A police constable challenged his departmental dismissal on natural-justice grounds and subsequent criminal acquittals. The court rejected the challenge, held that the acquittals were not honourable and had no bearing on the departmental proceedings, and dismissed the writ petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 7135 of 2013
Mrityunjay Kumar, S/o Ram Narayan Singh, resident of village-Sultanpur, P.O.-Bhagwanpur, P.S. Hulashganj, District-Jahanabad, Bihar
… … … Petitioner
Versus
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
--For the Petitioner : Mr. Manoj Tandon, Advocate For the Respondents : Mrs. Bandana Sinha, Advocate
Through Video Conferencing
18/10.02.2022
Arguments of the Petitioner
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proceeding was initiated against the petitioner vide memo No. 2640 dated 07.05.2012 and during the course of enquiry, altogether 4 witnesses were examined out of them 3 witnesses were examined on 25.10.2012 when the petitioner was in custody from 16.04.2012 to 10.11.2012. Learned counsel further submits that in the aforesaid circumstances, the said 3 witnesses were examined without giving an opportunity of cross examination by the petitioner. However, during the course of argument, it transpired that neither any plea has been taken by the writ petitioner in the writ petition that he was in custody during the period from 16.04.2012 to 10.11.2012, nor there is any material on record to substantiate this plea. Upon this, learned counsel further submits that so far as 3 witnesses who were examined on 25.10.2012 are concerned, they have not supported the charge against the petitioner and they were only formal witnesses but the 4th witness is the most important witness.
However, during the course of argument, it transpired and it is not in dispute that the petitioner received a copy of the examination in chief of the 4th witness on 08.03.2013.
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mentioned that petitioner was in custody during the period from 16.04.2012 to 10.11.2012. He submits that it is for the department to prove the case and the person whose motorcycle was allegedly stolen having not been examined in the departmental proceeding, was also specifically raised. He submits that these aspects of the matter which were specifically raised to his second show cause has not been considered by the authority. He submits that similar points were raised before the appellate authority as well as revisional authority, but the same have not been considered and therefore the impugned orders by which the petitioner has been held guilty and punishment has been imposed are non-speaking and fit to be set aside.
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20.06.2018, has failed to consider these aspects of the matter.
Arguments of the Respondent State
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baseless and he had also stated before the enquiry officer that other police personnel as well as his seniors may be called for examination and from their examination it will be clear that there has been no charge against him during the entire service period.
Findings of this court
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cause on 08.03.2013 denying and disputing the charges levelled against him. By this time, four witnesses were already examined from the side of the department and the deposition of all the four witnesses have been annexed as Annexure- 12 of the present writ petition. First three witnesses were examined on 25.10.2012, who according to the petitioner also are formal witnesses and not stated anything against the petitioner. 4th witness namely Rajeev Ranjan Lal was examined on 25.02.2013 in absence of the petitioner, however, a copy of the deposition was served upon the petitioner on 08.03.2013. Thereafter, the petitioner was given an opportunity of hearing by the enquiry officer and then enquiry report was submitted. The fourth witness is the only witness who has deposed against the petitioner.
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section 311 of IPC in Chanho P.S. case number 40 of 2012 vide judgement dated 12.02.2014 and the petitioner was acquitted vide judgement dated 20.05.2014 (Annexure-9) passed in Criminal Appeal no. 47 of 2014 by holding that the prosecution has not been able to prove the case against the petitioner beyond all reasonable doubts.
Point no (a)
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proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged quickly together with a statement of the allegations on which each charge is based. Any other circumstances which is proposed to be taken into consideration in drawing up proceeding shall also be communicated. It should be ensured that several miscellaneous charges should not be lumped into one proceeding and only connected or coherent charges should be included in it. The delinquent shall be required, within a reasonable time, not exceeding four weeks (unless extended for some definite reasons) to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs, an oral enquiry shall be held. At that enquiry, evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the enquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. Except in very special circumstances, no pleader or agent should be allowed to appear either on behalf of the Government or the accused either before the officer who conducts the enquiry or any, officer to whom appeal may be made.”
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when the delinquent is in custody, he can make a request before the enquiry officer to permit him to be represented through a pleader or an agent. In the instant case, the petitioner neither filed his show cause reply within the stipulated time, nor made any such request before the enquiry officer to permit him to be represented through a pleader or an agent. The petitioner filed his show cause reply belatedly on 08.03.2013 after all the four witnesses were already examined and on 08.03.2013 the petitioner was handed over a copy of the deposition of witness no. 4 also but the petitioner neither made any prayer before the enquiry officer to recall any of the witnesses for the purposes of cross-examination, nor made any grievance regarding their examination in his absence.
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show cause and to represent him in the enquiry but the petitioner did not take any such step and did not participate in the enquiry and filed his show cause reply belatedly only on 08.03.2013. Inspite of receipt of copy of examination in chief of the witnesses on 08.03.2013, the petitioner did not take any step for recall of any witness for crossexamination including cross-examination of the witness no. 4 who is the sole witness who had deposed against the petitioner although the enquiry proceedings were still pending. Upon perusal of the show cause reply dated 08.03.2013 filed by the petitioner before the enquiry officer, this court finds that the petitioner never raised a plea before the enquiry officer that he was in judicial custody from 16.04.2012 to 10.11.2012 and in the said show cause reply filed on 08.03.2013 no prayer was made seeking cross-examination of the witnesses already examined from the side of the department.
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the department which were found sufficient to hold the petitioner guilty of the charges by the enquiry officer, disciplinary authority, appellate authority and revisional authority. So far as mere mention of Article 311(2) (b) of the constitution of India in the impugned order of punishment is concerned, the same has no bearing in the matter as it is not in dispute that the punishment has been imposed upon the petitioner after conducting regular departmental proceedings.
33. There can be no 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 enquiry officer. The power of judicial review discharged under Article 226 is distinct from the appellate power exercised by a departmental appellate authority. It is well settled that Judicial review is an evaluation of the decision-making process, and not the merits of the decision itself and
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judicial review seeks to ensure fairness in treatment and not fairness of conclusion and it can 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. It is also well settled that the findings or conclusions should be based on some evidence and there is no scope to enter into sufficiency of evidence in writ jurisdiction and this Court 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 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 enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. The jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice.
34. This court finds that in the instant case the petitioner has not been able to point out any perversity or illegality or errors of law/ procedural errors leading to manifest injustice or violation of principles of natural justice in the enquiry proceedings or in findings recorded by the disciplinary authority based on the enquiry report. The appellate court as well as revisional court affirmed the order of the disciplinary authority and found that no ground for interference was called for in the findings expressed by the disciplinary authority.
35. In view of the aforesaid findings the point (a) is decided against the petitioner and in favour of the respondents.
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103 of 2012 the petitioner has been acquitted on account of nonexamination of important prosecution witness and holding that the prosecution has not been able to prove the case against the petitioner beyond shadow of reasonable doubts. Thus, this court finds that the petitioner has not been honourably acquitted in the criminal cases and accordingly, the same will have no bearing on the departmental proceedings. The term “honourable acquittal “has been explained by the Hon’ble Supreme Court in the case reported in (2013)1 SCC 598 (Deputy Inspector General of Police and Another versus S.Samuthiram) and the paragraphs relevant for the purposes of this case are quoted as under: -
“ Honourable acquittal
24. The meaning of the expression “honourable acquittal” came up for consideration before this Court in RBI v. Bhopal Singh Panchal . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions “honourable acquittal”, “acquitted of blame”, “fully exonerated” are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression “honourably acquitted”. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.
25. In R.P. Kapur v. Union of India it was held that even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam v. Raghava Rajgopalachari this Court quoted with approval the views expressed by Lord Williams, J. in Robert Stuart Wauchope v. Emperor which is as follows: ( Raghava case , SLR p. 47, para 8)
“ 8. … ‘The expression “honourably acquitted” is one which is unknown to courts of justice. Apparently, it is a form of order used in courts martial and other extrajudicial tribunals. We said in our judgment that we accepted the explanation given by the appellant, believed it to be true and considered that it ought to have been accepted by the government authorities and by the Magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what government authorities term “honourably acquitted”.’” ( Robert Stuart case , ILR pp. 188-89)
26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. 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 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 a criminal court is not required in a disciplinary proceedings and preponderance of probabilities
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is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.
27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.
28. In view of the abovementioned circumstances, we are of the view that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings as against the respondent, in its limited jurisdiction under Article 226 of the Constitution of India.”
Binit/
3 issues framed by the court
Did the alleged denial of cross-examination and non-examination of the motorcycle owner invalidate the departmental proceedings?
Did reference to Article 311(2)(b) invalidate dismissal imposed after regular departmental proceedings?
Did acquittal in the two criminal cases warrant interference with the departmental dismissal?
Colour shows how this judgement treated each authority
Deputy Inspector General of Police and Another versus S.SamuthiramRelied on¶94
(2013)1 SCC 598 (Deputy Inspector General of Police and Another versus S.Samuthiram) · Who else cites this
3 provisions across 2 enactments
Mrityunjay Kumar
State of Jharkhand
Director General-cum-Inspector General of Police, Jharkhand, Ranchi
Deputy Inspector General of Police, South Chhotanagpur Range, Ranchi, Jharkhand
Senior Superintendent of Police, Ranchi
ANUBHA RAWAT CHOUDHARY
As recorded by the court registry
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