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Jharkhand High Court · body

2009 DIGILAW 939 (JHR)

Rabindra Kumar v. State of Bihar

2009-07-07

N.N.TIWARI

body2009
JUDGMENT : By Court.-In this writ petition, the petitioner has prayed for quashing the order dated 8th October, 1992 passed by the Deputy Inspector General of Police, Santhal Pargana Range, Dumka in Departmental Proceeding No. 26 of 1989, contained in Annexure-5, and also for quashing the order of the appellate authority dated 15th October, 1993 passed by the Director General & Inspector General of Police, Bihar, contained in Annexure-7, and further for a direction on the respondents to pay arrears of salary, treating him in continuous service. 2. It has been stated that while the petitioner was working as Sergeant at Dumka, a tender was invited by the office of the Superintendent of Police, Dumka for supply of 500 Newar’ folding bed/cot. Om Prakash Brothers & Sons, Dumka was a tenderer. His tender was accepted and work order was issued by the Superintendent of Police, Dumka. According to the term of the said tender, the said firm had to supply 500 Newar' folding bed/cot. on approved rate. A letter to that respect was issued by the Superintendent of Police, Dumka (Annexure-1). On the basis of the said order of the Superintendent of Police, the petitioner being the Sergeant wrote to the said firm to supply 500 Newar' folding bed/cots on approved rate. He supplied the Newar beds/cots. Subsequently, the cots supplied by the contractor were found sub-standard. The matter was reported to the Superintendent of Police, Dumka. On such complain payment of the cots/bed was withheld. The contractor filed Money Suit No. 4 of 1990 against the State. The Inspector General of Police (Administration) called for a report from the Superintendent of Police, Dumka regarding purchase of the aforesaid cots/ bed. 3. The department on receiving the said letter of the I.G. hasten to initiate a departmental proceeding against the petitioner and one Rajdeo Rai. Memo of charge was issued to them. It was alleged that the petitioner had ordered for purchasing 500 pieces of Newar folding bed/cots without the approval of the competent authority. The cots were sub-standard and it was the duty of the petitioner to assess the quality of the cots and not to accept the delivery of such sub-standard cots. The cots were delivered in the store and the remaining cots were also not returned to the firm in spite of the direction. Due to that a sum of Rs. The cots were sub-standard and it was the duty of the petitioner to assess the quality of the cots and not to accept the delivery of such sub-standard cots. The cots were delivered in the store and the remaining cots were also not returned to the firm in spite of the direction. Due to that a sum of Rs. 2,27,500/- could not be paid to the firm-M/s Om Prakash Brothers & Sons, Dumka and there is no possibility of further payment to the said firm. 4. The petitioner filed his written explanation and denied the charges, stating, inter alia, that the Superintendent of Police had taken decision and approved the tender. On the basis of the said decision, the order was placed for supply of cots. On delivery of the cots, the Inspecting Committee inspected the cots and approved the quality by putting signature, though some of the cots were distributed to different police stations. Once the complain about the sub-standard quality of the cots came to the knowledge of the petitioner, he stopped distribution of the remaining stock of cots. A letter was also issued to the supplier dated 31st November, 1983, asking him to take back the remaining 323 cots. It has been stated that in view of the above, the petitioner at no stage was at fault and the charge is wholly unfounded and baseless. The cots were purchased on the basis of the order of the Superintendent of Police and it is wholly baseless to allege that the supply was ordered without approval of the competent authority. 5. Learned counsel appearing on behalf of the petitioner submitted that the charges against the petitioner are baseless and malicious. The petitioner asked "the supplier to deliver cots on the order/ direction of the Superintendent of Police. He had no role either in taking decision for purchasing the cots from the said firm or approving the quality of the cots. The quality was approved by the Inspecting Committee after inspecting the cots supplied by the said firm. On receiving the complain, the petitioner had stopped distribution of the cots. There is absolutely no fault on his part. He has been made scapegoat to save the skin of the higher authorities. There had been blatant violation of principle of natural justice. The proceeding was conducted behind the back of the petitioner and without giving him opportunity of hearing. On receiving the complain, the petitioner had stopped distribution of the cots. There is absolutely no fault on his part. He has been made scapegoat to save the skin of the higher authorities. There had been blatant violation of principle of natural justice. The proceeding was conducted behind the back of the petitioner and without giving him opportunity of hearing. No notice was ever served on him, fixing the date in the departmental enquiry. 6. Learned counsel further submitted that the respondents have brought on record the certified copy of the notice, which was never served on the petitioner. The order of the disciplinary authority is cryptic and non-speaking and the same has been passed without considering the explanation given by the petitioner and other admitted materials, which were available on record. The appellate authority also did not appreciate the grounds taken by the petitioner in his appeal/petition. He has simply paraphrased and repeated the order of the disciplinary authority without applying his independent mind. The order of the appellate authority is also vitiated and not sustainable. 7. The respondents contested the petitioner's writ petition. It has been, inter alia, contended that the petitioner was served with memo of charges with three articles of charges. He had submitted his written explanation against the charges. In the departmental proceeding, he was well aware of the dates fixed by the Enquiry Officer, but he did not choose to appear in the proceeding. The respondents have no alternative than to proceed against the petitioner and pass the final order ex parte. The disciplinary authority has not acted arbitrarily or illegally nor there is any illegality or irregularity in the order of the appellate authority. 8. I have heard learned counsel for the parties and perused the records. The order of the disciplinary authority, whereby the petitioner has been awarded punishment of dismissal, reads as follows:- "IS VIBHAGIYE KARYAWAHI ME AAROPIT PARICHARIRABINDRA KUMAR PAR LAGAYE GAYE SABHI AAROPON ME DOSHI PATE HUYE AARAKSHI ADHIKSHAK AAROPIT KO SEVA SE BARKHAST KARNE KI ANUSHANSA KI HAI. AARAKSHI ADHIKSHAK KI. ANUSHANSA KE AALOK ME AAROPIT RABINDRA KUMAR SE SEVA BARKHASTGI KE VIRUDH ASPASHTIKARAN MANGA GAYA. UNHONE APNA ASPASHTIKARAN DINANK 28.8.92 KO SAMARPIT KIYA. INKE ASPASHTIKARAN EVAM VIBHAGIYE KARYAWAHI SANCHIKA KE ADHYAYAN SE KOI AISA TATHYA PRAKASH ME NAHI AATA HAI JISKE AADHAR PAR INHE LAGAYE GAYE AAROPO SE BARI KIYA JA SAKTA HAI. AARAKSHI ADHIKSHAK KI. ANUSHANSA KE AALOK ME AAROPIT RABINDRA KUMAR SE SEVA BARKHASTGI KE VIRUDH ASPASHTIKARAN MANGA GAYA. UNHONE APNA ASPASHTIKARAN DINANK 28.8.92 KO SAMARPIT KIYA. INKE ASPASHTIKARAN EVAM VIBHAGIYE KARYAWAHI SANCHIKA KE ADHYAYAN SE KOI AISA TATHYA PRAKASH ME NAHI AATA HAI JISKE AADHAR PAR INHE LAGAYE GAYE AAROPO SE BARI KIYA JA SAKTA HAI. ATAH AARAKSHI ADHIKSHAK, DUMKA KE ANUSHANSA SE SAHMAT HOTE HUYE INHE DINANK 8.10.92 KE PURVAHAN SE SEVA SE BARKHAST KIYA JATA HAI. Sd/- I. LAKRA AARAKSHI UP-MAHANIRIKSHAK, SANTHAL PARGANA KSHETRA, DUMKA" 9. On plain reading of the said order, it is evident that the disciplinary authority has not discussed the evidence or material on record by which the charges against the petitioner have been proved. No reason has been either assigned for accepting the recommendation of the Superintendent of Police and for rejecting the explanation of the petitioner. The order is cryptic, laconic and non-speaking. 10. It is well established that an order, which affects the valuable right of a person, must be well founded and based on speaking reasons. No reason whatsoever has been assigned for rejecting the explanation of the petitioner and accepting the recommendation of the Superintendent of Police. 11. The said order of the disciplinary authority does not stand to the test of reasonableness and fair play and the same is violative of principle of natural justice and is non est in the eye of law. The order of the appellate authority suffers from the same vice and is violated in law. The appellate authority has observed that the petitioner was given notice in course of the enquiry, but he did not turn up. He further said that the petitioner's plea of non-receipt of the letters cannot be accepted. The said finding is not based on any material or evidence on record. Such observation made on assumption has no legal sanctity. The said appellate order passed by the Director General & Inspector General of Police, upholding the order of the Deputy Inspector General of Police dated 8th October, 1992 (Annexure-5), being based on no evidence and material on record, is perverse and unsustainable. 12. For the reasons aforementioned, this writ petition is allowed. The said appellate order passed by the Director General & Inspector General of Police, upholding the order of the Deputy Inspector General of Police dated 8th October, 1992 (Annexure-5), being based on no evidence and material on record, is perverse and unsustainable. 12. For the reasons aforementioned, this writ petition is allowed. The order of the Deputy Inspector General of Police, Santhal Pargana, Dumka passed in Departmental Proceeding No. 26 of 1989, contained in Annexure-5, and the order of the Director General of Police & Inspector General of Police, contained in Annexure7, are quashed. 13. The respondents are directed to reinstata the petitioner in service within four weeks from the date of receipt/production of a copy of this order. Since the petitioner has been prevented from discharging his duty due to the impugned illegal orders, he is entitled to get his full salary and all consequential benefits of the intervening period. The arrears of pay etc. admissible to the petitioner must to paid within a period of three months from the date of reinstatement. If the arrears of salary payable to the petitioner are not paid within the said period, he shall be entitled to get interest @ 10% per annum from the date the same is found due till the date of final payment. The State Government shall be at liberty to realize the amount of penal interest from the erring official(s). 14. Let a copy of this order be handed over to the counsel for the State.