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2012 DIGILAW 184 (PAT)

Umesh Pathak v. State of Bihar

2012-01-31

SHIVAJI PANDEY

body2012
JUDGMENT (Per: HONOURABLE MR. JUSTICE SHIVAJI PANDEY) 1. Heard learned counsel for the petitioner and the State. 2. In this case, petitioner has challenged the order of punishment dated 19th September 1994 (Annexure-6 to the writ petition) whereby and whereunder he has been dismissed from service on the ground of committing misconduct. The appeal preferred by the petitioner was rejected by order dated 3rd January 1996 (Anexure-7 to the writ petition) by the Deputy Inspector General of Police, Munger and the Memorial preferred by the petitioner was also rejected, vide order dated 3rd June 1998 (Annexure-8 to the writ petition) passed by the Director General of Police, Bihar. 3. Basically the petitioner is challenging the quantum of punishment on the ground that for the same and serious charges, the higher authority who was also a party to the said episode was awarded minor punishment whereas petitioner, who was a literate constable having not entered the entries in the Station Diary seizure of truck loaded with goat and detention of goat Merchant has been dismissed from service which is completely arbitrary and violative of Artic le 14 of the Constitution of India. 4. In this case the petitioner was appointed as constable on 15th November 1976 and he was posted as literate constable in Kotwali Police Station, Munger where the Inspector was one Sri Vijay Kumar Singh (Officer In-charge). While working there, petitioner was served with a charge-sheet leveling allegation of detaining 5 goat traders, taking money and watches from them and arresting them without giving any information to the higher authority. The traders submitted an application before the Superintendent of Police, Munger which was enquired by the Deputy Superintendent of Police who made an enquiry and found that the petitioner was one of the party in that episode and after enquiry, the realized money from the traders and their watches were returned to them. During the enquiry, petitioner participated where witnesses were examined on behalf of the Department, namely, Sri Vijay Kumar Sinha, Sri Gopal Prasad and Sri Ajit Kumar Rai. On completion of the departmental enquiry, the Enquiry Officer submitted his report dated 2nd May 1999 (Anexure-4) and the authorities issued a letter of show cause dated 6th July 1994 asking the petitioner to submit his explanation annexing the copy of the enquiry report. On completion of the departmental enquiry, the Enquiry Officer submitted his report dated 2nd May 1999 (Anexure-4) and the authorities issued a letter of show cause dated 6th July 1994 asking the petitioner to submit his explanation annexing the copy of the enquiry report. In pursuance thereof petitioner submitted his show cause (Annexure-5) giving explanation of the situation that had happened during the whole episode. It was submitted that there was no material to come to a finding that the charges were proved against the petitioner. The Superintendent of Police, on consideration of the enquiry report as well as the explanation passed the order of dismissal dated 19th September 1994 (Annexure-6) against the petitioner. Being aggrieved by the order of punishment of dismissal petitioner filed an appeal before the Deputy Inspector General of Police, Munger and the same was dismissed vide order dated 3rd January 1996 (Annexure-7). Petitioner filed a Memorial against the order passed by the D.I.G. before the Director General of Police, who vide his order dated3rd January 1996 (Annexure-8) rejected the same and being aggrieved by those orders, the present writ petition has been filed before this Court. 5. Petitioner has filed a supplementary affidavit dated 19th December 2011 and brought on the record the order passed by the Department against one Sri Ramesh Baitha who was Sub-Inspector of Police at the relevant time and Sri Rajiv Ranjan Dayal who was also Sub-Inspector of Police and involved in the said incident. The Department has awarded minor punishment to them, though there is a finding of the disciplinary authority that they were also involved in realizing the money but their explanation was accepted and minor punishment was awarded to them. 6. Learned counsel for the State has contended that the action of the authorities is completely proper and the punishment has been awarded according to the charges proved. 7. Learned counsel for the petitioner raises a very small point that the person being higher authority was awarded minor penalty for the same incident, whereas the petitioner who was a literate constable and was in lower hierarchy cannot the saddled with punishment of dismissal which is violative of Article 14 of the Constitution of India as the principle of equality is equally applicable in awarding punishment. Relying on the judgment reported in 2008(2) PLJR 6 (SC) : (2008) 12 SCC 312, Man Singh v. State of Haryana, the Honble Supreme Court has held as follows: “Para- 18 In view of the factual backdrop and the above-stated statement of HC Vijay Pal, we are of the opinion that the respondents cannot be permitted to resort to selective treatment to the appellant and HC Vijay Pal, who was involved in criminal case besides departmental proceedings. HC Vijay Pal has been exonerated by the appellate authority mainly on the ground of his acquittal in the criminal case, whereas in departmental proceedings he has been found guilty by the disciplinary authority and was awarded punishment for serious misconduct committed by him as police personnel. Para- 19 We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of fair play ad reasonableness. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the Excise Staff of Andhra Pradesh for violating the Excise Prohibition Orders operating in the State. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the Excise Staff of Andhra Pradesh for violating the Excise Prohibition Orders operating in the State. The appellate authority exonerated HC Vijay Pal mainly on the ground of his acquittal by the criminal court in the Excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the Excise offence by him in the State of Andhra Pradesh. The order of the disciplinary authority would reveal that for the last about three decades the appellant has served the Police Department of Haryana in different capacity with unblemished record of service.” 8. In view of the aforesaid judgments, now we have to test it whether the treatment given to the petitioner suffers from illegality or arbitrariness or not. Admittedly, the petitioner was a literate constable and he was to discharge the duty to make entry in the Station Diary with regard to the movement of Police Force and the other incidents, whereas Sri Ramesh Kumar Baitha who was S.I. and Sri Rajiv Dayal who was also holding the same post were also proceeded with but considering their explanation that they were newly appointees and they had no knowledge about he working of Police Force, they were let off from the charges. The authorities concerned in stead of takings stern action against them, picked up the petitioner who was only a literate constable and he was dismissed from service. This Court is recording displeasure in the manner this matter was handled by the department. 9. The State had taken time for verifying the reply to the supplementary affidavit and they could not receive any instruction and ultimately failed to file any reply to the supplementary affidavit. 10. This Court is recording displeasure in the manner this matter was handled by the department. 9. The State had taken time for verifying the reply to the supplementary affidavit and they could not receive any instruction and ultimately failed to file any reply to the supplementary affidavit. 10. Looking to the facts and circumstances of the case, the order of punishment, the order of appellate authority and the order passed by the Director General of Police in the Memorial are hereby quashed and the matter is remanded back to the authority concerned, i.e. the Superintendent of Police, Munger who will examine the facts of the case of petitioner vis-à-vis that of Sri Ramesh Baitha and Sri Rajiv Ranjan Dayal who were holding the post of S.I. at the relevant time and will pass the order afresh giving reasons. 11. With this observation, this petition is allowed, but without costs.