Policewoman Alleges Rape By Colleague- "Damage To Victim's Dignity No Proper Reason To Not Conduct Dept Enquiry": MP High Court
The Madhya Pradesh High Court on Tuesday set aside an order of dismissal passed against a constable, who had been accused of committing rape against a fellow policewoman noting that the reason for dispensing with the regular departmental enquiry against him was not satisfactory.The Bench of Justice Sanjay Dwivedi also observed that for imposing major penalties, there must be some strong...
The Madhya Pradesh High Court on Tuesday set aside an order of dismissal passed against a constable, who had been accused of committing rape against a fellow policewoman noting that the reason for dispensing with the regular departmental enquiry against him was not satisfactory.
The Bench of Justice Sanjay Dwivedi also observed that for imposing major penalties, there must be some strong and cogent reason with the Authority competent to impose such punishment and should be assigned in writing as to why enquiry is not reasonable and practicable to be held.
Case in brief
The petitioner/police constable challenged his dismissal order which was passed against him on a complaint made by a lady constable for the offence punishable under Sections 452, 354, 354-Gh, 376 and 506 of the Indian Penal Code.
In view of the said complaint, the petitioner was placed under suspension and thereafter, exercising the powers provided under Article 311(2)(b) of the Constitution of India, the Superintendent of Police dismissed the petitioner from service observing therein that the conduct of the petitioner had stigmatized the image of the Police Department.
It may be noted that although, Article 311(2)(b) prescribes some eventualities, in which, the major penalty like dismissal can be inflicted without following the requirement of the principle of natural justice or without conducting a regular departmental enquiry (in case of public servant)
In essence, he was removed from service on the ground of registration of an offence against him by a woman constable and he argued that he could not have been removed from service without conducting any departmental enquiry against him.
The reason assigned by the dismissing authority was that, a challan had been filed and a criminal case is being tried by the competent Court, therefore, there is no justification for conducting the regular departmental enquiry and calling the prosecutrix for recording her statement in the said enquiry because that would tarnish her image, dignity and respect in the department.
At the outset, looking to the facts of the case, the Court opined that the reason assigned by the Authority for not conducting a regular departmental enquiry was not only unreasonable but also unjustified. Further, the Court observed thus:
"...for the reason that the prosecutrix in the criminal case will be a material witness and would appear before the Court for getting her statement recorded then there should be no hitch while appearing in the departmental proceeding that too before the officers of the Police Department as the prosecutrix is also a police constable and when she made a complaint to the police about the alleged crime, then she must not have any hesitation to get recorded her statement as a witness in the departmental enquiry and she cannot be allowed to have her cake and eat it too."
Against this backdrop, the Court didn't find the reason assigned in the impugned order for not conducting a regular departmental enquiry and for applying the provisions of Article 311(2)(b) of the Constitution of India as satisfactory and as such, the impugned order of dismissal dated 02.02.2021 (Annexure-P/2) is not sustainable in the eyes of law and is hereby set aside.
Lastly, the Court also opined that Imposing major penalties applying the exception of Article 311(2)(b) of the Constitution of India is always a ground of judicial review and it can be set aside, if the Court comes to the conclusion that the reasons are not sufficient for dispensing with the regular departmental enquiry.
Case title - Amit Chaurasia v. The State of M.P. & another