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2008 DIGILAW 549 (PAT)

Surendra Prasad Choudhary v. State Of Bihar

2008-03-27

NAVIN SINHA

body2008
Judgment 1. Heard learned counsel for the petitioner and the State. 2. The petitioner, who was posted at the relevant time as a Constable in the Police force, is aggrieved by the order of his dismissal dated 28.8.2000 from the Police service in pursuance of a departmental enquiry. His appearand memorial have also been rejected. 3. The allegation in the memo of charge dated 17.10.1999 was of indiscipline, shirking work and not being a good Police official inasmuch as he was transferred by order no. 863 of 1999 and was relieved thereunder on 11.8.1999, having been directed to collect the movement order from the office, he failed to do so. On 14.10.1999 when Constable Budhdeo Kumar went to serve him the order, the petitioner refused to receive his movement orders and made objectionable recordings at the back of the relevant order. The objectionable recordings stated "elections have not been held, no instructions have been received from the Policemens Assocation, after election he would receive the order". 4. Learned counsel for the petitioner assailing the order of dismissal, firstly urged that the evidence of three Constables was recorded by the Inquiry Officer behind his back. No order was passed on the request of the petitioner for adjournment; he was therefore, unable to cross-examine the witnesses. He was also denied the opportunity to lead evidence. Secondly, the Inquiry Officer was biased towards the petitioner, inasmuch as he was a prosecution witnesses in another departmental proceedings pending against the petitioner. It was next urged that the petitioner was under no obligation to receive the transfer order as he was under suspension. Lastly that the punishment was grossly disproportionate to the guilt. 5. A counter affidavit has been filed on behalf of the Respondents also. Of the three witnesses examined by the prosecution, Budhdeo Kumar was the Constable, who went to serve the transfer order on the petitioner. Constable Ram Surat Singh proved that the letter was sent for service through Constable Budhdeo Kumar. Constable Shambhu Sharan Prasad Singh proved the authenticity of the letter issued. The petitioner had unequivocally acknowledged that he did not go to receive the transfer orders despite being asked to do so and admitted that the transfer orders were sought to be served on him when he recorded his endorsement of refusal to accept the same. Constable Shambhu Sharan Prasad Singh proved the authenticity of the letter issued. The petitioner had unequivocally acknowledged that he did not go to receive the transfer orders despite being asked to do so and admitted that the transfer orders were sought to be served on him when he recorded his endorsement of refusal to accept the same. There is nothing on record to demonstrate that the petitioner raised any objection during the proceedings with regard to the evidence of the three persons recorded behind his back, refusal of permission to cross-examine them or made any demand in writing to lead evidence. The petitioner did not even file a reply to the charges and was given more than reasonable opportunity by adjournments but refused to cooperate with the enquiry. 6. The question that arises in the facts and circumstances is of the prejudice if any caused to the petitioner in the departmental proceedings for the reasons urged by him. The only charge was of refusal to attend office for receiving the movement letter and refusing to receive the movement letter and making endorsement on the back of it when it was sent to be served upon him physically. Once the petitioner has admitted his awareness of his movement order and his refusal to accept the same and on the contrary has acknowledged the endorsement was in fact made by him, nothing much transpires on the theory of prejudice sought to be propounded by him. The evidence of the three Constables did not bring anything new on record which the petitioner was unaware of. The documents on which charges were based were, served upon him with the memo of charges. Even if he had sought to lead any evidence as was submitted on his behalf before this Court, in view of his admission with regard to the charges, this Court is satisfied that no prejudice has been caused to him. 7. The defiance of the petitioner to participate in the enquiry is amply evidenced by his refusal to file his reply in his defence. No material has been brought on record that he ever protested recording of evidence behind his back, denial of opportunity to cross-examine prosecution witness or refusal to allow him to lead evidence. The disciplinary authority has recorded his findings on the enquiry report that the petitioner filed no defence and refused to cooperate and appear in the enquiry. No material has been brought on record that he ever protested recording of evidence behind his back, denial of opportunity to cross-examine prosecution witness or refusal to allow him to lead evidence. The disciplinary authority has recorded his findings on the enquiry report that the petitioner filed no defence and refused to cooperate and appear in the enquiry. In his reply to the second show cause, the petitioner has not questioned and is silent on the aforesaid findings against him. 8. The appellant in A.l.R. 1972 Supreme Court 32 (Channabasappa Basappa Happali vs. State of Mysore), who was a Police Constable proceeded on leave. While on leave he applied for extension of leave. It was denied. A second application for extension of leave was also rejected. He then undertook a seven days fast at a temple and wrote letters to his Superior Officers with regard to denial of leave. Charge was framed against him under three heads of serious misconduct and indisciplinary action for remaining absent from duty without leave, writing to his superiors of his intention to go on fast and sending copies thereof to newspapers. He actually went on fast for seven days. In the inquiry he admitted the aforesaid facts. His defence was that he expected that his extension of leave shall be allowed. He was worried by the injustice being done to him by the Police and wanted general improvement in the Police force. He stated that he did not wish to cross-examine any witness nor did he propose to examine any witness from his side. That he was living in a democratic country and, therefore, the interest of general public could not run counter to the discipline of the Police force. The Apex Court held that at an enquiry the facts had to be proved and the persons proceeded against may have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his evidence. The facts were two fold. That he proceeded on unauthorized leave and undertook a fast as a demonstration. These facts were admitted by him. On the whole, therefore, the admission was one of guilt by the delinquent in so far as the subject matter of the enquiry is concerned. There was no difference between admission of the fact and admission of guilt. That he proceeded on unauthorized leave and undertook a fast as a demonstration. These facts were admitted by him. On the whole, therefore, the admission was one of guilt by the delinquent in so far as the subject matter of the enquiry is concerned. There was no difference between admission of the fact and admission of guilt. When he admitted the facts he was guilty. That the facts spoke for themselves. It was a clear case of indiscipline and nothing else. 9. In so far as the issue of bias is concerned, the law stands settled that mere allegation of bias will not suffice. There must be a genuine apprehension raising serious possibility of bias. Merely because the Inquiry Officer was a prosecution witness in another departmental proceeding pending against the petitioner, does not persuade this Court to hold that the enquiry report is vitiated by bias in absence of any further material to demonstrate the presumption of bias in the absence of any procedural irregularity in the background of what has been noticed earlier with regard to the conduct of the petitioner himself during the proceedings and his virtual admission of the charge. 10. In pursuance of the enquiry report dated 3.7.2000, in his reply to the second show cause notice, he has not denied the charges and raised no objections with regard to procedures in the departmental proceeding as presently urged. 11. The question that if any procedural irregularity will automatically result in vitiation of the enquiry report and the orders of punishment has undergone a radical change now to be tested on the theory of prejudice caused thereby. Mere noncompliance of procedures would not suffice unless serious prejudice is shown to have been caused. This Court has already held on the face of the charges, of the admission of the petitioner himself, no prejudice has been caused to him and that he has been unable to demonstrate the genuine and serious apprehension of bias. 12. In (1984)1 SCC 43 (K.L. Tripathi vs. State Bank of India & Ors.) it has been held that the basic concept was one of fair play in administrative, judicial or quasi-judicial action. This necessarily depends upon the particular lis in the case. 12. In (1984)1 SCC 43 (K.L. Tripathi vs. State Bank of India & Ors.) it has been held that the basic concept was one of fair play in administrative, judicial or quasi-judicial action. This necessarily depends upon the particular lis in the case. In the relevant extract at paragraph 32 it was held: "32.......When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly. this is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version or the credibility of the statement." 13. The theory of prejudice was further explained by the Constitution Bench in the case of Managing Director, ECIL vs. B. Karunakar [ (1993)4 SCC 727 ] holding that the principles of reasonable opportunity and natural justice had been evolved to uphold the Rule of Law and to assist the individual to vindicate his rights whether in fact, any prejudice has been caused to the employee has to be considered on the facts and circumstances of each case. The Court considers It proper to quote the relevant extract of the judgment from paragraph 31: "31......If after-hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short-cuts...........It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment.........." 14. It cannot be lost sight of that the petitioner was a member of a uniformed force, the edifice of which is discipline. If the edifice of discipline collapses, the institution crumbles. It cannot be lost sight of that the petitioner was a member of a uniformed force, the edifice of which is discipline. If the edifice of discipline collapses, the institution crumbles. It is for this reason that the Apex Court has held that the right from the stage of appointment and through the services, the yardstick that will apply to a person in the uniformed disciplined force has to be substantially different from that made applicable to a person in other civil services. (2008)1 SCC 660 (R. Radhakrishnan vs. Director General of Police & Ors.). 15. In (2005)13 S.C.C. 709 (Union of India & Ors. vs. Datta Lina Toshatwad) a member of the uniformed Police force absented for 12 days. The order of dismissal after enquiry followed. The High Court held that the order of dismissal was too harsh a punishment. The Supreme Court held that the Courts would not take such matters iightly particularly when it relates to a uniformed force. Indiscipline therein, if it goes unpunished, will vitally affect the discipline of the force. 16. In (2007)8 SCC 656 (Govt, of A.P. & Ors. vs. Wiohd. Taher Ali) the question again was of indiscipline by unauthorized absence when at paragraph 4 of the judgment with regard to the issue of the need to maintain discipline in the Police force, it was observed as follows: "It is an admitted position that the respondent was appointed on election duty but he absented himself from election duty. It seems that the respondent did not consider the election duty to be an important business which is very important for the whole nation. The respondent was appointed on election duty and was deputed to take security arrangement but absented himself from duty. This is a very serious lapse on the part of the respondent. The police force is a discipline force and the respondent was detailed for such an important duty of election. He absented himself from election duty. Such kind of serious lapse cannot be treated lightly. It is a very important function and if the incumbent avoided the duty of election, he cannot escape from the liability of the penalty of compulsory retirement. We fail to understand the reason for the Administrative Tribunal or for the High Court to have remitted the matter back to the disciplinary authority for reconsideration of the punishment of compulsory retirement imposed on the respondent." 17. We fail to understand the reason for the Administrative Tribunal or for the High Court to have remitted the matter back to the disciplinary authority for reconsideration of the punishment of compulsory retirement imposed on the respondent." 17. In so far as the quantum of punishment is concerned, this Court can do no better than to refer the decision in (2006)10 SCC 388 (Union of India & Ors. vs. Dwarka Prasad Tiwari) wherein in paragraphs 15 & 16 it has been held as follows: "15. The common thread running through in all these decisions is that the Court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of juridical review is limited to the deficiency in decision making process and not the decision. 16. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the Court/ Tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed." 18. in the light of the aforesaid discussion, this Court has no hesitation in holding that there has been no procedural irregularity in the departmental proceedings much less of any prejudice caused to the petitioner or that in the facts and circumstances of the case, the quantum of punishment shall be the jurisdiction of this Court to interfere with. 19. One question remains to be considered i.e. non-payment of subsistence allowance to the petitioner from 1.10.1999 till the order of dismissal came to be passed. 20. 19. One question remains to be considered i.e. non-payment of subsistence allowance to the petitioner from 1.10.1999 till the order of dismissal came to be passed. 20. Learned counsel for the petitioner invites attention of this Court to the pleadings in paragraph 56 of the writ application as also in his reply to the second show cause notice that no subsistence allowance has been paid to him from the date of his suspension to the date of his dismissal. This has been replied to in paragraph 35 of the counter affidavit filed on behalf of Respondent No. 5 that it was a matter of records. 21. This Court, therefore, considers it proper to direct Respondent No. 3, the Deputy Inspector General of Police Headquarters, Bihar, Patna to inquire into the claim of the petitioner of non-payment of subsistence allowance to him during the period of his suspension. He shall give opportunity to the petitioner to place materials in support of his claim. If upon holding enquiry, Respondent No. 3 is satisfied that subsistence allowance has not been paid to the petitioner for the entire period or for any part of the period, necessary payment shall be made to the petitioner within a period of four weeks from the date of presentation and/or receipt of a copy of this order before Respondent No. 3. It is made clear that in this enquiry no official who was associated with the posting of the petitioner at the relevant time or was associated with the orders of suspension, departmental proceedings or dismissal shall be associated with. 22. In the fitness of things, this Court further considers it proper to direct that such payment shall carry interest at the rate of 15% from the date it was payable till the date it is paid. Respondent No. 3 during the enquiry referred to above shall also fix responsibility on the officials concerned for non-payment of subsistence allowance to the petitioner, which was the bounden duty of the officials under the provisions of the Bihar Service Code. After the liability is so fixed, the amount of interest shall be recovered from the salary of the erring official/officials. This Court also directs Respondent No. 3 to thereafter initiate departmental proceedings against the delinquent concerned, who failed to comply with the provisions of the Bihar Service Code and obligation imposed on them. 23. After the liability is so fixed, the amount of interest shall be recovered from the salary of the erring official/officials. This Court also directs Respondent No. 3 to thereafter initiate departmental proceedings against the delinquent concerned, who failed to comply with the provisions of the Bihar Service Code and obligation imposed on them. 23. The writ petition is dismissed in so far as the challenge to the order of dismissal is concerned but with directions as aforesaid in context of the claim for subsistence allowance.