Partly allowed

Anjani Kumar Tiwari v. State of Jharkhand and Ors.

Jharkhand HC28 Nov 2022WPC/5227/2015

Case brief

AI extract

What is this about?

The High Court set aside impugned disciplinary and appellate orders imposing punishment on a police constable. Finding the disciplinary authority erred in treating merely partly proved charges as fully proved, and the appellate authority failed to consider the enquiry report, the Court remitted the matter for a fresh punishment order.

What did the court decide?

Impugned orders set aside; matter remitted to disciplinary authority to pass fresh order on quantum of punishment within 3 months after hearing.

Anjani Kumar Tiwari Vs State of Jharkhand and Ors. — Service and Employment | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No. 5227 of 2015

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Anjani Kumar Tiwari, S/o Prof Dr. Dharam Raj Tiwary, R/o Marafari, P.S., P.O. Siwandi, P.S. : Marafari, District – Bokaro, Jharkhand;

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… … Petitioner

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Versus

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State of Jharkhand

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Director General cum Inspector General of Police, Jharkhand, Ranchi, Police Head Quarter, P.O. & P.S. : Dhurwa, District – Ranchi, Jharkhand;

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Deputy Inspector General of Police (Coal Range), Jharkhand Bokaro, P.O. & P.S. – Bokaro, District – Ranchi, Jharkhand

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Superintendent of Police, Bokaro, P.O. & P.S. : Bokaro, District – Ranchi, Jharkhand

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Deputy Superintendent of Police (Traffic), Bokaro, P.O. & P.S. Bokaro, District – Ranchi, Jharkhand … … Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Niladri Shekhar Mukherji, Advocate For the Respondents : None ---

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13 /28.11.2022

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The case was heard and arguments were concluded on 14.09.2022 and the case was directed to be posted today for judgement.

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2. Learned counsel for the petitioner had argued the case on 14.09.2022 but nobody had appeared on behalf of the respondents.

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3. This writ petition has been filed for the following relief:

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“For quashing of the order dated 28.04.2015 vide Memo No.3726/Bokaro passed by the Disciplinary Authority i.e., Superintendent of Police, Bokaro, (Resp. No.4) and the order dated 02.09.2015 vide Memo No.932/Go passed by the Appellate Authority i.e., Deputy Inspector General of Police (Coal Range), Jharkhand, Bokaro (Resp. No.3) and conveyed to the Petitioner vide Memo No.5621/Ra-ka dated 08.09.2015 whereby and whereunder petitioner has been inflicted by imposing threefold punishment of (i) stoppage increments for six months equal to one time stoppage, (ii) no payment of anything additional than what has been paid during the period of suspension and (iii) approval of the stigmatic recommendation and finding of the I.O. which is quit contradictory to the statements of the two eye witnesses.”

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4. Learned counsel for the petitioner has referred to para 21 of the writ petition to submit that the illegalities / irregularities as pointed out in the said paragraph has been committed by the respondents in the present case on account of which the impugned orders passed by the disciplinary authority as well as the appellate authority is not sustainable in the eyes of law.

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5. Para 21 of the writ petition enumerating the grounds are as follows:

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“ 21. That it is submitted that the Appellate Authority not only very erroneously and mechanically mis-considered the Appeal of the Petitioner, approved the report of the Enquiry Officer and order of the Disciplinary Authority and rejected Appeal of the Petitioner which vitiated and his orders also suffers from:

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i. Non consideration of the fact that the recording of the statement of the Complainant was made behind the back of the Petitioner.

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ii. Copy of the said recorded statement was not given to the Petitioner.

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iii. Statement of the Police Personnel like steno and translator working in the Central Police Head Quarter were taken for evidence against the Petitioner who were not concerned or aware in any way of the event. Therefore, they could not be made witnesses nor copies of this statement was given to the petitioner.

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iv. The copy of the statements of the out of the scene witnesses was not given to the Petitioner.

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v. The Petitioner was not given opportunity of cross examining the Complainant.

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vi. He was not given opportunity to cross examine other witnesses also.

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vii. The finding of the Enquiry Officer dated 28.04.2015 has clearly found that the two eye witnesses of the scene on the spot Santosh Kumar and Awdhesh Kr Singh did not corroborate and testified the allegation against the Petitioner of throwing a disc on the Complainant & threats to life by the Petitioner to the Complainant.

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viii. Allegation of abuses hurled against the Complainant and allegation of Petitioner being in a drunken state were also not proved.

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ix. But this very important fact of falsification of the all allegation against the Petitioner made by the Complainant has not been taken into consideration either by the Disc-Authority or by the Appellate authority making their order completely vitiated with non-consideration of material facts of the defense of the Petitioner and suffers from non-consideration of the truth and concealment of facts.”

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Findings of this Court

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6. The petitioner was appointed as Constable on 25.11.1983 and subsequently, he was promoted to the post of A.S.I. The petitioner was subjected to disciplinary proceedings and was suspended vide memo dated 29.08.2014 (Annexure-3). Upon a request made by the petitioner, although the respondent No. 4 revoked the suspension of the petitioner

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but it was coupled with an order for initiation of departmental proceedings vide memo dated 06.11.2014 (Annexure-5).

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7. As per the charge-sheet, a complaint was filed against the petitioner by A.S.I, Rana Bhanu Pratap Singh stating that on 26.08.2014, at 21:00, while he was writing a case diary in his room at the Police Club, where he lived, the petitioner, who was A.S.I. of Chas Police Station, entered his room in a drunken condition and abused him by asking him to vacate the room. Upon refusal, the petitioner got enraged, raised his voice and threw a plate with an intention to hurt him. Hearing the noise, ASI Santosh Kumar and Awadhesh Kumar Singh came there and intervened and thereafter the petitioner abused and threatened the complainant and went away. The petitioner was charged for being negligent and indifferent towards his duty, indiscipline behavior and not fit to be a police officer and arbitrariness and being not fit of being a police officer.

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8. The petitioner filed his show cause reply dated 16.03.2015 (Annexure – 6) before the enquiry officer and denied the charges. In the reply the petitioner stated that on the fateful night when he found someone in the vacant room, he went to meet him out of courtesy and greeted him which probably hurt the ego of the newly recruited probationer Sub – Inspector, who got enraged and provoked the petitioner which led to some altercations. Upon hearing the noise, the other police officials came out of their room and intervened and asked the petitioner to go to his room and thereafter there was peace. In the said reply, the petitioner also referred to preliminary enquiry report dated 28.08.2014 and stated that no proper enquiry was made and therefore such enquiry dated 28.08.2014 may not be relied upon.

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9. At the end of the enquiry, the petitioner filed his final response vide letter dated 17.04.2015 (Annexure-7). The petitioner in his final response referred to the evidence of the witnesses and by referring to the deposition of the witnesses has stated that the charge of being in a drunken state and throwing plate at the complainant was not at all proved on the basis of their evidence.

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10. The petitioner has also annexed a copy of the enquiry report dated 28.04.2015 (Annexure-9) wherein the enquiry officer has recorded a finding that there was some altercation between the petitioner and Rana Bhanu Pratap Singh (complainant) on 26.08.2014 in Bokaro Police club

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in the room of the Rana Bhanu Pratap Singh (complainant) but the witnesses have not supported the allegation against the petitioner that the petitioner was drunk when he entered the room of Rana Bhanu Pratap Singh (complainant) and abused him and had thrown a plate with an intention to hurt Rana Bhanu Pratap Singh. The enquiry officer found the petitioner guilty only to the extent that he had entered into altercation with Rana Bhanu Pratap Singh by entering his room and on the basis of this finding the enquiry officer held the petitioner guilty of indiscipline.

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11. The disciplinary authority vide impugned order dated 28.04.2015 considered the enquiry report, agreed with the findings of the enquiry officer but recorded that the enquiry officer found the petitioner guilty of the charges levelled against the petitioner and imposed punishment of stoppage of increment for 6 months which was equivalent to one black mark with a direction that this will have no impact on future increment. The authority further directed that the petitioner will not be entitled for any other amount apart from the subsistence allowance during the period of suspension.

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12. The petitioner filed an appeal before the appellate authority and submitted that the enquiry officer had found him guilty only to the extent that the petitioner had entered into altercation with Rana Bhanu Pratap Singh (complainant) and the allegation that the petitioner had thrown one plate at Rana Bhanu Pratap Singh (complainant) with a view to hurt him, was not supported by the witnesses and therefore the enquiry officer did not give any finding to that effect.

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13. The appellate authority recorded that the evidence of the witnesses showed that there was altercation and fight between the petitioner and Rana Bhanu Pratap Singh (complainant) which tarnished the image of the police as the noise on account of such altercation reached out to the public. The appellate authority further considered the plea taken by the petitioner that he was not given an opportunity to cross-examine the witnesses and rejected the same by stating that such plea was never taken by the petitioner while filing his response to the enquiry report and ultimately rejected the appeal.

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14. From perusal of the records of this case, it is apparent that although the complainant had made allegation that the petitioner had entered into his room in a drunken state, abused him and had altercation with him and

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also threw plate at the complainant with a view to hurt him, but the findings of the enquiry officer shows that the allegation against the petitioner was partly proved. The enquiry officer recorded a finding that the allegations against the petitioner was proved to the extent that there was altercation between the complainant and the petitioner, when the petitioner had entered into the room of the complainant, but it could not be proved that the petitioner was drunk and he had abused the complainant and threw plate at him with a view to hurt the complainant. 15. Thus, the enquiry officer gave a finding against the petitioner by holding that the allegation was only partly proved. The enquiry report is based on both oral and documentary evidence but Rana Bhanu Pratap Singh (complainant) has not been examined in the enquiry. 16. So far as the points regarding violation of principles of natural justice is concerned, this court finds that the incident when the petitioner had entered the room of Rana Bhanu Pratap Singh (complainant) and that there was some altercation and due to noise, the fellow policemen came from other rooms is not in dispute and the enquiry officer has given a finding that the allegation against the petitioner was found proved only to this extent. Accordingly, the petitioner is not at all prejudiced by the point of principles of natural justice as raised in the writ petition. Moreover, the appellate authority has also recorded that the plea taken by the petitioner that he was not given an opportunity to cross-examine the witnesses was never taken by the petitioner while filing his response.

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17. The disciplinary authority, on the one hand, accepted the findings of the enquiry officer and, on the other hand, recorded that the enquiry officer found the petitioner guilty of the charges levelled against him and consequently passed the order of punishment. The disciplinary authority completely overlooked the fact that as per the enquiry report, to which he agreed, the allegation against the petitioner was partly proved. The disciplinary authority has passed the order of punishment by assuming that the entire charge was proved against the petitioner, although it was only partly proved in the enquiry. Admittedly, the disciplinary authority did not differ with the findings of the enquiry officer and rather accepted the findings of the enquiry officer. Thus, the order of punishment was passed by the disciplinary authority by committing an error of record that the charges levelled against the petitioner were proved as per the enquiry

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report. Accordingly, the impugned order to the extent of punishment imposed by the disciplinary authority is perverse and cannot be sustained in the eyes of law.

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18. The appellate authority while considering the appeal has sustained the order of punishment by recording that on account of altercation and the raised voice, the voice of the petitioner must have gone up to the general public which tarnished the image of police. There is neither any such allegation in the charge-sheet, nor any such finding has been recorded by the enquiry officer that the raised voice of the petitioner during altercation reached the public at large which tarnished the image of the police in public. The appellate authority also failed to consider the report of the enquiry officer indicated that the charge was only partly proved and failed to consider that this aspect of the matter was not considered by the disciplinary authority while passing the order of punishment. Thus, the order of the appellate authority is also perverse on this point which cannot be sustained in the eyes of law.

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19. As a cumulative effect of the aforesaid findings, the impugned order of punishment passed by the disciplinary authority and upheld by the appellate authority are hereby set-aside only to the extent they relate to the punishment imposed upon the petitioner. The matter is remitted back to the disciplinary authority to pass a fresh order on the quantum of punishment considering the enquiry report and the extent to which the charge was proved. The fresh order be passed within a period of 3 months from the date of communication of this order after giving an opportunity of hearing to the petitioner.

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20. This writ petition is accordingly disposed of.

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21. Pending I.A., if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Saurav/Binit

Anjani Kumar Tiwari v. State of Jharkhand and Ors.

Case brief

What is this about?

What did the court decide?

Anjani Kumar Tiwari v. State of Jharkhand and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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