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2012 DIGILAW 1173 (PAT)

Bilash Sah v. State of Bihar

2012-08-24

CHAKRADHARI SHARAN SINGH

body2012
CHAKRADHARI SHARAN SINGH, J.:–Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State of Bihar and its official respondents. 2. This writ application has been filed for quashing the order dated 13.06.1999 (Annexure-4) passed by the Commandant, Bihar Military Police-6 , Muzaffarpur whereby; agreeing with the report of the Conducting Officer, he has dismissed the petitioner from service on the ground of proved misconduct alleged against him in a departmental proceeding. The order dated 13.06.1999 (Annexure-4) further stipulates that the petitioner will not be entitled to any amount over and above what has already been paid to him as subsistence allowance for the period during which he remained under suspension. The order dated 12.06.2000 (Annexure-6) passed by the Deputy Inspector General, Military Police, Muzaffarpur, on an appeal preferred by the petitioner against the impugned order of dismissal as also the order dated 23.05.2001 (Annexure-7) passed by the Director General of Police rejecting the petitioner’s memorial are also under challenge. 3. The facts which are not in dispute are that the petitioner had joined as Constable in the District Police of Supaul on 31.01.1994. He was subsequently transferred to the District Police, Katihar. While posted in the District Police, Katihar as Constable, the petitioner was sent for basic training to Bihar Military Police-6, Muzaffarpur. In course of training in Bihar Military Police-6, Muzaffarpur, the petitioner absented himself from 27.12.1997 for a total period of 183 days. 4. For the period of unauthorised absence for 183 days, the departmental proceeding was initiated under the orders of the Commandant, Bihar Military Police-6, Muzaffarpur. A charge-sheet dated 02.06.1998 (Anneure-1) framed by the Commandant, Bihar Military Police-6, Muzaffarpur, was served upon the petitioner who was asked to submit his explanation on the said charge. The list of witnesses to be examined for the prosecution and the list of documents on which the department proposed to rely in order to prove the charge were supplied to the petitioner. 5. The petitioner submitted his explanation vide his letter dated 09.07.1998 addressed to the Commandant, Bihar Military Police-6, Muzaffarpur. In his explanation the petitioner took the plea of ailment which according to him compelled him to leave the place of duty and remain absent for the purpose of treatment during the period in question. The petitioner submitted, alongwith his explanation, the relevant prescriptions and receipts with regard to the purchase of medicines. In his explanation the petitioner took the plea of ailment which according to him compelled him to leave the place of duty and remain absent for the purpose of treatment during the period in question. The petitioner submitted, alongwith his explanation, the relevant prescriptions and receipts with regard to the purchase of medicines. The Conducting Officer, vide his report dated 13.10.1999 (Annexure-3) held the petitioner guilty of misconduct alleged against him. On the basis of the findings of the Conducting Officer, the Commandant, Bihar Military Police-6, Muzaffarpur (Respondent No. 9) passed the impugned order dated 30.06.1999 (Annexure-4) dismissing the petitioner from service. The petitioner preferred appeal before the Deputy Inspector General, Military Police, which also came to be rejected by order dated 12.06.2000 (Annexure-6). The petitioner thereafter filed a memorial before the Director General of Police which also had the same fate and was dismissed by the order dated 23.05.2001 (Anneure-7). 6. From the order dated 23.05.2001 (annexure-7), which is the order passed by the Director General of Police on the memorial filed by the petitioner it seems, that the petitioner, inter alia, took the specific plea that the petitioner was constable of District Police Force, Katihar, and therefore, the order of dismissal passed by the Commandant Bihar Military Police was beyond jurisdiction. He also pleaded before the Appellate Authority as well as the Director General of Police that essential requirements of regular proceedings were not followed inasmuch as the documents mentioned in the charge-sheet were not supplied to him and medical prescription of the doctor and other documents presented by him in support of his plea of illness was arbitrarily discarded both by the Enquiry Officer and the Disciplinary Authority. From the orders passed by the Appellate Authority as well as the Director General of Police, I find that the Authorities have not discussed in their orders the plea taken by the petitioner in his appeal and memorial with respect to the petitioner’s grievance that the enquiry was not conducted properly. 7. Learned counsel appearing on behalf of the petitioner contends that as per the provisions under Bihar Police Manual, which governs the service condition of the petitioner, the Superintendent of Police of the District is the Disciplinary Authority and the order under challenge dated 13.06.1999 (Annexure-4) passed by the Commandant, Bihar Military Police-6 is beyond jurisdiction. 7. Learned counsel appearing on behalf of the petitioner contends that as per the provisions under Bihar Police Manual, which governs the service condition of the petitioner, the Superintendent of Police of the District is the Disciplinary Authority and the order under challenge dated 13.06.1999 (Annexure-4) passed by the Commandant, Bihar Military Police-6 is beyond jurisdiction. He contends that the petitioner was a member of the Katihar District Police Force and his services could not have been terminated by the Commandant, Bihar Military Police-6, Muzaffarpur, where he had gone for training. 8. Learned Assistant Counsel to Standing Counsel-1, referring to Rule 10(e) of the Bihar Police Manual, on the other hand contends that the Commandant, Bihar Military Police-6, Muzaffarpur, is of the rank of Superintendent of Police. He, therefore, submits that Rule 825 of the Bihar Police Manual is not a bar for the Commandant, Bihar Military Police-6, to impose punishment of dismissal on a constable. He thus, justifies the jurisdiction and action of the Commandant, Bihar Military Police-6 of passing the impugned order dated 13.06.1999 (Annexure-4). He further contended that the petitioner was given sufficient opportunity to defend himself and there was no irregularity or violation of Principles of Natural Justice in course of the disciplinary enquiry or the proceeding. 9. I am not going into the merits of the allegations, the material available on record in support of such allegation or even the irregularity alleged in course of the disciplinary proceeding as I am inclined to quash the impugned order on the ground that the Commandant, BMP-6, Muzaffarpur, was not a Disciplinary Authority and the order dated 13.06.1999 (Annexure-4) is beyond jurisdiction for the reasons set out in the following paragraphs. 10. Rule 824 of the Bihar Police Manual contains the punishments which can be imposed on a Police Officer below the rank of Police Inspector. Rule 825 deals with the officers empowered to impose different punishments. Sub-section (f) of Section 825 of the Police Manual refers to Appendix-84 of the Police Manual which contains the list of officers competent to give punishments or order of suspension, according to Act-5 of 1861. Appendix-84 of the Police Manual provides the list of Competent Authorities who can pass order for punishment and suspension to appointed officers / employees with reference to Rule 825(f) of the Manual. Appendix-84 of the Police Manual provides the list of Competent Authorities who can pass order for punishment and suspension to appointed officers / employees with reference to Rule 825(f) of the Manual. On perusal of the list it will appear that it is the Superintendent of Police only who is Competent Authority to impose punishment of dismissal on a Constable. I am of the considered view that Rule 825(f) read with Appendix-84 has statuary force, breach of which will render the action invalid and beyond jurisdiction. The plea taken on behalf of the State of Bihar that the Commandant of the rank of the Superintendent of Police had the same powers of the Superintendent of Police cannot be accepted, there being specific statutory provision for the purpose of imposition of punishment in Chapter 25 of the Police Manual. Even on the date of the order of dismissal, the petitioner was member of Katihar Police Force (under suspension). The Commandant B.M.P.-6, Muzaffarpur, did not have the competence to impose punishment of dismissal from service. Rule 825(f) read with Appendix-84 of the Police Manual has conferred such jurisdiction on Superintendent of Police which power cannot be exercised by any other authority on the basis of equivalence of rank. 11. In view of above, the impugned order dated 13.06.1999 (Annexure-4) is quashed being without jurisdiction. The orders dated 12.05.2000 (Annexure-6) and dated 23.05.2001 (Annexure-7) are also quashed. 12. As the order dated 13.06.1999 (Annexure-4) has been quashed on the ground of lack of jurisdiction, the petitioner will be entitled for reinstatement and all consequential benefits including payment of full back-wages. It will however, be open to the Competent Authority to initiate action against the petitioner for the alleged misconduct in accordance with law. 13. This writ application is, accordingly, allowed. 14. There will be no order as to costs.