Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.794 of 2002 =========================================================== Kameshwar Singh s/o Sri Ram Sagar Singh, resident of village Puchri, P.O. Meru Camp, P.S. Mufassil, District- Hazaribagh, at present posted in Rail District Force, Patna. Versus .... .... Petitioner/s 1. The State Of Bihar through the Director General of Police, Bihar, Patna. 2. The Dy. Inspector General of Police (Railway), Bihar, Patna. 3.The Superintendent of Police (Railway), Patna. 4.Sri M.N.Jha, Railway Surgent Major, Patna. with .... .... Respondent/s Civil Writ Jurisdiction Case No. 7955 of 2002 =========================================================== Ram Babu Prasad son of late Ram Sewak Rai, resident of village- Anwarpur, P.S.- Sarai, District- Vaishali, at present posted in Railway District Force, Patna. Versus .... .... Petitioner/s
Legal Reasoning
1. The State Of Bihar through the Director General of Police, Bihar, Patna. 2. The Deputy. Inspector General of Police (Railway), Bihar, Patna. 3.The Superintendent of Police (Railway), Patna. 4.Sri M.N.Jha, Railway Surgent Major, Patna. .... .... Respondent/s =========================================================== Appearance : (In CWJC No. 794 of 2002) For the Petitioner/s : None For the State : Mr. Lakmesh Marvind, A.C to S.C.9 (In CWJC No. 7955 of 2002) For the Petitioner : None For the State : Mr. Maruth Nath Roy A.C to S.C. 25 =========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ORAL JUDGMENT Date: 12-04-2013 Navaniti Prasad Singh,J:- These two writ petitions are related to the same incident whereby in a disciplinary proceeding, the petitioners, who were constables, have been punished by reducing them to the minimum in their pay scale. They preferred appeal, which was dismissed. Then they preferred revision, which has also been
Decision
dismissed during the pendency of the writ petitions. From the pleadings it appears that challenge to the disciplinary Patna High Court CWJC No.794 of 2002 dt.12-04-2013 2 proceedings is on several grounds. Firstly, it is urged that once the enquiry report had exonerated, then on the basis of the departmental evidence if the disciplinary authority wanted to differ with the enquiry report, it ought to have given enquiry report and granted opportunity to the petitioners to persuade the disciplinary authority not to differ rather accept the enquiry report. That not having been done, the order of punishment cannot be sustained. The second ground for challenge is that the disciplinary proceedings could not take into account materially , which was obtained behind the back of the petitioners, not disclosed to the petitioners, a separate enquiry was conducted by the disciplinary authority himself. Thus, the disciplinary authority acted on extraneous consideration. The third ground for challenge is that the punishment, as awarded, is not contemplated at all in terms of Rule 824 of the Bihar Police Manual. It does not contemplate of any punishment of reducing the pay scale to the minimum. There is a counter affidavit. In the said counter affidavit it is not denied that the enquiry report totally exonerated the petitioner as there was no evidence against the petitioners. In the counter affidavit it is further admitted that the Superintendent of Police, who was the disciplinary authority, relied upon his own investigation, report about the incident, which was never disclosed to the petitioners. Counter affidavit is silent with regard to the nature of punishment. Having heard learned counsel for the State, in my view, both the writ petitions must succeed on all three counts. In my view, it is not beyond doubt that though the disciplinary authority has the jurisdiction to differ with the enquiry report, he is duty bound to disclose the enquiry report to the delinquent and give reasons why he proposes to disagree with it so that the delinquent has an opportunity to persuade the disciplinary authority not to differ. Admittedly no such opportunity was at all Patna High Court CWJC No.794 of 2002 dt.12-04-2013 3 granted to the petitioners. This vitiates the orders of punishment. The next ground is also a good ground to set aside the proceedings. As noted above, in the counter affidavit itself it is admitted that the disciplinary authority i.e. Superintendent of Police (Railway), relied upon his own investigation report without disclosing it to the delinquent or without placing it as a part of disciplinary proceedings records. It is well established that no material adverse to a person can be used against him unless the same is disclosed. Apart from this there is yet another infirmity in this regard. It appears that scuffle took place between R.P.F. personnel and G.R.P. personnel at Gaya Railway Station. The petitioners were R.P.F. personnel and at that time they were posted at Gaya. A criminal case was instituted in which the petitioners were not named. As the matter related to two services, a confidential enquiry has been done by the Superintendent Railway Police (R.P.F., Mugalsarai) . A disciplinary proceedings was started against the petitioners.In the disciplinary proceedings three witnesses were examined by the department. Apparently they do not speak a word with regard to any in appropriate action done either of the petitioners. In absence of any material implicating and inducting the petitioners enquiry report completely exonerated . When the matter came before the disciplinary authority , who was the Superintendent of Police, (Railway) himself he accepted the enquiry report and basis upon own finding in his own personal investigation which finding was never disclosed to any one found the petitioner guilty. This cannot be done. He himself having been a party to the enquiry he cannot use his own report to hold a person guilt. This is not a matter of simple official one nor it can be waived as official file. It not expected that the disciplinary authority, who had found petitioners’ involvement on a private enquiry wound find otherwise in departmental Patna High Court CWJC No.794 of 2002 dt.12-04-2013 4 proceedings. He was bound by his own enquiry report and thus has prejudged the issue. Thus, on this count also the proceedings stands vitiated. The third ground is equally applicable. For this purpose I refer Rule 824 of the Bihar Police Manual. The relevant part thereof is quoted hereunder: “824. Description of departmental punishments--- The following punishments which are sanctioned under Section 7 of Act V of 1861 may be inflicted departmentally on a police officer of and below the rank of Inspector:- (a) dismissal (b) removal. (c) compulsory retirement (d) reduction in rank (e) forfeiture of last increment (s) or future increment (s) (f) black mark or marks. (g) censure. (h) confinement of quarters for a period not exceeding 15 days. (i) punishment drill (j) extra guard or fatigue duty Provided that the punishments mentioned in clauses(h) and (j) shall be imposed only on members of rank of constables/ Havildars and that in clause (i) shall be imposed only on constables.” A reference to the aforesaid clauses would show that there is no provision for reduction in the scale of pay to the lowest scale. There is provision for reduction in rank. The two are essentially different. No punishment for reduction was ever awarded or intended to be awarded. The orders are explicit that they be punished to the lowest scale in their rank. This is impermissible. Such punishment is not contemplated. Thus both the writ petitions are allowed. The impugned order passed in the disciplinary proceedings respectively is quashed. Patna High Court, The 12th April,2013, SINGH/N.A.F.R. (Navaniti Prasad Singh, J)