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2002 DIGILAW 821 (JHR)

Shankar Kumar Ghosh v. State Of Bihar

2002-08-05

TAPEN SEN

body2002
ORDER Tapen Sen, J. 1. Heard the parties. 2. The writ petitioner has filed the instant case praying for quashing of the order dated 14.8.1997 as contained at Annexure-4, by reason whereof the Director General,-cum-Inspector General of Police, Government of Bihar, Patna (respondent No. 3) passed an order dismissing the petitioner from his service. Pursuant to the aforementioned order, the petitioner filed an appeal which was also rejected by an order dated 13.12.1989 as contained at Annexure-5 and consequently the petitioner has prayed for quashing of the said order also. Besides the aforesaid, the petitioner has prayer for an appropriate order so that he can be reinstated in service with all ancillary benefits to which he may be found entitled in law. 3. The short facts giving rise to the filing of the instant writ application, is that, the petitioner was appointed as a Sub-Inspector of Police in the year 1965. After transfer from one place to the other, the petitioner was posted as Officer-in- Charge, Dhanbad GRPS on or about 28.8.1991 and while he was posted at Dhanbad, he was again transferred an Officer-in-charge of Bhojudih GRPS, where the remained till 20.12.1982. 4. During this period, on 27.10.1981, a criminal case was instituted against the petitioner under Sections 409/379/201 and 120-B of the Indian Penal Code which was registered as Ranchi GRPS Case No. 51 of 1981. The allegation was that coal seized as Exhibits in three criminal case were kept in the open near the Ranchi Railway Station Goods Shed Siding in the charge of different constables, but one fine morning one of the constables reported that the seized coal kept in charge of Constable 26 Ganesh Singh and A.S.I. Alauddin Khan had been stolen away by unknown criminals. The allegations against the petitioner was that the being Officer-in-Charge of Ranchi GRPS was in conspiracy in relation to the aforesaid matter. The petitioner has stated that after completion of investigation and submission of charge-sheet in the aforementioned criminal case, he faced the trial and by judgment dated 7.7.1995, as contained at Annexure-6, a learned Judicial Magistrate, namely Shri P.A. Shukla, Judicial Magistrate First Class, Ranchi acquitted the petitioner. 5. The petitioner has stated that simultaneously the superintendent, Rail Police, Jamshedpur had initiated a department proceeding No. 20/81 against the petitioner on the basis of the aforementioned FIR, which has been instituted against him. 5. The petitioner has stated that simultaneously the superintendent, Rail Police, Jamshedpur had initiated a department proceeding No. 20/81 against the petitioner on the basis of the aforementioned FIR, which has been instituted against him. The allegation in so far as the departmental proceeding and as contained in the charge-sheet was that he had connived with his subordinates and had caused the disappearance of exhibit coal kept near the Goods shed of Ranchi Railway Station. 6. According to the petitioner, the entire enquiry was conducted behind his back and no opportunity was given to the petitioner nor was he ever called to attend the proceedings. However, in the counter-affidavit filed by the respondents, it has been stated that the petitioner was given ample opportunity, but he deliberately failed to appear and according to the learned counsel for the respondents the order of DIG as contained at Annexure 3 would show that the petitioner has deliberately created a situation by which he had attempted to stall the proceedings in one way or the other. 7. The petitioner has also stated that a copy of the enquiry report was never furnished upon him in violation of Rule 828 of the Bihar Police Manual, 1978 read with Appendix 49. The statement to the effect that the petitioner was never furnished with an enquiry report has been made at paragraph 11 of the writ application and in reply thereto the respondents in their counter-af-fidavit have merely stated that there is a mandatory provision in law that "for want of enquiry report the petitioner is required to apply in writing before the conducting officer, as such, the averments made are not true and hence, denied". 8. Thus it will be apparent that what the respondents have attempted to state that since the petitioner had not filed an application for the enquiry report, it was not incumbent upon them to supply the same. 9. The relevant portion of Rule 828 of Bihar Police Manual, 1978 reads as follows :-- "828. 8. Thus it will be apparent that what the respondents have attempted to state that since the petitioner had not filed an application for the enquiry report, it was not incumbent upon them to supply the same. 9. The relevant portion of Rule 828 of Bihar Police Manual, 1978 reads as follows :-- "828. Infliction of major punishments.--No order of dismissal, removal, compulsory retirement or reduction shall be passed on any police officer (other than an order based on facts which have led to his conviction in a criminal court) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself (see Appendix 49)" 10. Appendix 49 appended to the said Rules in Hindi reads as follows :-- "Sanchalan karnewale adhikari keij mantavya kiek prati apchari ad hikari ko avilamb di jaani chaahiyey yah aavashyak nahin hai ki doshi adhikari ko prastavit dand key viroodh doosra kaaran dikhawein kaa suavasar diya jay jaisa ki bharatiya samvidhan key anuchched 311 kaa 44vaan sansodhan mein 1976 mein varnit hai" 11. From a bare perusal of the aforementioned provisions, it is apparent therefore that making of an application is not sine qua non for being served with an Enquiry Report. Consequently, the stand of the respondents to the effect that since the petitioner had not made any formal application for supply of the Enquiry Report and therefore, the same was not supplied is a stand which cannot be sustained in the eye of law. Additionally, the order of the appellate authority is a non-speaking order and it does not assign reasons as to why it was though fit to reject the contentions of the petitioner. Last, but not least, the criminal prosecution has also ended in failure. 12. For the reasons stated above the impugned orders are set aside and the matter is remanded to the authorities with a direction to proceed afresh from the stage of furnishing a copy of the Enquiry Report to the petitioner. It goes without saying that the respondents shall give all necessary and adequate opportunity of hearing to the petitioner in accordance with law. 13. With the aforementioned observations and directions the instant writ application disposed off. However, there shall be no order as to costs.