Dismissed

Dinesh Thakur v. State of Jharkhand and Ors.

Jharkhand HC1 Aug 2016LPA/128/2016

Case brief

AI extract

What is this about?

This Letters Patent Appeal challenges a writ court order upholding the dismissal of an employee from service. The High Court dismissed the appeal, allowing the dismissal to stand, citing the severity of other proved charges, non-honourable nature of the criminal acquittal, and lack of merit in alleging natural justice breach or parity violation.

What did the court decide?

The Letters Patent Appeal is dismissed, and the order of the Writ Court ordering the dismissal from service of the appellant is affirmed.

Dinesh Thakur Vs State of Jharkhand and Ors. — Pension and Retirement Benefits | Jharkhand HC (2016)

¶1

1 .

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 128 of 2016 With

¶3

I.A. No.3946 of 2016

¶4

Dinesh Thakur , son of Sri Indradeo Thakur, resident of Village :Rajpur, P.O.: Chaeghat, P.S.: Baheya, Dist.: Bhojpur, Bihar.

¶5

Appellant

¶6

--Versus--

¶7

1.State of Jharkhand

¶8

2.Director General-cum-Inspector General of Police , Jharkhand, Ranchi, Police Head Quarter, P.O.Dhurwa, P.S.-Jagannathpur, Dist.:Ranchi, Jharkhand

¶9

3.Deputy Inspector General of Police , Santhal Pargana Range, Dumka, P.O.:Dumka, P.S.:Dumka, District:Dumka, Jharkhand 4.Superintendent of Police, Deoghar , P.O.& P.S.:Deoghar, Dist:Deoghar, Jharkhand. …. Respondents

¶10

…. Respondents

¶11

CORAM: HON’BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

¶12

For the Appellant	------ : Dr. S.N. Pathak, Senior Advocate Mr. Diwakar Upadhyay, Advocate & Mr. K.K. Bhatt, Advocate
For the Respondents	: Mr. Vikash Kumar, JC to AAG -----

¶13

05/ 01st August, 2016 Per Shree Chandrashekhar, J.:

¶14

I.A. No.3946 of 2016

¶15

For the reasons carved out in the instant application and there being no serious objection from the respondents, the delay of 20 days in filing the accompanied appeal is hereby condoned.

¶16

I.A. No.3946 of 2016 stands allowed.

¶17

L.P.A. No. 128 of 2016

¶18

The appellant- writ petitioner (hereinafter referred to as petitioner), who suffered penalty of dismissal from service, approached the Writ Court in W.P.(S) No.1789 of 2013 which was dismissed vide order dated 21.01.2016, holding that the punishment of dismissal from service inflicted upon the petitioner is absolutely just and proper. Aggrieved thereof, the petitioner has preferred the present Letters Patent Appeal, which, with the consent of learned counsel for the parties, is taken up for its final consideration.

¶19

2 .

¶20

2 . Heard.

¶21

3 . Dr. S. N. Pathak, the learned Senior counsel for the petitioner submits that; (i) on acquittal of the petitioner from the charges framed against him in Deoghar P.S. Case No.268 of 2009, the penalty order is liable to be quashed, (ii) the enquiry was conducted in breach of the rules of natural justice and a copy of the enquiry report was not served upon the petitioner and, (iii) involvement of the petitioner in Baheya P.S. Case No.89 of 2010 u/s 307/504 I.P.C and u/s 27 of the Arms Act was not a charge framed against the petitioner, however, it has been taken as a ground for dismissing the petitioner from service.

¶22

4 . Mr. Vikash Kumar, the learned JC to learned Advocate-General, reiterating the stand taken before the Writ Court, contends that the petitioner who remained absconder cannot plead that the departmental proceedings were conducted in breach of the rules of natural justice. He submits that besides his implication in Deoghar P.S. Case No.268 of 2009, other charges against the petitioner are also of serious nature which have also been found proved in the departmental enquiry. The learned counsel contended that acquittal of the petitioner from the charges framed in Deoghar P.S. Case No.268 of 2009 is not an honourable acquittal and, in any case, acquittal in the said case would not affect the punishment of dismissal from service imposed upon the petitioner.

¶23

5 . The charge-memo dated 03.10.2009 reflects the following charges framed against the petitioner :

¶24

(i) While posted at Magazine Guard on 31.08.2009, during inspection you (the petitioner) were found absent unauthorizedly;

¶25

(ii) When you were found absconding from duty at Magazine Guard, Deoghar P.S. Case No.268 of 2009, dated 31.08.2009 under Section 376(2)(g)/ 120B/ 201 I.P.C. and under

¶26

3 .

¶27

Section 3(x) of the SC/ST (Prevention of Attrocities) Act was registered for the offence committed by you to the victim Suhani Besra; (iii) To shield yourself from the crime you got entries in the Guard Register by taking the Incharge of Magazine Guard namely Braj Bihari Pandey in confidence or by threat to the effect that your reporting at 17:00 pm and departure at 09:00 pm in the night were recorded in the Guard Register.

¶28

6 . During the departmental proceeding six witnesses were examined by the department in support of the charges framed against the petitioner. It appears that notices dated 02.11.2009, 27.12.2009, 08.01.2010, 25.02.2010, 30.03.2010, 26.04.2010, 15.05.2010 and 17.07.2010 were issued to the petitioner, however, he did not participate in the enquiry proceeding. One of the notices issued by registered post at his home address was received by his father who informed the department that the petitioner is not staying there. The said letter was received by the department on 22.04.2010. In the meantime, the petitioner's arrest in Baheya P.S. Case No.89 of 2010 u/s 307/504 I.P.C. and u/s 27 of the Arms Act and his remand in Deoghar P.S. Case No.268 of 2009 came to the knowledge of the department. Accordingly, after taking permission of the Superintendent of Central Jail, Deoghar, the petitioner was again served charge-memo and other documents, to which the petitioner responded by submitting his final defence. In his defence, he claimed that on information from his elder brother namely, Jagmal Thakur over telephone that his wife is seriously unwell, he without informing senior officers and without seeking leave proceeded to home. He claimed that subsequently he came to know that he has been falsely implicated in Deoghar P.S. Case No.268 of 2009, and for that reason he did not join duty at Deoghar.

¶29

7 . Whether a departmental proceeding and a criminal trial both can

¶30

4 .

¶31

proceed simultaneously, and whether acquittal in the criminal case would materially affect the punishment awarded to a delinquent employee in a departmental proceeding, were issues debated before the Supreme Court in innumerable cases. The law on this issue is fairly well-settled. The plea raised on behalf of the petitioner that after his acquittal in Deoghar P.S. Case No.268 of 2009, the penalty order dated 17.11.2011 must go, is flogged by two hurdles. In the first place, involvement of the petitioner in the criminal case is not the only charge framed vide charge-memo dated 03.10.2009. The other two charges framed against the petitioner are also serious in nature and those have also been found proved during the departmental enquiry. The effect of acquittal of the petitioner in Deoghar P.S. Case No.268 of 2009 has been seriously contested by the State. A perusal of order dated 28.04.2012 in the said criminal case discloses that the victim was declared hostile. She denied that she had given any complaint to the police and she failed to identify the accused persons in the court. The Investigating Officer also admitted in the Court that he did not record the statement of any witness. Acquittal of the petitioner in the aforesaid criminal case was definitely not on merits and it is not an honourable acquittal from the charges framed in the criminal case. Moreover, the order of acquittal in the criminal case was passed after the punishment of dismissal from services was passed in the departmental proceeding; penalty order is dated 17.11.2011 whereas, order of acquittal is dated 28.04.2012.

¶32

8 . On the plea of acquittal in the criminal case, the Writ Court noticed the judgment in “Dy. Inspector General of Police & Another Versus S. Samuthiram” (2013) 1 SCC 598 , wherein the Hon'ble Supreme Court has discussed the law on the issue in the following words :

¶33

26. …........ Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is

¶34

5 .

¶35

entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient........... .

¶36

9. While considering the plea of prejudice and breach of the rules of natural justice, it cannot be overlooked that the petitioner left duty and remained absconding for a long time, before he was arrested in connection to Baheya P.S. Case No. 89 of 2010 registered u/s 307/504 I.P.C. and u/s 27 of the Arms Act. Before his arrest, as noticed above, several notices were issued to him, however, he did not participate in the departmental enquiry. He did not inform the department about registration of another criminal case and his arrest in that case. The conduct of the petitioner deprives him of the protection under the rules of natural justice. In “State Bank of India Vs. Hemant Kumar” (2011) 11 SCC 355 , the Hon'ble Supreme Court has held that, “the principal of natural justice cannot be stretched to a point where they would render in-house proceedings unworkable”. In his defence, the petitioner did not claim a right to cross-examine the witnesses. The charge-memo along with other documents were served upon him in jail, however, he did not raise any grievance. He took a defence that he left duty without seeking prior permission on account of illness of his wife, but he failed to produce medical certificate of treatment of his wife. No doubt, the department examined the witnesses to prove the charges framed for unauthorized absence of the petitioner from duty and his involvement in the criminal case, however, these are matters of record which are not denied by the petitioner, except stating that he was falsely implicated in the criminal case. In “ Major U.R. Bhatt Vs. Union of India”

¶37

6 .

¶38

AIR 1962 SC 1344 , a case in which the delinquent at a later stage of the enquiry declined to take part in the proceedings, the Hon'ble Supreme Court has held that, “when the appellant declined to take part in the proceedings and failed to remain present, it was open to the enquiry officer to proceed on the materials which were placed before him”.

¶39

10. On account of non-supply of the enquiry report , the petitioner has failed to plead and prove prejudice caused to him. The plea raised on behalf of the petitioner that the punishment order is passed considering involvement of the petitioner in Baheya P.S. Case No.89 of 2010, is misconceived. The enquiry report as well as the punishment order dated 17.11.2011 passed by the disciplinary authority reveal that the departmental authorities have merely mentioned this fact which was discovered during the departmental enquiry. 11 . Besides the fact that the charges framed and found proved against the petitioner are very serious in nature, we are conscious of the legal position on the power of the Writ Court to interfere with the order of punishment imposed upon a delinquent officer in a properly constituted departmental enquiry. The disciplinary authority after perusing the enquiry report concurred with the findings recorded by the Enquiry Officer. The disciplinary authority in our opinion, was not required to write a detailed judgment. In “ State of Andhra Pradesh & Ors. Vs. S. Shree Rama Rao ” reported in AIR 1963 SC 1723 , the Supreme Court has held that High Court has no power under Article 226 to interfere with the findings of misconduct recorded during the departmental enquiry. The Supreme Court has held as under;

¶40

7. “ ………The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and

¶41

7 .

¶42

whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence.”

¶43

12 . Dr. S. N. Pathak, the learned Senior counsel lastly contended that the department must maintain parity in punishment. It is submitted that on similar charges, another delinquent namely Gyanendra Yadav has been given lesser punishment whereas, the petitioner has been inflicted with punishment of dismissal from service. This plea also is liable to be rejected. The petitioner and the said Gyanendra Yadav, both were not subjected to the same departmental enquiry. It appears that the charges framed against both the persons are also not identical. It is not disclosed by the petitioner whether the other delinquent Gyanendra Yadav had participated in the departmental enquiry or not. Judgment in the criminal case reveals an entirely different role played by co-accused Gyanendra Yadav. The plea of parity is, thus, misconceived.

¶44

13. On a consideration of the materials on record, we are of the view that the order passed by the Writ Court does not call for our interference. The Letters Patent Appeal, being devoid of merits, is dismissed.

¶45

(Virender Singh, C.J.)

¶46

(Shree Chandrashekhar, J.)

¶47

Sudhir/SI,

Dinesh Thakur v. State of Jharkhand and Ors.

Case brief

What is this about?

What did the court decide?

Dinesh Thakur v. State of Jharkhand and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Birsa Agricultural University through Its Registrar Vs Dr Anant Prasad Jaiswal and Anr.

Mitali Samanta and Anr. Vs Coal India Limited through Mr S Narsing Rao and Ors.

Ms Maithan Ceramics Limited through Its Manager Electric Sri Puspendu Sarkar Vs Jharkhand Urja Vikas Nigam Limited through Its Chairman Cum Managing Director and Ors.

The State of Jharkhand and Ors. Vs Syed Shahab Ahmed

Raj Kumar Pandey Vs the State of Jharkhand through Its Secretary Rural Development Department and Ors.

Anirudh Kumar Vs the State of Jharkhand and Ors.