THE INSPECTOR GENERAL OF POLICE, CRIME INVESTIGATION v. DEPARTMENT, GOVERNMENT OF BIHAR, PATNA
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18003 of 2010 ====================================================== CHANDRA DHAN SHARMA SON OF LATE SHEO RATAN SHARMA RESIDENT OF VILLAGE GHARI, POLICE STATION NASARIGANJ, DISTRICT ROHTAS AT SASARAM .... .... Petitioner 1. THE STATE OF BIHAR 2. DIRECTOR GENERAL OF POLICE, GOVERNMENT OF BIHAR, PATNA 3. THE INSPECTOR GENERAL OF POLICE, CRIME INVESTIGATION Versus DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE DY. INSPECTOR GENERAL, GOVERNMENT OF BIHAR, PATNA 5. THE SUPT.OF POLICE (C ), GOVERNMENT OF BIHAR, PATNA. .. Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Nand Lal Kr.Singh & Sanjay Kr.@ Manu For the Respondent/s : Mr. U.P.Singh, AC to SC 25. ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 16 18-11-2013 The petitioner prays for quashing the order of dismissal dated 8.2.2008, passed by the Superintendent of Police (C), Government of Bihar, Patna, respondent no.5 communicated vide memo no. 390 as contained in Annexure 2 as well as order passed
Facts
by the DIG, CID dated 4.9.2008 affirming the punishment of dismissal. The petitioner was appointed as Constable on 20.11.1973. He was promoted to the post of Havildar by order of the Inspector General of Police, CID, respondent no.3 contained in memo no. 344 dated 27.4.2006. Thereafter he was sent to SLC training, Bhojpur. He was mediator in the marriage of Kalavati Devi with one Ram Ekbal Sharma. The marriage did not work and said Ram Ekbal Sharma contracted another marriage with Parvati Patna High Court CWJC No.18003 of 2010 (16) dt.18-11-2013 2/6 Devi. Kalavati Devi filed a case under section 498A of the IPC against Ram Ekbal Sharma (her husband). Soon thereafter, as a retaliatory measure Ram Ekbal Sharma got filed a false case under section 376 IPC on behalf of his 2nd wife (Parvati Devi) bearing Complaint case no. 151/1999, Bikramganj Police Station Case No. 10 of 2000 giving rise to S.Tr. No. 365/84/2001 against the petitioner and two brothers of Kalawati Devi for committing rape on his 2nd wife (Parvati Devi). This time he roped petitioner‟s father also along with petitioner and two brothers of his 1st wife who were earlier also made accused under section 376 IPC by his 2nd wife Parvati Devi. The petitioner was convicted in S.Tr. No. 365/84/2001 in the year 2007. On basis of conviction he was dismissed from service under proviso (a) to Article 311(2) of the Constitution. It is relevant to state that the petitioner preferred Cr. Appeal (SJ) No. 162/2007. A bench of this Court vide order dated 28.9.2011, passed in I.A. No. 1906 of 2011 stayed the order of conviction passed in S.T.No.365/84 of 2001/2001. Operative part of order dated 28.9.2011 is reproduced herein below for reference:-
Legal Reasoning
“After having perused the evidence of witnesses and without going into the merits of the case and considering only the hardships, which have occurred on account of the order of conviction the appellant Chandradhan Sharma and further considering the hardship, which is entailing upon the dependents of the said appellant recorded against Patna High Court CWJC No.18003 of 2010 (16) dt.18-11-2013 3/6 on account of his dismissal from service due to conviction in S.T. No. 365/84 of 2001/2001, I hereby stay the order of conviction passed upon appellant Chandradhan Sharma by Additional Sessions Judge – I, Rohtas at Sasaram.” Counsel for the State submits that it would not be appropriate to stay the order of dismissal on basis of the interim order staying the conviction as at this stage it cannot be said whether it would finally end in acquittal or conviction. The petitioner had earlier filed I.A.No. 1906 of 2012 for staying dismissal on the ground of stay of conviction which was rejected on ground of hardship to the appellant and not on merit. I have heard the counsel for the parties. It is an admitted fact that the order of the dismissal has been passed only on basis of conviction passed in a criminal case. Proviso (2) to Article 311(2) of the Constitution does not provide a person an opportunity of making representation on the penalty proposed who has been dismissed, removed or reduced in rank on basis of a criminal charge. Hon‟ble Apex Court in case of The Deputy Director of Collegiate Education Vs. S.Nagoor Meera, reported in 1995 AIR 1364 has observed that Article 311(2) of the Constitution does not provide for show cause when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right Patna High Court CWJC No.18003 of 2010 (16) dt.18-11-2013 4/6 to impose a penalty carries with it the duty to act justly.” On the other hand as the delinquent is deprived of opportunity of being heard on point of penalty in such matters the respondents are under obligation to scrutinize documents minutely before any penalty is imposed. The relevant extract of paragraph 9 of the judgment is quoted herein below:- “Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from services „on the ground of conduct which has led to his conviction on a criminal charge.‟ But that power like every other power has to be exercised fairly, surly and reasonably. Surely, the constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no- parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a Government servant on the ground of conduct which has led to his conviction on a criminal chare. But the right to impose a penalty carries with it the duty to act justly.” I find that Ram Ekbal Sharma contracted two marriages. The first marriage was with Kalawati Devi and the 2nd marriage was with Parvati Devi. The petitioner was middle man in the 1st marriage. The first wife Kalawati Devi being aggrieved with the conduct of her husband (Ram Ekbal Sharma) filed a case under section 498A IPC. Thereafter, his 2nd wife Parvati Devi Patna High Court CWJC No.18003 of 2010 (16) dt.18-11-2013 5/6 lodged Bikramganj Police Station Case No. 10/2000 under section 376 IPC against the petitioner along with two brothers of her Sautan (Kalawati Devi) which got dismissed. Thereafter Ram Ekbal Sharma himself lodged a case under section 376 IPC for alleged commission of rape on his 2nd wife again by this petitioner, his father and 2 brothers of Kalawati Devi in which the petitioner was convicted. This time Ram Ekbal Sharma had roped in his father as well. The said conviction was stayed by this court vide order dated 28.9.2011 keeping in view the hardship being suffered by the petitioner occurred on account of his dismissal from service consequent to conviction in ST.No.365/84 of 2001/2001. In terms of clause (a) to Proviso (2) to Article 311 of the Constitution the petitioner would have no right to be heard on proposed penalty. The respondents would be within their right to inflict punishment if an order of conviction is there. The respondents would have equal responsibility to closely scrutinize the nature and extent of allegations and guilt so that the punishment be matching with gravity of offence. In such circumstances, the respondents would have equal responsibility to scrutinize whether the conduct of the petitioner warranted dismissal from service. In the facts and circumstances of the case, the matter is remanded to the I.G., CID, Bihar (respondent Patna High Court CWJC No.18003 of 2010 (16) dt.18-11-2013 6/6 no.3) for fresh consideration on quantum of punishment, preferably within three months from the date of receipt of this order as the petitioner is on verge of retirement.
Decision
The writ petition is thus disposed of. Shashi. (Samarendra Pratap Singh, J)