Police 724 Aounkar Kumar Om Vs Home Department

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P.(S) No. 6497 of 2016

Police-724-Aounkar Kumar Om S/o Brij Bihari Prasad Singh, R/o VillageBihari Bigha, P.O.- Bihari Bigha, P.S.- Pandark, Dist- Patna(Bihar)

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… … Petitioner

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-Versus-

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The State of Jharkhand

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The secretary, Department of Home, Government of Jharkhand, Ranchi, at Project Bhawan, at P.O. & P.S.- Dhurwa, Dist- Ranchi

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The Director General of Police -Cum- Inspector General, Jharkhand, Ranchi, Project Bhawan, HEC Building, Dhurwa, P.O. & P.S. – Dhurwa, Dist- Ranchi

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The Inspector General of Police (Training), Project Bhawan, HEC Building, P.O. & P.S.- Dhurwa (Jharkhand)

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The commandant Jharkhand Armed Police, (JAP-8) lesliganj, Palamu, P.O. & P.S.- Lesliganj, Dist- Palamu, Jharkhand

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The Deputy Inspector General of Police – J.A.P. Jharkhand Ranchi, At – HEC Building, Sector-2, P.O. & P.S.- Jaganathpur, Dist- Ranchi, Jharkhand

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The Inspector General of Police, Jharkhand, Armed police, Jharkhand Ranchi, at Nepal House, Raja Rani Khoti, P.O & P.S.- Doranda DistRanchi … … Respondents

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--- CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Satish Prasad, Advocate Mr. Syed Naushad Ahmad, Advocate For the Respondents : Mr. Abhinay Kumar, AC to GAI

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11 /12^th April 2024

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1. This writ petition has been filed for the following reliefs:-

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“(i) For issuance of appropriate writ/rule/direction for quashing order whereby the petitioner has been dismissed from service second time for the same cause of action as contained in memo no 21/Go dated 28.03.2012 issued under the signature of Respondent no.5, Commandant Jharkhand Armed Police, (JAP-8) Lesliganj, vide annexure-6 in Departmental proceeding no-07 of 2011 which is contrary to the order dated 01.03.2011 of Respondent no-3 (Appellate Authority) The Director General of Police -cum- Inspector General Jharkhand, who already quashed the first order of dismissal from service passed against the petitioner by the respondent no-5 vide annexure-2 and in that order it was held by respondent no-3 that an enquiry should be held in order to decide the issue of entitlement between the period of dismissal to date of reinstatement (back wages).

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1

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The respondent-5 being subordinate authority virtually overridden the findings of respondent no-3 being superior authority and exceeded his power and jurisdiction.

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(ii) For quashing the order of appeal preferred by the petitioner against the order of dismissal dated 28.03.2012 before the respondent no-6, Deputy Inspector General of Police- J.A.P. Jharkhand, Ranchi, contained in memo no. 1194/ General Section dated 28.05.2015 which affirmed the order of dismissal vide annexure-8 series communicated by reason of order dated 10.06.2015 vide memo no. 1130/ R.O in Departmental Proceeding no- 07/2011

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AND

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Further prays for order/orders, directions to respondents particularly the respondent no-6 to reinstate the petitioner in service in accordance with the order of Appellate authority respondent no-3 who quashed the first order of dismissal from service passed against the petitioner. And to decide the payment of the entire back wages with continuity of service to the petitioner.”

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2. The learned counsel for the petitioner submitted that the petitioner was subjected to disciplinary proceeding which was initiated vide Disciplinary Proceeding No.15 of 2008 and ultimately the matter was placed before the respondent no.3. The punishment imposed against the writ petitioner was set aside on ground of violation of principle of natural justice and other considerations, and liberty was given to initiate fresh proceeding. The petitioner was directed to be reinstated in service. Consequently, the petitioner was reinstated on 21.03.2011. The learned counsel submitted that thereafter another departmental proceeding was initiated which was numbered as Departmental Proceeding No.7 of 2011 wherein one Diwashankar Prasad was made the enquiry officer who submitted an enquiry report exonerating the petitioner by giving a report in his favour and stating that the charges against the petitioner were not proved in the enquiry report. The learned counsel submitted that thereafter the disciplinary authority appointed another enquiry officer namely, Birsa Ram Khalkho and he submitted another enquiry report finding the petitioner guilty. The learned counsel submitted that so far as the second enquiry report in the Departmental Proceeding No.7 of 2011 is concerned, the complainant was not examined and therefore, the charge cannot be said to have been proved. He also submitted that there is no reason for not examining the complainant. The learned counsel submitted that since the charge was regarding stealing of money of the complainant, it was

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incumbent upon the respondents to examine the complainant and the complainant having not been examined, the entire proceeding is vitiated. The learned counsel also submitted that a second show cause notice was issued to the complainant, but very short time was granted and he could not file a response to the second show cause notice and ultimately the petitioner has been dismissed. The learned counsel submitted that the appellate authority and the revisional authority have also not considered this aspect of the matter and therefore, the present writ petition is fit to be allowed.

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3. The learned counsel for the petitioner relied upon the judgement passed by the Hon’ble Supreme Court reported in (2011) 6 SCC 376 (Commissioner of Police, Delhi and Others vs. Jai Bhagwan) and also a judgment passed by a co-ordinate Bench of this Court in W.P.(S) No.3971 of 2012 (Ramjee Prasad -vs- The State of Jharkhand & Others) decided on 03.09.2012 The learned counsel also relied upon a judgment passed by a coordinate Bench of this Court in W.P.(S) No.1248 of 2013 (Swami Bibhu Deo Vs. The State of Jharkhand and others) decided on 29.11.2013 to submit that once an enquiry report was submitted, there was no justification for the disciplinary authority to appoint another enquiry officer.

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4. The learned counsel appearing on behalf of the respondents, on the other hand, opposed the prayer and submitted that so far as the initial enquiry is concerned, the matter was remanded for initiation of fresh enquiry and, thereafter, the fresh enquiry was initiated vide Departmental Enquiry No.7 of 2011. The learned counsel referred to the enquiry report submitted pursuant thereto and submitted that the enquiry was not properly conducted and even the documents were not perused. The manner in which the enquiry was conducted was totally unsatisfactory and consequently, the disciplinary authority appointed another enquiry officer. The learned counsel submitted that the order by which the disciplinary authority appointed another enquiry officer has been filed alongwith the supplementary counter affidavit dated 07.12.2023. He referred to Annexure-A thereto and submitted that the disciplinary authority had asked for fresh enquiry vide endorsement dated 22.10.2011 clearly citing the reasons for requirement of second enquiry. Referring to the second enquiry

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report, the learned counsel submitted that though the complainant was not examined, but there were other evidences produced on record and the petitioner was totally non-cooperative inasmuch as he did not even furnish his defence statement before the enquiry officer. The learned counsel submitted that in such circumstances, the enquiry officer rightly held the petitioner guilty. The learned counsel also submitted that the witnesses had also deposed that the petitioner was willing to pay half of the amount which was taken away by the petitioner which itself indicated that the petitioner was guilty of the charges which were levelled against him. The learned counsel submitted that the petitioner did not even respond to the second show cause and therefore, the impugned orders do not call for any interference.

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Findings of this Court

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5. After hearing the learned counsel for the parties and considering the materials on record, it is not in dispute that the petitioner at the relevant point of time was working as a police constable under the Deputy Inspector General of Police, J.A.P., Jharkhand, Ranchi, having Constable No. 724. The Departmental Proceeding No. 15 of 2008 was initiated against the petitioner in which he was dismissed from service on 05.06.2009 and his appeal was dismissed vide order dated 08.02.2010. However, a revision was filed and the concerned authority quashed the order of dismissal as there were certain irregularities in the departmental proceeding and passed an order to reinstate the petitioner and also directed for initiation of a fresh departmental proceeding vide Memo No. 65 dated 01.03.2011 passed in the revision application. The order is annexed as Annexure-2 to the writ petition. In compliance of the said order dated 01.03.2011, the petitioner was reinstated in service vide Memo No.406 dated 13.03.2011 and a fresh departmental bearing No. 07 of 2011 was also initiated against him.

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6. The Enquiry Officer submitted an Enquiry Report dated 19.10.2011 (Annexure-5) exonerating the petitioner from the charges. Upon perusal of Annexure-5, this Court finds that during the enquiry, the witnesses were examined from the side of the department and the number of documents were exhibited, total documents being 8 in number. The petitioner had

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given his explanation denying the allegation and was also given an opportunity to submit his final defence statement. However, the Enquiry Officer while recording his finding did not consider the documentary evidences produced by the department. The enquiry report was submitted before the disciplinary authority who appointed a new Conducting Enquiry Officer vide endorsement dated 22.10.2011. The said endorsement dated 22.10.2011 has been brought on record before this Court vide Annexure-A to the supplementary counter affidavit dated 07.12.2013. Endorsement dated 22.10.2011 is quoted as under: -

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" eSusa iqfyl mik/kh{kd lg lapkyu inkf/kdkjh ds earO; dk voyksdu fd;kA lapkyu inkf/kdkjh }kjk lapkyu ds nkSjku dsoy ekSf[kd c;ku dks lgh ekudj vkSj vk/kkj yxkdj vkjksfir dks vkjksi ls cjh dj fn, gSa] dgha Hkh vfHkys[kh; lk{;ksa dk mYys[k ugha fd;k x;k gSA eSa earO; ls lger ugha gwaA vr% iqu% lapkyu ds fy, iqfyl mik/kh{kd Jh fcjlkjke [ky[kks dks izkf/kd`r fd;k tkrk gSA "

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Sd/-

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7. Thereafter another Enquiry Officer was appointed who conducted full-fledged enquiry and submitted his report and final order was passed on 28.03.2012 (Annexure- G to the supplementary counter affidavit).

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8. The petitioner preferred an appeal which was dismissed vide memo dated 28.05.2015. Thereafter, the petitioner preferred memorial which was also rejected vide memo dated 31.10.2016.

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9. The point for consideration is-

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“Whether the disciplinary authority could have appointed

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another Enquiry Officer for conducting fresh enquiry once the enquiry report dated 19.10.2011 (Annexure-5) was submitted exonerating the petitioner from the charges”.

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10. In support of his submission, the petitioner has heavily relied upon the judgment passed by this Court in W.P. (S) No. 1248 of 2013 ( Swami Bibhu Deo vs. The State of Jharkhand) and for this purpose, the counsel for the petitioner relied upon the judgments recorded in Paragraph-4 of the order dated 02.02.2024 earlier passed by this Court.

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11. This Court finds that in the enquiry report dated 19.10.2011, the evidences adduced by the parties were mentioned, but the Enquiry Officer did not consider the documentary evidences while submitting the report which was the reason for the disciplinary authority to pass an order directing fresh enquiry by appointing another Enquiry Officer.

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12. This Court is of the considered view that on the basis of materials on record, if the disciplinary authority chooses to defer with the findings of the Enquiry Officer, it is certainly open to the disciplinary authority to make a dissenting note disagreeing with the Enquiry Officer and give an opportunity to the delinquent to respond to such reasons cited by the disciplinary authority. However, there is no scope to discard the enquiry report and appoint a fresh Enquiry Officer to conduct a de-novo enquiry.

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13. In the present case, it has been held by this Court in W.P(S) No. 1248 of 2013 decided on 29.11.2013 that only in cases, where the enquiry report suffers from some technical lacuna, a de-novo enquiry can be instituted. In all other cases, only a further enquiry can be conducted into the matter and not a fresh enquiry altogether. It has also been observed that in case the disciplinary authority disagrees with the finding of the Enquiry Officer, it is certainly open to the disciplinary authority to give reasons for differing with the findings and issue notice to the delinquent.

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14. In the present case, all the materials including documentary evidences were already brought on record in the enquiry report, but the Enquiry Officer having not considered the documentary evidences, there was no scope for asking for a fresh enquiry.

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15. The disciplinary authority could have certainly differed with the findings of the Enquiry Officer by referring to the materials available on record. In the judgment passed by the Hon’ble Supreme Court in the case of K. R. Deb Vs. The Collector of Central Excise, Shillong reported in (1971) 2 SCC 102 , it has been held as under: -

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“12. It seems to us that Rule 15, on the face of it, really provides for one enquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined for some other reason, the Disciplinary Authority may ask the

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Enquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.”

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16. In the case of Nand Kumar Verma Vs. State of Jharkhand reported in (2012) 3 SCC 580, the Hon’ble Supreme Court has held as under: -

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“26. ................ On general principles, there can be only one enquiry in respect of a charge for a particular misconduct and that is also what the rules usually provide. If, for some technical or other good ground, procedural or otherwise, the first enquiry or punishment or exoneration is found bad in law, there is no principle that a second enquiry cannot be initiated. Therefore, when a completed enquiry proceedings is set aside by a competent forum on a technical or on the ground of procedural infirmity, fresh proceedings on the same charges is permissible.”

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17. In view of the findings that no fresh enquiry could have been instituted against the petitioner by the disciplinary authority, the impugned orders arising out of such fresh enquiry cannot be sustained in the eyes of law and is accordingly set aside.

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18. However, as already held above, the disciplinary authority certainly could have differed with the findings of the Enquiry Officer by referring to the materials available in the enquiry report dated 19.10.2011 (Annexure5).

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19. The matter is remitted to the disciplinary authority to take appropriate steps in accordance with law on the basis of the enquiry report dated 19.10.2011, within a period of two months from the date of communication of this order.

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20. With the aforesaid findings, observations and directions, this writ petition is disposed of.

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21. Pending interlocutory application, if any, stands closed.

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22. Let a copy of this order be communicated to the Respondent No.5 to ensure compliance.

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(Anubha Rawat Choudhary, J.)

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Aditi

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Police 724 Aounkar Kumar Om v. Home Department

Case brief

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Police 724 Aounkar Kumar Om v. Home Department

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