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2005 DIGILAW 675 (JHR)

Bijendra Singh v. State Of Bihar

2005-09-05

ALTAMAS KABIR, R.K.MERATHIA

body2005
ORDER 1. This appeal is directed against the judgment and order passed by the learned Single Judge on 18th May, 2004, dismissing the writ application filed by the appellant in CWJC No. 1844/2000 (P). 2. Admittedly, the appellant, Bijendra Singh, was duly selected and appointed as a Constable in the Bihar Military Police in August, 1971. During the Lok Sabha Elections of 1996, the appellant was sent on deputation to the D.A.V. School, Hazaribagh, and while he was posted there, in 8th May, 1996, at about 8.00 p.m., an incident took place in the School, in which the appellant was sought to be involved. 3. From the materials on record, it appears that a complaint was lodged by one Fuleshwar Mandal (constable No. 104), in which it was alleged that in the night of 8th May, 1996, while the complainant was standing in front of the School Gate with three other colleagues, namely, Kaushlesh Ram, Sagar Manjhi and Krishna Kumar Tamar, one Kishore Kumar Singh, in a drunken state, came and pushed him and ultimately the complainant was said to have been rescued by his other colleagues from any further assault. At that particular point of time, in the said complaint, it was also indicated that thereafter the complainant take his dinner and retired for the night, when suddenly he was rudely awoken by an assault on his chest by the said Kishore Kumar Singh, as a result whereof, he suffered injuries and bruises and had to be treated at the Sadar Hospital. 4. The story takes a slight twist thereafter, when two days later, a second complaint was lodged by Fuleshwar Mandal apparently over the self same incident, in which the incident is narrated with some differences, one of which was that not only Kishore Kumar Singh, but the present appellant also assaulted the complainant causing him injuries, which had to be treated at the Sadar Hospital. There are other differences, which suggest that the second complaint was lodged after the complainant had a chance to rethink over the incident. 5. The appellant was, thereafter, suspended from service and a departmental enquiry was commenced against him. The Enquiry Officer submitted his report, wherein he gave the benefit of doubt to the appellant. There are other differences, which suggest that the second complaint was lodged after the complainant had a chance to rethink over the incident. 5. The appellant was, thereafter, suspended from service and a departmental enquiry was commenced against him. The Enquiry Officer submitted his report, wherein he gave the benefit of doubt to the appellant. The Disciplinary Authority, however, after considering the materials on record as also the report of the Enquiry Officer, disagreed with the findings of the Enquiry Officer and held that the charges against the appellant had been established. Thereafter, notice to show cause was issued to the appellant as to why he should not be dismissed from service. After the appellant showed cause, the Disciplinary Authority passed in order, dismissing the appellant from service on 7th April, 1998. 6. The appellant preferred an appeal before the Appellant Authority, who concurred with the findings of the Disciplinary Authority to the extent that the charges against the appellant had been established but reduced the punishment order of dismissal to one of compulsory retirement from service with effect from 3rd November, 1998. A memorial submitted thereafter by the appellant to the Director General-cum-Inspector General of Police was rejected on 25th November, 1999. It was then that the appellant filed a writ application, challenging the various orders upto the order passed by the Director General-cum-inspector General of Police, Bihar. The matter was considered by the learned Single Judge in detail and ultimately, the learned Single Judge observed that in a writ application, the Court could not substitute its own findings of fact and arrive at a finding, which was contrary to the finding of the disciplinary Authority. On such basis, the learned Single Judge thought it fit not to interfere with the impugned order and dismissed the writ application. 7. Appearing in support of the appeal, Mr. Sharma, learned Senior Advocate, submitted that from the two versions in the two complaints filed by the same person over the self-same incident, it would be apparent that the second complaint was embellished and that the name of the appellant, which did not appear in the first complaint, was subsequently included in the second complaint for reasons best known to the complainant. 8. Mr. 8. Mr. Sharma also urged that apart from the above, from the materials on record, it would also be seen that there was no eye-witness to the incident or no eyewitness had been examined in respect of the incident, although, the Constables on deputation were all posted in the School in question and any incident of this nature would not have gone unnoticed. Mr. Sharma also pointed out that while the incident was taking place, the Sergeant Major was said to have been standing at one end of the verandah and he too, on being examined, did not say that, he had seen the incident but had heard from the complainant that the appellant and the above mentioned Kishore Kumar Singh had assaulted the complainant. 9. Mr. Sharma, however, took us through the evidence of one Ram Probesh Mahto, retired Inspector, who also deposed that he had seen the appellant trying to separate Kishore Kumar Singh from the complainant. A positive statement has been made by him in his evidence that he had seen the appellant trying his best to disengage the two, who were fighting with each other. It has also been mentioned by him that nobody had seen the incident, nor had he been tutored by anybody to give such evidence. 10. Mr. Sharma submitted that the materials on record did not warrant any action against the appellant and the findings of the Enquiry Officer should have been accepted by the Disciplinary Authority and the other authorities. 11. Dr. Laik, appearing on behalf of the State, very fairly indicated that the two complaints were in respect of the same incident and were substantially the same, and we should ignore, the minor differences in the way in which the incident had been narrated in the two separate complaints, particularly when from the evidence, the Disciplinary Authority was satisfied that an incident of this nature had taken place and that the appellant was involved therein. Dr. Laik submitted that the Bihar Military Police being a Disciplined Force, the Court should be slow to interfere in matters involving disciplinary action, particularly when the concerned person had an opportunity of appeal at two different stages. According to Dr. Laik, the learned Single Judge and rightly chosen not to interfere with the orders as passed by the Disciplinary Authority. 12. According to Dr. Laik, the learned Single Judge and rightly chosen not to interfere with the orders as passed by the Disciplinary Authority. 12. We have carefully examined the submissions made on behalf of the respective parties and while we are alive to the fact that the appellant belonged to a disciplined force, we also cannot ignore the materials, which are available on record and which stares us in the face. Even if we ignore the differences in the two complaints, there is hardly any explanation as to why none of the persons, who were present as the time of the incident, were examined, since they would have been the best witnesses of the occurrence. There is nothing in support of the complaint filed by Fuleshwar Mahto regarding the alleged assault on him by Kishore Kumar Singh and the appellant just before dinner. No attempt has been made to explain such fact and it has been left mainly to presumption and hear-say evidence alleged to have been gathered from the complainant, for the Disciplinary Authority to take a contrary view to that of the Enquiry Officer that the charges against the appellant had been established. 13. In our view, the materials on record were not sufficient in themselves to warrant a departure from the view expressed by the Enquiry Officer, except for the second complaint, which appears to us to have been doctored. There is nothing else to implicate the appellant in the incident, which is supposed to have taken place in the night of 8th/9th May, 1996. We are, therefore, inclined to accept the reasoning of the Enquiry Officer and to give the benefit of doubt to the appellant. Consequently, the orders passed by the Disciplinary Authority on 7th April, 1998 and those of the Appellate Authority and of the Director General-cum-Inspector General of Police, Bihar, dated 3rd November, 1998 and 25th November, 1999, are quashed. The order passed by the learned Single Judge is also set aside and consequently, the respondents are directed to allow the appellant to resume his duties within one week from the date of production of this order before the appropriate authority. The order passed by the learned Single Judge is also set aside and consequently, the respondents are directed to allow the appellant to resume his duties within one week from the date of production of this order before the appropriate authority. Since admittedly the appellant had not worked from the time he was placed under suspension, we direct that he be paid 50% of his salary for the said period after deducting any amount that he may have received by way of subsistence allowance. The aforesaid payments are to be made within two months from the date on which the appellant is allowed to resume his duties. There will be no order as to costs.