Rajendra Singh @ Rajendra Prasad Singh Son Of Shri Jai Kishore Singh v. The State Of Bihar

Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 4 submission of the learned counsel for the State has to be accepted. First of all, it would be necessary to quote the charges which were framed against the petitioner. The relevant portion of the charges reads as follows:- ^^fcgkj lSU; iqfyl&16 ds fuyfEcr flikgh&33 jktsunz flag ds fo:) dksj vuq’kklughurk] dRrZO;ghurk] ykijokg] xSjftEesnkj ,oa ,d v;ksX; iqfyl dehZ gksus dk vkjksi gS fd %& ;s fxfjMhg ftykUrxZr iksLV frljh …frljh Fkkuk‰ ij izfrfu;qDr 2&8 l‛kL= xkMZ esa izfrfu;qDr FksA fnukad 13-3- 2000 ds iwokZgu yxHkx 06-25 cts mxzokfn;ksa }kjk mDr fidsV ij geyk djds iwjh dkMZ dk gfFk;kj @ xksyh …9 ,e- ,e- dkckbZu½ e‛khu&2] eSxthu&4] xksyh&95 ,oa 7-62 ,e- ,e-,l-,y-vkj- jkbZQy&8] eSxthu&16] xksyh&695 pdz‰ ywV fy;k x;kA mxzokfn;ksa }kjk fidsVij fd;s x;s geys ds le; ls fidsV ls vuqifLFkr Fks] lkFk gh fidsV ij izfrfu;qDr nksuksa goynkj ,oa rhu vU; vkj{kh Hkh vuqifLFkr FksA bruh la[;k esa ,d lkFk fidsV ls vuqifLFkr jgus ds dkj.k gh mxzokfn;ksa }kjk vklkuh ls gfFk;kj@xksyh ywV fy;k x;kA ;fn iksLV ij mifLFkr jgrs rks mxzokfn;ksa dk eqdkoyk djds gfFk;kj@xksyh dks ywVus ls cpk;k tk ldrk FkkA budk ;g vkpj.k ?kksj vuq‛kklughurk] dRrZO;ghurk ykijokg] xSjftEesnkj ,oa ,d v;ksX; iqfyldehZ gksus dk ifjpk;d gSA**

7. From reading of the charges itself, it would be clear that there were two types of police personnel who were held to be prima-facie responsible for not being able to ward off the loot of arms and ammunitions from the police station. There were Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 5 persons who were present on duty but could not face the extremist in their sudden attack at 6.15 AM in which 9 MM carbine machine, four magazine, 95 cartridges and 695 round of fire were looted. The others were such persons who were found altogether absent from duty when the aforesaid occurence had taken place in the police station. The petitioner was in the category of such police constable on duty who had been found to be absent along with two Hawaldars and two police constables. When the petitioner had filed his written statement of defence to the aforementioned memo of charge, he had definitely admitted the charge of being absent from duty at the relevant point of time when the loot of arms and ammunitions from the police station had taken place but, then, his defence was that he had gone to attend the call of nature. In fact, the petitioner had also taken a further plea that while he was returning from the call of nature, he was caught hold by the extremists and was also severely assaulted by them as a result whereof he had sustained injuries on his person and was hospitalized.

8. In fact, by taking this plea, the petitioner had sought to convey that his absence was there for a very short period. What is, however, important is that the petitioner did not Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 6 take either deny the fact of being absent from duty nor had be taken plea of leaving the police station after taking permission from any one present at the picket nor did he name any one, much less the two persons grievance for whose non-examination in course of departmental enquiry has been raised before this Court. The enquiry proceeding, therefore, light of aforementioned evidence, was conducted and from the records, it would be clear that Mithelesh Kumar, Sub-Inspector of Police was examined. In his cross-examination, the petitioner had specifically put his defence to the said Sub-Inspector but, both the suggestions were categorically denied by this witness as would be apparent from the question no.3 & 4 and its answer by Mithelesh Kumar, Sub-Inspector of Police who was present on duty at the time of the occurrence at the police station and the same reads as follows:- ^^¼3½ iz‛u%& iS[kkuk ls ykSVrs le; eq>s N% gfFk;kj ls yS‛k mxzoknh us gesa idM+ fy;k vkSj ekj ihV fd;k ftlls ge t[eh gks x;s vkSj nwj taxy esa gesa ys x;k vkSj ’kjhj ls diM+k mrkj dj uaxs ikslV ij ge dks vkus fn;k bldh tkudkjh vkidks gSA mRrj%& ugha gSA eq>s dsoy bruk gh tkudkjh gS fd ?kVuk ds le; ;s ‚kkSp djus x;s FksA ¼4½ iz‛u%& ‚kkSpky; tkus le; iksLV izHkkjh f'ko flag vkSj larM+h d`’.kk flag dks crk;k Fkk D;k bl ckr dh tkudkjh vkidks gSA Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 7 mRrj%& ugha gSA**

9. Yet another witness Ramakant Das, the then Dy. S.P. at that point of time who on receipt of the information as with regard to the occurrence has arrieved at the police station was also examined and in his cross-examination, when the petitioner had confronted, the only question relating to his defence as noted above of going for attending the call of nature, this witness also had made it clear that leaving the police station/picket was dereliction of duty. To that extent, it would be relevant to quote question no.3 and its reply given by the aforesaid witness Ramakant Das, which reads as follows:- ^^3- lqcg iS[kkuk tkuk izkd‘frd gS D;k iS[kkuk tkuk t:jh ugha FkkA mRrj%& izkr% dky ’kkSp ij tkuk vuqfpr ugha ijUrq [krjukd iksLV ls brus vf/kd ek=k esa iksLV NksM+uk ykijokgh gSA**

10. Similarly, the Commandant in course of his examination in course of disciplinary proceeding had also been examined and when in the examination-in-chief, he has supported the charge, nothing was put to him with regard to the defence of taking permission prior to leaving the police station from any person and even in respect of assault on the petitioner, this witness had given only a hear-say information as would be apparent from the question no.3 and its answer quoted hereinbelow:- Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 8 ^^¼3½ iz‛u%& ‚kkSp tkrs le; eSa iksLV izHkkjh go0 f’ko flag vkSj larjh Jh d`’.kk flag ls crk;k Fkk iS[kkuk ls ykSVrs le; eq>s gfFk;kj ls yS‛k N% ¼6½ mxzoknh us idM+ fy;k cqjh rjg ekjus yx x;k ftlls gekjk ‚kjhj cqjh rjg t[eh gks x;k vkSj idM+ dj nwj taxy esa ys x;k A ;gka rd fd ‚kjhj ij dk diM+k Hkh mrkj fy, ,d ?kaVs ckn uaxk djds rc eq>s iksLV ij tkus fn;k rks vki tc ?kVuk dk irk djus ikslV ij vk;s rks gekjs lkFk ?kVh ?kVuk dk bu lc ckrksa dh tkudkjh fd;s rks D;k ;g ckr lR; gSA mRrj%& ‚kkSpky; tkus dh iqf’V ?kVuk LFky ij ds yksxksa ds }kjk gh tkudkjh gqbZA lkFk gh eSaus vkids nksuksa gkFkksa esa pksV yxh ,oa iV~Vh ckWa/kus dks ns[kkA**

11. There would be no lack of oral evidence, inasmuch as, when yet another witness Hawaldar Shiv Singh was examined and had stated in his examination-in-chief to the misconduct of the petioner, he was put to no question for examination save and except as to whether there was a provision for toilet within the police station.

12. It is true that the petitioner had examined Krishna Singh and he had stated that the petitioner had left the picket for attending the nature‟s call but, then, if the evidence of Shiv Singh and Krishna Singh are read together, it becomes clear that the main person from whom the petitioner claimed to have taken permission and left the police station were themselves suspended Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 9 for dereliction of their duty.

13. In that view of the matter, this Court would find that no procedural error was committed in course of enquiry specially when his application dated 24.6.2000 filed before the Enquiry Officer for examination of Shiv Singh and Krishna Singh was allowed by way of their examination on 8.8.2000 and

24.8.2000. If the two persons were already examined as also put to cross-examination on behalf of the petitioner, there was no question of their being again produced for being examined as a defence witness and at least to that extent, no prejudice has been caused to the petitioner. By now, it is well settled that a mere technicality or some lapsed in course of proceeding can not become fatal for vitiating the entire departmental proceeding as was held by the Apex Court in the case of State Bank of Patiala Vs. S.K. Sharma reported in AIR 1996 SC 1969 wherein it was held as follows:-

33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee): (1) An order passed imposing a punishment on an employee consequent a disciplinary/ Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 10 departmental enquiry violation rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under — “no notice”, “no opportunity” and “no hearing” categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation prejudiced delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 11 therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 12 prejudice to the delinquent employee. (b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice — or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action — the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 13 explained in the body of the judgment. In other words, a distinction must be made between “no opportunity” and no adequate opportunity, i.e., between “no notice”/“no hearing” and “no fair hearing”. (a) In the case of former, the order passed would undoubtedly be invalid (one may call it „void‟ or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 14 (7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.

14. Therefore, on the basis of the materials on record, this Court is satisfied that the petitioner was given a fair deal as also adequate and reasonable opportunity to defend himself in course of departmental proceeding. The Enquiry Officer infact had examined the defence of the petitioner at great length and with reference to the evidence on record, he, having discussed the oral evidence of the (1) Ramakant Das, (2) Deputy Superintendent of Police, Silvanush Dahanga, Commandant, (3) the Reserved Officer (Sub-Inspector), (4) Durga Oraon, Sub Divisional Police Officer, (5) Anauj Kumar (Inspector of Police), Mithelesh Kumar, (6) the Officer-in-charge, and the two witnesses Shiv Singh and Krishna Singh had recorded the following findings:- ^^earO;& bl foHkkxh; dk;Zokgh esa vkjksfir flikgh&33 jktsUnz flag ds }kjk muds fo:) yxk;s x;s vkjksiksa ds tcko esa fn;s x;s cpko izfrosnuksa esa mUgksaus ?kVuk ds laca/k esa eq[;r% rhu eqnns vius cpko esa mBk;s gS%& 1- fuR; fdz;k ls fuo`r gksus gsrq mudk ‚kkSp ds fy;s tkukA 2- iqfyl iksLV ds fy;s lqj{kk O;oLFkk esa [kkfe;kaA 3- iz‛kklfud foQyrkA Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 15 lk{;ksa ds c;ku ,oa izfrijh{k.k ds }kjk ;g Li"V gksrk gS fd fnukad 13-03-2000 dks izkr% gfFk;kj ywV dh ?kVuk ds iwoZ vkjksfior flikgh ‚kkSp ds fy;s iksLV ds dqN nwjh ij taxu@rkykc dh vksj x;s FksA dkj.k fd iksLV ij ‚kkSpky; dh O;oLFkk ugha FkhA ij vkjksfir dk dFku fd og tkus ds iwoZ bldh izfof"V xkMZ jftLVj esa Hkh iksLV izHkkjh ds }kjk djk;s FksA iw.kZr% eux<a+r ,oa vfo‛oluh; gSA D;ksafd tokuksa ds ‚kkSp ds fy;s tkus dh izfof"V dghha Hkh rFkk fdlh fidsV@iksLV ij xkMZ jftLVj esa ugha ik;h tkrh gSA vkSj u ;g o;ogkfjd gSA vkjksfir dk ;g dFku Hkh vfo‛oluh; gS fd ‘kkSp tkus ds dze esa mxzokfn;ksa ds }kjk bUgsa idM+ dj ekj ihV fd;k x;k ftlls os t[eh gks x;s A dkj.k fd ?kVuk ds i’pkr vuqla/kkudRrkZ ,oa ojh; inkf/kdkfj;ksa us ?kVuk LFy ij u rks mUgsa t[eh ns[kk vkSj u muls bldh ppkZ dh x;h A lR; rks ;g gS fd vkjksfir lfgr vU; goynkj@flikfg;ksa us ?kVuk ds yxHkx 10 ?k.Vs ckn Loa; ds t[eh gksus dk Lokax jprs gq, Fkkuk izHkkjh ls t[e i= dk ekax fd;k Fkk rFkk ‚kke 6&7 tks frljh vLirky esa tkap djok;kA blls Li’V gS fd vkjksfir us vius cpko gsrq t[eh gksus dk ,d >wBk ,oa csoqfu;kn dgkuh crk;k gS tks budh dk;jrk dk n;ksrd gSA ;g lgh gS fd frljh Fkkuk vUrxZr mDr iqfyl iksLV ij tka ls gfFk;kj ywV dh ?kVuk ?kVh gS] mxzokn izHkkfor {ks= gksus ds dkj.k gh ogka og cy izfrfu;qDr Fkk] ,oa ogkW dqN vkSj lqj{kk O;oLFkk djuk visf{kr FkkA ij pwWfd mDr lkeqnkf;d Hkou esa iwoZ ls Hkh iqfyl cy dks j[kk tkrk Fkk bl fy;s bl Fkkuk fjtoZ cy dks Hkh ogka j[kk x;k A dkj.k fd Fkkuk Hkou esa I;kZIr LFkku dk vHkko Fkk ,oa lkeqnkf;d Hkou dh nwjh Fkkuk ls yxHkx rhu lkS xt gSA bl ifjfLFkfr esa iwoZ esa izfrfu;qDr cy dks rjg bl cy dks Hkh uSfrd ftEesokjh Fkh fd lqj{kk ds fu;eksa dk Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 16 dBksjrk ls ikyu djrs gq, ges’kk ltx ,oa ordZ jgdj {kf.kd le; esa Hkh izkIr izf’k{k.k ds vuq:i rRijrk ds lkFk mxzokfn;ksa dk lkgl iwoZd eqdcyk djrsA ij buds }kjk ,slk dqN Hkh ugha fd;k x;k A tcfd izfrfu;qDr cy dh la[;k rFkk miyC/k …,l-,y-vkj- ,oa LVsu‰ ,df=r mxzokfn;ksa dk eqdkcyk djus ds fy;s I;kZIr FkkA vUr esa vkjksfir ds }kjk ?kVuk ds i‛pkr ojh; inkf/kdkfj;ksa ds }kjk fn;s x;s c;ku dk mYys[k fd;k x;k gS ftlds vUrxZr ?kVuk dk dkj.k iz‛kklfud foQyrk cryk;k x;k gSA ij ‚kk;n mUgsa ;g ugha ekywe fd iz’kklu ds ,d vax gSA vr% izfrfu;qDr cy dh foQyrk gh eq[;r% iz’kklfud foQyrk dks bafxr djrk gSA vr% bl foHkkxh; dk;Zokgh esa miyC/k vfHkys[kksa] lk{;ksa dk c;ku rFkk mDr of.kZr lk{;ksa ds vk/kkj ij vkjksfir flikgh&33 jktsUnz flag ds fo:) yxk;s x;s lHkh vkjksi iw.kZr% izekf.kr gksrs gSa rFkk bUgsa nks"kh djkj fd;k tkrk gSA**

15. When the aforesaid findings were communicated to the petitioner, he had filed his written statement of defence, the Disciplinary Authority had also considered the matter afresh in the light of the defence given bythe petitioner and he had held as follows:- ^^vkjksfir eq[;r% rhu eqn~ns vius cpko esa mBk;s gSA%& …1‰ fuR; fdz;k ls fuo‘r gksus gsrq mudk ‚kkSp ds fy;s tkuk …2‰ iqfyl iksLV ds fy;s lqj{kk O;oLFkk esa [kkfe;ka …3‰ iz’kklfud foQyrk lkf{k;ksa ds c;ku ,oa izfrijh{k.k ds dze esa ;g Li"V gksrk gS fd gfFk;kj ywV dh ?kVuk ds iwoZ vkjksfir ‚kkSp ds fy;s iksLV ls ckgj taxy@rkykcddh vksj x;s Fks dkj.k iksLV ij ‚kkSpky; dh O;oLFkk ugha FkhA ij vkjksfir dk Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 17 ;g dFku fd og tkus ds iwoZ bldh izfof’V xkMZ jftLVj esa Hkh ikslV izHkkjh }kjk djk;s Fks] iw.kZr% eux<a+r ,oa vfo’oluh; gSA D;ksafd ‚kkSp ds fy;s tkus dh izfof"V dgha Hkh rFkk fdlh Hkh ikslV ij xkMZ jftLVj esa ugha ik;h tkrh gS vkSj u ;g O;ogkfjd gh gSA vkjksfir dk ;g Hkh dFku lR; ls ijs gS] fd ‚kkSp ds fy;s tkrs le; mxzokfn;ksa }kjk mUgsa idM+ dj ekj ihV fd;k x;k ftlls os t[eh gks x;s FksA ?kVuk ds i‛pkr vuqla/kkudRrkZ ,oa ojh; inkf/kdkfj;ksa }kjk ?kVuk LFky ij u rks bugsa t[eh ik;k xk vkSj u gh bldh ppkZ dh x;h gSA Fkkuk Hkou esa I;kZIr LFkku miyC/k u gksus ds dkj.k gh Fkkuk ds lVs yxHkx 300 xt dh nwjh ij fLFkr ljdkjh lkeqnkf;d Hkou esa fidsV dks j[kk x;k FkkA bl Hkou esa iwoZ esa Hkh cy dks j[kk tkrk jgkA izfrfu;qDr cy ds ikl miyC/k mPp ekjd {kerk lEiUu Lopkfyr ‚kL= mxzokfn;ksa ds eqdkcyk djus ds fy;s I;kZir FkkA vkjksfir dk cpko izfrosnu@lk{; iw.kZr% eux<+ar] vfo‛oluh;] cscqfu;kn ,oa loZFkk vekU; gSA mxzokfn;ksa }kjk cgqr vklkuh ls ikslV ij dCtk djrs gq, izfrjks/k ds vHkko esa lHkh mPp dksfV ds gfFk;kj ,oa Hkkjh ek=k esa xksyh@ck:n ywV fy;k x;kA vkjksfir us vius cpko esa iz’kklfud foQyrk dh Hkh ppkZ dh gS tks loZFkk vekU; gSA laHkor% mUgsa ;g Kku ugha gS fd iz'kklu fdlh O;fDr fo‛ks’k dk uke ugha gS cfYd os Loa; Hkh iz‛kklu dk gh ,d vax gS vkSj izfrfu;qDr cy dh foQyrk gh eq[;r% iz‛kklfud foQyrk dks bafxr@mtkdj djrk gSA eSaus foHkkxh; dk;Zokgh lafpdk dk xgjkbZ ls ,oa HkfyHkkafr leh{kk fd;kA lapkyu inkf/kdkjh us fu;ekuqdwy foHkkxh; dk;Zokgh dk lapkyu djrs gq, fpfUgr izn‛kZ ,oa xokgksa ds c;ku ds vk/kkj ij vkjksfir dks iw.kZr% nks’kh djkj djrs gq, viuk earO; lefiZr fd;k gSA foHkkxh; dk;Zokgh lapkyu ds dze esa ;g LFkkfir gks pqdk gS] fd vkjksfir ,d dRrZO;ghu] ykijokg xSj ftEesnkj ,oa v{kerk lEiUu iqfyl dehZ gS tks loZFkk lSU; iqfyl tSls vfr vuq‛kkflr cy ds Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 18 fy;s v;ksX; gSA**

16. The petitioner was, therefore given adequate opportunity of hearing and the order of punishment was passed by the disciplianry authority dismissing the petitioner from service.

17. The matter was thereafter taken in the appeal before the D.I.G., Muzaffarpur and the appellate authority also after considering the entire defence of the petitioner had held as follows:- ^^vius vihy vH;kosnu esa vkjksfir vkj{kh }kjk lekns’Vk }kjk ikfjr vkns’k dks bl vk/kkj ij **ekykQkbZM** crk;k gS fd buds dkj.k i`PNk uksfV‛k ds mRrj dks fcuk i<+s gq, gh mUgksaus vkns‛k ikfjr fd;k gSA ftu xokgksa dk c;ku fy;k x;k gS mlesa ls dksbZ Hkh izR;{kn‛khZ xokg ugha gSa rFkk fcuk izR;{kn‛khZ xokg c;ku fy, gq, bUgsa nks’kh ?kksf’kr fd;k x;k gSA budk ;g Hkh dguk gS fd izR;{kn’khZ xokg buds cpko lk{kh gSa ftuds c;kuksa dks lapkyu inkf/kdkjh ,oa lekns’Vk }kjk fo’oluh; ugha ekuk x;k gSA budk ;g Hkh dFku gS fd tks Hkh lk{kh ds :i esa bl foHkkxh; dk;Zokgh esa mifLFkr gq, gSa os lHkh vkjksiksa ds nk;js esa gSa] D;ksafd bu yksxksa us vius dRrZO;ksa dk fuokZgu u dj vkjksiksa ls cpus ds fy, vfHk;kstu lk{kh cuus dk QSlyk fd;kA vkjksfir vkj{kh dk dguk gS fd buds djhc&djhc lHkh inkf/kdkjh vius dRrZO;ksa dk fuokZgu ugha dj ik;s A vkjksfir vkj{kh {kjk tks iqfyl fidsV dh lqj{kk O;oLFkk esa dfe;ka vkSj dh deh ds dkj.k vf/kdre fidsVksa ij gS] ijUrq tgk¡ l'kL= cy vR;k/kqfud vL=ksa ls yS’k gS vkSj Lor% bruk izfrc) gS f dog gj le; lrdZ ,oa dRrZO;fu’V cuk jgrk gS] ogk¡ iz;kl djus ds ckn Hkh mxzoknh lQy ugha Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 19 gks ikrs gSaA izlaxk/khu ekeys esa lekns’Vk dk fu.kZ; fcYdqy lgh gS fd xkMZ ds ,d&,d lnL; blds fy, ftEesnkj Fks fd lhfer lalk/ku ds vUnj jgdj lqj{kk ds fu;eksa dh dM+kbZ ls ikyu djrs gq, ges‛kk dRrZO; dk fuoZgu djrs A ;g fidsV odZlsM esa ugha cfYd Fkkuk ls lVs 300 xt dh nwjh ij ljdkjh lkeqnkf;d Hkou esa FkkA vxj xkMZ dks viuh lqj{kk dh izfrc)rk gksrh rks xkMZ ogka igqapus ds gh fnu ekspkZ [kksn ysrk vkSj ekspsZ dk fuekZ.k bl izdkj djrs rkfd fQYM vkWQ Qk;j Hkh lkQ fn[kk;h iM+s vkSj toku Hkh lqjf{kr jgsA daVhys rkj dk ?ksjk u jgus ij Hkh ekspkZ [kqn tkus ds ckn lqj{kk dkQh c<+ tkrh gSA lcls cM+h ckr rks ;g gS fd ;fn larjh] nQk tks vxys larjh ds :i ogka mifLFkr jgrs vkSj iw.kZr% lrdZ jgrs rks igys rks mxzoknh bl ?kVuk dks vatke nsus dh fgEer gh ugha djrs ;k ?kVuk dks jksdk tk ldrk Fkk vFkok mxzokfn;ksa dh Hkh mlesa iqfyl cy ls de {kfr ugha gksrh] ijurq vkjksfir vkj{kh }kjk mxzokfn;ksa ds fo:) izfrjks/k ;k eqdkcyk djus dk izek.k ;k lk{; ?kVuk LFky ij ugha gSA lekns’Vk dk vfHker ,oa vkns‛k fcYdqy lgh izrhr gksrk gSA eSa blesa gLr{ksi dh vko‛;drk ugha le>rk gw¡] vr% vihy vH;kosnu vLohd‘r fd;k tkrk gSA**

18. The matter did not rest there and in fact, the petitioner had filed his memorial before the Director General of Police which was considered in view of the observations made by the Division Bench in the order dated 10.1.2008 in LPA No. 13 of 2008, inasmuch as, the earlier writ application filed by the petitioner against the order of punishment and the dismissal was dismissed by this Court by an order dated 13.7.2007 in CWJC No. 7957 of 2001. This Court, however, by an order dated 10.1.2008 Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 20 having found that the writ application of others having been facing the same charge was allowed by setting aside the order of the learned Single Judge and had remitted the matter back to the Director General of Police as was done by this Court in an order dated 9.11.2004 in the writ application filed by Maheshwar Prasad Singh, Ramashish Singh, Shashi Prakash Singh, Sri Krishna Singh, Shiv Singh and Diwan Shamser Khan being CWJC No. 5187 of 2009, CWJC No. 5899 of 2001, CWJC No. 5587 of 2001, CWJC No. 7623 of 2001, CWJC No. 5983 of 2001 and CWJC No. 11152 of 2001 respectively.

19. As a matter of fact, the aforesaid order dated

9.11.2004 in the batch of aforementioned writ application, taking a safe course for the petitioner the Division Bench of this Court in the order dated 10.1.2008 had remitted the matter back to the Director General of Police to pass a fresh order without disturbing the original or appellate order passed against the petitioner. This would become clear from the order of the Division Bench dated

10.1.2008 relevant portion whereof reads as follows:- “It is pointed out by the learned counsel for the appellant that six petitions had earlier been filed by other members of the Bihar Military Police against the order of their dismissal for the same alleged misconduct. Those writ petitions, which were also preferred in 2001, were decided by a common order dated 9.11.2004 with a Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 21 direction that the matter stands remitted back to the Director General of Police, Bihar, Patna to consider all aspects as if the memorial is pending before him including the aspect as to the punishment meted out to the petitioners is disproportionate or not and pass appropriate order in accordance with taking into consideration observation of this Court. Subsequent thereto one of the petitioners out of six petitions, which were disposed of by the order dated

9.11.2004, again approached before this Court vide C.W.J.C. No. 10797 of 2005 which was disposed by order dated 19.12.2006 by which the order passed by the Director General of Police subsequent to the order dated

9.11.2004 was again quashed and the matter was remanded to the Director General of Police-cum-Inspector General of Police to pass a fresh order in accordance with law after hearing the parties personally or through the counsel, if so desires, as has been ordered by this Court by order dated 9.11.2004. About these facts there is no dispute raised by the learned counsel for the Government and the petitioner is similarly situated. However, the appellant writ petition when came to be decided separately was dismissed. In view of the aforesaid undisputed facts the appellant deserves to be placed at par with other similarly situated persons. Accordingly, the appeal is allowed and petitioner’s petition is directed to be disposed of in terms of the order dated 9.11.2004 passed by this Court in C.W.J.C. No. 5899 of 2001 and other connected matters and the order dated 19.12.2006 passed in C.W.J.C. No. 10797 of 2006 and the Director General of Police and Inspector General of Police, Patna shall decide the Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 22 petitioner’s appeal after affording an opportunity of hearing either in person and if desired by the petitioner, through his counsel keeping in view the directions in terms of the order dated 9.11.2004.”

20. In view of the above, when the Director General of Police had passed his final order on 10.12.2011, he also had considered the defence of the petitioner in an elaborate manner as would be evidenced from the relevant extract of the order dated

10.12.2011 which is quoted hereinbelow:- ^^O;fDrxr lquokbZ ds dze esa vipkjh ds fo:) lapkfyr dh xbZ foHkkxh; dk;Zokgh ds vfHkys[kksa dh Hkh leh{kk dh xbZ vkSj ;g ik;k x;k f dbl foHkkxh; dk;Zokgh dk lapkyu fof/kor fu;ekuqlkj fd;k x;k gSA vipkjh dks viuk cpko Li"Vhdj.k ,oa izfrj{kk lk{; izLrqr djus dk volj feyk gS] vfHk;kstu lk{;ksa ls izfrijh{k.k gqvk gSA izekf.kr xaHkhj vkjksiksa esa vafre vkns‛k ikfjr djus ds iwoZ vipkjh ls lsok ls c[kkZLrxh ds fo:) dkj.k i‘PNk izkIr dh xbZ gSA vipkjh dh O;fDrxr mifLFkfr esa fn;k x;k mudk c;ku] iwoZ esa lefiZr mudk vH;kosnu ,oa foHkkxh; dk;Zokgh ds vfHkys[kksa dh leh{kk ls Li"V gS fd frljh …fxjhMhg ftykUrxZr‰ Fkkuk Hkou ls 300 xt dh nwjh ij fLFkr ljdkjh lkeqnkf;d Hkou esa fidsV dks j[kk x;k FkkA bl Hkou ij iwoZ esa Hkh cy dks j[kk tkrk FkkA izfrfu;qDr cy ds ikl miyC/k mPp ekjd {kerk lEiUu Lopkfyr gfFk;kj] ‚kL=kfn mxzokfn;ksa dk eqdkcyk djus ds fy;s I;kZIr FkkA vipkjh }kjk mxzoknh vkdze.k ds le; izfrjks/k ds vHkko esa mxzokfn;ksa us cgqr gh vklkuh ls fidsV ij dCtk djds lHkh mPp dksfV ds gfFk;kj ,oa Hkkjh rknkn esa xksyh@ck:n dks ywV fy;kA Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 23 O;fDrxr mifLFkfr ds le; vipkjh dk ;g dFku fd og mxzoknh vkxze.k ds le; fuR; fdz;k djus x;s Fks] lR; izrhr ugha gksrk] D;ksafd foHkkxh; dk;Zokgh ds lapkyu ds dze esa Loa; bUgksaus crk;k gS fd ‚kkSp ls ykSVrs le; mxzokfn;ksa us bUgsa idM+ fy;k vkSj cqjh rjg ekjk&ihVkA vipkjh dk vyx&vyx nksuksa voljksa ij fn;k x;k c;ku fojks/kkHkklh gS] vr% leLr rF;ksa ij fopkjksijkar vipkjh ds fo:) foHkkxh; dk;Zokgh esa yxk;s x;s vkjksiksa dk muds O;fDrxr mifLFkfr esa fn;s x;s c;ku vFkok vH;kosnu ls u rks [kaMu gksrk gS vkSj u gh dksbZ cpko gh gks jgk gSA vipkjh dks iznRr lsok ls c[kkZLrxh dh ltk muds fo:) izekf.kr xaHkhj vkjksiksa ds lekuqikfrd gSA blesa fdlh cnyko dh xaqtkb‛k ugha gSA O;fDrxr mifLFkfr ds nkSjku vipkjh ds }kjk izLrqr cpko dks vekU; fd;k tkrk gS ,oa foHkkxh; dk;Zokgh esa iznRr lsok ls c[kkZLrxh dh ltk dks ;Fkkor cjdjkj j[kk tkrk gSA**

21. This Court therefore does not find any merit in the second submission as well that the Director General of Police did not consder the issuing of giving the same treatment which was extended to the others. It is infact here that the distinguishing factor of the case of the petitioner will come into play. Those whose cases were remitted by this Court for reconsideration by the Director General of Police and whose order of dismissal from service was reduced to some other lesser punishment were the persons who were present at the police station when the incident had taken place and they unlike the petitioner were not absent from duty but in the case of the petitioner, it has been proven Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 24 beyond doubt that he was absent from duty in an unauthorized manner. The two witnesses on whom the petitioner had relied were themselves indicted persons and their defence was not found worth acceptance because the documentary evidence did not support regarding petitioner leaving the police station/picket having obtained permission from the superiors. In that view of the matter, this Court also does not find any merit in the submission of the learned counsel for the petitioner as with regard to the discrimination in the matter of punishment.

22. The petitioner along with Havaldar Shiv Singh, Havaldar Motwar Singh, Constable Diwan Samsher Kha, Constable Rajendra Prasad Singh and Constable Lal Babu Singh were such persons who were found absent from duty and as such, they could not have been given the same punishment as was given to other five police personnel. The doctrine of proportionality of punishment in departmental proceeding and its judicial review under Article 226 is well circumscribed, inasmuch as, this Court cannot assume the role of the disciplinary authority/appellate authority. The law also in this regard has been laid down by the Apex Court that it is the job of the executive/disciplinary authority to award punishment and unless such punishment is shocking to the conscience of the Court, the same can not be interfered in Patna High Court CWJC No.14873 of 2012 (3) dt.22-02-2013 25 exercise of power of judicial review under Article 226 of the Constitution of India. Reference in this regard may usefully be made in the judgment of the Apex Court in the case of B.C. Chaturvedi Vs. Union of India & Ors. reported in 1995(6)SCC 749.

23. In view of the above, when this Court would find the petitioner being a member of police force had unauthorizedly remained absent from duty in course of which the ante-social elements and the extremists not only attacked the picket but also taken away huge arms and ammunitions, it would hold that the misconduct of the petitioner being absent from duty is grave in nature and no leniency could have been shown to him. Thus there is no error in the order of punishment of dismisal from service of the petitioner which has also been correctly affirmed in appeal as well as in the well considered order of the Director General of Police while disposing of the his memorial. .

24. That being so, this Court does not find any merit in this writ application and the same is, accordingly, dismissed. (Mihir Kumar Jha, J) Rishi/-