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2021 DIGILAW 951 (PAT)

Sonu Kumar v. State Of Bihar

2021-09-22

CHAKRADHARI SHARAN SINGH

body2021
JUDGMENT 1. This matter has been taken up for hearing online because of COVID-19 pandemic restrictions. 2. The petitioner is seeking quashing of an order dated 15.12.2018 passed by the Superintendent of Police, Supaul, whereby punishment of dismissal from service has been imposed upon him. The petitioner's appeal has been rejected by the Deputy Inspector General of Police, Koshi Range, Saharsa, by an order dated 24.05.2019, which is also under challenge in the present writ application. 3. The petitioner, at the relevant point of time, was posted as constable (driver) in Supaul Police Station. Allegedly, on 15.09.2018 a video clip had become viral in which the petitioner was seen as consuming alcohol. An enquiry was ordered by the Inspector General of Police, whereafter, the Sub Inspector of Police namely, Deonandan Das conducted an enquiry and found the petitioner consuming alcohol. An F.I.R. was registered against him on 16.09.2018 for the offences punishable under Section 30(a) & 37(a) of the Bihar Prohibition and Excise Act, 2016. He was put under suspension by the Superintendent of Police, Supaul by an order dated 17.09.2018 in contemplation of departmental proceeding. The said video clip, which had become viral, was telecast by some news channels also. A departmental proceeding was thereafter initiated against him with issuance of chargesheet on 27.09.2018. The chargesheet has been brought on record by way of Annexure-4 to the writ application. The chargesheet refers to an enqury conducted by the Sub Divisional Police Officer, Supaul dated 17.09.2018 in respect of the said video clip becoming viral. It is evident from the charge-sheet that the Sub Divisional Police Officer, Supaul, had reported that the said video clip, in which the petitioner was seen consuming alcohol, had become viral and a photograph was also published in the newspaper. In the said report, the Sub-Divisional Police Officer had also mentioned that the petitioner was consuming alcohol in a glass and a bottle filled with alcohol was found near him. Following list of witnesses and list of documents on which the department intended to rely upon in support of the charge were furnished along with chargesheet:- List of witnesses:- (i) Reserved Sub Inspector, 1st, Supaul. (ii) Station House Officer, Supaul. (iii) Reader, Sub Divisional Offices office, Supaul. The list of documents:- (I) Supaul District Order no. 1086 / 2018 (ii) FIR of Supaul PS. (ii) Station House Officer, Supaul. (iii) Reader, Sub Divisional Offices office, Supaul. The list of documents:- (I) Supaul District Order no. 1086 / 2018 (ii) FIR of Supaul PS. Case No. 554 of 2018 (iii) Memo No. 3035/GO and Memo No. 888 / 2018 both dated 17.09.2016. 4. The First document mentioned in the list of documents i.e. Supaul District Order no. 1086/2018 was the order whereby the petitioner was placed under suspension. The second document was the First Information Report. The third document was Memo No. 3035/GO dated 17.09.2018 was a communication made by the Superintendent of Police to Sub Divisional Police Officer, to enquire into the incident which was circulating through the video clip which had become viral in which the petitioner was seen consuming alcohol. 5. An Inquiring Authority and a Presenting Officer were appointed. The petitioner submitted his written statement of defence denying the allegation made against him in the chargesheet. The Inquiring Authority submitted his report on 16.10.2018. There were three witnesses examined namely, Basudeo Rai, Sub Inspector of Police-cum-S.H.O., Triveniganj; Ajay Kumar Jha, Reserved Sub Inspector 1st, Supaul and constable Vinod Kumar working as Typist in the office of the Sub Divisional Police Officer, Supaul. The Inquiring Authority in the said report concluded that when the petitioner was posted as constable in Supaul Police Station, a video clip in which the petitioner was seen consuming alcohol had become viral and that news concerning the petitioner's said conduct was published in the newspaper. He further concluded that under the orders of the Superintendent of Police, Supaul, the Sub Divisional Police Officer, had conducted an enquiry. During the said enquiry, the said video clip getting viral and news in this regard having been published in the newspaper was found to be correct. Further, the act of the petitioner of consuming alcohol in a glass with a bottle of alcohol kept aside was also reported. An FIR was lodged against the petitioner. In the opinion of the Inquiring Authority, the conduct of the petitioner displayed lack of discipline, irresponsible behaviour and thereby, tarnishing the image of the Police. Accordingly, he held the charge against the petitioner as mentioned in the charge memo to be proved. 6. An FIR was lodged against the petitioner. In the opinion of the Inquiring Authority, the conduct of the petitioner displayed lack of discipline, irresponsible behaviour and thereby, tarnishing the image of the Police. Accordingly, he held the charge against the petitioner as mentioned in the charge memo to be proved. 6. It is worthwhile to mention that there is no specific finding recorded by the Inquiring Authority based on the evidence adduced during the departmental enquiry that the petitioner was found consuming alcohol. There is a finding that video clip in which the petitioner was seen consuming alcohol had become viral which fact was published in the newspaper also. The Superintendent of Police had directed, the enquiry to be concluded by the Sub Divisional Police Officer, Supaul, who had submitted his report regarding video clip becoming viral and news in this regard having been published in the newspaper. The report of the Sub Divisional Police Officer referred to by the Inquiring Authority was not mentioned in the list of documents supplied to the petitioner along with the charge memo. 7. Further, from the enquiry report, it transpires that Basudeo Rai, the Officer Incharge of Triveniganj Police Station in his statement, during the enquiry, stated about the video clip getting viral and subsequent registration of the F.I.R. on 16.09.2018. The witness Ajay Kumar Jha, also stated about the video clip getting viral and about registration of the F.I.R. and subsequent order whereby, the petitioner was placed under suspension. Constable Vinod Kumar, and other witnesses merely proved the memo no. 888/2018 dated 17.09.2018 issued from the office of the Sub Divisional Police Officer, under his signature. 8. The petitioner was supplied a report of the Inquiring Authority by the Disciplinary Authority along with show-cause notice issued vide memo no. 1705 dated 25.11.2018 asking the petitioner to explain within 15 days as to why punishment of dismissal from service be not imposed upon him. 9. The petitioner submitted his explanation in response to the said show-cause notice, asserting therein that no test was done to verify the allegation that the petitioner had consumed alcohol. Neither breath analyzer test nor any other scientific test was conducted to establish that the petitioner had consumed alcohol. 9. The petitioner submitted his explanation in response to the said show-cause notice, asserting therein that no test was done to verify the allegation that the petitioner had consumed alcohol. Neither breath analyzer test nor any other scientific test was conducted to establish that the petitioner had consumed alcohol. He, accordingly, pleaded in his reply to the show-cause notice against proposed dismissal from service that there was no legal evidence to establish that the petitioner had consumed alcohol and accordingly, the finding of the Inquiring Authority is based on no evidence. He, accordingly, pleaded before the Disciplinary Authority that the report of the Inquiring Authority should not be accepted. The Disciplinary Authority, however, rejected the petitioner's explanation and agreeing with the report of the Inquiring Authority and recorded the following findings. 10. After having recorded the aforesaid finding, the Superintendent of Police, Supaul, imposed upon the petitioner punishment of dismissal from the service. The petitioner preferred appeal before the Deputy Inspector General of Police, Koshi Range, Saharsa, which has been rejected. Thereafter, the petitioner preferred a Memorial against the impugned orders before the Director General of Police, Bihar, which has been dismissed by an order dated 22.10.2019. The petitioner has filed an Interlocutory Application registered as LA. No. 01 of 2019 challenging the said order dated 22.10.2019 passed by the Director General of Police. Considering the facts and circumstances, LA. No. 01 of 2019 is allowed. The petitioner is, thus, permitted to question the legality of the order dated 22.10.2019 passed by the Director General of Police, Bihar. 11. A counter affidavit has been filed on behalf of the State of Bihar to which a rejoinder has been filed on behalf of the petitioner. 12. Mr. Raju Giri, learned counsel appearing on behalf of the petitioner, has submitted that there is absolutely no evidence on record of the departmental enquiry to support allegation that the petitioner was consuming alcohol. He has contended that entire allegation against the petitioner is based on a video clip getting viral in which the petitioner was seen consuming alcohol in a glass with a bottle placed near him. He has further submitted that there is no evidence to show that the liquid in the glass, which the petitioner was seen to be carrying in the video clip, was alcohol and the bottle located near him was containing alcohol. He has further submitted that there is no evidence to show that the liquid in the glass, which the petitioner was seen to be carrying in the video clip, was alcohol and the bottle located near him was containing alcohol. He has argued that in the absence of any breath analyzer test of the petitioner or any blood test conducted after his arrest, with the allegation that he was consuming alcohol, no allegation of consumption of alcohol can be substantiated. He has further submitted that no video clip was brought by way of evidence during the departmental enquiry much less proving the said video clip as an electronic evidence as required to be proved in accordance with Section 65-B of the Evidence Act. He has relied on a co-ordinate Bench decision of this Court rendered on 12.07.2021 in C.W.J.C. No. 18331 of 2019 (Bharat Prasad Yadav vs. The State of Bihar & Ors.) wherein, in similar circumstance, this Court has held the finding of the Inquiring Authority to be unsustainable and interfered with the order imposing penalty of dismissal from the service. 13. Mr. Manish Kumar, learned G.P.-4 appearing on behalf of the State, on the other hand, has submitted that the finding recorded by the Inquiring Authority cannot be said to be perverse or without evidence. He has submitted that the reports available before the Inquiring Authority clearly indicated the conduct of the petitioner who was found to be consuming alcohol which is a criminal offence. He has contended that a charge in a departmental proceeding is not required to be proved like a criminal charge and if the Inquiring Authority has recorded the finding on the basis of such materials which are not irrelevant, this Court may not interfere with such finding as they are based on adequate evidence. He has further argued that immediately after the matter was reported, the Superintendent of Police had directed for an enquiry by the Sub Divisional Police Officer, who had found the allegation to be correct. 14. I have carefully perused the materials on record and I have also considered the rival submissions made on behalf of the parties. This is not in dispute that a video clip which had become viral in which the petitioner was seen consuming adequate akin to alcohol was the basis for initiation of equiry and subsequent action against the petitioner. 14. I have carefully perused the materials on record and I have also considered the rival submissions made on behalf of the parties. This is not in dispute that a video clip which had become viral in which the petitioner was seen consuming adequate akin to alcohol was the basis for initiation of equiry and subsequent action against the petitioner. From the First Information Report, it appears that the Sub Inspector of Police-cum- Station House Officer, Supaul, had required one Deonanandan Das to enquire into the allegation arising out of video clip getting viral. The said Deonandan Das, during that enquiry, had allegedly found the petitioner drinking alcohol in a glass with a bottle filled with alcohol present in front of him. The said Deonanandan Das appears to be the only person who had allegedly seen the petitioner consuming something in the glass. Deonanandan Das was not examined as witness for the department to prove the allegation. No evidence was led before the Inquiring Authority that there was alcohol in the said bottle and what the petitioner was drinking was alcohol. It is an admitted position that no breath analyzer test was conducted nor blood sample of the petitioner was taken for chemical examination to substantiate the allegation that the petitioner had consumed alcohol. 15. In the aforesaid background, I find substance in the submission made on behalf of the petitioner that it is a case of no evidence to substantiate the allegation against the petitioner of consumption of alcohol. He has rightly placed reliance on a co-ordinate Bench decision rendered in the case of Bharat Prasad Yadav (supra) whereby and whereunder, taking note of cited Supreme Court's decision in case of Roop Singh Negi vs. Punjab National Bank reported in (2009) 2 SCC 570 and Kuldeep Singh vs. The Commission of Police and Ors. reported in (1999) 2 SCC 10 , order imposing punishment has been interfered with in similar circumstance. 16. The issue of evidentiary value of electronic evidence in the present matter does not arise as there was no such evidence led during the departmental enquiry in support of the charge framed against the petitioner. reported in (1999) 2 SCC 10 , order imposing punishment has been interfered with in similar circumstance. 16. The issue of evidentiary value of electronic evidence in the present matter does not arise as there was no such evidence led during the departmental enquiry in support of the charge framed against the petitioner. In such view of the matter, I am of the considered opinion that the department miserably failed to bring home the charge against the petitioner that he was consuming alcohol or was in possession of alcohol, in the absence of cogent evidence adduced by the department during the departmental enquiry. 17. There is yet another aspect of the matter. It does not appear from the enquiry report that the Presenting Officer performed any role by presenting the case of the department before the Inquiring Authority. It appears from the report of the Inquiring Authority that he himself asked the witnesses to depose in the departmental enquiry. It seems that he himself assumed the role of the Presenting Officer also. The enquiry report does not depict any participation of the Presenting Officer though a Presenting Officer was appointed. It is curious to note that in the charge memo itself the main functions of the Presenting Officer had been mentioned. The enquiry report does not show whether the Presenting Officer discharged any of his duties as mentioned in the order whereby the Presenting Officer was appointed. The impugned decision of the Disciplinary Authority, which is based on findings of the Inquiring Authority, without any evidence and a perfunctory departmental enquiry, in the Court's opinion, is wholly unjust, illegal, arbitrary and unsustainable. 18. Accordingly, the impugned order dated 15.12.2018 passed by the Superintendent of Police, Supaul, imposing punishment of dismissal from the service, order dated 24.05.2019 passed by the Deputy Inspector General of Police, Koshi Range, Saharsa, and order dated 22.10.2019 passed by the Director General of Police, Bihar, are hereby set aside. The consequences of setting aside of the impugned orders shall follow. The petitioner shall be required to be reinstated in service forthwith. The consequences of setting aside of the impugned orders shall follow. The petitioner shall be required to be reinstated in service forthwith. Since the Court is interfering with the impugned order of dismissal on the ground of finding of misconduct being without evidence, the petitioner shall be entitled to all consequential benefits including payment of full backwages for the period during which he remained out of service because of the order of dismissal which has been set aside. The respondents shall proceed for the purpose of determination of consequential benefits of the petitioner as if no order of dismissal was ever passed against him. 19. This writ application is allowed. 20. There shall be no order as to costs.