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Product S.No.1193290545 Licensed to: Sh.Satyender Kumar Goyal,Advocate Gurugram

Haryana

Judgment located by a hyperlink.

Naresh Sharma Deceased v. State of M.P., (Chhattisgarh) : Law Finder Doc Id # 1119078

2018 ILR (Chhattisgarh) 1374 : 2018 LIC 2878

CHHATTISGARH HIGH COURT

Before:- Manindra Mohan Shrivastava, J.

W.P.S. No. 3521 of 2005. D/d. 12.3.2018.

Naresh Sharma Deceased - Petitioner

Versus

State of M.P. and others - Respondents

A. Police Act, 1861 Section 46 Chhattisgarh Police Regulations, Regulations 214(i), 215(a)
and 221 - Constitution of India, 1950 Article 309 Chhattisgarh Civil Services
(Classification, Control and Appeal) Rules (1966), Rule 18 - Dismissal from service -
Delinquent allegedly entering into house of colleague in intoxicated condition at night
and harassing female family members in his absence - Enquiry officer relied upon
statements of wife and mother-in-law of complainant - Failure of delinquent to cross-
examine daughter of complainant, in spite of affording opportunity - Held, that there is
sufficient oral evidence on record to sustain finding of guilt - Petition dismissed.

[Para 12]

B. Constitution of India, 1950 Article 309 Chhattisgarh Civil Services (Classification,

Control and Appeal) Rules (1966), Rule 18 - Dismissal from service - Plea of delinquent
that charges framed against him are vague - Charge sheet reflecting that delinquent,
petitioner entering house of colleague in intoxicated condition at night and harassing
female family members in his absence and making an indecent proposal of offering
money - Held, that it constitutes indecent behaviour and conduct - Charges cannot be
accepted as vague.

[Para 8]

C. Constitution of India, 1950 Article 309 Chhattisgarh Civil Services (Classification,

Control and Appeal) Rules 1966, Rule 18 - Departmental proceedings - Preliminary
enquiry - Preliminary enquiry conducted by officer lower in rank than Deputy
Superintendent of Police - Held, that preliminary enquiry was followed by regular
departmental enquiry - Enquiry Officer appointed to hold regular enquiry, not
statutorily incompetent - No provision in statutory rules for holding preliminary
enquiry by an officer not below rank of Deputy Commissioner of police - Report of
preliminary enquiry cannot be made basis for holding that departmental proceedings
are vitiated.

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[Para 9]

D. Constitution of India, 1950 Article 309 Chhattisgarh Civil Services (Classification,

Control and Appeal) Rules (1966), Rule 18 - Departmental proceedings - Absence of any
direct evidence - Held, that standard and degree of proof required in departmental
enquiry, not as high as that in criminal cases finding of guilt can be reached on
preponderance of probability without insisting upon degree of proof beyond
reasonable doubt - Once evidence is found to be reliable, there is no need of
corroboration from the testimony of any independent outside witness when incident
was repeated in the night that too in house of complainant.

[Para 11]

ORDER

Manindra Mohan Shrivastava, J. - Heard.

During the pendency of the petition, the original petitioner died and his legal
representatives have been allowed by this Court to be substituted in place of the original
petitioner and prosecute the petition.

The petitioner had filed Original Application before the State Administrative Tribunal,
Raipur. After abolition of the State Administrative Tribunal, the case was transferred to this
Court.

2. By this petition, the petitioner has assailed legality and validity of order dated 03/05/1999
passed by the Senior Superintendent of Police by which major penalty of dismissal from
service was imposed on the basis of charges of misconduct in a departmental enquiry.

3. While the petitioner was posted and working as Constable (Radio) at Jagdalpur, a charge
sheet was issued to him on 09/06/1998 on certain allegations of misconduct along with list of
witnesses and documents. In the charge sheet, five charges were levelled against the
petitioner which related to an alleged misconduct of the petitioner entering the house of the
colleague employee repeatedly in the night in the absence of the colleague employee
Constable and exhibiting indecent behaviour followed by indecent proposals made to the
wife of the colleague employee. The petitioner submitted his reply which was not found
satisfactory and later on, it led to an enquiry held by an enquiry officer. As no Presenting
Officer was appointed, upon receipt of charge sheet and relevant documents from the office
of the disciplinary authority, the enquiry officer summoned the witnesses of the prosecution
and examined them. All the witnesses (except witness - Ku. Archana Sharma) were allowed
to be cross-examined. The petitioner led defence evidence. As no Presenting Officer was
appointed by the disciplinary authority, witnesses of defence were not cross-examined.
After completion of enquiry, enquiry report was submitted by the enquiry officer, by which,
five charges were found proved. On the basis of enquiry report, a show-cause notice was
issued to the petitioner proposing penalty. After receipt of reply, the disciplinary authority,
vide impugned order, imposed penalty of dismissal from service. The petitioner preferred
an appeal before the appellate authority. A ground was raised that the petitioner was not
permitted to cross-examine the prosecution witness ' "Ku. Archana Sharma. Appreciating
this ground, the Appellate Authority directed the enquiry officer to re-examine Ku. Archana
Sharma and afford the petitioner an opportunity of hearing to re-examine and submit
report. Thereafter, the enquiry officer summoned Ku. Archana Sharma who was re-
examined. The petitioner in his cross-examination refused to cross-examine. Thereafter, a
supplementary report was forwarded to the appellate authority. Finally, the appeal of the
petitioner was dismissed. A Mercy Appeal was also dismissed which led to filing of this
petition.

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4. Assailing correctness and validity of imposition of penalty of dismissal from service,

learned counsel for the petitioner raises as many as five grounds. The first submission of
learned counsel for the petitioner is that as far as charge No.1 is concerned, the same is
vague and not specific as to what indecent words were used by the petitioner which could
be said to be derogatory to the lady family members of the colleague employee. Learned
counsel for the petitioner would submit that neither in the charges nor in the statement of
allegations, specific misbehaviour or indecent behaviour was alleged. Further submission is
that there was no specific allegation of any indecent proposal by the petitioner to the wife of
the colleague employee of offering her money. As this particular charge was considered to
be little grave in nature leading to penalty, vagueness of charge seriously prejudiced the
petitioner in his defence. Next submission is that the preliminary enquiry was conducted by
Shri Umashankar Ojha, Inspector (T/C) whereas Shri Ojha is not the competent authority.
According to learned counsel for the petitioner, even the preliminary enquiry could be held
by an officer not below the rank of Deputy Superintendent of Police. Third submission is
that as the petitioner was deprived of cross-examination of Ku. Archana Sharma, the
enquiry is vitiated. Fourth submission is that there is no direct evidence of independent
witness having witnessed the incident of the petitioner forcibly entering the house of the
colleague employee, exhibiting indecent behaviour, making indecent proposal and
harassing female family members of the colleague employee in the night. The enquiry
officer has placed reliance on the oral testimony of the evidence of family members of the
colleague employee. Without corroboration of such statement by an outside independent
witness, the enquiry officer as well as the disciplinary and Appellate Authority, ought not to
have relied upon those statements to hold the charges proved. Last submission is that as no
Presenting Officer was appointed, the enquiry officer assumed the role of the Presenting
Officer and thus, he became the Judge and Prosecutor both, thereby vitiating the
departmental enquiry. Such an enquiry is quasi judicial. It is submitted that the enquiry
officer has to remain impartial, fair and if he loses impartiality and assumes the role of
Prosecutor, he disqualifies himself to act as enquiry officer. Therefore, the enquiry is
vitiated.

5. State counsel would submit that if five charges are read together, they relate to one single
allegation of misconduct committed by the petitioner on the same day by entering
repeatedly in the house of his colleague employee in a drunken state, also misbehaving and
giving indecent proposal to the wife of the colleague employee. This read together with the
statement of allegations makes a clear case against the petitioner. Therefore, on the
wholesome reading of the five charges together with the statement of allegations clearly
show that the petitioner was fully knowing as to what are the allegations levelled against
him which he is required to defend. Further submission is that as far as the preliminary
enquiry is concerned, even if it is assumed that it was conducted by an authority of lower
rank, that by itself, without anything more, would not vitiate the regular enquiry because
the law does not prohibits initiation of regular enquiry without obtaining report in
preliminary enquiry. It is submitted that the enquiry report is based on the evidence
collected during the regular enquiry. Therefore, it would not have any vitiating effect.
Insofar as opportunity of cross-examination of Ku. Archana Sharma is concerned, learned
State counsel emphatically submits that in the first round of enquiry, the petitioner was not
allowed to cross-examine Ku. Archana Sharma. The appellate authority having appreciated
this ground, had directed the enquiry officer to hold further enquiry by examining Ku.
Archana Sharma and affording the petitioner an opportunity to cross-examine Ku. Archana
Sharma. Thereafter, Ku. Archana Sharma was again called and examined as witness but
after her examination, the petitioner refused to cross-examine her which shows that the
petitioner was never keen to cross-examine the said witness and it was only an attempt to
somehow challenge the order of penalty. Therefore, after opportunity was afforded to the
petitioner to cross examine Ku. Archana Sharma, such grievance, if any, was fully redressed.
It is next submitted that present being a case of departmental enquiry, the standard and
degree of proof as required in criminal case is not necessary. The prosecution is required to

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prove the misconduct by preponderance of probability and not beyond reasonable doubt.
The finding of charges are based mainly on the statement of wife of the colleague employee
and her mother. He would further submit that the circumstances in which the incident
happened, there was no possibility of any other outsider being present in the house of the
colleague employee ' " Mr. Rajkumar Sharma where alleged incident of misbehaviour
happened. It is not a case where some incident happened in the public place or road in
broad day light and number of persons were present. Once the statement of the wife of the
colleague employee and her mother are found sustainable on probability, as a matter of
principle, no corroboration is necessary. Lastly, it is submitted that though the Presenting
Officer was not appointed, there is nothing on record to show that the enquiry officer
assumed the role of Prosecutor. According to him, the departmental enquiry records show
that after receipt of relevant records of prosecution, the enquiry officer issued notices to the
prosecution witnesses who gave their statements and were also allowed to be cross-
examined (except Ku. Archana Sharma) and thereafter, the petitioner was allowed to lead
his defence witness. It is not a case where enquiry officer cross-examined the defence
witnesses. In the absence of there being any overt act done by the enquiry officer to indicate
that he was acting in a partisan manner, merely because the Presenting Officer was not
appointed, it cannot be said that the enquiry officer assumed the role of Presenting Officer.

6. I have heard learned counsel for the parties and perused the records as also enquiry
records produced for perusal by learned State counsel.

7. It appears that while the petitioner was posted as Constable at Jagdalpur Railway Station,
his colleague employee ' " Rajkumar Sharma had proceeded on leave to his home town at
Bhind, leaving behind his family consisting of his mother-in-law, wife and daughter in a
official residence No. 23. A complaint was made against the petitioner by the said Rajkumar
Sharma that on 07/03/1998, that when Rajkumar Sharma was not present in the house and
only lady members were present, in the night, the petitioner entered the house in
intoxicated condition and harassed his family members. It is alleged that he acted
indecently. Further allegations are that the petitioner repeated the incident and insisted to
open the door in the night which frightened the family members, he was warned to go away
otherwise neighbours would be called then only the petitioner went back. It is alleged that
the petitioner offered Rs. 10/- to the wife of the complainant ' " Rajkumar Sharma with an
offer to give more, if needed. A preliminary enquiry was conducted in which statements
were recorded including the statement of the petitioner. As in the preliminary enquiry, a
prima facie case was made out, regular departmental enquiry was initiated against the
petitioner by issuing a charge sheet on 09/06/1998. The petitioner submitted his reply
denying all the allegations. As the disciplinary authority was not satisfied with the reply, he
appointed an enquiry officer. The enquiry officer, thereafter, issued notices to the witnesses
of the prosecution who were examined. Though all the prosecution witnesses were
examined and allowed to be cross-examined, one of the prosecution witnesses Ku. Archana
Sharma who was also present in the house on the date of alleged incident was not called for
cross-examination because by that time, she was married and request was made not to call
her for cross-examination. The petitioner was also permitted to lead defence evidence.
Finally, the enquiry officer, after recording evidence of the prosecution witnesses as also
taking into consideration the records, prepared enquiry report on 28/01/1999. All the
charges were found proved. The petitioner then preferred an appeal and specific ground
was taken and he was not allowed to cross-examine Ku. Archana Sharma. The appellate
authority appreciated the arguments that the enquiry officer did not allow the petitioner to
cross-examine Ku. Archana Sharma. Therefore, the enquiry officer was directed to hold
further enquiry and to allow the petitioner to cross-examine Ku. Archana Sharma and then
submit supplementary enquiry report. The records show that later on, Ku. Archana Sharma
was examined by the enquiry officer again and when the petitioner was afforded
opportunity to again cross-examine Ku. Archana Sharma, he refused to cross-examine her.
The appeal was, therefore, dismissed.

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8. As far as first ground that charges are vague is concerned, upon wholesome reading of
charges five in number along with statement of allegations, it cannot be said that the
charges were so vague as to deprive the petitioner opportunity to effectively defend the
case. The object and purpose of specific allegations to be contained in the charge sheet is
that the delinquent employee knows what exactly are the charges which he is required to
defend. If the charge sheet is read as a whole, it appears that charge Nos. 1 and 2 relate to
the incident of petitioner coming to the house of the colleague employee ' " Rajkumar
Sharma in intoxicated condition and acting indecently. The statement of allegations clearly
state and allege that the petitioner had come to the house in the night in intoxicated
condition more than once. When the door was opened, the petitioner entered the house
despite knowing that the colleague employee is not present in the house and despite
repeated request, he did not go back and left the place after lot of resistance. It has also been
very specifically alleged that at about 12:30 a.m. in the night, the petitioner again came and
rang the call bell insisting lady members to open the door, the family members did not open
the door and the family members warned the petitioner to go back otherwise neighbours
would be called. It is only after this warning that the petitioner left the house. It has also
been alleged that in the first occasion, when the petitioner came to the house, he offered Rs.
10/- to the wife of the colleague employee and stated that she may take, if she needs more. In
charge Nos.3 and 4, the petitioner is alleged to have offered Rs. 500/- for giving to the lady
members of the family of colleague employee. These statements taken together constitute a
clear and specific charge against the petitioner. Use of the word ' indecent' ("vkksHkuh;) has to
be understood in the context in which it is stated. What is reflected from the charge sheet is
that the act of the petitioner in entering the house of the colleague employee in the night, in
the presence of lady members only, insisting to continue his presence despite repeated
request, remaining in intoxicated condition, repeating the act of again attempting to enter
the house and making an indecent proposal of offering money of Rs. 10/- and then Rs. 500/-
to Smt. Meena Sharma, wife of Rajkumar Sharma, constitute indecent behaviour and
conduct of the petitioner. Therefore, I am unable to accept that the charges are vague in
nature.

9. The other submission of learned counsel for the petitioner that the preliminary enquiry
having been conducted by an officer lower in rank than Deputy Superintendent of Police
has vitiated enquiry, is not made out. It is not a case where enquiry has been held by an
enquiry officer, firstly because the preliminary enquiry was followed by regular
departmental enquiry and it is not a case where enquiry officer appointed to hold regular
departmental enquiry was statutorily incompetent. The purpose and object of preliminary
enquiry is only to find out whether prima facie case is made out to hold regular
departmental enquiry. The report of preliminary enquiry is not made a basis for imposition
of penalty. Moreover, learned counsel for the petitioner fails to demonstrate before the
Court that even for the purposes of preliminary enquiry, provisions have been made in
statutory rules for holding preliminary enquiry obliging the disciplinary authority to
appoint an officer not below the rank of Deputy Superintendent of Police. It is not a case
where preliminary enquiry alone was made a basis without any other material to impose
penalty. This ground, therefore, also fails.

10. Next submission of learned counsel for the petitioner that the petitioner was not allowed
to cross-examine Ku. Archana Sharma is factually incorrect and contrary to records of the
case. It is clear from the order passed by the appellate authority that on such ground having
been taken by the petitioner, further enquiry was held and Ku. Archana Sharma was called
and re-examined. The petitioner was also afforded opportunity to cross-examine her but the
petitioner refused to cross-examine. Therefore, no legitimate grievance in this regard can be
raised.

11. Next submission of learned counsel for the petitioner that there is no direct evidence to
support the case of the prosecution, therefore, the evidence of the wife and mother-in-law of

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the colleague employee ought not be relied upon, is liable to be rejected. It is well settled
legal position that the standard and degree of proof required for an enquiry is not as high as
required in a criminal case. While in a criminal case, the requirement is proof beyond
reasonable doubt, in a departmental enquiry, the finding of guilt could be reached on
preponderance of probability without insisting upon degree of proof beyond reasonable
doubt. A perusal of enquiry report clearly shows that for the purposes of charges proved
against the petitioner, the enquiry officer and the disciplinary authority relied upon
testimony of Meena Sharma ' " wife of the delinquent employee as also statement of mother-
in-law ' " Smt. Shashisena and both have supported allegations against the petitioner. Once,
therefore, evidence is found to be reliable, there is no requirement of law that their
evidence could not be acted upon unless it is corroborated from the testimony of any
independent outside witness, particularly in the circumstances of the case where the
petitioner was repeatedly coming to the house of the colleague employee Rajkumar Sharma
when the incident happened in the night and that too in the house of Rajkumar Sharma.
Therefore, it cannot be said that it being an incident of broad day light in public place,
absence of corroboration by independent witnesses should render the veracity of the
witnesses doubtful. In any case, the degree of proof is only preponderance of probability
and not beyond reasonable doubt. This Court has no reason to disbelieve the statement of
Smt. Shashisena and Smt. Meena Sharma. From the records of the departmental enquiry,
nothing could be revealed in the cross-examination of the witnesses to suggest why they
would falsely implicate the petitioner in the alleged incident. They have also stated that the
petitioner was in drunken state.

12. A perusal of the entire enquiry report would show that the enquiry officer has relied
upon statement of Smt. Shashisena and Smt. Meena Sharma to hold the charges proved
against the petitioner. In any case, later on, Ku. Archana Sharma was also examined and
allowed to cross-examine. Even if the statement of Ku. Archana Sharma is kept aside, there
is sufficient oral evidence on record to sustain the finding of guilt. Since, there is no specific
ground raised that the testimony of Smt. Shashisena and Smt. Meena Sharma did not contain
any allegations whatsoever and this Court having gone through their statements, no case for
interference is made out. The petition is accordingly dismissed.

Petition dismissed.

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