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2003 DIGILAW 806 (JHR)

Mohammad Wase Khan v. State Of Bihar

2003-07-14

TAPEN SEN

body2003
JUDGMENT Tapen Sen, J. 1. In this writ application, the petitioner has prayed for quashing of the order of dismissal dated 27.4.1996 passed by the respondent No. 5 as contained in Annexure 12. The petitioner has further prayed for quashing the order dated 11.10.1996 which is contained in Annexure 14 and which has been passed by the appellate authority (respondent No. 4) rejecting the appeal and upholding the order dated 27.4.1996. The petitioner also prays for quashing of the order dated 20.1.1998 as contained in Annexure 17 and which has been passed by the respondent Nos. 2 and 3 (Director General of Police and Inspector General of Police) rejecting the Memorial filed by the petitioner. 2. Mr. H. Waris, learned counsel for the petitioner has raised a very short point in this case. He firstly drew attention of this Court to Annexure 9/1 which is the Enquiry Report and submitted that the Enquiry Officer did not find the petitioner guilty. Thereafter, by Annexure 10 the petitioner was reinstated in service but his suspension was not revoked. Subsequently, the petitioner filed a fresh application vide Annexure 11 wherein he prayed that the order of suspension be revoked as he had not been found guilty by the Enquiry Officer. Instead of considering the case of the petitioner, the authorities passed an order on 27.4.1996 being D.O. No. 824/96 (Annexure 12) whereby and whereunder the petitioner was dismissed from service. 3. From a perusal of the impugned order of dismissal, it appears that the respondents assigned reasons which, in the opinion of the Court, was not included in the charge-sheet. It is relevant to mention that by Annexure 9/1, the Enquiry Officer did not find him guilty. Moreover, the petitioner was acquitted in the two criminal cases that were pending against him. The charge- sheet that was issued was absolutely vague and it is contained in Annexure 1. The charge against the petitioner was that since he was involved in Panki PS Case No. 12/84 under Section 395, Indian Penal Code and Panki PS Case No. 14/85 under Section 379/411, Indian Penal Code and since charge-sheets were submitted against him, the same proved that the petitioner was a person of criminal nature. The charge against the petitioner was that since he was involved in Panki PS Case No. 12/84 under Section 395, Indian Penal Code and Panki PS Case No. 14/85 under Section 379/411, Indian Penal Code and since charge-sheets were submitted against him, the same proved that the petitioner was a person of criminal nature. In Annexure 9/1, the Enquiry Officer has recorded that in Panki PS Case No. 12/85 under Section 395, Indian Penal Code, the petitioner and all other accused persons had not been found guilty and so far as Panki PS Case No. 14/ 85 under Section 379/411 is concerned, the same related to theft valued at Rs. 50/-but the only thing against the petitioner was that charge-sheets were submitted against him. However, the Enquiry Officer gave a specific finding that the charge to the effect that he was a person of criminal nature, could not be proved. 4. The dismissal order, on the other hand, proceeds to record that prior to his appointment, the petitioner was an accused in these two cases in which charge-sheets had been submitted and therefore, the charge that the petitioner was a person of criminal nature was established. The dismissal order also records that during the pendency of the trial, the petitioner in collusion with the complainant/informant entered into a compromise as a result of which the case could not be decided on merits. On the basis of the aforementioned reasonings, the disciplinary passed an order of dismissal. 5. Mr. R.S. Mazumdar, referring to Annexure 1 has submitted that the petitioner is a habitual criminal and several FIRs have been launched against him including Panki PS Case Nos. 12/84 and 14/85. It has further been slated in the counter affidavit that the Deputy Inspector General of Police supervised the ease and found the same to be true. It has also been stated that the acquittal in Panki PS Case No. 12/84 was as a result of compromise and not on contest. He has further submitted very vehemently with reference to paragraph 16 of the counter affidavit that the petitioner had kept the police department in darkness by not furnishing the statements in columns 7 and 8 as a result of which it could not be verified that the petitioner was involved in the two cases. 6. The aforesaid contentions of the State respondents must be rejected. 6. The aforesaid contentions of the State respondents must be rejected. Firstly, these reasonings have not been mentioned in the charge-sheet. All that the chargesheet speaks of are reference to two cases, namely, Panki PS Case No. 12/34 and Panki PS Case No. 14/85 and goes on to state that the these two cases since charge-sheets had been filed, therefore, the same established that the petitioner was a man of criminal nature. So far as the allegation of not filling up the columns 7 and 8 is concerned, it appears that this allegation came for the first time through Annexure 14 i.e. at the Lime when the appeal was rejected. This charge was not included in the charge-sheet nor was it taken note all the time of passing of the first order of dismissal i.e. Annexure 12. Moreover, the petitioner in his memo of appeal had given detailed explanation as to why these columns could not be filled up. These explanations are to be found at paragraph 5 of the memo of appeal but this has not been taken note of by the appellate authority. In short, therefore, the respondents appear to have proceeded to punish the petitioner on charges which have been added through orders passed by the disciplinary authority and the appellate authority. While the charge-sheet on the one hand merely says that for submission of charge-sheet in two criminal cases, the petitioner was proved to be a person of criminal nature, the appellate order (Annexure 14), on the other includes a fresh charge to the effect that by not filling up columns 7 and 8 and leaving them blank, the petitioner suppressed informations. Moreover, the explanation given by the petitioner as stated above, has not been adequately dealt with by any of the respondents. 7. For the reasons stated, therefore, this Court is of the opinion that the punishment of dismissal from service is highly disproportionate. Consequently, the order of dismissal is hereby set aside and the matter is remanded to the respondent No. 2 to pass a fresh order in accordance with law. 8. With the aforesaid observations and directions, this writ petition is allowed. There shall however, be no order as to costs.