Tuleshwar Prasad Kushwaha Vs the State of Jharkhand

4.D.I.G. of police, Singhbhum (Kolhan), Chaibasa, District-West Singhbhum 5.Avinash Kumar, SDPO Saraikela, District-Saraikela, Kharsawan 6.Deepak Kumar Dy. S.P., Headquarter Saraikela, District-Saraikela Kharsawan

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7.Superintendent of Police, Saraikela, Kharsawan

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… Respondents

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---------- CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner : Mr. Mahesh Tewari, Advocate For the Resp.-State : Mr. Nehru Mahto, AC to GP-IV

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10/ 04.01.2024 Heard the parties.

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2. Petitioner has approached this Court for quashing the order dated 28.02.2018 passed by the S.P., Saraikela-Kharsawan as well as order dated 18.06.2018, passed by the appellate authority i.e., the D.I.G. of Police, Singhbhum (Kolhan), Chaibasa affirming the order of disciplinary authority.

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Factual Matrix

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3. As per the factual matrix, the Petitioner was appointed to the post of Sub-inspector in the year 1994 and presently posted as Officer-in-charge, Chouka P.S., District- Saraikela Kharsawan. On one occasion a mob lynching incident occurred in the village of Shobhapur, where four people were killed by a mob on suspicion of child theft, and the Petitioner sustained injuries while performing his duties on 18.05.2017, including a lacerated wound on his forehead for which he received treatment.

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Unexpectedly, and without any prior show cause notice, the Petitioner was served with memo of charge vide Memo No. 1212, dated 18.07.2017 issued by the Superintendent of Police, stating that the departmental proceeding were to be initiated and Enquiry officer has been appointed. In response thereto, the petitioner submitted his defence on 30.10.2017. Subsequently, final order was passed vide Memo No. 1170 dated 28.02.2018, ordering stoppage of increment for six months which shall be

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equivalent to one black mark with a rider that petitioner shall not be entitled to the monies apart from what has been received during his suspension period.

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Aggrieved by the order, Petitioner preferred an appeal before D.I.G of Police Singhbhum on 17.03.2018 and later sought a review before the Director General of Police-cum-Inspector Geneal of Police vide letter dated 25.06.2018 but the same were rejected.

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Hence, the petitioner has approached this Court for redressal of his grievances.

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4. Learned counsel for the petitioner argues that the impugned orders are not tenable in the eyes of law. It has been brought to the notice of the Court that without serving the copy of the enquiry report along with second show cause notice the disciplinary authority has passed the order and inflicted the punishments. Learned counsel further submits that a major punishment cannot be inflicted without serving copy of the enquiry report and issuance of second show cause notice, it was incumbent upon the respondent-authorities to serve the copy of the enquiry report. It has further been argued that petitioner was highly prejudiced as what was the material before the disciplinary authority for inflicting punishment was never known to the petitioner in absence of that petitioner was very much prejudiced and as such the impugned order is not tenable in the eyes of law and is fit to be quashed and set aside. Though no specific averment has been made and it has been argued that petitioner has also suffered because of non-consideration of his case for promotion to the post of Deputy Superintendent of Police the punishment order is coming in the way as it is major punishment. Learned counsel places heavy reliance in the case of Managing Director, Ecil, Hyderabad & Ors. Vs. B. Karunakar & Ors. reported in (1993) 4 SCC 727 and others judgments.

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5. Learned counsel for the respondent-State opposing the contention of learned counsel for the petitioner argues that merely because the petitioner has not been served enquiry report and second show-cause notice it cannot be said that he was prejudiced. Petitioner got an opportunity to prefer an appeal and he had all opportunity to raise all the contentions before the appellate authority which was done by him and the same was not considered. Justifying the impugned order, the learned counsel submits that there is no illegality or

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infirmity in the order looking into the gravity of the situation as four persons were killed in mob lynching. However, taking a lenient view, much lesser punishment has been inflicted, though in such case the petitioner might have been removed. The petitioner being the officer-in-charge of the Police Station was not aware of the incidence which took place under his jurisdiction is an amounting to unbecoming of a police officer.

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6. Having gone through the rival submissions of the parties across the bar, this Court is of the considered view that non serving of the enquiry report along with the second show-cause notice is sina-qua-non. It was incumbent upon the respondents before inflicting punishment that also major punishment to serve a copy of the enquiry report along with second showcause notice. After hearing the matter at length, on several occasions affidavit was ordered to be filed by the Superintendent of Police, Saraikela-Kharsawan who happens to be a disciplinary authority of the petitioner. In compliance thereto an affidavit has been filed wherein it is fairly stated that admittedly enquiry report along with second show-cause notice has not been served to the petitioner. The issue fail of consideration before the Hon’ble Supreme Court in the case of B. Karunakar & Ors. (Supra) , particularly in paras-29, 57 and 62 which is quoted hereunder;-

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29.... Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.

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57. The findings or recommended punishment by the enquiry officer are likely to affect the mind of the disciplinary authority in his concluding the guilt or penalty to be imposed. The delinquent is, therefore, entitled to meet the reasoning, controvert the conclusions reached by the enquiry officer or is entitled to explain the effect of the evidence recorded. Unless the copy of the report is supplied to him, he would be in the dark to know the findings, the reasons in support thereof or nature of the recommendation on penalty. He would point out all the factual or legal errors committed by the enquiry officer. He may also persuade the

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disciplinary authority that the finding is based on no evidence or the relevant material evidence was not considered or overlooked by the enquiry officer in coming to the conclusions, with a view to persuade the disciplinary authority to disagree with the enquiry officer and to consider his innocence of the charge, or even that the guilt as to the misconduct has not been established on the evidence on records or to disabuse the initial impression formed in the minds of the disciplinary authority on consideration of the enquiry report. Even if the disciplinary authority comes to the conclusion that the charge or charges is/are proved, the case may not warrant imposition of any penalty. He may plead mitigating or extenuating circumstances to impose no punishment or a lesser punishment. For this purpose the delinquent needs reasonable opportunity or fair play in action. The supply of the copy of the report is neither an empty formality, nor a ritual, but aims to digress the direction of the disciplinary authority from his derivative conclusions from the report to the palliative path of fair consideration. The denial of the supply of the copy, therefore, causes to the delinquent a grave prejudice and avoidable injustice which cannot be cured or mitigated in appeal or at a challenge under Article 226 of the Constitution or Section 19 of the Tribunal Act or other relevant provisions. Ex post facto opportunity does not efface the past impression formed by the disciplinary authority against the delinquent, however, professedly to be fair to the delinquent. The lurking suspicion always lingers in the mind of the delinquent that the disciplinary authority was not objective and he was treated unfairly. To alleviate such an impression and to prevent injustice or miscarriage of justice at the threshold, the disciplinary authority should supply the copy of the report, consider objectively the records, the evidence, the report and the explanation offered by the delinquent and make up his mind on proof of the charge or the nature of the penalty. The supply of the copy of the report is, thus, a sine qua non for a valid, fair, just and proper procedure to defend the delinquent himself effectively and efficaciously. The denial thereof is not only offending Article 311(2) but also violates Articles 14 and 21 of the Constitution.

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62. Shri P.P. Rao obviously realising this effect, contended that the enquiry officer being a delegate of the disciplinary authority is not bound by the delegatee's recommendations and it is not a material unless it is used by the disciplinary authority. Therefore, the need for its supply does not arise and the principles of natural justice need not be extended to that stage as the officer/workman had opportunity at the inquiry. In support thereof he placed strong reliance on Suresh Koshy George v. University of Kerala [(1969) 1 SCR 317 : AIR 1969 SC 198] ; Shadi Lal Gupta v. State of Punjab [(1973) 1 SCC 680 : 1973 SCC (L&S) 293 : (1973) 3 SCR 637] ; Hira Nath Misra v. Principal, Rajendra Medical College, Ranchi [(1973) 1 SCC 805 : AIR 1973 SC 1260] ; Satyavir Singh v. Union of India [(1985) 4 SCC 252 : 1986 SCC (L&S) 1 : AIR 1986 SC 555] ; Secretary, Central Board of Excise & Customs v. K.S. Mahalingam [(1986) 3 SCC 35 : 1986 SCC (L&S)

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374] and Union of India v. Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] . I am unable to agree with his contentions. Doubtless that the enquiry officer is a delegate of the disciplinary authority, he conducts the inquiry into the misconduct and submits his report, but his findings or conclusions on the proof of charges and his recommendations on the penalty would create formidable impressions almost to be believed and acceptable unless they are controverted vehemently by the delinquent officer. At this stage non-supply of the copy of the report to the delinquent would cause him grave prejudice. S.K. George case [(1969) 1 SCR 317 : AIR 1969 SC 198] renders no assistance. It is only an inquiry against malpractice at an examination conducted by the University under executive instruction. Therein the students were given an opportunity of hearing and they were supplied with all the material, the foundation for the report. The observations of the Bench of two Judges with regard to the theory of two stages in the Inquiry under Article 311 also bears little importance for the foregoing consideration in this case. It is already seen that this Court held that the inquiry from the stage of charge-sheet till the stage of punishment is a continuous one and cannot be split into two. The reliance in Keshav Mills Co. Ltd. v. Union of India [(1973) 1 SCC 380 : (1973) 3 SCR 22] is also of no avail. Therein it was pointed out that under Section 18-A of the I.D.R. Act there was no scope of enquiry at two stages and the omission to supply enquiry report, before taking the action, did not vitiate the ultimate decision taken. In Shadi Lal case [(1973) 1 SCC 680 : 1973 SCC (L&S) 293 : (1973) 3 SCR 637] Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules did not provide for the supply of copy of the report of an inquiry conducted by the fact finding authority before inquiry. It was held that the delinquent officer was supplied with all the materials and was given opportunity to make representation and the same was considered. The report did not indicate anything in addition to what was already supplied to him. Under those circumstances it was held that the principles of natural justice cannot be put into an iron cast or a straitjacket formula. Each case has to be considered and the principles applied in the light of the facts in each case. The effect of the violation of the principles of natural justice on the facts of the case on hand needs to be considered and visualised. The effect of Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio was considered by my brother Sawant, J. and it needs no reiteration. The reliance on S.K. George case [(1969) 1 SCR 317 : AIR 1969 SC 198] in Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio renders no assistance in the light of the above discussion. Since Mahalingam case [(1986) 3 SCC 35 : 1986 SCC (L&S) 374] which was after the Fortysecond Amendment Act, the need to supply second show-cause notice was dispensed with, regarding punishment and therefore, that ratio renders no assistance to the case. Hira Nath Misra case [(1973) 1 SCC 805 : AIR 1973 SC 1260] also is of no avail since the inquiry was conducted relating to misbehaviour with the girl students by the erring boys. The security of the

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girls was of paramount consideration and therefore, the disclosure of the names of the girl students given in the report or their evidence would jeopardise their safety and so was withheld. Accordingly this Court on the fact situation upheld the action of the Medical College. Satyavir Singh [(1985) 4 SCC 252 : 1986 SCC (L&S) 1 : AIR 1986 SC 555] ratio also is of no assistance as the action was taken under proviso to Article 311(2) and Rule 199 of the CCA Rules. The inquiry into insubordination by police force was dispensed with as the offending acts of the police force would generate deleterious effect on the discipline of the service. Asthana case [(1988) 3 SCC 600 : 1988 SCC (L&S) 869] was considered by my brother Sawant, J. in which the report was not supplied and it was upheld. It should, thus be concluded that the supply of the copy of the enquiry report is an integral part of the penultimate stage of the inquiry before the disciplinary authority considers the material and the report on the proof of the charge and the nature of the punishment to be imposed. Non-compliance is denial of reasonable opportunity, violating Article 311(2) and unfair, unjust and illegal procedure offending Articles 14 and 21 of the Constitution and the principles of natural justice.

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It is duly observed that the petitioner/employee is bound to be prejudiced by non serving of the copy of the enquiry report along with second show-cause notice, when a major punishment is proposed to be inflicted. However, it has been categorically held that the entire proceeding will not vitiate because of the non serving of the enquiry report. In the instant case, admittedly the enquiry report along with second show-cause notice was not served to the petitioner which amounts to denial of reasonable opportunity and violative of Article 311(2), 14 and 21 of the Constitution.

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8. As a sequitur to the aforesaid rules, guidelines and judicial pronouncement the order dated 28.02.2018 passed by the S.P. SaraikelaKharsawan as well as order dated 18.06.2018, passed by the appellate authority i.e., the D.I.G. of Police, Singhbhum (Kolhan), Chaibasa is hereby quashed and set aside.

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9. Consequently, the matter is remitted back to the disciplinary authority to start afresh from the stage of serving of enquiry report along with issuance of second show-cause notice and providing ample opportunity of hearing, a fresh order be passed by the authority in accordance with law within a period of eight weeks from the date of receipt/production of a copy of this order.

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At this stage it is submitted by learned counsel for the petitioner that it is a case of double jeopardy as at one a case of double jeopardy as at one hand petitioner has been inflicted major punishment and on the other hand upon

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infliction of major punishment his promotion has also been affected.

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In view of submission of learned counsel for the petitioner it is clarified that non-consideration of case of the petitioner for promotion is not a case of double-jeopardy but justified, as an employee undergoing punishment cannot be awarded by way of grant of promotion otherwise it will mitigate the very purpose of punishment.

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However, if the petitioner is exonerated in the departmental proceeding, his case for promotion may be considered with effect from the date the junior to the petitioner has been considered and promoted in accordance with law in view of sealed cover procedure.

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10. Physical appearance of Superintendent of Police, Saraikela-Kharsawan is dispensed with.

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11. With the aforesaid observation and direction, the instant writ petition stands disposed of.

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Rohit/-

Tuleshwar Prasad Kushwaha v. the State of Jharkhand

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Tuleshwar Prasad Kushwaha v. the State of Jharkhand

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