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2002 DIGILAW 839 (JHR)

Madheshwar Singh v. State Of Bihar

2002-08-07

M.Y.EQBAL

body2002
JUDGMENT M.Y. Eqbal, J. 1. In this writ application has challenged the order of his dismissal from service and also the order passed by the appellate authority in the departmental appeal affirming the order of punishment. The petitioner has also prayed for a direction upon the respondents for payment of salary for the period in question. 2. The petitioner was working as a constable. In 1988 he was departmentally proceeded on the following charges : "(i) On 18.9.1988 at about 22.00 hours in the state of drunkness he picked up rifle and ammunitions from the treasury guard, went to the court crossing and aiming at the shop of Krishna Kumar Verma fired from the rifle indiscriminately and thereby terrorized the general public. (ii) An hour before the aforesaid occurrence he had quarreled with the above mentioned betel shop keeper in the state of intoxication." 3. On the basis of the aforesaid charges he was suspended with immediate effect. On receipt of the charges the petitioner filed his explanation and also filed an application before the Disciplinary Authority requesting him to furnish copies of the documents mentioned in the charge-sheet and extend the time for submission of explanation. However, the departmental proceeding proceeded and final order was passed against the petitioner. 4. The petitioner challenged the said order passed in the departmental proceeding by filing C.W.J.C. No. 1724/91(R). The said writ application was disposed of holding that if after service of notice the delinquent did not take part in the departmental proceeding, the same shall proceed ex parte but it is desirable that even in such a case a reasonable opportunity be allowed to the delinquent to defend himself. Accordingly the writ application was allowed and the matter was remitted back to the Disciplinary authority for getting a fresh inquiry conducted by appointing a competent enquiry officer. 5. In compliance of the aforesaid direction of this court in the aforementioned writ petition the departmental proceeding was taken up and enquiry was conducted afresh. The Enquiry Officer, after giving reasonable opportunity to the petitioner for adducing his evidence and also of cross- examining the witnesses adduced by the prosecution, submitted his inquiry report holding that the charges leveled against the petitioner was proved. The Enquiry Officer, after giving reasonable opportunity to the petitioner for adducing his evidence and also of cross- examining the witnesses adduced by the prosecution, submitted his inquiry report holding that the charges leveled against the petitioner was proved. The Disciplinary Authority, after considering the enquiry report and also the facts and evidence brought on record by the Enquiry Officer, came to the finding that the charges levelled against the petitioner was proved. Accordingly order of punishment was passed by the Disciplinary Authority on 1.10.1993. 6. The petitioner then filed a departmental appeal before the concerned respondent being the appellate authority. The appellate authority, after considering the grounds taken by the petitioner in the appeal and after perusal of the order of punishment, dismissed the appeal in terms of the order dated 2.2.1994, These two orders are impugned in this writ application. 7. Mr. N.N. Tiwari, learned counsel appearing on behalf of the petitioner assailed the impugned orders mainly on two grounds. Learned counsel firstly submitted that a copy of the inquiry report was not supplied to the petitioner before the impugned order of punishment was passed by the Disciplinary Authority. Learned counsel secondly submitted that from perusal of the impugned orders passed by the Disciplinary Authority as also the appellate authority it will appear that no independent finding was recorded by them while affirming the finding recorded by the Enquiry Officer. Learned counsel, therefore, submitted that on this ground the entire departmental proceeding and the order of punishment is vitiated in law. Learned counsel lastly submitted that against the proposed punishment also a second show cause notice as contemplated under Article 311 of the Constitution of India was not given to the petitioner. Learned counsel put heavy reliance on th decision of the Supreme Court in the case of Union of Indian and Ors. v. Mohd. Ramzan Khan, AIR 1991 SC 471 and in a case reported in AIR 1997 SC 973 . 8. First of all I will take up the issue as to whether the order of punishment is vitiated in law on account of non-supply of a copy of the inquiry report. v. Mohd. Ramzan Khan, AIR 1991 SC 471 and in a case reported in AIR 1997 SC 973 . 8. First of all I will take up the issue as to whether the order of punishment is vitiated in law on account of non-supply of a copy of the inquiry report. It has not been disputed by the petitioner that after the matter was remitted back to the Disciplinary Authority by this court in the aforementioned writ petition No. 1724/91 (R) an inquiry was conducted in which the petitioner participated and besides adducing his evidence, he also cross-examined the witnesses. 9. In para 13 of the counter affidavit it has been categorically stated that a copy of the finding of the conducting officer was furnished to the delinquent constable and on the basis of the said inquiry report and the order of punishment he preferred an appeal before the appellate authority and for that reason he did not raise this point in his memo of appeal nor on the point of asking of second show cause notice which is no longer in force in view of Article 311(2) of the Constitution. Supply of copy of inquiry report before preferring memo of appeal has not been denied or disputed by the petitioner. 10. As noticed above, Mr. Tiwari put heavy reliance on the decision of Ramzan Khans case (supra) where their lordships held that non-supply of a copy of the inquiry report will result in vitiating the order of punishment. However, this ratio or Ramzan Khans case was reconsidered by a Constitution Bench of the Supreme Court in the case of E.C.L. (sic) 1995 (6) SCC 753 and it was held that the said decision will have prospective effect. It was further held that after the constitutional amendment in Article 311 of the Constitution the requirement of second show cause notice is not mandatory nor it is mandatory to serve a copy of the inquiry report if it is served before the delinquent prefers an appeal so as to take all the points before the appellate authority. Again in the case of S.K. Singh v. Central Bank of India reported in 1996 (6) SCC 415 the Apex Court held that non-supply of copy of the inquiry report will not be fatal if no prejudice is caused to the delinquent. 11. Again in the case of S.K. Singh v. Central Bank of India reported in 1996 (6) SCC 415 the Apex Court held that non-supply of copy of the inquiry report will not be fatal if no prejudice is caused to the delinquent. 11. As noticed above, the allegations levelled against the petitioner in the memo of charge is so serious in nature that it is not expected from a police officer to pick up arm from the treasury guard and fire indiscriminately terrorizing the public at large. The factum of occurrence has not been denied by the delinquent. The defence taken by him is that on the relevant date of occurrence he was insane. In support of his insanity the delinquent has tried to submit medical certificate which appears to have been obtained after the occurrence took place. 12. Be that as it may, the Disciplinary Authority, after reappreciating; the finding recorded by the Enquiry Officer passed the impugned order of punishment. The appellate authority has also recorded in his order that the charges have been established against the delinquent. This court is not supposed to reappreciate the evidence because the scope of Article 226 of the Constitution is very limited. This court under Article 226 of the Constitution cannot go into the question whether the charges have been established or not. It is beyond the scope of judicial review. In this connection reference may be made to a Supreme Court decision in the case of State of T. N. v. Thiru K. V. Perumal and others reported in 1996 (5) SC 474. 13. Taking into consideration all these facts and also regard being had to the fact that the impugned order of punishment was passed after giving ample opportunity of hearing to the delinquent as directed by this court in the earlier judgment passed in a C.W.J.C. No. 1724/91(R), I am not inclined to come to a different conclusion after reappreciation of the evidences. 14. For the reasons aforesaid I do not find any merit in this application which is, accordingly, dismissed. It is, however, made clear that I have not interfered with the impugned order passed by the respondents so far as it relates to payment of salary to the petitioner for the period he worked. 14. For the reasons aforesaid I do not find any merit in this application which is, accordingly, dismissed. It is, however, made clear that I have not interfered with the impugned order passed by the respondents so far as it relates to payment of salary to the petitioner for the period he worked. Needless to say that the respondents shall release the salary legally payable to the petitioner for the period he worked and for any other period as expeditiously as possible and preferably within a period of six weeks from the date of receipt of a copy of this order.