Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14724 of 2012 ============================================== 1. Lakshman Pandey @ Lakshmn Pandey S/o Late Nanhku Pandey Resident Of Village : Dhangai, P.O. :- Keshari, P.S. : - Dhangai, District : - Bhojpur Versus .... .... Petitioner/s 1. The State of Bihar 2. The Commissioner Cum Secretary Home (Police), Dept. Govt. of Bihar Old Secretariat, Patna 3. The Director General Cum Inspector General of Police, Bihar, Patna 4. The Inspector General Of Military Police, Bihar, Patna 5. The Deputy Inspector General Of Police, B.M.P. , Northern Zone, Muzaffarpur 6. The Commandant, B.M.P.-6, Muzaffarpur 7. The Commandant, B.M.P.-5, Patna 8. The Commandant, B.M.P.-13, Darbhanga ============================================== Appearance : For the Petitioner/s : Mr. Ram Yash Singh, Advocate For the Respondent/s : Mr. Rakesh Kr Samrendra, SC 21 .... .... Respondent/s ============================================= CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 28-01-2013 Heard counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- "For issuance of an appropriate writ in the nature of Certiorari to quash the order vide memo no. 995/P-03 dated 23.03.2012 passed by the Director General Cum Inspector General of Police, Bihar, Patna cum Disciplinary Authority whereunder the petitioner has been dismissed from his service. For issuance of direction the to 2
Legal Reasoning
Patna High Court CWJC No.14724 of 2012 (2) dt.28-01-2013 2 / 10 Disciplinary Authority to reinstate the petitioner in service with all consequential benefits."
Legal Reasoning
3. Learned counsel for the petitioner has submitted that the petitioner after being subjected to departmental proceeding was inflicted punishment by an order dated 02.04.2004 and when the
Decision
statutory appeal filed by him on 13.04.2004 was not disposed of, the petitioner had moved this Court in C.W.J.C No. 10222 of 2004 which was disposed of by this Court by an order dated 27.07.2005 directing the disposal of his appeal. According to learned counsel for the petitioner the appellate authority had dismissed the appeal on 20.07.2006 and had affirmed the order of punishment of dismissal of service of the petitioner dated 02.04.2004. The petitioner again had moved this Court against both the orders of punishment and the appellate order passed in C.W.J.C No. 2554 of 2007 and this Court by order dated 29.08.2011 had set aside both the order of punishment and the appellate order and had remitted the matter back to the disciplinary authority for fresh consideration in accordance with law. It is only thereafter that the present impugned order dated 20.03.2012 has been passed reiterating the order of punishment of the petitioner. 4. According to the learned counsel for the petitioner the Director General of Police in the impugned order dated 3 Patna High Court CWJC No.14724 of 2012 (2) dt.28-01-2013 3 / 10 23.03.2012(Annexure-1) did not consider two vital aspects namely:- (a) Persons similarly situated alike the petitioner who were also facing the similar allegation were not even departmentally proceeded much less punished for the misconduct. (b) The order of this Court dated 29.08.2011 passed in C.W.J.C No. 2554 of 2007 as with regard to acceptance of his joining was not completed in the letter and spirit, inasmuch as, neither the petitioner was allowed to join nor was he paid the subsistence allowance for the period of suspension. 5. Learned counsel for the State on the other hand has referred to the impugned order and has submitted that none of the two aforesaid aspects were in fact raised by the petitioner before the Director General of Police. In this regard, he has also referred to the representation of the petitioner dated 19.11.2011 contained in Annexure-14 to the writ application. 6. In the considered opinion of this Court, the earlier order of this Court dated 29.08.2011 passed in C.W.J.C No. 2554 of 2007 was passed with a clear finding that the impugned order of punishment and the appellate order had been passed on 02.04.2004 and 20.07.2006 respectively without considering the issue relating to the prejudice suffered on account non service of enquiry report 4 Patna High Court CWJC No.14724 of 2012 (2) dt.28-01-2013 4 / 10 to the petitioner. This it would be infact evident from the following passage extracted from the earlier order of this Court dated 29.08.2011 passed in C.W.J.C No. 2554 of 2007 which for the sake of clarity is quoted hereinbelow:- For failure of the Disciplinary Authority to serve the Enquiry Report along with the second show-cause notice, I have no option but to set aside the dismissal order dated 02.04.2004, Annexure-4 as also the appellate order dated 20.7.2006, Annexure-9 which is set aside and the matter is remitted back to the Disciplinary Authority, namely, the Director General-cum- Inspector General of Police, Bihar who shall ensure service of Enquiry Report on the petitioner with opportunity to the petitioner to file his fresh second show-cause reply which should be considered in accordance with law in the light of the report of the Dy.S.P., B.M.P.-6 dated 02.11.2001, Annexure-11. Before issue of the dismissal order dated 02.04.2004 petitioner was under suspension, as such, in compliance of this order he shall also be placed under suspension until final order is passed by the Director General-cum-Inspector General of Police after service of the fresh show-cause notice annexing the Enquiry Report. Arrears of salary of the petitioner for the period between 02.04.2004 till the date of passing of this order shall be subject to the result of the fresh order which shall be passed by the Director General-cum-Inspector General of Police after receipt of the second show-cause reply filed by the petitioner in response to the service of the finding of guilt recorded by the Enquiry Officer. During the pendency of the matter petitioner shall be entitled for payment of Subsistence Allowance. 7. Apparently, in terms of the aforementioned order of this Court, the petitioner was to be supplied with the inquiry report 5 Patna High Court CWJC No.14724 of 2012 (2) dt.28-01-2013 5 / 10 and that was admittedly served on him by memo no. 4349 dated 03.11.2011. The petitioner on receipt of the inquiry report had also submitted his comment/reaction to the inquiry report on 19.11.2011 vide Annexure-14 to the writ application. From a bare perusal of the aforementioned reply of the petitioner dated 19.11.2011, it would be apparent that he had only assailed the finding of the inquiry report as also had explained the allegations in the pending criminal case being Mithanpura PS Case No. 127/2001. In the said reply filed by the petitioner not a word was said as with regard to any person having similar charge or allegation as against him were not departmentally proceeded or punished. Similarly, no grievance was raised by the petitioner as with regard to non-payment of subsistence allowance. There was infact no scope for acceptance of the joining of the petitioner because he under the order of this Court was directed to be placed under suspension. 8. In view of the above, this Court would find it difficult to entertain the either of the aforesaid plea of the petitioner against the impugned order dated 23.3.2012 passed by the Director General cum Inspector General of Police, Bihar, Patna. It is well settled that in the matter arising out of disciplinary proceeding the alleged anomaly in the procedural aspect vitiating the 6 Patna High Court CWJC No.14724 of 2012 (2) dt.28-01-2013 6 / 10 departmental proceeding has to be raised before the authority and in absence thereof the same cannot be looked into for the first time in the writ petition. 9. As noted above, neither of the aforesaid two issues were raised before the Director General of Police who while passing the impugned order had simply carried out the direction of this Court given in the earlier order dated 29.08.2011. 10. This Court has also found that the plea of discrimination in the matter of punishment has also not been raised in clearer terms by the petitioner in the present writ application. In this regard, pleading of the petitioner is only in paragraph no. 34, 35 and 36 which for sake of clarity is quoted hereinbelow:- "That it is really a matter of great surprise that the FIR lodged against several person but the disciplinary proceeding started only against the petitioner, if there was more than one person responsible for committing same misconduct, the neck of one person cannot be caught hold with malicious intention while leaving others. the basic requirement of That the Apex Court also taken the same view in several cases and clearly held that the parity in dealing the delinquent with the same Act of misconduct and inflicting the same punishment fair play and is reasonableness. That that should administrative/Disciplinary accord fair and proper hearing to the persons sought to be affected by their orders and give sufficient clear and explicit reasons in support of essential authority is it 7 Patna High Court CWJC No.14724 of 2012 (2) dt.28-01-2013 7 / 10 an order. It is, also true that delinquent officers similarly situated should be dealt with similarly and, thus if the charges against the employees are identical, it is desirable that they be dealt with similarly. A person cannot made scapegoat on the instance of some officer concerned who also involved in this case with ulterior motive." 11. From a bare reading of the aforementioned averments it would also be clear that even when this issue was not raised by the petitioner before the Director General of Police it is even otherwise incapable of being answered by the respondents, inasmuch as, not a single name of not even a single person has been given who is said to be facing the similar allegation alike the petitioner. 12. In that view of the matter, this Court does not find any error in the consideration made by the Director General of Police to the show cause reply filed by the petitioner. The relevant portion of the impugned order in this regard reads as follows:- ^^vipkjh }kjk lefiZr cpko Li"Vhdj.k dh foLrkj iwoZd leh{kk dh xbZA vipkjh }kjk vius fyf[kr cpko esa bl ckr dks Lohdkj fd;k gS fd ;s dksr dh pkHkh vius v/khuLFk dfeZ;ksa dks ns nsrs FksA dksr ds njokts esa rkyk yxkus ds ckn nksuks a iYyksa ds chp bruh QkWd ¼txg½ jg tkrh Fkh ftlesa vklkuh ls gkFk vUnj ?kqlk;k tk ldrk FkkA lhrke<+h ds dqN gfFk;kjksa dks cjkenk esa j[kk x;k Fkk] tgka ls ,l0,y0vkj0 dk ,d eSxthu xk;c gqvk gS] ftlds laca/k es a mudk dguk gS fd lapkyu inkf/kdkjh }kjk bUgsa nks"kh ugha ik;k x;k gSA budk ;g Hkh dguk gS fd ,l0,y0vkj0 vkSj eSxthu dh pksjh xkMZ ds flikfg;ksa }kjk fd;s tkus ds laca/k esa bUgksaus izfrosnu Hkh fn;k FkkA pksjh x;s gfFk;kjksa ds laca/k eas dksVZ vkWQ bUDok;jh Hkh ugha djk;k x;k gSA 8 Patna High Court CWJC No.14724 of 2012 (2) dt.28-01-2013 8 / 10 vipkjh ds mijksDr lHkh cpko rdZ larks"ktud izrhr ugha gksrs gSaA dksr esa rkyk can djus ds ckn Hkh QkWd ¼txg½ jg tkus dh ckr dh tkudkjh gksus ds ckotwn Hkh buds }kjk u rks lq/kkjkRed dk;Zokgh dh xbZ vkSj u gh vius ojh; inkf/kdkfj;ksa dks lwfpr djrs gq, mfpr mik; djk;sA okfguh fujh{kd ds :i esa gfFk;kjksa] xksyk ck:n dh fgQktr j[k&j[kko djuk lgh lEiw.kZ ,oa Li"V ftEesokjh FkhA bUgksaus cVkfy;u ds gfFk;kjksa ds izHkkj esa jgrs gq, dRrZO;ghurk ,oa xSjftEesnkjkuk iqfyl inkf/kdkjh gksus dk ifjp;u fn;k gS] ftlds dkj.k ;g ?kVuk gqbZ gSa dkaM vkijkf/kd ?kVuk ls lacaf/kr gS] ijUrq vipkjh ij dksr izHkkjh ds :i esa cjrh xbZ ?kksj ykijokgh ,oa dRrZO;ghurk ds vkjksi izekf.kr gSA vr% lHkh vfHkys[kksa] cpko Li"Vhsdj.k ,oa lafpdk ds xgu ,oa lw{e voyksdu ls vipkjh ds fo:n~/k izekf.kr vkjksiksa ds fo:n~/k izkIr cpko@Li"Vhdj.k dks vlarks"ktud ikrs gq, vipkjh dks rRdky izHkko ls lsok ls c[kkZLr fd;k tkrk gSA fuyacu dh vof/k esa bUgsa tks jkf'k izkIr gqbZ gS mlds vfrfjDr dksbZ jkf'k ns; ugha gksxhA** 13. Such impugned order in fact also takes notice of payment of subsistence allowance to the petitioner as directed in the order of this Court. The petitioner in fact has also not said a word as with regard to non payment of subsistence allowance as directed in the order of this Court. The grievance of the petitioner in fact is that he ought to have been reinstated in service and his joining should have been accepted before being subjected to a show cause notice along with the service of inquiry report. That, however, was not the direction of this Court as has been already indicated from the quoted portion of the order of this Court dated 29.08.2011 passed in C.W.J.C No. 2554 of 2007. Thus it cannot 9 Patna High Court CWJC No.14724 of 2012 (2) dt.28-01-2013 9 / 10 be said that the impugned order is also in violation of the direction given in the earlier order of this Court. 14. After these observations were made learned counsel for the petitioner has submitted that in view of the fact that the order of punishment has now been passed by the Director General of Police, he may be given a liberty to file an appeal before the Home Commissioner, the higher authority to the Director General of Police. In this regard learned counsel for the petitioner has referred to Rule-24 of Bihar Government Servant (Classification Control & Appeal) Rules-2005. 15. In view of the fact that the original order of punishment now has been passed by the Director General of Police and the petitioner under his service Rules is entitled to file an appeal, this Court would allow the petitioner to file his appeal before the State Government through the Home Commissioner who will examine all the questions of fact and dispose of the appeal by a speaking order. 16. In view of the fact that this writ application was filed on 09.08.2012 and had remained pending till date it is hereby also directed that such appeal of the petitioner shall be disposed of on merits without non suiting him on the ground of delay/limitation, if any. Such appeal must be filed by the petitioner within a period 10 Patna High Court CWJC No.14724 of 2012 (2) dt.28-01-2013 10 / 10 of three months from today. Once such appeal is filed the Home Commissioner after obtaining relevant records from the concerned authorities must also examine them and shall place the matter before the State Government and obtain the orders of the State Government on the appeal filed by the petitioner. Such appeal of the petitioner must be disposed of within a period of six months from the date of filing of the appeal. It is also made clear that this Court has expressed no opinion on the merits of the claim of the petitioner and whatever has been observed hereinabove is in relation to the submission made by learned counsel for the parties which in no way of the matter will be used either for or against the petitioner in course of disposal of the appeal. 17. With the aforementioned observations and direction, this application is disposed of. Prakash/Ranjan (Mihir Kumar Jha, J)