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2008 DIGILAW 205 (PAT)

State Of Bihar v. Kedar Nath Singh

2008-01-30

KISHORE K.MANDAL, S.K.KATRIAR

body2008
Judgment SUDHIR KUMAR KATRIAR and KISHORE K.MANDAL JJ. 1. The State of Bihar has preferred this appeal in terms of Clause 10 of the Letters Patent of the Fatna High Court, and is aggrieved by the order dated 30.7.1999, passed in C.W.J.C. No.8883 of 1997, whereby the writ petition preferred by respondent no.l herein (Kedar Nath Singh) has been allowed, and the order of dismissal from service passed against him by the learned appellate authority by invoking the powers of enhancement has been set aside. We shall go by the description of the parties occurring in the writ petition. 2. A brief statement of facts is essential for disposal of this appeal. The writ petitioner (respondent no.1 herein) was appointed as a Company Commander (equivalent to Sub-Inspector of Police) in Bihar Homeguards on 2.6.1966. He was promoted to the next higher post of Inspector on 1.1.1982. While he was posted at Khagaria a group of Homeguard Jawans filed a joint application before the Superintendent of Police, Khagaria complaining that the petitioner had been extorting money from his subordinates by way of illegal gratification for distribution of duties, placement, transfer etc. A preliminary enquiry was conducted, leading to a detailed enquiry. The enquiry report was submitted on 12.1.1989. By order dated 23.11.1989 (Annexure-2), passed by the Commandant General, he was reverted to the post of Company Commander for a period of three years commencing on 22.11.1989. The petitioner preferred appeal in terms of Rule 851 of the Bihar Police Manual 1978 (hereinafter referred to as the 1978 Manual. The appeal was dismissed by order dated 20.9.1994 and decision was also taken in terms of Rule 853- A (c) of the 1978 Manual, whereby show-cause notice was issued to him as to why the punishment be not enhanced. The petitioner had shown cause by his communication dated 31.7.1995 (Annexure-15). On a consideration of the materials on record including the cause shown, the State Government decided to enhance the punishment and dismissed the petitioner from service. The consequential order was issued on 28.8.1997 (Annexure-1), conveying to him the order of dismissal from service. Aggrieved by this order, the petitioner preferred the instant writ petition which has been allowed on the sole ground that there is no provision for enhancement of punishment in the Bihar and Orissa Police Manual 1930, and has consequently set aside the order of dismissal. Aggrieved by this order, the petitioner preferred the instant writ petition which has been allowed on the sole ground that there is no provision for enhancement of punishment in the Bihar and Orissa Police Manual 1930, and has consequently set aside the order of dismissal. It is relevant to state that the petitioner had completed his period of reversion of three years and has been restored to the original position of Inspector, vide order dated 13.1.1993 (Annexure-13) . The State of Bihar feels aggrieved by the order of the learned writ court. 3. The learned Standing Counsel submits that the order was passed under the 1978 Manual, whereas the learned writ court has instead relied on the quondam Bihar and Orissa Police Manual 1930 (hereinafter referred to as the 1930 Manual), which stood repealed with the promulgation of the 1978 Manual. 4. Learned counsel for the writ petitioner has advanced various arguments. He submits that the impugned order dated 28.8.1997 (Annexure-1) does not disclose that the learned appellate authority intended to invoke the powers under Rule 853A (c) of the Manual as mandated by the Manual. He also submits that the impugned order does not assign reasons for enhancement. He also submits that this goes to the root of the matter and renders the order of dismissal bad in law. He next submits that the respondent authorities took more than eight years to dispose of the appeal to his great prejudice. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is manifest on a plain reading of the order of the writ court that, while setting aside the order of dismissal, reliance was placed on the quondam 1930 Manual which has been repealed and supplanted by 1978 Manual. The learned writ court has also relied on the judgment of the Supreme Court in Makeshwar Nath Srivastava Vs. The State of Bihar and others (A.I.R. 1971 S.C. 1106), which deals with a case wherein action was taken under 1930 Manual. The Supreme Court had come to the conclusion that in view of absence of specific power for enhancement of punishment in 1930 Manual, the appellate authority was not vested with the authority to enhance punishment. The order of the learned writ court has been rendered under this mistaken impression. 6. The Supreme Court had come to the conclusion that in view of absence of specific power for enhancement of punishment in 1930 Manual, the appellate authority was not vested with the authority to enhance punishment. The order of the learned writ court has been rendered under this mistaken impression. 6. The admitted position is that the action in the present case has been taken in terms of 1978 Manual and, therefore, the issues raised in the present case have to be tested on the basis of the provisions of 1978 Manual. Rule 851 provides the forum for appeal in cases of major punishment. Rule 852 provides the procedure to be followed while entertaining and disposing of appeals. Sub-rule (d) of Rule 852 provides that an appeal should be disposed of within a period of one month of the date of its institution. Rule 853A (c) vests the appropriate authorities with the powers of enhancement. Rule 853A, which had no corresponding provision in 1930 Manual, is reproduced hereinbelow for the facility of quick reference: "853A. (a) Inspector-General may call for the file in any case even when no appeal lies and pass such order as he may deem fit. The Deputy Inspector- General may call for any file but he should refer it to the Inspector- General with his recommendation for his order. The above action should be taken v. within a reasonable time from the date of final order in departmental proceeding. (b) Notwithstanding anything contained in these rules the State Government may call for the proceedings in any disciplinary case even when no appeal or memorial lies, and pass such order as it may deem fit. (c) When an appeal has been filed and the Inspector-General on applying his mind thinks that he should enhance the punishment, he can dismiss the appeal but must simultaneously mention in that order that as per powers given in the rule 853A (a), he has decided to review it for enhancement and take action for obtaining a show cause, etc. where necessary. It is manifest on a plain reading of sub-rule (c) that the learned appellate authority has, while dismissing the appeal, the power to enhance the punishment inflicted by the disciplinary authority after following the procedure of show-cause notice, if necessary. 7 The petitioner has not placed on record a copy of the show-cause notice issued to him. where necessary. It is manifest on a plain reading of sub-rule (c) that the learned appellate authority has, while dismissing the appeal, the power to enhance the punishment inflicted by the disciplinary authority after following the procedure of show-cause notice, if necessary. 7 The petitioner has not placed on record a copy of the show-cause notice issued to him. However, he has placed on record his communication showing cause on 31.7.1995 (Annexure-15), which is a fairly exhaustive representation and wnerein it is mentioned that the show- cause notice was dated 5.7.1995. It is thus manifest that the impugned action was taken after following the mandatory provisions of law and the order of enhancement of punishment was passed after issuing appropriate show-cause notice. The petitioner had shown cause and, on a consideration of the entire materials on record including the cause shown, passed the order of enhancement of punishment. 8. We are thus convinced that adequate powers are to be found in 1978 Manual for enhancement of punishment during the course of departmental proceeding which can be passed by an appellate authority. We are equally convinced that the prescribed procedure was followed, show-cause notice was issued and there was proper application of mind to the materials on record leading to the impugned action. 9. Learned counsel for the petitioner has raised a grievance that his appeal had been disposed of after a lapse of more than eight years causing prejudice to him. We are unable to accede to the submission for the reason that he continued to remain in office for an extra period of more than eight years, and had the opportunity of using his uniform for illegal gratification. The writ petitioner for the reason of the delay in passing the order, did not suffer any prejudice. 10. In the result, we respectfully disagree with the order of the learned writ court passed in C.W.J.C. No.3883 of 1997, and restore the order for dismissal of the petitioner from service.