Raghu Bans Ahir v. State Of Bihar — 1956 DIGILAW 155 (PAT)

Judgment Raj Kishore Prasad, J. 1. In this case the petitioner Raghu Bans Ahir, seeks a writ, in the nature of-certiorari under Article 226 of the Constitution, to call up and to quash the order of his dismissal from the post of Dafa-dar passed by the Superintendent of Police, Sha-habad, on the 22nd April, 1955, an appeal against which to the District Magistrate, Shahabad, was rejected in limine on the 9th August, 1955. 2. Cause has been shown by the opposite party through Mr. Ray Paras Nath, the learned Government pleader, but no counter-affidavit has been filed by him. 3. Mr. N. C. Ghosh, appearing for the petitioner, has attacked the order of dismissal on three grounds; First, that the Superintendent of Police had no power to dismiss a Dafadar; Secondly, that the petitioner was not shown, nor given copies of nor was he given any opportunity of refusing the ex parte statements made by certain persons, against the petitioner, as mentioned in the report of the Deputy Superintendent of Police dated the 13th April, 1955 which formed the basis of the order of dismissal of the petitioner; and Thirdly, that the allegations that the peti-tioner was in close touch with Communist Daroga. Rai or that he committed "atrocities" were neither mentioned in the charge drawn up against the petitioner on the 28th October, 1953, by the Sub-Inspector of Police, Dawat Police Station, nor was the petitioner given the details thereof; nor was he given any opportunity to know and meet them. 4. On the first point, the relevant Act Is the Bihar and Orissa Village Administration Act, 1922, (Bihar and Orissa Act III of 1922). This Act deals in Part III with "Village Police". Sec.22 is the first section under Part III, and it provides that no provision contained in this part shall apply to any union unless and until it has been expressly extended thereto by the State Government by notification. In Schedule II of the Act, the enactments repealed or amended when the provisions of Part HI are in force are mentioned. They include the Village Chaukidari Act, 1870 (Bengal Act VI of 1870) also, Sec.2(2) of the 1922 Act provides that when the provisions of Part III are in force in any Union, the. In Schedule II of the Act, the enactments repealed or amended when the provisions of Part HI are in force are mentioned. They include the Village Chaukidari Act, 1870 (Bengal Act VI of 1870) also, Sec.2(2) of the 1922 Act provides that when the provisions of Part III are in force in any Union, the. enactments sped- fied in Schedule II shall from the date of the notification be repealed or amended to the extent, and in the manner, specified in the fourth column thereof. In the present case, it is admitted that the local area, where the petitioner was a Dafadar has not yet been declared to be a Union nor any Union Board has been- constituted for it, nor Part III has been applied thereto, as required by Sec. 5 of the Act. The Act itself, as required by Sec.1(3) of the Act, has not yet been brought into force In this part of the district of Shahabad. The present case, therefore, will be governed by the old Act of 1870 which is still in force, by virtue of Sec.2(2) of the Act. A Division Bench of this Court in Rudal Rai v. State of Bihar, 1956 BLJR 31 (A) has construed Sec.25(2) of the 1922 Act, and, held that the Superintendent of Police has no power to dismiss the Dafadar, as provided in Sec.25(2) of the Act. 5. The scheme for the appointment of a Dafadar, as appears from the Village Chaukidari Act, 1870, and the rules framed presumably under Sec. 65 of this Act by the Provincial Government of Bengal, which are called "Chaukidari Manual, appears to be as follows : 6. Sec. 4 of this Act empowers the District Magistrate to declare any local area, or group of dwellings, within the district of which he has charge, to be "village" for the purposes of this Act. Under Sub-section (1) of Sec.3 of the Act, the District Magistrate may by an order in writing, appoint not less than three, nor more than five residents in any village, to be the-panchayat thereof. Sec.11 empowers the panchayat of a village to determine the number of chaukidars to be appointed for that village, subject to the approval of the District Magistrate. Sec.11 empowers the panchayat of a village to determine the number of chaukidars to be appointed for that village, subject to the approval of the District Magistrate. Sec.3A gives powers to the District Magis- trate to delegate his powers under this Act, either wholly or in part with the sanction of the Commissioner, and by an order in writing to any Magistrate of the first class subordinate to him, or to any Magistrate in charge of a sub-division or to the District Superintendent of Police, and, by a like order, and with the same sanction, to withdraw such delegated powers, under Rule 1, such "villages" have been referred to as Union in the Manual. Section III of the Chaukidari Manual deals with appointment of "Dafadars". Rule 20 provides that to every Union there shall be appointed one or more daladars who shall supervise the work of the chaukidars serving in the Union. Rule 21, which is important for our purpose, is in these terms : "21. Under Sec.3A of the Act the District Magistrate, with the sanction of the Commissioner, and by an order, in writing, may delegate his power of appointment of dafadars, and, if unable to exercise them personally he shall ordinarily do so to the Superintendent of Police throughout the dis- trick" 7. In the present case, it has not been suggested that the District Magistrate has delegated his power of appointment of dafadars to the Superintendent of Police. It is manifest, therefore, from Rule 21 that, in the absence of delegation, the District Magistrate alcne is the authority who has the power to appoint dafadars. 8. Section VIII of the Chaukidari Manual deals with "Discipline". Under sub. s. A, it deals with "Punishments", Rule 165 provides the permissible forms of punishment, and one such form of punishment is "Dismissal". Rule 167 gives power to the District Magistrate, by virtue of Sec.3A of the Act, to delegate his powers of punishment of chaukidars to the Superintendent of Police or to Sub-divisional Officers, by an order in writing, with the previous sanction of the Commissioner. Rule 167 gives power to the District Magistrate, by virtue of Sec.3A of the Act, to delegate his powers of punishment of chaukidars to the Superintendent of Police or to Sub-divisional Officers, by an order in writing, with the previous sanction of the Commissioner. Rule 168 provides that an appeal from any order imposing a punishment passed by any officer other than the District Magistrate, shall lie to the District Magistrate if lodged within a period of three months from the date of receipt of order by the chaukidars and dafadar; and, subject to the provision of Sec. 64 of the Act which gives a general controlling power over all proceedings of Pan. chayats and District Magistrates to the Commissioner of the Division, no appeal shall lie from any such order passed by the District Magistiate. No rule, however, provides specifically that the District Magistrate may delegate his powers of punishment of dafadars, like Sec.167, to either the Superintendent of Police, or the Sub-divisional Officer. It must, therefore, be presumed that the District Magistrate, who is the appointing authority, is the only person who can impose on or other of the different permissible forms of punishment enumerated in Rule 165. 9. Reading, therefore, the Act and the rules framed under it, it is absolutely clear, that the Dis-trict Magistrate is the appointing authority of a dafadar and, as such, he is the only proper authority to dismiss a dafadar in the absence of any delegation of his power to the Superintendent of Police as provided by Sec.3A of the Act. In the present case, therefore, it must be held that the Superintendent of Police had no power to dismiss the dafadar, and, as such, the order of dismissal of the petitioner passed by the Superintendent of Police is illegal and void and inoperative, 10. As regards the second contention of Mr. Ghose, it is equally well founded. The De- puty superintendent of Police, Sasaram, made an enquiry into the allegations against the petitioner and submitted his report to the Superintendent of Police, Shahabad, on the 13th April, 1955, on the basis of which the petitioner was dismissed. At the enquiry by the Deputy Superintendent of Police, the petitioner was not present, and, as such, the enquiry had to be held in his absence, although according to the report the date of the enquiry was intimated to the petitioner. At the enquiry by the Deputy Superintendent of Police, the petitioner was not present, and, as such, the enquiry had to be held in his absence, although according to the report the date of the enquiry was intimated to the petitioner. The Deputy Superintendent of Police has men-tioned in his report that he moved to several vil- lages, Dewaria, Usri, Kosanda, Chawana and Go-saldih and found people assembled in large numbers in all these villages including some of the neighbouring ones, "all demanding in one voice for the removal of the Dafadar after describing his atrocities". What those "atrocities" are, and, were described, are not mentioned in the report. Further on, he mentions in his report that Shri A. Q. Ansari, Ex-Minister of Bihar, and, Shri Memraj Singh Jadav, M.L.A., resident of Dawat police sta-tion, had also approached him "describing the atrocities of the Dafadar and his close touch with Communist Daroga Rai". What statements were made by Mr. Ansari and Mr. Yadav, in the absence of the petitioner, are not mentioned, nor, is it mentioned as to what the "atrocities" of the petitioner were described to be by these two per-sons. The petitioner, as such, had no opportunity of either knowing, or refuting the ex parte state- ment made by these two persons, or even by the other villagers, who described his so called "atrocities". In such circumstances, the grievance of the petitioner that he was not shown the ex parte statements of the persons mentioned in the report of the Deputy Superintendent of Police, nor, was he given opportunity of refuting them is correct. He has made a further grievance that he applied for copies of such statements, but he was not supplied with them. It is, therefore, clear from the report of the Deputy Superintendent of Police himself, that he did not disclose to the petitioner what statements had been made to him by the persons named in his report; and, further, he did not give any opportunity to the petitioner to re-but the ex parte statement made by the above mentioned persons, and, also that the petitioner was not supplied with copies of the alleged statements, nor were they shown to him, if they were really made by the persons mentioned in the report. In such circumstances, in my Judgment, it fs ob- vious that the fundamental rules of justice have been violated. 11. In such circumstances, in my Judgment, it fs ob- vious that the fundamental rules of justice have been violated. 11. A similar situation came up for consideration before my Lord the Chief Justice, Rama-swami J. as he then was and Sahai J. in Gopl Ki-shore Prasad v State of Bihar, 1955 BLJR 154 : ((S) AIR 1955 Pat 372 ) (B). My Lord the Chief Justice, after a consideration of English decisions and a decision of the Supreme Court, observed as follows : "It is a matter of general principle that a person should not be condemned on ex parte statements and no order of removal or discharge should be passed against a Government servant unless he has been given a real and effective opportunity of refuting the statements upon which his notice of discharge is based. This follows from the principle of law embodied in the maxim audi alteram partem." 12. "I am in respectful agreement with the above observation of my Lord the Chief Justice, and I think the principles laid down by him apply to the present case also. 13. If the Deputy Superintendent of Police holds a private enquiry, at which the petitioner is not present, and takes into account ex parte statements made by the villagers and other persons, with whom the petitioner had no opportunity of dealing, the Deputy Superintendent of Police was not acting in accordance with the correct principles of justice. 14. What is more serious is this that the statements alleged to have been made by the persons mentioned in the report were not reduced into writing by the Deputy. Superintendent of Police, because if such statements were in existence, there seems to be no reason why copies of such statements were not made available to the petitioner when he asked for them, nor why were they not shown to him. The Superintendent of police mentions in his order of dismissal passed on the 22nd of April,-1955, that "the Dafadar has already shown cause why he should not be dismissed. The D.S.P. has personally made enquiries in the locality find I. accept his suggestions and dismiss the Dafadar (Raghu Ahir). The Superintendent of police mentions in his order of dismissal passed on the 22nd of April,-1955, that "the Dafadar has already shown cause why he should not be dismissed. The D.S.P. has personally made enquiries in the locality find I. accept his suggestions and dismiss the Dafadar (Raghu Ahir). It is clear, therefore, that in the present case the petitioner was not even shown the ex parte statement alleged to have been made by the persons mentioned in the report of the Deputy Superintendent of Police, and the petitioner had, therefore, no opportunity of refuting them, and as such, there has been a clear violation of the principles of natural justice. It follows, therefore, that the order of dismissal passed by the Superintendent of Police on the 22nd April, 1955, is illegal and ultra vires and must be quashed. 14a. The third ground of attack by Mr. Ghosh is also serious and well grounded. The charge which was served on the petitioner on the 28th October, 1953, by the Sub-Inspector, Dawat Police Station was as follows : "During the investigation of Case No. 5(3)/54 under Sec.392, I. P. C., it transpired that the case was maliciously false and the complainant, who was an abandoned woman of loose morals and shameless vagrant lodged this case at the P.S. which has been done due to your instance as you brought her to P.S. and got the above case lodged against Mahal Chaukidar Jodhan Ahir with whom you are on inimical terms. Explain against dismissal at once." It will appear that in this charge there is absolutely no mention about the petitioner being "in close touch with Communist Daroga Rai" or of his alleged "associates" which are mentioned in the report of the Deputy Superintendent of Police. 15. Even the Divisional Inspector of Police, while forwarding the report and the recommendation of the Sub-Inspector, Dawat dated the 8th November, 1954, to the Deputy Superintendent of Police, passed an order on the 9th December, 1954, to the following effect : "Forwarded, may be suitably dealt with. The D.S.P. has also enquired into other allegation against him." 16. Here also, there is no mention as to what "other allegations" against the petitioner were. Even these allegations are not mentioned in the charge. 17. The D.S.P. has also enquired into other allegation against him." 16. Here also, there is no mention as to what "other allegations" against the petitioner were. Even these allegations are not mentioned in the charge. 17. It is clear, therefore, that the petitioner was dismissed on vague allegations, which did not form the subject-matter of the charge, which was served on him, and, which he had no opportunity to meet. Simply saying "other allegations" or "his associates." Conveys no definite information & is so vague and indefinite that such undescribed charges cannot possibly form the basis of any action by any authority concerned. The petitioner was not given any opportunity to know what those "allegations" against him were and what were his alleged "atrocities". He was never told about them, and, therefore, he could not possibly have met them. The result, therefore, is that the petitioner was dismissed not on the charge which was served on him, but on facts and other circumstances which were never disclosed on to him and which he had no opportunity to know or to meet. In such circumstances, it is manifest that the petitioner has been seriously prejudiced, and, there has been failure of the principles of natural justice. 18. For the reasons given above, the order of dismissal passed by the Superintendent of Police, on the 22nd April 1955, is illegal and void and inoperative, and as such it must be quashed. 19. In the .result, the application succeeds, and a writ must go, and the. order of dismissal, dated the 22nd April, 1955, passed by the Superintendent of Police of Shahabad, must be quashed as being void and inoperative. The petitioner will get cost of this application from opposite party 1, the State of Bihar, which is assessed at Rs. 100/-. Ramaswami, J. 20 I agree.