

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2 . Briefly stated, the facts of the case are, that the petitioner, who was appointed on the post of Constable on 04.01.2007, was charge-sheeted along with one Bhimraj Yadav, who was his brother-in-law (Jija), under Sections 419 and 420 of IPC in connection with Crime No.40/2013 based upon the complaint lodged by one Saket Tiwari and simultaneously, the Departmental Enquiry has been constituted against the petitioner- Jeetu Yadav as, he has succeeded to be appointed on the post of Constable, while personificating himself to be the real Jeetu Yadav s/o Bechuram Yadav, resident of village Dhondha, Police Station- Chandora and that by utilizing his educational marks-sheet, get his appointment, in the Police Department.

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3 . The petitioner and his brother-in-law (Bhimraj Yadav) were acquitted with regard to the alleged offence punishable under Sections 419 and 420 of IPC by the learned Additional Sessions Judge, Pratappur, District Surajpur on 02.05.2015 (Annexure P-7) in Criminal Appeal No.08/2015, while reversing their conviction made by the Judicial Magistrate First Class, Pratappur, District Surajpur on 10.04.2015 (Annexure P-6) in Criminal Case No.243/2013, however, in the Departmental Enquiry, constituted on 05.09.2013, he has been directed to be removed from the said post on the basis of the said orders mentioned herein-above and, being aggrieved, the instant petition has been filed.

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4 . Learned counsel appearing for the petitioner submits that the petitioner

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was charge-sheeted with regard to the identical set of allegations that he obtained the alleged appointment order while personificating himself to be that of real Jeetu Yadav and, since he has been acquitted from the alleged allegations by the Court having its territorial jurisdiction, vide judgment dated 02.05.2015 (Annexure P-7) by the Additional Sessions Judge, Pratappur, District Surajpur, therefore, his services ought not to have been terminated by the concerned respondent authorities based upon the said Departmental Enquiry, which was initiated on the basis of the identical set of allegations. In support, he placed his reliance upon the decisions rendered by the Supreme Court in the matters of G.M. Tank Vs. State of Gujarat and Others¹ and

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Ram Lal Vs. State of Rajasthan and Others² .

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5 . On the other hand, learned counsel appearing for the respondents/ State has supported the impugned order of removal of the petitioner from the alleged post of Constable.

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6 . I have heard learned counsel appearing for the parties and perused the entire papers carefully.

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7 . The petitioner- Jeetu Yadav was appointed on the post of Constable on 04.01.2007 and, during the course of his appointment, an undated complaint was lodged by one Saket Tiwari, alleging inter alia, that he was, in fact, not the Jeetu Yadav, but one Bhimraj Yadav, who was his brother-in-law (Jija), while personificating himself to be as such, has succeeded to be appointed on the said post while utilizing his educational certificates and that by playing fraud upon the Department.

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1 (2006) 5 SCC 446

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2 (2024) 1 SCC 175

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8 . Based upon the aforesaid complaint, the petitioner- Jeetu Yadav and said Bhimraj Yadav were charge-sheeted for the offence punishable under Sections 419 and 420 of IPC and simultaneously, a Departmental Enquiry was convened against the petitioner- Jeetu Yadav while framing the charge on 05.09.2013.

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9 . The charges framed in the criminal proceedings as well as the departmental proceedings are relevant to be noted, which read as under :-

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Charge in criminal proceedings :

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“1. क्या�आरो�पी�भी�मरो�जने�व्ቧ�-2006-07 म�ቇኋ�म-गणे�शपी�रोथा�ने�-

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ता�पीपी�रो, जिजला�-सू�रोजपी�रोम�याहज�नेता�ह�एकि" वहज�ता�या�दवनेह$ ह% स्व'या

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"�ज�ता�या�दव"�रूपीम�्ቚ कितास्था�किपीता"रोछ 0 ग 0 श�सूनेम�पी�जिलासू"* ने+"रो�्ቚ �्቎ "रोएव' आरो�पी�ज�ता�या�दव"�ቛኋ�रो�सूह-आरो�पी�भी�मरो�ज या�दव"�ने+"रो�्ቚ �्቎ "रोने�म�सूहया�ग"रो्ቚ कितारूपीणेቛኋ�रो�छला"�रिरोता कि"या�था� ?

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क्या�उसू�किदने�'" सूमयावस्था�नेम�आरो�पी�भी�मरो�जया�दव"�ቛኋ�रो� ज�ता�या�दव"�श%्ቌकिणे"्ቚ म�णेपी्ቔ "�आधा�रोपीरोताथ्या4 "�किछपी�ता�ह�ए आरो्ቌ" "* ने+"रो�्ቚ �्቎ "रोश�सूने"�आजिथा�" ने�"सू�ने"�रिरोता"रो श�सूने"�्ቚ किताछला"�रिरोताकि"या�था�ताथा�आरो�पी�ज�ता�या�दव"�ቛኋ�रो�याह ज�नेता�ह�एभी�कि" आरो�पी�भी�मरो�जपी�जिलासू"* ने+"रो�ह�ता�श%्ቌकिणे" रूपीसू� आया�ग्याह% अपीने�श%्ቌकिणे"्ቚ म�णेपी्ቔ "�उसू�द�"रोअपीने�स्था�नेपीरोउसू� कितास्था�किपीता"रो्ቚ कितारूपीणेቛኋ�रो�छला"�रिरोताकि"या�था� ?”

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And, charge in departmental proceedings:

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आरो�पी

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0 629 "आरो 0 ज�ता�या�दवቛኋ�रो�फज9 तारो�"� सू�अपीने�रिरोश्ता�द�रो व�स्ताकिव" ज�ता�या�दवआ 0 बे�चू�रो�मया�दवसू�0 धा4धा�था�ने�चू'द+रो�"� सूमस्ताश%्ቌकिणे" या�ग्या�ता�सू'बे'धा�दस्ता�व�ज4 "�अपीने�बेता�"रोज�ता�या�दव "�्ቚ कितारूपीणे"रोज�ता�या�दव"�ने�मसू�पी�जिलासूकिवभी�गम�आरो्ቌ" "�पीद पीरोने+"रो�"रोअपीरो�जिधा" "= त्या"रोने�।"

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10 . A bare perusal of the aforesaid charges would show that the petitioner

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was charged with regard to the identical set of allegations in both the aforesaid proceedings as he, while personificating himself to be Jeetu Yadav and that by utilizing his educational certificates, has obtained the alleged appointment on the post of Constable in the Police Department and has, thus, committed a criminal act upon the Department.

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11 . In criminal proceedings, the petitioner- Jeetu Yadav and his brother-inlaw, namely, Bhimraj Yadav, though, convicted by the Judicial Magistrate First Class, Pratappur, District Surajpur vide judgment dated 10.04.2015 in Criminal Case No. 243/2013 for the offence punishable under Sections 419 and 420 of IPC, but have been found to be acquitted by the Additional Sessions Judge, Pratappur, District Surajpur, vide judgment dated 02.05.2015 in Criminal Appeal No. 8/2015, preferred by them and, the same appears to have attained its finality by efflux of time.

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12. Insofar as the departmental proceedings initiated based upon the alleged complaint lodged by said Saket Tiwari is concerned, it appears that the Inquiry Officer, i.e. City Superintendent of Police, Surajpur, vide his report (Ex.P-3) dated 26.03.2016, has found the alleged charge to be proved and, in response to the ‘Show Cause Notice’ (part of Annexure P-5), issued on 30.03.2016, a reply was submitted by the petitioner submitting, inter alia, that since he has been acquitted from the alleged identical allegations, he may, therefore, be discharged. But, the said Superintendent of Police, Surajpur, vide order dated 10.06.2016 (Annexure P-3), based upon the said enquiry report, has directed for his removal from the service on finding that although, the petitioner was acquitted in the said criminal proceedings but since he was acquitted by giving him benefit of doubt, therefore, he is not entitled to be

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exonerated and the finding, so recorded, was upheld by the Inspector General of Police vide order dated 30.07.2016 (Annexure P-2), in appeal preferred by him and the Mercy Petition preferred thereagainst was rejected vide order impugned (Ex.P-1) by the Director General of Police.

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13 . What is, therefore, reflected that the petitioner- Jeetu Yadav and his brother-in-law - Bhimraj Yadav have been acquitted in the alleged criminal proceedings with regard to the offence punishable under Sections 419 and 420 of IPC, however, the petitioner has been held guilty in the alleged departmental proceedings initiated based upon the identical set of allegations levelled by one Saket Tiwari in his complaint. The main issue involved in both the proceedings was, as to whether, the petitioner- Jeetu Yadav while personificating himself to be the real Jeetu Yadav, has obtained the alleged appointment on the post of Constable and has, thus, committed a criminal act upon the Department or not ?

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14 . In order to establish the aforesaid allegations, the Department has examined Manmurat S/o Babanram Yadav (PW-1), Ramchandar S/o Janki Yadav (PW-2), Ramparikshan S/o Babanram Yadav (PW-3), Baratlal S/o Dhanushdhari Singh (PW-4), Ram Surat S/o Late Ram Pati Yadav (PW-5), Ramgulam S/o Rampati Yadav (PW-6), Hanslal S/o Dashrath (PW-8), Ramkewal S/o Late Babulal (PW-10) and, Rajesh Singh Sisodiya S/o Late Ramjhalak (PW-12) who received the alleged complaint from said Saket Tiwari, along with others. It is to be seen that these were also the witnesses of the said criminal proceedings, wherein the petitioner and his brother-in-law, both have acquitted, as observed herein-above.

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15 . It is, now to be seen at this juncture that when the above-mentioned witnesses were examined before the departmental proceedings, they have, however, not supported the alleged allegations that the petitioner, while personificating himself to be the real Jeetu Yadav, has obtained the alleged appointment order on the post of Constable and even the said Saket Tiwari, who lodged the alleged complaint, was neither examined, nor said Rajesh Singh Sisodiya, who received the said complaint from him, has identified his (Saket Tiwari) signature on his alleged complaint, nor was he acquainted with the petitioner- Jeetu Yadav and his said brother-in-law - Bhimraj Yadav. No cogent and reliable evidence, was, thus, placed before the Inquiry Officer, yet the petitioner has been held guilty on finding that since he was acquitted in the alleged criminal proceedings on the basis of benefit of doubt, therefore, he is not entitled to get the said benefit. However, a bare perusal of the statements of the entire witnesses, who were examined before the Inquiry Officer, would show that none have supported the alleged allegations, yet the Disciplinary Authority, while reiterating the reasoning given by the Inquiry Officer has held the petitioner – Jeetu Yadav guilty even without considering the evidence of the said witnesses as to whether they have supported the alleged allegations or not. The findings of the respondent authorities, terminating the services of the petitioner from the post of Constable are, thus, found to be based upon, virtually, no evidence and, therefore, deserves to be quashed.

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16 . That apart, the petitioner, as observed herein-above, was found to be acquitted along with his said brother-in-law with regard to the offence punishable under Sections 419 and 420 of IPC, where, he faced the alleged allegations as was involved in the departmental proceedings, therefore, effect

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of his acquittal based upon the identical set of allegations are to be seen and the said issue is now no more res-integra, in view of the principles laid down by the Supreme Court in the matter of G.M. Tank (supra), wherein while considering the said issue, it has been held at paragraphs 30 and 31 as under :-

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“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 his 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.

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In our opinion, such facts and evidence in the department 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 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

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the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.”

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17 . While reiterating the aforesaid principles, the Supreme Court in the matter of Ram Lal (supra) by taking note of the evidence of the witnesses, which was common in both the proceedings, i.e. criminal proceedings as well as the departmental proceedings, with regard to the identical allegations, held at paragraphs 27, 28 and 30 as under :-

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“27. What is important to notice is that the Appellate Judge has clearly recorded that in the document Ext. P-3 – original marksheet of the 8th standard, the date of birth was clearly shown as 21.04.1972 and the other documents produced by the prosecution were either letters or a duplicate marksheet. No doubt, the Appellate Judge says that it becomes doubtful whether the date of birth was 21.04.1974 and that the accused was entitled to receive its benefit. However, what we are supposed to see is the substance of the judgment. A reading of the entire judgment clearly indicates that the appellant was acquitted after full consideration of the prosecution evidence and after noticing that the prosecution has miserably failed to prove the charge [See S. Samuthiram ]

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Expressions like “benefit of doubt” and “honorably acquitted”, used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Ext. P-3, the original marksheet carries the date of birth as 21.04.1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The Court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used.

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We are additionally satisfied that in the teeth of the finding of the Appellate Judge, the disciplinary proceedings and the orders passed thereon cannot be allowed to stand. The charges were not just similar but identical and the evidence, witnesses and circumstances were all the same. This is a case where in exercise of our discretion, we quash the orders of the disciplinary authority and the appellate authority as allowing them to stand will be unjust,

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unfair and oppressive. This case is very similar to the situation that arose in G.M. Tank.”

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18 . Applying the aforesaid principles in the case in hand, where the petitioner, who was charge-sheeted, both in criminal proceedings and departmental proceedings, in relation to the identical set of allegations and has been acquitted in the alleged criminal proceedings, vis-a-vis, the evidence led in the departmental proceedings, where none have supported the alleged allegations levelled by one Saket Tiwari, therefore, the orders (Annexures P-1 to P-3), passed by the concerned respondents authorities, cannot be held to be sustainable from the stretch of any imagination. The same, thus, deserves to be and are hereby quashed.

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19 . Consequently, the petitioner is directed to be reinstated in service, however, taking into consideration the totality of the circumstances, I am inclined to grant him 30% of the back wages.

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20 . With the aforesaid observations, the petition is allowed.

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No order as to cost(s).

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sunita

Jeetu Ram Yadav v. State Of Chhattisgarh

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Jeetu Ram Yadav v. State Of Chhattisgarh

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