Mrityunjay Kumar vs State Of Jharkhand
2022 Latest Caselaw 290 Jhar

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            IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                 W.P. (S) No. 7135 of 2013

         Mrityunjay Kumar, S/o Ram Narayan Singh, resident of village-Sultanpur,
         P.O.-Bhagwanpur, P.S. Hulashganj, District-Jahanabad, Bihar
                                         ...    ...     ...     Petitioner
                                  Versus
         1. State of Jharkhand
         2. Director General-cum-Inspector General of Police, Jharkhand, Ranchi,
            Police Head Quarter, P.O. & P.S. Dhurwa, District-Ranchi
         3. Deputy Inspector General of Police, South Chhotanagpur Range,
            Ranchi, Jharkhand, P.O. and P.S. -Doranda, District-Ranchi, Jharkhand
         4. Senior Superintendent of Police, Ranchi, P.O.-Kutchery, P.S.-Kotwali,
            District-Ranchi, Jharkhand        ...     ...     Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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         For the Petitioner       : Mr. Manoj Tandon, Advocate
         For the Respondents      : Mrs. Bandana Sinha, Advocate

                                 Through Video Conferencing

17/07.02.2022

1. Heard Mr. Manoj Tandon, learned counsel appearing on behalf of the petitioner.

2. Heard Mrs. Bandana Sinha, learned counsel appearing on behalf of the respondent-State.

3. Learned counsel for the petitioner submits that the present writ petition has been filed challenging the order dated 05.06.2013 passed by the Disciplinary Authority i.e. Senior Superintendent of Police, Ranchi, as well as order dated 2.08.2013, passed by the Appellate Authority i.e. Deputy Inspector General of Police, South Chhotanagpur, Range, Ranchi, whereby the services of the petitioner has been dismissed.

The petitioner has also challenged the order passed by Director General of Police, Jharkhand Ranchi contained in memo No. 421 dated 23rd September, 2015 rejecting the revision petition preferred by the petitioner has also been rejected.

The petitioner has further challenged the decision contained in memo No. 189 dated 20.06.2018 passed by Director General cum Inspector General of Police, Jharkhand, Ranchi, whereby the application of the petitioner to reconsider the penalty order after his acquittal in both the criminal cases has been rejected.

Arguments of the Petitioner

4. The learned counsel for the petitioner submits that departmental proceeding was initiated against the petitioner vide memo No. 2640 dated 07.05.2012 and during the course of enquiry, altogether 4 witnesses were examined out of them 3 witnesses were examined on 25.10.2012 when the petitioner was in custody from 16.04.2012 to 10.11.2012. Learned counsel further submits that in the aforesaid circumstances, the said 3 witnesses were examined without giving an opportunity of cross examination by the petitioner. However, during the course of argument, it transpired that neither any plea has been taken by the writ petitioner in the writ petition that he was in custody during the period from 16.04.2012 to 10.11.2012 nor there is any material on record to substantiate this plea. Upon this, learned counsel further submits that so far as 3 witnesses who were examined on 25.10.2012 are concerned, they have not supported the charge against the petitioner and they were only formal witnesses but the 4th witness is the most important witness.

5. It is further submitted that so far as the 4th witness is concerned, he was examined on 25.02.2013 but no notice was given to the petitioner and accordingly there was no cross examination of the 4 th witness from the side of the petitioner.

Learned counsel has submitted that pursuant to order dated 23.11.2021, the respondents were to find out and file an affidavit as to whether notice was ever served to the petitioner with regard to 4th witness or not and pursuant to the said order, a supplementary counter affidavit has been filed in the present case. He submits that even from perusal of the supplementary counter affidavit and the documents annexed therewith, there is no material to show that the petitioner was served notice regarding examination of the 4th witness on 25.02.2013.

However, during the course of argument, it transpired and it is not in dispute that the petitioner received a copy of the examination in chief of the 4th witness on 08.03.2013.

6. Learned counsel further submits that after enquiry, report was submitted and second show cause notice was issued to the petitioner, the petitioner had filed a detailed reply including the fact that person

whose motorcycle was stolen, was not examined in the departmental proceeding and in the said show cause reply, the petitioner also mentioned that petitioner was in custody during the period from 16.04.2012 to 10.11.2012. He submits that it is for the department to prove the case and the person whose motorcycle was allegedly stolen having not been examined in the departmental proceeding, was also specifically raised. He submits that these aspects of the matter which were specifically raised to his second show cause has not been considered by the authority. He submits that similar points were raised before the appellate authority as well as revisional authority, but the same have not been considered and therefore the impugned orders by which the petitioner has been held guilty and punishment has been imposed are non-speaking and fit to be set aside.

7. The learned counsel has further referred to Jharkhand Police Manual, Volume-3, Appendix-49 to submit that in para-1 of Appendix-49 itself it has been clearly mentioned that the person charged shall be entitled to cross examine the witness and in view of the aforesaid facts and circumstances, the petitioner having not been granted opportunity to cross examine the witnesses who deposed in the departmental enquiry, the impugned orders cannot be sustained in the eyes of law.

8. The learned counsel while referring to the order of punishment as contained in Annexure-5 has further submitted that the authority has referred to Article 311 (2) (b) of the Constitution of India to dismiss the petitioner which itself reflects non application of judicial mind. He submits that there is no applicability of Article 311 (2) (b) of the Constitution of India under the facts and circumstances of this case.

9. The Learned counsel has further referred to the two judgments annexed along with writ petition; one is passed in Cr Appeal No. 47 of 2014 dated 20th May 2014 and submits that the case which was registered against the petitioner for offence under section 392 and 411 of IPC, the petitioner has been acquitted in the said case; Second, judgment dated 24th November, 2017 passed in Sessions Trial No. 703 of 2012 which was for alleged offence under Section 307 IPC read with Section 27 of the Arms Act where the petitioner has been acquitted. Learned counsel submits that the entire basis of the charge

based on the two criminal proceedings against the petitioner has been lost but the concerned authority, who has passed the order dated 20.06.2018, has failed to consider these aspects of the matter. Arguments of the Respondent State

10.Learned counsel appearing on behalf of the State has vehemently opposed the prayer and has submitted that mere acquittal of the petitioner in criminal case has no bearing in the present matter in view of the fact that the criminal cases are to be decided under the principle of proving the charge beyond all reasonable doubt and the departmental proceeding are decided on the principle of preponderance of probabilities. The counsel further submits that the petitioner has been merely extended the benefit of doubt in the criminal cases. The learned counsel submits that acquittal of the petitioner in the criminal cases has no bearing in as much as witnesses were examined in the departmental enquiry who had supported the allegations against the petitioner, particularly witness no. 4. The counsel has also referred to the supplementary counter affidavit which has been filed in compliance of order dated 23.11.2021 and she refers to page 14 to submit that a copy of the examination in chief of witness No. 4 was handed over to the petitioner on 08.03.2013 but no steps were taken by him before the enquiry officer for the purposes of cross examination of the said witness. However, from the materials which have been filed along with the supplementary counter affidavit, there is no such material to show that the petitioner was served with a copy of the notice to appear on 25.02.2013 when the witness No. 4 was to be examined before the enquiry officer. She submits that as per supplementary counter affidavit the notice was served, but from perusal of the annexures which has been annexed along with the supplementary affidavit, she could not substantiate the aforesaid submissions. From the perusal of the page No. 15 of the supplementary counter affidavit it appears that the same was served upon the witness No. 4 on 21.02.2013 for his appearance on 25.02.2013. However, it is not in dispute that the examination in chief of the witness which was recorded on 25.02.2013 was served upon the petitioner on 08.03.2013 and the enquiry report was submitted on 30.03.2013, wherein it has

been recorded the petitioner has personally appeared before the enquiry officer and had stated that entire allegations against him is baseless and he had also stated before the enquiry officer that other police personnel as well as his seniors may be called for examination and from their examination it will be clear that there has been no charge against him during the entire service period.

11.Arguments concluded.

12.Post this case for judgment on 10.02.2022.

(Anubha Rawat Choudhary, J.) Binit/