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2000 DIGILAW 826 (PAT)

Birendra Singh v. State Of Bihar

2000-07-04

SUDHANSU JYOTI MUKHOPADHAYA

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Judgment S.J.Mukhopadhaya, J. 1. The petitioner was proceeded departmentally in respect of allegations for which a criminal case was also lodged. In the said Departmental Proceeding No. 74/88, on enquiry and report, the petitioner was dismissed from service, vide order passed by S.P., Bhojpur at Arrah, as contained in Annexure-1. The appeal and revision thereafter having rejected, vide Memo dated 2nd April, 1990 & 1.8.1991 the order of dismissal; and appellate and revisional orders have been challenged. 2. As the case can be disposed of on short point, it is not necessary to discuss claim and counter claim of the parties, except the relevant facts. 3. While petitioner was functioning as Constable, one Udwant Nagar P.S. Case No. 58/87 was registered against the petitioner under section 302 I.RC. In the F.I.R., it has been alleged that the petitioner on 25th April, 1987 while returning on a Truck from Krishna Braham Police Station, got stopped another Truck bearing No. BRC 4579 coming from the other direction near the Chhakki Sasaram Bridge and made obstruction. The same gave rise to altercation between the parties including the petitioner and the truck driver of the other truck. When petitioner fired from his service revolver injuring one Sarbjeet who later on succumbed due to such injury. 4. While such police case was pending, for same allegation, a departmental Proceeding No. 74/88 was initiated and in the first charge reference of aforesaid Udwant P.S. Case No. 57/87 was made. It was alleged that he was made accused under section 302, Charge No. 2, it was further alleged that petitioner intentionally claimed him as Officer-in-Charge of Police Station and tried to raise fear amongst public by showing his service revolver. 5. It appears that the petitioner did not choose to give specific reply to the charges but merely requested the officials to stay the departmental proceeding till final decision is given by the competent court of law, where similar allegation was pending consideration. However, such request of the petitioner was rejected, enquiry held and on submission of enquiry report; after second show cause notice; the order of dismissal was passed, vide Annexure-1, the petitioner having found guilty of Charge No. 2. No finding was given in respect of Charge No. 1, the substantive criminal case being pending against the petitioner. 6. However, such request of the petitioner was rejected, enquiry held and on submission of enquiry report; after second show cause notice; the order of dismissal was passed, vide Annexure-1, the petitioner having found guilty of Charge No. 2. No finding was given in respect of Charge No. 1, the substantive criminal case being pending against the petitioner. 6. In the counter affidavit filed, the Respondents have highlighted the allege tions against the petitioner and have taken plea that the departmental enquiry was completed with fairness, giving a reasonable opportunity, impartially, in accordance with law. In spite of repeated requests, the petitioner failed to take part in the proceeding on mere ground that a criminal case for such allegation is pending. 7. From the enquiry report dated 19th June, 1989 (Annexure-9), it will be evident that the allegation made in the F.I.R. has been bifurcated in two charges (Chart Nos. 1 and 2). The statements of one S.K. Sharan, D.S.P., Headquarter and Mahadev Sahu, Typist Sub Inspector have been taken into consideration by the Enquiry Officer. Though, it is not clear as to whether those two persons were shown to be prosecution and/or derence witness, but I find that none of the aforesaid witnesses made any specific statement against the petitioner, but merely gave reference of Udwant Nagar P.S. Case No. 57/88. No substantive evidence brought on record, nor statement of any witness taken to bring home the charge that the petitioner took out his service revolver to threat public, in general, except the allegation as made in the F.I.R. or the supervision report, without waiting for the decision of the competent court of law, the petitioner held to be guilty. 8. In the circumstances, as the finding of the Enquiry Officer is not based on any specific evidence, the charges were same and similar as in the criminal proceeding and the enquiry was conducted in hurry without giving proper opportunity to petitioner, the same cannot be held to be legal. 9. The order of punishment being based on such illegal enquiry and being not based on any evidence, I set aside the order of dismissal, as contained in Annexure-1, as also the consequential appellate order dated 2nd April, 1990, as contained in Annexure-2 and the revisional order dated 1st August, 1991 (Annexure-13). 10. The petitioner stands reinstated. 9. The order of punishment being based on such illegal enquiry and being not based on any evidence, I set aside the order of dismissal, as contained in Annexure-1, as also the consequential appellate order dated 2nd April, 1990, as contained in Annexure-2 and the revisional order dated 1st August, 1991 (Annexure-13). 10. The petitioner stands reinstated. However, this order will not stand in the way of the Respondents to pass appropriate order, if petitioner is convicted in She criminal case, as referred above, or if any further enquiry is held, in accordance with law. In view of the fact that his case remained pending before this Court for a long period, I allow only 50% of the arrears of salary in favour of petitioner, by way of consequential benefit. 11. The writ petition is allowed. However, in the facts and circumstances, there shall be no order, as to costs.