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2013 DIGILAW 204 (PAT)

Shanti Devi v. State of Bihar

2013-02-12

S.N.HUSSAIN

body2013
ORDER 1. Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the husband of the petitioner (hereinafter called the original petitioner’) for the following reliefs:- (i) For quashing the order contained in memo no. 2382 dated 15.07.2005 of the Superintendent of Police, Rohtas, whereby the original petitioner was dismissed from service with effect from 28.06.2005. (ii) For quashing the order contained in memo no. 1273 dated 23.11.2005 of the Deputy Inspector General of Police, Sahabad Range, Dehri on sone, whereby the appeal preferred by the original petitioner against his order of dismissal was rejected. (iii) For quashing the order of the Director General-cum-Inspector General of Police, Bihar, Patna contained in memo no. 4467 dated 23.08.2006, whereby memorial preferred by the original petitioner against the order of dismissal dated 15.07.2005 and the order dated 23.11.2005 passed in appeal was rejected. (iv) For directing the respondent authorities to reinstate the original petitioner in service with effect from 28.06.2005 with full back wages. (v) For all consequential relief or reliefs to which the original petitioner is found entitled during the course of hearing of this writ petition. 3. It is not in dispute that the original petitioner was appointed as a constable in Patna district in the year 1980 and he passed initial training from Nathnagar in the year 1982 and was regularly doing his duty when he was transferred on 01.07.2003 to Sasaram District Police, where he joined on 19.07.2003. 4. It is also not in dispute that on 17.01.2004 a district order was issued by the Superintendent of Police, Rohtas stating that the Sub-Inspector of Police Sasaram Town Police Station had reported on 13.01.2004 that accused Daddan Chamar and Dablu Mishra escaped from custody from the court premises while they were in the custody and in the charge of the original petitioner and, prima-facie, the original petitioner and Assistant Sub-Inspector of Police, namely, Shri Bishkeshan Das appeared to be guilty and as a result they were placed under suspension with immediate effect on 14.01.2004. Thereafter, a copy of charge-sheet contained in memo dated 07.06.2004 was served upon the original petitioner under the signature of the Superintendent of Police, Rohtas, alleging that the petitioner, instead of bringing the said two prisoners from Court to Hajat, took them to a hotel on the Chowk, from where they succeeded in escaping and facilitated the escape of the said two prisoners; one of whom was a dreaded criminal. The original petitioner submitted his detailed reply to the charge-sheet on 10.07.2004 explaining that he had fractured his arm and x’ray also shows dislocation of the shoulder joint, which was proved by the prescription and certificate of the specialist and apart from that he was a sugar patient, which had made the injury serious and hence he had applied for transfer to any other place as far back as on 10.12.2003 itself. It was also stated that the handing over of two accused persons to the original petitioner was in contravention of Rule 557(A) of the Bihar Police Manual as there should have been at least two constables and since he was the only constable, he could not stop them from fleeing and the hue and cry raised by him attracted the crowed. 5. It is also not in dispute that in departmental enquiry no.12 of 2004, witnesses were examined and enquiry report was submitted by the Conducting Officer, namely, the Deputy Superintendent of Police before the disciplinary authority, namely, Superintendent of Police, Rohtas, who sent letter dated 14.06.2005 directing the petitioner to file his last show cause, to which the petitioner filed his reply on 24.06.2005 and finally the disciplinary authority passed final order dated 15.07.2005 (Annexure 6) punishing the petitioner by way of dismissal from his service with effect from 28.06.2005. 6. It is an admitted fact that the original petitioner filed an appeal before the Inspector General of Police, Sahabad Range against the order of his dismissal, but the said appeal was rejected vide order dated 23.11.2005(Annexure 7) and even memorial filed by the petitioner was rejected by the Director General-cum-Inspector General of Police, Bihar vide order dated 23.08.2006 (Annexure 9). 7. 7. Against the said orders of the disciplinary authority, the appellate authority and the authority deciding the memorial, the petitioner has filed this writ petition raising five points, which are as follows:- (a) The order of the disciplinary authority, affirmed by the higher authorities, has been passed under Rule 845 of the Bihar Police Manual, 1978 (Vol. 1), but the said provision is not applicable to the case of the original petitioner as he had never been suspended. (b) Original petitioner’s injury report produced by him was never considered by the authorities concerned while deciding the matter and punishing the original petitioner. (c) Witnesses of the prosecution were examined behind the back of the original petitioner by the Conducting Officer without giving any notice with respect thereto. (d) Although the original petitioner had given list of witnesses, but they were never called by the Conducting Officer. (e) The enquiry report submitted by the Conducting Officer was never provided to the original petitioner either by the Conducting Officer or by the disciplinary authority. 8. Learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioner and states that the original petitioner, who was deputed in court duty, allowed the prisoners, who were accused in Sasaram Town P.S. Case No. 208 of 2002 for offences punishable under sections 224 and 120-B of the Penal Code as well as in Bikramganj P.S. Case No. 87 of 2003 for offences punishable under section 392 of the Penal Code, to flee away on 13.01.2004 although they were to be produced before the two Judicial Magistrates of Sasaram. The said prisoners were handcuffed and roped together before being entrusted to the custody of the original petitioner for taking them back to the Court Hajat, but instead the petitioner took them to Kargahar Chowk in a hotel, which was away from the court premises and did not lie in the way from Court Hajat to the Court Room and from there prisoners fled away with handcuff and rope, due to which the original petitioner was suspended and departmental proceeding no. 12 of 2004 was initiated against him. 9. 12 of 2004 was initiated against him. 9. Learned counsel for the respondents submits that the enquiry was conducted by the Deputy Superintendent of Police (Headquarter), who served the charges upon the original petitioner asking him to show cause, in response to which the original petitioner filed his show cause and actively participated in the enquiry/proceeding and the Conducting Officer took the evidence of all concerned and recorded findings of guilt against the petitioner and when the said findings were produced before the Superintendent of Police, Rohtas, he also asked the original petitioner to show cause as to why the original petitioner be not dismissed from his service, to which also the original petitioner submitted his show cause and after considering the entire evidence recorded during enquiry/proceeding, findings of the Conducting Officer and the second show cause filed by the original petitioner, the then Superintendent of Police, Rohtas (disciplinary authority) passed order dated 14.06.2005 dismissing him from his service. 10. Learned counsel for the respondents avers that the petitioner had actively participated in departmental proceeding no. 12 of 2004 and was never stopped from cross-examining any witness of the prosecution nor he was prevented from adducing any defence witness and the entire proceeding/enquiry was conducted in full knowledge of the original petitioner and all the relevant papers were made available to him. 11. Learned counsel for the respondents claims that on the relevant date i.e. 13.01.2004 Assistant Sub-Inspector Bishkeshan Das was incharge of Sasaram Court Hajat, where the prisoners were kept to be produced in the concerned court and his duty was to entrust prisoners to the constable to produce them in the concerned courts and, accordingly, the two prisoners were entrusted to the custody of the original petitioner and hence it was the duty of the said A.S.I. to escort the prisoners from the Court Hajat to Court rooms and vice versa. However, the said A.S.I. was found guilty in departmental proceeding no. 16 of 2004 because he had entrusted two prisoners to only one constable, namely, the original petitioner although the said A.S.I. had stated in his show cause that there was shortage of constable. However, he was punished by curtailing one year’s increment, which amounted to two black remarks in his service record and he was also found not entitled to any benefit of service during the period of his suspension. 12. However, he was punished by curtailing one year’s increment, which amounted to two black remarks in his service record and he was also found not entitled to any benefit of service during the period of his suspension. 12. Considering the averments made by learned counsel for the parties and the materials on record, it is quite apparent that a charge sheet contained in memo dated 07.06.2004 was served upon the original petitioner alleging that he was entrusted to bring two prisoners from Court to Hajat, but instead of that he took them to a hotel from where the prisoners succeeded in escaping and the original petitioner and the concerned A.S.I. facilitated in escaping of the two prisoners. To the said charge sheet, the original petitioner submitted his detailed reply on 10.07.2004 explaining that he had fractured his arm and dislocated his shoulder joint which was proved by the x-ray report, prescription and certificate of the specialist, but in spite of that two prisoners were given to him although the provision of Rule 557(A) of the Bihar Police Manual 1978 provides that under ordinary circumstances, the strength of escort for prisoners shall be two constables for prisoners up to three. It is also claimed that the original petitioner, being only the single constable and that too handicapped due to fracture injury could not stop the said prisoners from fleeing. 13. It is the specific claim of the original petitioner that during the course of enquiry, prosecution witnesses were examined but no information was given to the original petitioner to enable him to cross-examine them. It is further claimed by learned counsel for the petitioner that the original petitioner was never given any opportunity to produce his witnesses. Although these claims of the petitioner have been denied by the respondents in their counter affidavit but they are mere bald statements not supported by any material whatsoever, although it was the duty of the Enquiry Officer to give in writing to the original petitioner that prosecution witnesses were going to be examined and if the original petitioner so liked, he might cross-examine them. Furthermore, after the deposition of prosecution witnesses was complete, it was also the duty of Conducting Officer to inform the original petitioner about the same asking him in writing to produce his witnesses, if he so liked. Furthermore, after the deposition of prosecution witnesses was complete, it was also the duty of Conducting Officer to inform the original petitioner about the same asking him in writing to produce his witnesses, if he so liked. No such material has been produced by the authorities concerned, which could prove the genuineness of the statements made in their counter affidavit. Thus it is quite apparent that the enquiry proceeding conducted by the authorities concerned was not legal and proper and due to the acts of the authorities the original petitioner was put in undue loss and jeopardy. 14. From the reply filed by the original petitioner to the charge sheet, it is apparent that he had specifically mentioned his injuries and had filed the reports and certificates before the Conducting Officer, but none of them appears to have been considered by the authority concerned while deciding the matter against the original petitioner. Even the disciplinary authority failed to appreciate the aforesaid circumstances in its impugned order although the original petitioner had specifically raised those points in his show-cause/reply. 15. In addition to that, there was a serious loophole in the entire procedure, which had been very conveniently overlooked by the authorities passing the impugned orders against the original petitioner. Rule 557(A) of the Bihar Police Manual 1978 specifically provides that under ordinary circumstances the strength of escort for prisoners would be two constables for prisoners up to three. In the instant case two prisoners, one of whom was a veteran criminal, were entrusted to only one person, namely the original petitioner. It was also not realized that the original petitioner had fractured hand and dislocated shoulder in which condition he was not able to control even one prisoner. Hence the acts of authorities concerned from the very beginning were detrimental to safety of the original petitioner. 16. The other accused person of the same episode against whom a similar proceeding no.16 of 2004 was instituted, was the Assistant Sub-Inspector, who was incharge of Sasaram Hajat where the prisoners were kept to be produced in the concerned Court and his duty was to entrust the prisoners to the constables for producing them in the concerned Courts and bringing them back to Hajat. In the said proceeding the said Assistant Sub-Inspector was found guilty because he had violated the rules and had entrusted two prisoners to only one constable, namely the original petitioner who was also not fit due to his fractured arms and dislocated shoulder. Hence the said Assistant Sub-Inspector was the main guilty person for the entire episode, but the punishment given to him was only curtailing one year’s increment, which amounted to two black remarks in his service record and was also not found entitled to any benefit of service during the period of his suspension. In the said circumstances the original petitioner in no way could have been punished more than the said Assistant Sub-Inspector. 17. From a plain reading of the impugned order of disciplinary authority, which was affirmed by the appellate and revisional authority also, it is apparent that the said order was passed under the provision of Rule 845 of the Bihar Police Manual 1978, which provides as follows:- 845. Effect of Imprisonment:-Every Police Officer imprisoned for an offence implying moral turpitude, such as theft, perjury, etc., or for a serious breach of discipline such as allowing a prisoner to escape, sleeping on sentry duty, etc., shall be proceeded against with a view to dismissal, and shall ordinarily be dismissed. He shall receive his pay up to the date of ceasing to perform his duties. 18. From a bare perusal of the aforesaid Rule, it is very clear that it is applicable to only such prisoners who had been imprisoned for an offence, but from the admitted facts of the case it is quite apparent that the original petitioner had never been imprisoned for any such offence nor even a criminal case had been instituted against him. Hence the aforesaid provision of law was not at all attracted to the case of the original petitioner and punishing him under the said provision is clearly bad, illegal and absolutely perverse. These facts although raised by the original petitioner in appeal and memorial, were not considered by the said authorities, who without appreciating the legal position and the factual matrix of the case blindly affirmed the order of disciplinary authority. 19. In the said circumstances, this court has got no option but to allow this writ petition and accordingly this writ petition is allowed. 19. In the said circumstances, this court has got no option but to allow this writ petition and accordingly this writ petition is allowed. The impugned orders of the authorities namely order dated 15.07.2005 passed by the Superintendent of Police, Rohtas dismissing the original petitioner from his service with effect from 28.06.2005; order dated 23.11.2005 passed by the appellate authority, namely Deputy Inspector General of Police, Sahabad Range, Dehri-on-Sone dismissing the appeal of the original petitioner; order dated 23.08.2006 passed by the Director General-cum-Inspector General of Police, Bihar, Patna dismissing the memorial filed by the original petitioner are hereby quashed and his punishment is reduced to the same as given to the concerned Assistant Sub-Inspector i.e. curtailment of one year’s increment, which amounted to two black remarks in his service record and non-entitlement of any benefit of service during the period of his suspension. 20. So far the remaining benefits of service of the original petitioner are concerned, the authorities shall calculate the same in accordance with law considering the fact that the original petitioner has died on 11.11.2010 and hence all the said benefits of service must be paid to the widow, who has been substituted in place of the original petitioner. All procedures with respect to the payments must be completed within three months from the date of receipt/production of a copy of this order.