Allowed

Jeetendra Kumar v. State of Jharkhand And Ors.

Jharkhand HC10 Feb 2022WPC/5836/2011

Case brief

AI extract

What is this about?

The High Court of Jharkhand allowed a writ petition to quash a departmental order imposing punishment of stopping increments. The Court found the inquiry report perverse as it concluded charges were proved despite two department witnesses explicitly denying or remaining neutral regarding the allegations against the petitioner. The Court applied settled principles that disciplinary findings based o

What did the court decide?

Impugned order dated 06.12.2010 dismissing complaint is quashed. Appellate order dated 02.07.2011 is also set aside.

Jeetendra Kumar Vs State of Jharkhand And… — Pension and Retirement Benefits | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No. 5836 of 2011

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Jeetendra Kumar, son of Kameshwar Singh, resident of Darbhanga O.P. Kharswan, P.S. + P.O. : Kharswan, District - Saraikela

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… … Petitioner

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Versus

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State of Jharkhand

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The Director General of Police Police Bheran, P.O. ; Dhurwa, P.S. Jagannathpur, District Ranchi

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The Deputy Inspector General of Police Jharkhand Sector No.2 Dhurwa, Ranchi Jharkhand

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The Superintendent of Police Saraikela, P.O. & P.S. Saraikela, District Saraikela

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The Commandant, Deoghar J.C.P.S., Deoghar Camp, P.S. Saraikela, District Kharswan … Respondents

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Binod Singh, Advocate For the Respondents : Mr. Rahul Saboo, S.C. I ---

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Through Video Conferencing

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11 /10.02.2022 Heard Mr. Binod Singh, learned counsel appearing on behalf of the petitioner and heard Mr. Rahul Saboo, learned counsel appearing on behalf of the State.

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Submissions of the Petitioner

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2. This writ petition has been filed for quashing the order dated 06.12.2010 passed by respondent no.5 in departmental proceeding no.12 of 2010 whereby the petitioner has been imposed the punishment of stopping increments for two consecutive years. The petitioner has also prayed for quashing the order contained in memo no.982 dated 02.07.2011 whereby the appeal filed by the petitioner has been dismissed.

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3. Learned counsel for the petitioner submits that vide order dated 01.11.2021, learned counsel for the respondents was directed to file a copy of the inquiry report before this Court. Pursuant to such order, the respondents have filed a supplementary counter affidavit bringing on record not only the inquiry report, but also the evidence of two witnesses, who were examined at the stage of inquiry. The respondents have also brought on record the reply to show cause filed by the petitioner.

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4. Learned counsel submits that the petitioner has been held guilty in spite of there being no evidence against him. He submits that the two witnesses, who were examined at the stage of inquiry were Antu Purty and Biltu Munda. The inquiry report reveals that so far as Antu Purty is concerned, he has not at all supported the case rather he had stated that at the time and place of the alleged occurrence, nothing had happened. He has also stated that at the request of Yogendra Prasad-the complainant, he had put his signature on the complaint.

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5. The learned counsel further submits that so far as the witness no.2 Biltu Munda is concerned, upon perusal of the inquiry report itself, it is apparent that he had seen the records of the case and had simply stated that a show cause notice was issued to the petitioner and on the basis of show cause notice, this witness narrated the allegations and also the fact that the petitioner had filed a reply to the show cause notice alleging that it was Yogeshwar Prasad, who had raised the arms against him and misbehaved with him. This witness has also stated that the petitioner had come to the Commandant on 3 occasions to put up his case, but on all the three occasions, the commandant did not meet him.

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6. The learned counsel submits that as both these witnesses had not stated anything against the petitioner, they were not crossexamined. The learned counsel has also submitted that the deposition of both the witnesses are on record filed with the supplementary counter affidavit. The learned counsel submits that the enquiry report narrates the aforesaid deposition of the two witnesses, still the petitioner was held guilty by the enquiry officer in spite of there being an iota of evidence against the petitioner.

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7. The learned counsel also submits that so far as Yogeshwar Prasad- the complainant is concerned, he never appeared at the stage of enquiry to support the allegations made against the petitioner.

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8. The learned counsel submits that in spite of limited scope in writ jurisdiction so far as interference in the departmental proceeding is concerned, in a case where the charge of the delinquent is not supported by any evidence, then certainly the writ court can interfere with such finding based on no evidence.

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9. He submits that in spite of the witness no.1 clearly not supporting the case and witness no.2 merely mentioning from records about the show cause notice issued to the petitioner and the reply filed by the petitioner and the fact that the Commandant did not meet the petitioner in spite of three visits, the allegations in entirety stood not proved, but the inquiry officer gave a perverse report holding that charges was proved against the petitioner and on the basis such inquiry report, the order of punishment was passed vide order dated 06.12.2010. The learned counsel also submits that an appeal was also filed, but the appellate authority dismissed the appeal and also held that the charges were proved against the petitioner and that the petitioner did not give any defence evidence against the charges.

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10. The learned counsel submits that considering the aforesaid fact that there is no evidence against the petitioner, there was no requirement for the petitioner to give any defence evidence and since both the witnesses had not deposed anything against the petitioner, the petitioner did not cross-examine them. The learned counsel submits that both the orders passed by the disciplinary authority as well as the appellate authority are ex facie perverse based on perverse findings of the enquiry report and are fit to be set aside in writ jurisdiction.

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11. Learned counsel appearing on behalf of the State, on the other hand, has strongly opposed the prayer of the petitioner. He has submitted that the writ court does not sit in appeal against the orders passed by the disciplinary authority and the scope of interference is very limited. He has referred to judgment passed by Hon'ble Supreme Court reported in (2020) 9 SCC 471 (Pravin Kumar Vs. Union of India), which has also been followed by this Court in judgment dated 04.02.2022 passed in W.P.S. No.6662 of 2010 . He submits that there are concurrent findings recorded by both the authorities and there is no scope for interference. He submits that the punishment imposed was a minor punishment, therefore, no interference is called for in writ jurisdiction. However, during the course of argument, the learned counsel has also read the inquiry report as well as the deposition of both the witnesses, which have been filed along with the supplementary counter affidavit but he could not substantiate even an iota of evidence as against the petitioner from perusal of the inquiry

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report and also from the perusal of evidence of both the witnesses. It is not in dispute that so far as witness no.1 is concerned, he had clearly denied the entire allegation against the petitioner and so far as witness no.2 is concerned, he had referred to the records and simply stated the fact that a charge sheet was issued to the petitioner and that the petitioner had filed a reply indicating that it was Yogeshwar Prasadthe complainant, who had raised the arms against the petitioner. However, the learned counsel for the respondents reiterates that the present case does not call for any interference and accordingly, the writ petition may be dismissed.

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Findings of this Court

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12. After hearing the learned counsel for the parties and after considering the facts and circumstances of this case, this Court is of the considered view that there is no dispute that the scope of interference in the matter of departmental inquiry in a writ court, particularly, when the inquiry report, the order of the disciplinary authority as well as the order of the appellate authority is against the delinquent, is extremely limited. While advancing the argument regarding the scope of interference in writ jurisdiction, the learned counsel for the respondents has rightly relied upon the judgment passed by the Hon'ble Supreme Court reported in (2020) 9 SCC 471 ( supra) which has been followed by this Court in W.P.S. No.6662 of 2010 dated 04.02.2022 to bring on record the scope of judicial review in service matters.

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13. Considering the aforesaid judgment relied upon by the respondents reported in (2020) 9 SCC 471 (Pravin Kumar vs. Union of India) para-25 to 30, it is not in dispute that the writ court does not sit in appeal against the orders passed in departmental proceedings, particularly when there are concurrent findings with regard to the proved charges upon considering the materials produced before the authorities. Para 25 to 30 of the aforesaid report is quoted as under: -

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“ I. Scope of judicial review in service matters

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25. The learned counsel for the appellant spent considerable time taking us through the various evidence on record with the intention of highlighting lacunae and contradictions. We feel that such an exercise was in vain, as the threshold of interference in the present proceedings is quite high. The power

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of judicial review discharged by constitutional courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision-making process, and not the merits of the decision itself. Judicial review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome.

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26. These principles are succinctly elucidated by a three-Judge Bench of this Court in B.C. Chaturvedi v. Union of India in the following extract: (SCC pp. 759-60, paras 12-13)

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“ 12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal concerned is to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

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13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union

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of India v. H.C. Goel this Court held at SCR pp. 728-29 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.”

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27 . These parameters have been consistently reiterated by this Court in a catena of decisions, including:

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(i) State of T.N. v. S. Subramaniam.

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(ii) Lalit Popli v. Canara Bank.

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(iii) H.P. SEB v. Mahesh Dahiya.

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28. It is thus well settled that the constitutional courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority.

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29. The High Court was thus rightly concerned more about the competence of the enquiry officer and adherence to natural justice, rather than verifying the appellant’s guilt through documents and statements. It clearly noted that evidence was led, cross-examination was conducted and opportunities of addressing arguments, raising objections, and filing appeal were granted. The conclusion obtained was based upon these very evidence and was detailed and well-reasoned. Furthermore, the High Court did not restrict the scope of judicial review, rather adopted a liberal approach, and delved further to come to its own independent conclusion of guilt. Similarly, we have no doubt in our minds that the appellate authority had carefully dealt with each plea raised by the appellant in his appeal and had given detailed responses to all the contentions to satisfy the appellant’s mind. The disciplinary authority too was impeccable and no infirmity can be found in the report of the enquiry officer either.

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30 . Even in general parlance, where an appellate or reviewing court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed insofar as it remains plausible or is not found ailing with perversity. The present case is neither one where there is no evidence, nor is it one where we can arrive at a different conclusion than the disciplinary authority, especially for the reasons stated hereunder.”

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14. Upon perusal of the aforesaid paragraphs of the judgement, the law is well settled that interference under Article 226 of the Constitution of India in extremely limited scope of interference would be justified, interalia , where the conclusion or finding reached by the disciplinary authority is based on no evidence. The present case of the

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petitioner is of a nature where the conclusion / finding reached by the enquiry officer, disciplinary authority as well as appellate authority is based on no evidence against the petitioner, although two witnesses were examined from the side of the department.

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15. It is not in dispute that the petitioner at the relevant point of time was posted as Police at Jamshedpur and was deputed on legislative election duty in the year 2009. One Hawaldar, namely, Yogeshwar Prasad and Antu Purty, S.I. incharge of the force on 12.11.2009 submitted a written report against the petitioner alleging that when the police force including the petitioner were returning from election duty on police vehicle, the petitioner asked the driver of the vehicle to stop, but the driver did not stop the vehicle at that time, but stopped after a distance. Upon this, the petitioner abused the driver and when protested by Yogeshwar Prasad, the petitioner abused him and aimed rifle at him to shoot, but by timely intervention of the force this could be averted. Based on this allegation, departmental proceeding was instituted against the petitioner being Department Proceeding No.12 of 2010. In the said departmental proceeding, only two witnesses namely Antu Purty, who had forwarded the complaint was examined as P.W.1 and Sri Biltu Munda was examined as P.W.2 and the petitioner did not cross-examine any of these witnesses. Admittedly, the complainant -Yogeshwar Prasad, was not examined in the enquiry proceedings.

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16. The inquiry report which has been filed along with the supplementary counter-affidavit clearly indicates that P.W.1 had not supported the case against the petitioner and denied the entre incident as alleged and clearly stated that no incident had taken place and Yogeshwar Prasad had just come with an application to which he had put his signature. So far as witness no.2 is concerned, he has referred to the records and only mentioned about the charge and the contents of the charge which was issued to the petitioner and also the fact that the petitioner had filed a reply alleging that it was Yogeshwar Prasad, who had pointed gun at the petitioner. This witness also stated that the petitioner tried to meet the commandant thrice, but the commandant did not meet the petitioner.

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17. Thus, none of the two witnesses had deposed anything against the petitioner in the enquiry proceeding and in spite of this, the inquiry report in its conclusion held that the charge stood proved against the petitioner. Considering these aspects of the matter, this Court is of the considered view that the petitioner has been punished on the basis of no evidence led against him, although two witnesses were examined by the department at the stage of inquiry. This aspect of the matter has not at all been considered by the disciplinary authority as well as appellate authority. These aspects of the matter have been elaborately placed by the learned counsel appearing on behalf of the petitioner as recorded above and the learned counsel for the respondents also could not substantiate even an iota of evidence against the petitioner from perusal of the inquiry report and also from perusal of evidence of both the witnesses. Thus, this Court finds that the conclusion of the enquiry report that the charge is proved against the petitioner is itself perverse. On the basis of such perverse finding of the enquiry report, the disciplinary authority passed the order of punishment holding that the charge is proved and the appellate authority also dismissed the appeal observing that the charge is proved and that the petitioner did not give any defence evidence. As the finding of the enquiry report being perverse and based on no evidence against the petitioner, the order of disciplinary authority holding the petitioner guilty as well as the appellate authority dismissing the appeal, are fit to be set-aside in exercise of powers under Article 226 of the Constitution of India.

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18. Accordingly, the impugned order dated 06.12.2010 passed by respondent no.5 in Departmental Proceeding No.12 of 2010 holding the petitioner guilty and imposing punishment of stopping increments for two consecutive years, as well as, the appellate order contained in memo no.982 dated 02.07.2011 are hereby set-aside.

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19. This writ petition is accordingly allowed with the aforesaid observation and directions.

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(Anubha Rawat Choudhary, J.)

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Saurav

Jeetendra Kumar v. State of Jharkhand And Ors.

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Jeetendra Kumar v. State of Jharkhand And Ors.

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