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2007 DIGILAW 240 (PAT)

Budhan Pandit v. State Of Bihar

2007-02-02

S.K.KATRIAR

body2007
Judgment 1. Mr. Umakant Shukla for the petitioner, and Mr. Subhash Chandra Mishra, JC to GP 17, for the respondents are present. The petitioner seeks a direction to the respondent authorities to restore his service as a Dafadar with effect from the date his services were dispensed with. 2. The two separate counter affidavits of respondent nos. 2 and 3 were served on learned counsel for the petitioner on 19.8.2005 and 26.8.2005. Learned Government counsel submits that the counter affidavits do not affix adequate court-fee and the name of the learned Government counsel through whom the same were affidavited and filed is also not recorded. Learned Government counsel, therefore, prays that the defect of court-fee may be waived and he may be permitted to sign this counter affidavits. Learned counsel for the petitioner has no objection to the same, inter alia, tor the reason that he has got copies of the two counter affidavits way back in 2005, and he has placed on record his affidavit in reply. Let the deficiency of court-fee, if any, be ignored, and Mr. S.C. Mishra, learned JC to GP No. 17, is permitted to sign these counter affidavits today, in the interest of justice and disposal of the case, it being one of the oldest cases on my board. 3. According to the writ petition, the petitioner was appointed as an Ewaji Dafadar on 1.4.1985 in place of Ram Bilas Prasad, who was Dafadar in Halka No. 8 of Motihari Muffasil PS, district East Champaran, who had retired on 25.3.1985. His services were regularised in the year 1987, and he started drawing his salary on regular basis till March, 1990. His services were dispensed with orally, inasmuch as he was not allowed to work and was not paid his salary after March 1990. It is further stated in the writ petition that he in fact functioned till 1995 and was not allowed to continue thereafter because he was, alongwith his son, were accused in a sessions trial. The petitioner, therefore, submitted his representation to respondent no. 3 (Superintendent of Police, East Champaran), who forwarded the same to the Inspector of Police, Muffasil Anchal, for his report alongwith the further direction that the petitioner shall continue to function till such time the allegations against him were finally disposed of vide letter no. The petitioner, therefore, submitted his representation to respondent no. 3 (Superintendent of Police, East Champaran), who forwarded the same to the Inspector of Police, Muffasil Anchal, for his report alongwith the further direction that the petitioner shall continue to function till such time the allegations against him were finally disposed of vide letter no. 1746/Motihari, dated 13.9.97 (Annexure-1), Respondent No. 3 had issued a reminder by his letter bearing memo no. 2382, dated 22.12.1997 (Annexure 1/1), to submit the report. The Inspector of Police submitted his report dated 17.5.98 (Annexure-2) wherein it was, inter alia, stated that the services of the petitioner had been dispensed with on account of pendency of sessions trial, and that no proceeding in the department had been initiated against him. The report of the Inspector of Police was not carried to its logical conclusion leading to the present writ petition. 4. The respondents have placed on record their counter affidavits and have supported the impugned action. 5. I have perused the materials on record and considered the submissions of learned counsel for the parties. It is stated in the counter affidavit of respondent no. 3 that the petitioner was appointed as Ewaji dafadar on 1.4.1985 in the place of Ram Bilas Prasad, Dafadar of Halka No. 8, Muffasil Police Station, district East Champaran, who had retired on 25.3.1985. Respondent No. 4 (Sub-Divisional Officer, Motihari) regularised his services in the year 1987, and the petitioner started drawing his salary on regular basis till 1980. Paragraph 2(iii) of the counter affidavit of respondent no. 3 is reproduced hereinbelow: "2.(iii) That thereafter respondent no. 4 Sub-Divisional Officer, Motihari, in the district of East Champaran, regularised his services in the year 1987 and since thereafter, the petitioner started drawing his salary on regular basis till March 1990." The petitioner was thus holder of a civil post. The petitioner and his son were charge-sheeted in Motihari Muffasil PS Case No. 5/95 under Sec.366A,120 and 379, IPC, which was converted into Sessions Trial No. 449 of 1995 (State of Bihar vs. Suresh Pandit & Another). The petitioner and his son were acquitted by judgment dated 1.2.2003 (Annexure-4), passed by the learned 5th Addl. Sessions Judge, Motihari (Annexure-7). The petitioner and his son were charge-sheeted in Motihari Muffasil PS Case No. 5/95 under Sec.366A,120 and 379, IPC, which was converted into Sessions Trial No. 449 of 1995 (State of Bihar vs. Suresh Pandit & Another). The petitioner and his son were acquitted by judgment dated 1.2.2003 (Annexure-4), passed by the learned 5th Addl. Sessions Judge, Motihari (Annexure-7). On these admitted facts, it is manifest that, in view of the position that the service of the petitioner as Dafadar was confirmed by the SDO, his services could not have been dispensed with without following the procedure prescribed in Article 311 of the Constitution of India. It provides to the extent relevant in the present context that services of the holder of a civil post cannot be dismissed or removed by an authority subordinate to that by which he was appointed, and except after an enquiry. 6 In view of the limited materials placed before me, it appears that the Superintendent of Police was the appointing authority, whereas the services of the petitioner was dispensed with orally by order of Inspector of Police. There is no material on record to suggest that an enquiry was held. It is equally clear that he was removed by a person subordinate to the appointing authority. In substance, the impugned action is hit by Article 311 of the Constitution of India. 7. Leanred counsel for the respondents submitted during the course of submission that the petitioners services had been confirmed by the SDO who was not the appointing authority. The contention is stated only to be rejected for the reason that no such case has been set up in the counter affidavit which is to the effect that the petitioners services had been dispensed with because of his involvement in the criminal case. Learned counsel for the petitioner has placed before me copy of the Circular No. 3770 dated 26.3.1984, in the Bihar Chowkidari Manual, 1992 edition, published by Pahuja Law House, to the effect that appointment of Chowkidar can be done by a committee of the SDO and the Dy. S.R I do not wish to go into the question of applicability of the circular because neither the respondents nor the petitioner have laid the requisite factual foundation in this behalf in their respective pleadings. 8. It is equally relevant to state that, if respondent no. S.R I do not wish to go into the question of applicability of the circular because neither the respondents nor the petitioner have laid the requisite factual foundation in this behalf in their respective pleadings. 8. It is equally relevant to state that, if respondent no. 2 (District Magistrate, East Champaran at Motihari) or respondent no. 3 (SP, Motihari), found regularisation of the services of the petitioner at the hands of the SDO to be an ultra-vires act, then action was called for against the SDO, but no such material at all has been placed on record. 9. The petitioner alongwith his son have been acquitted by judgment dated 1.2.2003 (Annexure 4), passed by learned Addl. Sessions Judge, Motihari, in Sessions Trial No. 441/95, which was the sole basis to dispense with the services. When the substratum is gone, where is the question of the super-structure? 10. In that view of the matter, the writ petition is allowed, the petitioner shall continue to be in service as Dafadar without break, and shall be entitled to all consequential benefits. It goes without saying that it will be open to the respondent authorities to examine the validity of the petitioner is initial appointment or regularisation of service in accordance with law and, if so advised. Let respondent no. 2 ensure payment of the dues of the petitioner within a period of four months from today. 11. The writ petition is accordingly allowed.