Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14946 of 2012 ====================================================== 1. Rajendra Sharma S/O Late Ramagya Dasoundhi R/O Vill-Durondha, P.O.-Dhobaha Bazar, P.S.-Arrah Muffasil, Distt-Bhojpur Versus 1. The State Of Bihar , Through The Home Secretary, Govt. Of Bihar, Patna 2. Director General Cum Inspector General Of Police , Bihar, Patna 3. Deputy Inspector General Of Police , Munger Range, Munger 4. Superintendent Of Police , Khagaria .... .... Petitioner/s .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Ram Yash Singh For the Respondent/s : Mr. Nivedita Nirvikar GP-3 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4 25-02-2013 Heard learned counsel for the parties. Prayer of the petitioner in this writ application reads as follows :- “(i) For issuance of an appropriate order(s)/direction (s)/writ(s), for setting aside the order passed by Superintendent of Police, Khagaria vide his memo no. 1270/R.O. dated 22.06.2007, corresponding District Order No. 762/2007, by which the petitioner was dismissed from the service. (ii) For setting aside the order passed by the appellate authority, D.I.G., Munger Range, Munger contained in memo no. 82/G.S. date 17.01.2011, on the review petition of the petitioner, by which the appeal of the petitioner was rejected. (iii) For setting aside the order passed by the Director General cum Inspector General of Police, Bihar, Patna contained in his letter no. 262/P-3 dated 22.01.2012 by which the memorial of the petitioner was rejected.” Learned counsel for the petitioner, in support of Patna High Court CWJC No.14946 of 2012 (4) dt.25-02-2013 2 the aforementioned prayer, has basically concentrated on the aspect that the principles of natural justice were not at all followed in course of departmental proceeding. and, in fact, the petitioner was not given any notice of the date of enquiry by the Enquiry Officer. He has also submitted that copy of the enquiry report was not served on the petitioner and as such when the petitioner had recovered from his serious ailment, he could realize that his services had been dispensed with in a most arbitrary manner, he had filed his appeal before the Deputy Inspector General of Police but such appeal was also dismissed on the ground of limitation without appreciating the case of the petitioner. Similarly, he has also assailed the order passed by the Director General of Police on the memorial filed by the petitioner which, according to him, does
Legal Reasoning
not, in any way, meet the basic infirmity committed by the enquiry officer. This Court having perused the averment made in the writ application and specially the three impugned orders had directed the respondents to file their counter affidavit after taking into account the fact that in view of thirty five years of service rendered by the petitioner in police force, whether it was possible for them to substitute the order of punishment of his dismissal from service to compulsory retirement keeping also in view that he had in his actual service of 22 years, from 1982 to 2004 was Patna High Court CWJC No.14946 of 2012 (4) dt.25-02-2013 3 almost without any blemish on his part and, in fact, the only allegation of his being un-authorised absence was from 2005 onwards. In response to the aforementioned query Mrs. Nivedita Nirvikar, learned counsel for the State having filed a counter affidavit has taken a stand that it is not possible for the Respondents to substitute the order of punishment from dismissal by compulsory retirement inasmuch as the misconduct on the part of the petitioner, a member of police force, of remaining un- authorised absent from duty for a long period is a grave misconduct and writ large on the face of the record. In the considered opinion of this Court, while there can be no two view that maintenance of discipline is the most important attribute of any government employee, it has to be of the highest order in the case of a member of police force. If a member of the police force remains un-authorisedly absent from duty, he cannot claim similar punishment which other ordinary employees may be inflicted. Here in this case from the records, it is absolutely clear that the petitioner was un-authorisedly absent from duty atleast from 20.06.2005, as per the first report submitted by the Court Incharge of Sadar Court, Khagaria dated 23.06.2005. Thus, if the authorities had found the petitioner absent from duty and had initiated a departmental proceeding by framing of charge Patna High Court CWJC No.14946 of 2012 (4) dt.25-02-2013 4 on 1.11.2006. Such decision taken by the authorities cannot be held to be erroneous on facts or in law, specially when the memo of charge itself goes to show a clear misconduct on the part of the petitioner. The difficulty, however, has arisen from this stage because, as noted above, the petitioner was absent from duty and was not present in his headquarter when the memo of charge had to be served on him. There is no evidence in the file and records produced by the learned counsel for the State which can even show service of memo of charge on the petitioner. The two receipts kept in the file, one in the date of 10.05.2006 cannot be an evidence of service of memo of charge which itself was framed on 1.11.2006. The second receipt dated 15.1.2007 which is actually in relation to service of notice on the petitioner regarding the first date of enquiry fixed by the Enquiry Officer had again not been served personally on the petitioner but actually on some other person, namely, 'Ojha' and, therefore, that will also go to show that the memo of charge was not served upon the petitioner nor the petitioner was given any information with regard to the dates of enquiry being 29.12.2006, 13.02.2007 and 26.03.2007. There being only the aforesaid three dates of enquiry, there is also no evidence available in the concerned government record of the departmental proceeding that service of notice of dates of enquiry Patna High Court CWJC No.14946 of 2012 (4) dt.25-02-2013 5 was ever effected on the petitioner. As a matter of fact, the enquiry report was submitted by the Enquiry Officer on 2.4.2007 and upon receipt of the enquiry report when the disciplinary authority, namely, the Superintendent of Police on 10.04.2007 had found that the charges against the petitioner were found to be proved he had passed an order that a show cause notice should be issued to the petitioner as against the proposed punishment of dismissal from service and accordingly a notice was sent at the permanent residence of the petitioner and the second show cause notice without a copy of enquiry report was served upon the petitioner on 17.04.2007. The order of punishment, however, was passed by the Superintendent of Police on 22.06.2007 only on the basis that despite service of second show cause notice, the petitioner did not choose to file any reply. This order of punishment dated 22.06.2007 passed by S.P., Khagaria was later on affirmed in appeal by the appellate authority on 15.06.2010 on the ground of its being time barred i.e. almost after three years of the order of punishment. The said appellate order dated 15.06.2010 was also subsequently affirmed by an order of the Director General of Police who had rejected the memorial of the petitioner by his order dated 22.01.2012. Thus, from the events recorded above, it would be clear that when the respondents had proceeded to hold the ex-parte Patna High Court CWJC No.14946 of 2012 (4) dt.25-02-2013 6 enquiry, no care was taken to ensure the service of notice of dates of enquiry to the petitioner. Admittedly, if the petitioner was not present in the Headquarters, such notices were required to be published in the news paper or even by other means including the manner in which ultimately the second show cause notice was served on the petitioner on 17.04.2007. Ex-parte enquiry held without notice to the delinquent, therefore, will vitiate every thing and cannot be cured only on the ground of issuance of a second show cause notice by the disciplinary authority and that too without enclosing the enquiry report. This Court has also gone into the enquiry report and would find that barring examination of two witnesses on 29.01.2007, no evidence was recorded even with regard to those very reports which were submitted by the subordinate officials bringing to the notice of the disciplinary authority that the petitioner was un-authorisedly absent. As noted above, the first report was of the Court Incharge where the petitioner was allotted the duty in Khagaria Court. Thus, even the ex-parte enquiry was not conducted in a proper manner and atleast on the basis of such ex-parte enquiry the petitioner’s services could not have been dispensed with. It is true that the petitioner had remained un- authorisedly absent from duty on the ground of his illness but then Patna High Court CWJC No.14946 of 2012 (4) dt.25-02-2013 7 his such illness was never projected or reported by him to his controlling authority. Charge of un-authorisedly absence from duty can still hold good but the authorities will have to apply themselves as to whether it was beyond the control of the petitioner to remain on duty on account of his alleged illness. That apart, in view of the fact that even a copy of the enquiry report of the Enquiry Officer was not served on the petitioner and the Superintendent of police, Khagaria, the disciplinary authority, had only sent a second show cause notice without even enclosing a copy of the enquiry report, the apparent prejudice suffered by the petitioner is writ large on the face of record. In view of the above, this Court will have no difficulty in quashing the enquiry report as also the impugned orders of punishment, appellate order and the order of the Director General of Police passed on the memorial and remit the matter back to the Superintendent of Police for starting a de novo departmental enquiry against the petitioner. The petitioner shall appear before the Superintendent of Police, Khagaria along with a copy of this order whereafter the Superintendent of Police will get the memo of charge with the listed document served upon the petitioner giving him four weeks’ time to file his written statement of defence. Upon filing of written statement of defence, if the Patna High Court CWJC No.14946 of 2012 (4) dt.25-02-2013 8 charge is denied by the petitioner, the Superintendent of Police will appoint an enquiry officer for holding regular departmental proceeding but if the petitioner admits the charge of his remaining un-authorised absent, the Superintendent of Police may proceed to do the needful in accordance with law. The Enquiry Officer so appointed will inform the petitioner of the date of enquiry and in case the petitioner absents himself in course of enquiry, he will get the notice published in the two widely circulated newspapers in the locality one in Hindi and the other in English for ensuring presence of the petitioner and thereafter complete the departmental proceeding by taking into account all the evidence which are available showing the petitioner’s wilful absence from duty as reported by his controlling authority from time to time. This exercise by the Enquiry Officer however must be completed within a period of three months from the date of filing of the written statement of defence and appearance of the petitioner before the Enquiry Officer and if the petitioners does not co-operate, the Enquiry Officer may conclude the proceedings ex-parte. Once the Enquiry Officer will complete the departmental enquiry, and submit his enquiry report to the Superintendent of Police, Khagaria, the latter keeping in view the law laid down by the Apex Court in the case of Managing Patna High Court CWJC No.14946 of 2012 (4) dt.25-02-2013 9 Director, ECIL Vs. B. Karunakar reported in (1993) 4 S.C.C. 727 shall give an opportunity to the petitioner to submit his comment/finding of the enquiry report and thereafter a final order will be passed by the disciplinary authority strictly in accordance with law. The aforesaid entire exercise must be completed by S.P., Khagaria within a period of three months from the date of submission of enquiry report. In this period of six months the petitioner till the conclusion of the departmental enquiry shall not be reinstated in service and all the resultant benefit to the petitioner will also abide by the order of the disciplinary authority to be passed in the aforesaid de novo departmental proceeding. With the aforementioned observation and
Decision
direction, this writ application is disposed of. Amin/- (Mihir Kumar Jha, J)