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2023 DIGILAW 599 (JHR)

Anil Kumar Tiwari v. State of Jharkhand

2023-05-01

RAJESH SHANKAR

body2023
JUDGMENT : The present writ petition has been filed for quashing the order as contained in memo no. 6976 dated 24.09.2016 (Annexure-7 to the writ petition) passed by the Disciplinary Authority i.e., the respondent no. 5 – the Superintendent of Police (Administration), Jharkhand Jaguar (STF), Ranchi, whereby a punishment of “one black mark” has been imposed against the petitioner. Further prayer has been made for quashing the order as contained in memo no. 5012 dated 08.08.2018 (Annexure-9 to the writ petition) passed by the Appellate Authority i.e., the respondent no. 4 – the Deputy Inspector General of Police, Jharkhand Jaguar (STF), Ranchi, whereby the appeal preferred by the petitioner has been rejected. The petitioner has also prayed for quashing the letter no. 333 dated 12.12.2018 (Annexure-11 to the writ petition) issued by the respondent no. 3 – the Inspector General of Police (Training), Jharkhand, Ranchi to the respondent no. 5, whereby it has been intimated that the revision application preferred by the petitioner cannot be entertained and the information regarding the same should be made available to him. 2. Learned counsel for the petitioner submits that the petitioner is a Sub-Inspector in Jharkhand Police and was posted as Officer-in- Charge, Kuru Police Station, District-Lohardaga during filing of the present writ petition. On 17.06.2016, an order was issued by the respondent no. 3 to the respondent no. 5 for sending the police personnel of Jharkhand Jaguars (STF) to NSG Training Centre, Manesar, Gurgaon, Haryana to get training of police commando instructor. As per the said order, two officers from the rank of Police Inspector to Assistant Sub-Inspector were to be sent for said training from Jhakhand Jaguar (STF), Ranchi. Thereafter, the respondent no. 5 requested the Civil Surgeon, Sadar Hospital, Ranchi on 21.06.2016 for constituting a Medical Board to conduct physical fitness test of the selected police personnel of Jharkhand including the petitioner. However, no medical board was constituted. Moreover, prior to issuance of letter dated 21.06.2016, the Physical Fitness Test of the petitioner along with other police personnel was done by a doctor at the JAP-1 Hospital, Ranchi on 20.06.2016 in which the petitioner was not found fit by the doctor. On 01.07.2016, initiation of departmental proceeding against the petitioner was intimated by serving memo of charge alleging gross indiscipline, dereliction of duty, lack of interest in work and arbitrariness against him. 3. On 01.07.2016, initiation of departmental proceeding against the petitioner was intimated by serving memo of charge alleging gross indiscipline, dereliction of duty, lack of interest in work and arbitrariness against him. 3. It is further submitted that the only allegation against the petitioner was that he with an intention to avoid the said training, produced a certificate of “medically unfit”. In reply to the said allegation, the petitioner submitted his explanation on 03.09.2016 before the conducting officer stating that the concerned doctor of JAP-1 Hospital, Ranchi had given an independent finding which was not influenced by him. Thereafter, a departmental proceeding no. 28/16 was conducted against the petitioner by the enquiry officer on 09.09.2016, wherein the statements of departmental witnesses as well as of the petitioner in defence were recorded. It would inspire from the said proceeding that there was no evidence against the petitioner to prove the charge levelled against him. However, the enquiry officer finally observed that the charge levelled against the petitioner was proved. The Disciplinary Authority i.e., the respondent no. 5 found the petitioner guilty of the charge and imposed a punishment of “one black mark” in service book vide memo no. 6976 dated 24.09.2016, which is a major punishment as per Rule 824 of the Jharkhand Police Manual. 4. Aggrieved with the said order of the disciplinary authority, the petitioner preferred an appeal before the Appellate Authority i.e., the respondent no. 4 on 06.07.2018 stating that the medical certificate was never produced by him personally before the concerned authority, rather the same was produced by the office of Jharkhand Jaguar (STF) after conducting his medical test by the doctor of JAP-1 Hospital and none of the departmental witnesses supported the charges levelled against him. The respondent no. 4 vide order as contained in memo no. 5012 dated 08.08.2018, however, rejected the appeal preferred by the petitioner. Thereafter, the petitioner preferred a revision application before the respondent no. 2 – the Director General-cum-Inspector General of Police, Jharkhand, Ranchi on 29.10.2018. The respondent no. 3 did not consider the revision application preferred by the petitioner on the ground that there was no provision for considering revision application and the same was rejected vide communication as contained in memo no. 333 dated 12.12.2018. Hence, the petitioner has preferred the present writ petition. 5. The respondent no. 3 did not consider the revision application preferred by the petitioner on the ground that there was no provision for considering revision application and the same was rejected vide communication as contained in memo no. 333 dated 12.12.2018. Hence, the petitioner has preferred the present writ petition. 5. Learned counsel for the petitioner has assailed the impugned order dated 24.09.2016 passed by the respondent no. 5 (the Disciplinary Authority) primarily on the ground that the said order of punishment has been passed on the basis of an enquiry report in which no evidence was brought against the petitioner to prove that he deliberately produced a medical certificate showing himself unfit to avoid the training of Police Commando Instructor Course No.-55 (PCIC-55) at NSG Training Centre, Manesar, Gurgaon, Haryana scheduled to be held from 22.06.2016 to 14.09.2016. Perusal of copy of the Medical Fitness Report (Annexure-3 to the writ petition) will clearly suggest that not only the petitioner, but three other police sub-inspectors were also declared unfit. The enquiry officer did not collect any material in support of the charge of gross indiscipline, dereliction of duty, lack of interest in work and arbitrariness. One of the prosecution witnesses Mr. Madhusudan, Deputy Superintendent of Police (Training), J.J. (STF), Ranchi merely stated during enquiry that the petitioner perhaps got himself declared unfit by the doctor. Based on the said enquiry report, the respondent no. 5 (the Disciplinary Authority) has imposed a punishment of “one black mark” against the petitioner merely on speculation. The enquiry report as well as the order of the disciplinary authority is perverse as the petitioner has been punished without any evidence on record. 6. Though no one appears on behalf of the respondents, yet on perusal of the counter affidavit filed on their behalf, it appears that they have tried to justify the impugned order dated 24.09.2016 passed by the respondent no. 5 as well as the order dated 08.08.2018 passed in appeal by the respondent no. 4 on the ground that the charge against the petitioner was found proved during the enquiry. 7. Heard learned counsel for the petitioner and perused the materials available on record. 5 as well as the order dated 08.08.2018 passed in appeal by the respondent no. 4 on the ground that the charge against the petitioner was found proved during the enquiry. 7. Heard learned counsel for the petitioner and perused the materials available on record. The basis of charge against the petitioner was that he produced the medical certificate of being unfit by way of an excuse not to attend the training scheduled to be held at NSG Training Centre, Manesar, Gurgaon, Haryana from 22.06.2016 to 14.09.2016, which was indicative of gross indiscipline, dereliction of duty, lack of interest in work and arbitrariness. Two departmental witnesses were examined by the enquiry officer in pursuance of memo of charge issued to the petitioner. None of those witnesses was able to state that the medical certificate in which the petitioner declared unfit was obtained at his instance. In fact, the department witness no. 1 – Mr. Madhusudan, Deputy Superintendent of Police (Training), J.J. (STF), Ranchi stated that the medical certificate of the petitioner declaring him unfit was made available to the training section which was perhaps obtained by the petitioner on stating so to the doctor. The department witness no. 2 – Mr. Arvind Kumar Singh, Operation Section, J.J. (STF), Ranchi merely stated that he had given names of four sub-inspectors of 2012 batch including the petitioner to the Deputy Superintendent of Police (Training) on phone. In the enquiry, the petitioner stated that during medical examination, he complained of backache. However, he was independently examined by the doctor and then was declared unfit. He, in any manner, did not influence the doctor for issuing the medical certificate declaring him unfit. 8. Surprisingly, the concerned doctor who issued the medical certificate declaring the petitioner unfit was not examined in course of enquiry. He was the only relevant witness to clarify as to whether the petitioner was actually found unfit or he, in any manner, influenced the doctor in doing so. The Disciplinary Authority has passed the order of punishment on 24.09.2016 recording “one black mark” in the service book of the petitioner on the basis of the enquiry report dated 09.09.2016 submitted by the conducting officer. 9. The Hon’ble Supreme Court in the case of “Yoginath D. Bagde Vs. State of Maharashtra & Anr.” reported in (1999) 7 SCC 739 has held as under: 51. 9. The Hon’ble Supreme Court in the case of “Yoginath D. Bagde Vs. State of Maharashtra & Anr.” reported in (1999) 7 SCC 739 has held as under: 51. It was lastly contended by Mr Harish N. Salve that this Court cannot reappraise the evidence which has already been scrutinised by the enquiry officer as also by the Disciplinary Committee. It is contended that the High Court or this Court cannot, in exercise of its jurisdiction under Article 226 or Article 32 of the Constitution, act as the appellate authority in the domestic enquiry or trial and it is not open to this Court to reappraise the evidence. The proposition as put forward by Mr Salve is in very broad terms and cannot be accepted. The law is well settled that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached, it would be open to the High Court as also to this Court to interfere in the matter. In Kuldeep Singh v. Commr. of Police [ (1999) 2 SCC 10 ] this Court, relying upon the earlier decisions in Nand Kishore Prasad v. State of Bihar [ (1978) 3 SCC 366 ], State of Andhra Pradesh v. Rama Rao [ AIR 1963 SC 1723 ], Central Bank of India Ltd. v. Prakash Chand Jain [ AIR 1969 SC 983 ], Bharat Iron Works v. Bhagubhai Balubhai Patel [ (1976) 1 SCC 518 ] as also Rajinder Kumar Kindra v. Delhi Admn. [ (1984) 4 SCC 635 ] laid down that although the court cannot sit in appeal over the findings recorded by the disciplinary authority or the enquiry officer in a departmental enquiry, it does not mean that in no circumstance can the court interfere. It was observed that the power of judicial review available to a High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and the courts can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse. 10. In the case of “S.R. Tewari Vs. 10. In the case of “S.R. Tewari Vs. Union of India & Anr.” reported in (2013) 6 SCC 602 , the Hon’ble Supreme Court held as under: 30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [ (1984) 4 SCC 635 ], Kuldeep Singh v. Commr. of Police [ (1999) 2 SCC 10 ], Gamini Bala Koteswara Rao v. State of A.P. [ (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589 ] and Babu v. State of Kerala [ (2010) 9 SCC 189 ]. 11. Thus, if the finding is based on the materials which are irrelevant or the relevant materials are not considered, the same is treated as perverse and in that situation, the power of judicial review can be exercised by the constitutional court. It is true that the standard of proof in disciplinary enquiry is not of the strict standard which governs a criminal trial i.e., to prove the charge beyond the shadow of reasonable doubt, rather is governed by the principle of preponderance of probabilities. However, there must be some evidence on record which can be acceptable to hold an employee guilty of charge in the departmental proceeding. 12. This Court is of the view that no cogent evidence was collected against the petitioner by the enquiry officer while forming an opinion that he with a deliberate intent, got himself declared unfit by the doctor. The said enquiry report is thus held to be perverse and the order of punishment based upon the same cannot be sustained in law. Accordingly, the impugned order as contained in memo no. The said enquiry report is thus held to be perverse and the order of punishment based upon the same cannot be sustained in law. Accordingly, the impugned order as contained in memo no. 6976 dated 24.09.2016 passed by the Disciplinary Authority i.e., the respondent no. 5 and the order as contained in memo no. 5012 dated 08.08.2018 passed by the Appellate Authority i.e., the respondent no. 4, are hereby quashed and set-aside. 13. The writ petition is accordingly allowed.