SIDHESHWAR RAI, SON OF LATE PARMA RAI, RESIDENT OF VILLAGE AND POST OFFICE DHANCHHUHA v. 1. THE STATE OF BIHAR 2. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA 3
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9438 of 2011 SIDHESHWAR RAI, SON OF LATE PARMA RAI, RESIDENT OF VILLAGE AND POST OFFICE DHANCHHUHA, POLICE STATION CHAURI, DISTRICT BHOJPUR .... .... Petitioner Versus 1. THE STATE OF BIHAR 2. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA 3. INSPECTOR GENERAL OF POLICE, RAILWAY, PATNA 4. DIG, RAILWAY, BIHAR, PATNA 5. DIG, RAIL ZONE, BIHAR 6. SUPERINTENDENT OF POLICE RAILWAY, PATNA .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Siyaram Shahi, Mahasweta Chatterjee For the Respondent/s : Mr. Awdhesh Kumar Pandey GA-9 ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 9 10-12-2013 The petitioner was a constable appointed in the year 1979 and at the relevant time was posted as constable in Patna Rail Police. He prays for quashing order dated 6.4.2011, passed by the Director General of Police, Bihar, Annexure 19, whereby he affirmed order dated 16.12.2008, passed by the DIG, Rail who in turn affirmed order of dismissal dated 29.2.2008, Annexure 12, passed by the Superintendent of Police, Rail. 2. The DIG, Rail received complaint that the Escort party of 3246 DN Danapur-New Jalpaiguri Capital express captures one General coach at Danapur railway station and shuts it up till Patna Junction and does not allow any one to board it unless one pays money irrespective of the fact whether one was having valid tickets or not. In order to verify the allegations, the DIG, Rail raided one of the general
Facts
Patna High Court CWJC No.9438 of 2011 (9) dt.10-12-2013 2/9 compartments of said train at about 22.15 (10.15 pm) on 28.6.2006 in civil dress along with raiding party. As soon as the train reached Patna junction, the Havildar of the escort party opened the door by banging it by his legs. Two police personnel came out of the compartment but none of them had their badges. The shutters of all windows of the compartment were drawn. The doors of compartment were shut from inside. The Havildar openly announced that for entering into the compartment one would have to dole out money. Rs. 20/- was the rate for a seat and Rs. 30/- for a berth. On query the same rate was told by the Havildar to the DIG, Rail. The DIG entered the Coach. The train started for Patna City and onwards. He called the Sub-inspector cum Officer-in-charge, Superintendent of police, Rail, Patna as well as Sub-inspector, Rail, Danapur at Patna Sahib. The delinquents then became aware that it was surprise checking. On enquiry passengers informed that extortion has become a regular feature of the escort party. A copy of the ‘checking report’ of the DIG, Rail dated 29.6.2006 is contained in Annexure 2. 3. On basis of complaint of the DIG, charge Memo no. 1526 dated 3.7.2007 was served (Annexure 3) on the petitioner. The charges were that the petitioner and other members of the escort party used to extort money from the passengers intending to board general compartment. Furthermore, the petitioner and Patna High Court CWJC No.9438 of 2011 (9) dt.10-12-2013 3/9 other members of the escort party deliberately kept their name plates in pockets in stead of wearing it. List of documents and witnesses on which prosecution had place reliance were mentioned in the charge memo. The petitioner submitted his show cause reply on 5.7.2006 (Annexure 4). In the show-cause, he stated that he as per complain he would not be the police personnel who demanded money or announced rates for entering the general coach. The said allegation was against Havildar. His explanation for not wearing the badge was that the same got disfigured and was being repaired. The petitioner prayed for examination of two witnesses namely Mohan Prasad and Kartik Prasad. He also demanded copies of exhibits on which the prosecution had placed reliance. 4. The Conducting/Enquiry officer, namely, C.P.Rajak, the Inspector, railways Police, Gaya held the proceeding on 16.8.2006, 17.8.2006, 15.9.2006, 30.10.2006, 16.11.2006, 30.11.2006, 15.12.2006 and 30.12.2006. The prosecution examined three witnesses, namely, Alok Kumar, Officer in charge, Patna Junction, Railway Police, Rama Shankar Rai, SDPO, Patna City and Vijay Kumar, SI cum officer in charge, Railways, Police Station Danapur. Alok Kumar was examined on 15.12.2006 (Annexure 10B), Vijay Kumar was examined on 15.1.2007 (Annexure 10) and Rama Shankar Rai was examined Patna High Court CWJC No.9438 of 2011 (9) dt.10-12-2013 4/9 on 30.1.2007 (Annexure 10A). Vijay Kumar and Rama Shankar Rai were not eye witness of the occurrence but nonetheless they stated that they had seen the checking report of DIG, Railways. Alok Kimar examined on 15.12.2006 claims to be an eye witness of the occurrence. On 15.12.2006 the petitioner reiterated his earlier defence he had given in the show cause dated 5.7.2006 (Annexure 4). 5. The conducting officer submitted his report on 30.1.2007, the date on which he examined the last witness, namely, Rama Shankar Rai. On basis of the enquiry report (Annexure 7), the disciplinary authority, namely, the Superintendent of Police, Rail issued 2nd show cause to the petitioner (Annexure 3). The petitioner submitted his show cause reply on 20.3.2007 vide Annexure 11. 6. In nut shell, the petitioner in his show cause submitted that the departmental proceeding was held in flagrant violation of principle of Natural justice and provisions of Police Manual. 7. Not being satisfied with the show cause reply, the Superintendent of Police, Railways vide his Memo no. 403 dated 29.2.2008 (Annexure 12) dismissed the petitioner from service (Annexure 8). The petitioner preferred an appeal on 9.4.2008 before DIG, Rail (Annexure 13) which too was dismissed on Patna High Court CWJC No.9438 of 2011 (9) dt.10-12-2013 5/9 16.12.2008 (Annexure 14). The petitioner filed Memorial on 28.1.2009 (Annexure 18). The Director General of Police, Bihar noticed some defects in enquiry and sought clarifications from the Superintendent of Police, Rail as would appear from Letter dated 19.10.2009, issued from the office of Director General of Police, Bihar (Annexure 15). The Superintendent of Police, Rail replied to the queries vide his letter dated 29.10.2009 (Annexure 16). By letter dated 15.1.2010, the D.G.P. issued show cause to the Railways police, Patna as to why the defects pointed out were not duly replied. 8. The Director General of Police, Bihar however vide his order dated 6.4.2011 dismissed the memorial which was communicated by the Superintendent of Police, Rail, Patna vide his letter dated 9.4.2011 (Annexure 19) addressed to petitioner. Order dated 29.2.2008 (Annexure 12) of the Superintendent of Police, Rail, order dated 16.12.2008 (Annexure 14) of the D.I.G., Rail and order dated 6.4.2011 (Annexure 15) of the D.G.P., Bihar are all under challenge in this writ petition. 9. The petitioner submits that he did not get reasonable opportunity to defend himself as copies of documents on which the prosecution placed reliance were not supplied. In support of his submission the petitioner has relied upon a decision in case of State of UP Vs. Satrughan Lal and another, reported in (1998)6 Patna High Court CWJC No.9438 of 2011 (9) dt.10-12-2013 6/9 SCC 651. The case of the petitioner is that he was deprived of opportunity to cross examine all the three witnesses examined by the prosecution. He further submitted that denial of opportunity to cross examine witnesses would amount to denial of fair opportunity to defend his case. In support of the his submissions the petitioner relied upon a Constitution Bench decision in case of State of Madhya Pradesh Vs. C.S.Waishampayan, reported in AIR 1961 SC 1623. The petitioner states that the enquiry officer in the proceeding book states that the petitioner is present and witnesses absent. Still one witness Vijay Kumar, Sub-inspector has been shown to be examined on 15.1.2007 (Annexure 10). Similarly, though the order sheet dated 15.12.2006 shows that no witness was present, still one witness Alok Kumar, the officer-in- charge, Patna Railway station was examined. 10. Counsel for the State submits that the Conducting officer held the proceeding on the various dates namely, 16.8.2006, 17.8.2006, 15.9.2006, 30.10.2006, 16.11.2006, 30.11.2006, 15.12.2006 and 30.12.2006 with due intimation to the petitioner to appear on all the dates. He submits that the petitioner did not deny that he had not put on his name plate which was mandatory. Furthermore, the petitioner at least did not deny that the Havildar of the escort party of which he was a member demanded illegal gratification for allowing passengers Patna High Court CWJC No.9438 of 2011 (9) dt.10-12-2013 7/9 to occupy seats and berths in the compartment. The copy of statements of witnesses were handed over to the petitioner before he submitted his 2nd show cause. 11. I have heard the parties and perused the materials on record as well as record of proceedings which was produced by the State at the instance of the court. The Court finds on perusal of the records that the then Conducting officer C.P.Rajak, the then Superintendent of Police, Rail conducted the proceeding in a very casual manner oblivious of the responsibility he was discharging. The petitioner is correct in his statement that though he filed his appearance on 15.12.2006 and 15.1.2007 which are available on the record, still the Conducting officer in his order sheet, records that delinquent (the petitioner) is absent. Furthermore, though the enquiry officer in the order sheet has noticed that witnesses are not present on 15.12.2006 & 15.1.2007, still one Alok Kumar is shown to have been examined on 15.12.2006 and one Vijay Kumar, SI cum officer- in-charge, Railway Police Station, Danapur is shown to be examined on 15.1.2007. Furthermore, one Rama Shankar Rai is said to be examined on 30.1.2007 though no separate order sheet has been drawn in this respect in the proceeding book. The petitioner states that curiously enough the Conducting officer submitted his report on 30.1.2007, the date on which the last Patna High Court CWJC No.9438 of 2011 (9) dt.10-12-2013 8/9 witness is said to have been examined. Even if the petitioner was not present on the said date, the Enquiry officer ought to have waited for one date more before submitting his enquiry report as petitioner could have turned on the next date for cross examination.
Legal Reasoning
12. It is well settled that the charges if denied in show cause are to be proved by documents or deposition of witnesses or both on which the prosecution has placed reliance. In the instant case two of the witnesses have been examined on dates which they are said to be not present. From the report of the DIG who personally conducted the raid it is evident that the allegation of announcing rate was against Havildar and not against the petitioner though a member of the escort party. His tacit connivance could be a strong possibility. Furthermore the petitioner has not denied the allegation that the Havildar of the escort party did not demand illegal gratification from passengers for boarding the compartment. Still I would give benefit of doubt, as the DIG Rail did not state in his complaint that the petitioner ever demanded money or announced rates for boarding the train. 13. So far as charge of not wearing name plate is concerned, the same has not been denied by the petitioner. He appears to have made lame excuse, that the same has been given Patna High Court CWJC No.9438 of 2011 (9) dt.10-12-2013 9/9 in a shop for repair. Furthermore the petitioner has not given any detail as to when his name plate got broken or as to whether he had informed any authority that his badge is disfigured. The details is lacking in the show cause which was relevant. Thus this Court finds that the charge of deliberately not wearing the name plate while on duty has not been rebutted by the petitioner in his show cause. 14. In such circumstances, I hold that the charge that the petitioner had not put on name plate while on duty as a member of Escort party stands duly proved. 15. As the charge of demanding money which is one of the two charges is not proved against the petitioner the matter is remitted for fresh consideration on quantum of sentence. It would be open for respondents to inflict any punishment including one of compulsory retirement or any other punishment
Decision
without prejudice. In the result, the impugned order of dismissal passed by Superintendent of Police, Rail as well as appellate orders of the DIG and the Director General of Police are set aside and the matter is remanded to the respondents for passing afresh order in accordance with law. The position existing immediately prior to dismissal order is restored. 16. The writ petition is allowed to this extent indicated above. Shashi./- (Samarendra Pratap Singh, J)