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2001 DIGILAW 282 (PAT)

Sitaram Paswan v. State Of Bihar

2001-03-27

AFTAB ALAM

body2001
Judgment 1. The petitioner held the post of Enforcement Sub inspector in the Department of Transport, Government of Bihar. He was dismissed from service by order dated 6.2.2001 (Annexure-5) passed by the Transport Commissioner. His dismissal from service, though on grievous charges was ordered by the Transport Commissioner without holding an enquiry in the charges against him, in terms of proviso (b) to Article 311(2) of the Constitution. The order of dismissal gives the details of the charges against the petitioner and the circumstances in which the Transport Commissioner found that it would not be possible to hold the enquiry. 2. This writ petition has been filed challenging that order. But before proceeding to examine the points on which the validity of the order is questioned, it would be appropriate to take note of certain facts which are admitted or which in any event can not be disputed. 3. The petitioner was posted as Enforcement Sub Inspector at Gopalganj since 1996. On 12.1.2001 the Transport Commissioner issued an order directing the petitioner to join at the departments headquarters at Patna within three days from the date of the order, which was served on him on the same date. On 15.1.2001 the petitioner joined at the departments headquarters and on the following day he made an application and proceeded on leave till 31.1.2001. According to the petitioner his leave was duly sanctioned by the Transport Commissioner. Mr. Alamdar Hussain, SC 6 appearing for the respondents, however, stated that no leave was sanctioned to the petitioner and he simply went away after making an application for leave. 4. On 18.1.2001 at 6.30 P.M. while the Transport Commissioner was in the midst of a departmental meeting in his chamber at the Secretariat, a group of persons led by a certain Anirudh Prasad @ Sadhu Yadav, Member, Legislative Council forced their entry into the chamber. The MLC happens to be the own brother of the Chief Minister and the brother-in-law of the President of the party in power in the State. His men were armed and his two security guards were carrying high fire-power AK-47 assault rifles. They disrupted the meeting and forced everyone except the Transport Commissioner to leave his chamber. The MLC happens to be the own brother of the Chief Minister and the brother-in-law of the President of the party in power in the State. His men were armed and his two security guards were carrying high fire-power AK-47 assault rifles. They disrupted the meeting and forced everyone except the Transport Commissioner to leave his chamber. The door of the chamber was closed from inside and then at gun-point the Transport Commissioner was forced to put his signature to an order transferring the petitioner back to Gopalganj on his return from leave on 31.1.2001. A copy of that order was also shown to have been issued along with a memo of that date and the copy of the order was received by one of the members of the unlawful assembly. In the impugned order it is stated that the entire episode took place at the instance of the petitioner and in order to have him sent back to Gopalganj as desired by him. 5. In the order it is further stated that on the same day the Transport Commissioner reported the entire matter in writing both to the Chief Secretary and the Chief Minister of the State but no action was initiated either against the MLC or against the petitioner; that though a police case was also instituted in connection with the occurrence but due to the tremendous clout of the persons involved the police registered a case only under bailable sections and themselves went to the residence of the MLC to grant him bail. 6. It is also stated in the impugned order, and the petitioner is not in a position to deny this fact, that on 31.1.2001 he came to the departments headquarters, collected the order of his transfer, dated 18.1.2001 and went back to Gopalganj where he joined the office on 1.2.2001. The Transport Commissioner received the final affront when on 6.2.2001 the District Transport Officer, Gopalganj sent him letter no. 141, dated 1.2.2001 intimating that the petitioner had joined at Gopalganj in pursuance of his order dated 18.1.2001. 7. The impugned order states in detail the circumstances indicating that the highest authorities in the Government were inclined to look the other way and to ignore the humiliation and injury caused to the administration. 8. 141, dated 1.2.2001 intimating that the petitioner had joined at Gopalganj in pursuance of his order dated 18.1.2001. 7. The impugned order states in detail the circumstances indicating that the highest authorities in the Government were inclined to look the other way and to ignore the humiliation and injury caused to the administration. 8. It is further stated in the order that the Transport Commissioner was satisfied that it would be futile and meaningless to hold an enquiry on the charges against the petitioner because having regard to the nature of the occurrence and the persons involved it would be impossible to find anyone in the service who would willingly work as Enquiry Officer and Presenting Officer and it was, therefore, a fit case for exercise of the power under Article 311(2)(b) of the Constitution. The Transport Commissioner, being the appointing authority of the petitioner, accordingly, passed the order of dismissal against the petitioner. 9. Mr Yogesh Chandra Verma, learned counsel appearing on behalf of the petitioner assailed the order of dismissal on a number of grounds. He first submitted that the petitioner had no connection with the occurrence that took place in the chamber of Transport Commissioner on 18.1.2001. The MLC was acting on his own and the Transport Commissioner committed an error in assuming that the MLC forcibly obtained the order of his transfer at his instance. 10. I am not prepared for a moment to accept the submission. On a query made by the court Mr. Verma stated that during the period of his leave (between 16.1.2001 and 31.1.2001) the petitioner was at Gopalganj. Mr. Verma also accepted that the occurrence that took place in the chamber of the Transport Commissioner had made front page news in all the newspapers of the State for days on end and it is inconceivable that the petitioner would not be aware of it. And yet the petitioner comes to the headquarters, simply collects the order and goes back to Gopalganj and gives his joining there without so much as the formality of an order properly relieving him from the headquarters. In case the petitioner had no hand in the occurrence, his natural conduct should have been to go to his Controlling authority and seek instructions in connection with the so called order of his transfer to Gopalganj which he fully knew was obtained at gunpoint. In case the petitioner had no hand in the occurrence, his natural conduct should have been to go to his Controlling authority and seek instructions in connection with the so called order of his transfer to Gopalganj which he fully knew was obtained at gunpoint. The petitioner stands completely indicted by the logic of being the beneficiary of the order. 11. Mr. Verma next submitted that the Transport Commissioner was himself the victim of the occurrence taking place on 18.1.2001. He was, therefore, in the position of witness. He was also a highly blased person and was, therefore, clearly disqualified from himself passing the impugned order of dismissal. In this regard Mr. Verma relied upon a Supreme Court decision which is reported in A.I.R. 1970 SC 150. 12. I am unable to accept the submission and in my view the decision cited by Mr. Verma was rendered in a completely different set of facts and circumstances and it has no application to the facts of the present case. 13. It is incontrovertible that the Transport Commissioner was the appointing authority of the petitioner and it was, therefore, the Transport Commissioner who alone was competent to pass the order of dismissal. 14. From the impugned order it is evident that the occurrence of 18.1.2001 had meant nothing to the political Government of the State and the higher echelons of the State administration were in a state of paralysis and numbness. In that situation the Transport Commissioner took the course which apart from being legal was the only proper course to save the administration or his department from complete ignominy and dishonour. 15. Mr. Verma next submitted that there were no materials justifying the findings that it would not be possible to hold an enquiry on the charges against the petitioner. In support of the submission Mr. Verma relied upon several Supreme Court decisions which are reported in : (1) A.I.R. 1985 SC 1416, (2) A.I.R. 1987 SC 2100, (3) A.I.R. 1991 SC 385, (4) (1991) 1 SCC 362 and (5) (1996)3 SCC 753 . I am once again unable to agree and it is clear to me that the decision relied upon by Mr. Verma have no application to the facts of this case. 16. The circumstances justifying the enquiry to be dispensed with are stated in detail in the order and those are plain for anyone to see. I am once again unable to agree and it is clear to me that the decision relied upon by Mr. Verma have no application to the facts of this case. 16. The circumstances justifying the enquiry to be dispensed with are stated in detail in the order and those are plain for anyone to see. The petitioners mentors who got so enraged on his merely being shifted from Gopalganj might have tried to commit acts of greater high-handedness if the Transport Commissioner had proceeded to initiate a proceeding against the petitioner. A disciplinary proceeding against the petitioner would have been destined to failure from its inception. 17. On a consideration of the entire facts and circumstances of the case, I consider it one of the fittest case for exercise of the powers under Article 311(2)(b) of the Constitution. 18. Mr. Verma lastly submitted that passing the order of dismissal was malafide and colourable exercise of power, in the facts and circumstances of the case the submission is fit to be rejected out of hand. 19. In the light of the discussions made above, I find no merit in this application. It is accordingly dismissed.