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2012 DIGILAW 732 (PAT)

Syed Ali Qambar v. State of Bihar

2012-05-07

V.N.SINHA

body2012
ORDER Heard learned counsel for the petitioner and the State, who has also produced the records of Departmental Proceeding No. 01/1993, initiated against the petitioner. 2. At the relevant time petitioner served as Inspector in the Criminal Investigation Department (Food) and was deputed at Gopalganj. He has filed this writ petition questioning the validity of the order bearing Memo No. 1233/P-2 dated 7.4.2003 passed by the Director General-cum-Inspector General of Police, Bihar, Patna, Annexure-7, whereunder in the light of the Enquiry Report dated 11.8.2000, Annexure-3 petitioner has been found guilty of the charges levelled against him in Departmental Proceeding No. 1 of 1993 that he violated Food Order No. 530/91 dated 19.9.1991, whereunder he was directed to join the headquarter at Patna. The other charge levelled against him is that he violated Wireless Message No. 1276 dated 13.11.1991, whereunder he was deputed for election duty at Ranchi but failed to discharge. The third charge levelled against the petitioner is that he did not submit progress report in connection with Mirganj P.S.Case No.84/88, registered for the offence under Section 7 of the E.C.Act. from 18.8.1990, which is indicative of the fact that petitioner was absent from duty from August, 1990. The fourth charge levelled against the petitioner is that he failed to submit his show-cause reply in response to Memo No. 254 dated 4.2.1992, 934 dated 8.6.1992. In this writ petition, petitioner has also challenged the appellate order bearing Memo No. 8595 dated 31.8.2005, communicated to the petitioner under Memo No. 4374/P-2 dated 12.9.2005, Annexure-9, whereunder his appeal filed against the dismissal order dated 7.4.2003 has been rejected. It appears, earlier petitioner challenged the very initiation of the Departmental Proceeding No. 1/1993 against him on the ground of delay and non-payment of Subsistence Allowance which was allowed under judgment dated 7.09.2001 passed in C.W.J.C. No. 8728 of 2001. Aforesaid judgment dated 7.9.2001 was questioned by the State of Bihar by filing L.P.A. No. 220/2002 which was allowed under order dated 8.10.2002 setting aside the judgment dated 7.09.2001 directing the State-respondents to pass final orders in Departmental Proceeding No. 1/1993 within a period of six months. Aforesaid judgment dated 7.9.2001 was questioned by the State of Bihar by filing L.P.A. No. 220/2002 which was allowed under order dated 8.10.2002 setting aside the judgment dated 7.09.2001 directing the State-respondents to pass final orders in Departmental Proceeding No. 1/1993 within a period of six months. Earlier petitioner had refuted the charges levelled against him stating that he neither received Food order No. 530/91 dated 19.9.1991 directing him to join the Headquarter at Patna nor received Wireless Message No. 1276 dated 13.11.1991 deputing him for election duty, as such, it is wholly incorrect on the part of the authorities to allege that he disobeyed Food Order No. 530/91 dated 19.09.1991 and the Wireless Message No. 1276 dated 13.11.1991. As regards Charge No. 3, it was submitted that he took necessary steps for solving Mirganj P.S.Case No. 84/88 but as no clue was found, he could not submit any further report after 18.8.1990. As regards Charge No. 4 that petitioner did not submit his explanation in response to show-cause notice bearing no. 254 dated 4.2.1992, 934 dated 8.6.1992 it was also submitted by the petitioner that he never received the two show-cause notices, as such, had no occasion to submit response thereto. The Inquiry Officer considered the show-cause reply received from the petitioner in the light of the statement of M/S. Ram Das Singh, Kishore Kumar Srivastava, both Inspector recorded on 2.8.1995, 6.6.1996 and 2.8.1995 respectively. None of the aforesaid two officers confirmed in their deposition that either the Food order or the Wireless Message or the two show-cause notices were ever served on the petitioner. The documents served on the petitioner under Memo No. 559 dated 22.7.1999 to support the charges also does not indicate that receipt showing service of the order dated 19.09.1991, Wireless Message No. 1276 dated 13.11.1991, show-cause notice nos. 254, 934 dated 4.2.1992, 8.6.1992 on the petitioner was either served on the petitioner or produced before the Enquiry Officer. The Enquiry Officer without there being any categorical oral testimony or documentary evidence to establish the charges recorded a finding that petitioner continued to violate the order dated 19.9.1991 and Wireless Message No. 1276 dated 13.11.1991. Such finding is contrary to the materials on record as there is nothing to show that order dated 19.9.1991 and Wireless Message dated 13.11.1991 was served on the petitioner. Such finding is contrary to the materials on record as there is nothing to show that order dated 19.9.1991 and Wireless Message dated 13.11.1991 was served on the petitioner. The Enquiry Officer proved Charge No. 3 against the petitioner that he did not submit report in connection with Mirganj P.S.Case No. 84/88 by observing that as the petitioner did not submit his report after 18.08.1990, it is evident that he remained absent from the place of his posting from 18.8.1990. In this connection, I may point out that the specific stand of the petitioner is that as there was no clue to solve Mirganj P.S.Case No. 84/88, he could not submit any further report after 18.08.1990. Aforesaid defence of the petitioner could not have been rejected by showing that petitioner remained absent after 18.08.1990 when it is admitted position that he was paid salary until October, 1991. While considering Charge No. 4 the Enquiry Officer did not even notice the written defence of the petitioner that he had not received memo dated 4.2.1992, 6.2.1992 asking him to show-cause as to why did he violate the order cancelling his deputation to Gopalganj with instruction to join headquarter and why did he not go for election duty. The defence of the petitioner that he did not receive either the order dated 19.9.1991 or Wireless Message No. 1276 dated 13.11.1991 or the show-cause notice dated 4.2.1992, 8.6.1992 was also raised by the petitioner in his second show-cause reply which the disciplinary authority considered in the concluding portion of Paragraph 13 (Ka) of his order and observed that defence of the petitioner is required to be rejected in the light of the findings of the Enquiry Officer. Such observation of the Disciplinary Authority is reflective of non-application of mind by the Disciplinary Authority as in the Enquiry Report the Enquiry Officer has not referred to any material to suggest that order dated 19.09.1991, Wireless Message dated 13.11.1991 and the show-cause notice dated 4.2.1992, 8.6.1992 was ever received by the petitioner. Neither oral testimony of M/S Ram Das Singh and Kishore Kumar Srivastava is indicative of the fact that the aforesaid order, wireless message was received by the petitioner nor any documentary evidence is produced to establish that petitioner received order dated 19.9.1991, Wireless Message dated 13.11.1991 or the show-cause notice dated 4.2.1992, 8.6.1992. Neither oral testimony of M/S Ram Das Singh and Kishore Kumar Srivastava is indicative of the fact that the aforesaid order, wireless message was received by the petitioner nor any documentary evidence is produced to establish that petitioner received order dated 19.9.1991, Wireless Message dated 13.11.1991 or the show-cause notice dated 4.2.1992, 8.6.1992. Failure to submit Progress Report in connection with Mirganj P.S.Case No. 84/88 after 18.8.1990 cannot be indicative of the fact that petitioner was absent from his place of posting with effect from 18.8.1990 as he has been paid salary until October, 1991. The conclusion of the Enquiry Officer that petitioner was absent from his place of posting from August, 1990 is without any basis. 3. In view of my discussion above, it is quite evident that authorities have not been able to bring home the charge levelled against the petitioner. In this connection, I may indicate that from Exhibit-16 i.e. report received from the Psychiatry Department of the Patna Medical College Hospital itself, it is evident that petitioner was mentally ill during the period between 12.09.1992-25.1.1994. It appears, due to the indifferent attitude of the authorities not to serve on the petitioner the Food Order dated 19.09.1991 and Wireless Message dated 13.11.1991, he was placed under suspension on 19.11.1991, whereafter he came to the headquarter on several occasions, for example on 20, 22, 29.6.1992, as is evident from internal page 5 of the Enquiry Report but was not allowed to submit joining, may be under suspension and this indifferent attitude of the authorities led to his mental illness from September, 1992 which continued until January, 1994 but thereafter also the proceedings were not taken against the petitioner to the logical end and he had to approach this Court in C.W.J.C. No. 8728 of 2001 which was allowed under orders dated 7.09.2001 against which State-respondents filed L.P.A. No. 220 of 2002 which was disposed of under orders dated 8.10.2002 directing the authorities to pass final order in Departmental Proceeding No. 01/1993 within a period of six months from 8.10.2002. From the Enquiry Report and the documents referred to in Memo No. 559 dated 22.7.1999, addressed to the petitioner, it does not appear that Food Order No. 530/91 dated 19.9.1991, Wireless Message No. 1276 dated 13.11.1991 and show-cause notice dated 4.2.1992, 8.6.1992 was ever served on the petitioner, as such, it is difficult for this Court to accept the finding recorded in the Enquiry Report, dismissal order that petitioner violated the aforesaid order dated 19.9.1991, Wireless Message dated 13.11.1991 and failed to respond to the notice dated 4.2.1992, 8.6.1992. Finding of the authorities recorded in connection with Charge No. 3 that he did not submit report in connection with Mirganj P.S.Case No. 84/88 after 18.8.1990 is indicative of the fact that petitioner was absent from his place of posting with effect from 18.8.1990 is also wholly misconceived as the definite case of the petitioner is that he could not proceed in the matter and submit any further report as there was no clue to solve the said Mirganj P.S.Case No. 84/88 and that he continued to discharge duty at Gopalganj until 17.11.1991 and was paid salary until October, 1991. In case petitioner was absent from Gopalganj from 18.08.1990 he could not have been paid salary until October, 1991. The appellate order dated 31.8.2005, Annexure-9 also suffers from the vice of arbitrariness as the same is bereft of reasons and has been passed without taking into account the relevant material. In appreciation of the facts discussed above, this Court has no option but to set aside the punishment order dated 7.4.2003, Annexure-7, appellate order bearing Memo No. 8595 dated 31.8.2005, communicated to the petitioner under Memo No. 4374/P-2 dated 12.09.2005, Annexure-9. Having set aside the impugned orders, this Court taking into account the indifferent attitude of the authorities towards the petitioner would observe that petitioner be paid full salary from the date of dismissal till date of this order/his reinstatement. 4. The writ petition is, accordingly, disposed of. ?