Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 924 (PAT)

Kaushal Kishore Thakur v. State of Bihar

2013-08-01

NAVANITI PRASAD SINGH

body2013
ORDER These two writ petitions are by two constables, who have been dismissed by order of Superintendent of Police, Siwan, which order has not been interfered with in appeal by Deputy Inspector General of Police nor in the revision by the Inspector General of Police nor by the Director General of Police in the memorial so filed. 2. Let it be noted that in view of certain controversy raised, this Court had earlier ordered that the records of the disciplinary proceeding/departmental proceedings be produced in original. Shri Jay Shankar Barnwal, S.C.1 has procured and produced the records. 3. It appears that on 20.3.1997 an incident took place. As per department, the two petitioners and several other constables were assigned to assist the Executive Magistrate in taking over possession of a cold storage. Apparently the police including two petitioners reached and waited at the cold storage. When the Executive Magistrate did not arrive, on way back to the police station they stopped in the market and consumed liquor. It is in that process they entered into altercation with the local people who got annoyed and chased them. The petitioners and others then rushed to the police station being chased by the villagers and the petitioner Shashi Kumar Singh then took a rifle from the police station and fired. This agitated the people more and they started pelting stone and tried to enter into the police station and then petitioner Kaushal Kishore Thakur also fired. No order from any superior authority was taken for resorting to fire. The gravamen of charge was illegal and unauthorized firing. On the next day the petitioners were suspended and departmental proceedings were initiated. A preliminary enquiry report was submitted by one Dy.S.P. Mr. Hembram. On receipt thereof, charges were framed against the petitioners. They filed their respective show causes. Thereafter the witnesses were examined, one of whom was the officer in-charge of the police station. He was cross examined by the petitioners as well. Thereafter the enquiring officer submitted his report to the disciplinary authority i.e. Superintendent of Police, Siwan, who then issued show cause notices to the petitioners clearly stating that as to why they be not dismissed from service. Both the petitioners filed their separate show cause upon consideration whereof, by separate orders, both the petitioners have been dismissed finding unauthorized use of arms against the citizens. Both the petitioners filed their separate show cause upon consideration whereof, by separate orders, both the petitioners have been dismissed finding unauthorized use of arms against the citizens. The petitioners filed separate appeal before the D.I.G., which was dismissed, their revision before the I.G. was dismissed and their memorial before the Director General of Police has also been dismissed. Hence this writ petition. 4. Counter affidavit and rejoinder have been filed. 5. Learned counsel for the petitioners submits that the department has failed to establish its case by cogent material and evidences on record. Both the learned counsels submitted that the enquiry report of the enquiring officer was not served upon them and as such on the authority of the judgment of the Constitution Bench of the Apex Court in the case of Managing Director, ECIL, Hyderabad and others vs. B.Karunakar and others. since reported in (1993) 4 Supreme Court Cases 727, the departmental proceeding stood vitiated. 6. As noticed earlier the original records are produced by the State, which have been perused by the learned counsels and the Court. 7. The first issue, as noticed above, raised by learned counsel for the petitioners is that the department has failed to establish its case. If I have understood correctly what that means to suggest is that the department has not brought sufficient evidence on record to establish the charge as levelled against the petitioners. This submission is noted only to be rejected. As noted above, the gravamen of charge against the petitioners is unauthorized use of fire arms against the public. At no point of time neither before the authority nor in the departmental proceeding nor before this Court, the petitioners set up any defence that they had not fired or they had not used fire arms against the public. In fact, their defence was that they used the arms only to protect the police station and their lives. Thus, there is a clear admission on their part of using the fire arms. Once this admission is there then it is for them i.e. the petitioners to establish that they had sought permission or their action was justified in using fire arms and nothing further has to be proved by the department in this regard. Thus, there is a clear admission on their part of using the fire arms. Once this admission is there then it is for them i.e. the petitioners to establish that they had sought permission or their action was justified in using fire arms and nothing further has to be proved by the department in this regard. In view of the admission of the petitioners themselves and keeping in view the principle enshrined in Section 106 of the Evidence Act, the onus would be entirely upon the petitioners to establish their justification or their innocence in the matter. They have made no atempt except that they were trying to protect the public property. They have admitted that they were chased by the villagers. They took shelter in the police station. They do not dispute that the Officer Incharge was present. They do not dispute that no one sought permission to fire. No one gave permission to fire still they picked up the rifle available in the police station and fired to scare away the mob. Thus, every aspect of the matter they are themselves admitting. The onus is entirely upon them to prove their innocence which they have failed to discharge. This would have been sufficient to deal with the second issue as well, but as it has been argued separately, it would be advisable to deal with the second issue of non supply of enquiry report as well. 8. On behalf of Shashi Kumar Singh, petitioner in the first writ petition, it is submitted that the enquiry report was not supplied to him and no second show cause was issued. Learned counsel has today itself filed a show cause annexing second show cause , as filed by the petitioner in the departmental proceeding. A reference to the show cause, as filed by the petitioner –Shashi Kumar Singh there is clear admission of a second show cause notice in response to which that show cause was filed and in that show cause there is clear admission as to the enquiry report. The original records also substantiated that the enquiry report was, in fact, given to him. Thus, on behalf of Shashi Kumar Singh the submission that the enquiry report was not furnished to him nor second show cause was issued is against the record and incorrect. 9. The original records also substantiated that the enquiry report was, in fact, given to him. Thus, on behalf of Shashi Kumar Singh the submission that the enquiry report was not furnished to him nor second show cause was issued is against the record and incorrect. 9. Now coming to the case of Kaushal Kishore Thakur, the writ petitioner in the second writ petition, Mr. Pushkar Narain Shahi, learned Senior Counsel submits that the enquiry report was not served to the petitioner This objection was specifically raised in para 9 of the second show cause before the Superintendent of Police, Siwan. He has raised this issue before every authorities, who have glossed over it. He raised this issue in the writ petition and in reply to the counter affidavit that the preliminary report of Mr. Hembram, Dy.S.P. was submitted but nothing is stated in respect of the enquiry report of the enquiring officer in the departmental proceeding. From the records it is apparent that the petitioner- Kaushal Kishore Thakur was given a copy of the enquiry report on 20.4.2000 whereas in his case the final order of the Superintendent of Police is dated 30th March, 2000. Thus, it is evident that Kaushal Kishore Thakur had not been given the enquiry report. One composite explanation is that the enquiry report being for all delinquents, one of them having been given the enquiry report, the authority assumed that the others who were being proceeded on identical charge were also given the enquiry report. However, I will not rest my decision on that. I would presume that the enquiry report was not supplied to petitioner- Kaushal Kishore Thakur. In the facts and circumstances of the case the petitioner was fully aware of the charge. He was aware of the material against him. The charge was not of misbehaviour. The charge was not of drinking liquor or consuming liquor in duty hour. The charge was not that there was a fight or quarrel with the villagers in the market. The charge was of unauthorized use of arms. The use of arm has been admitted by the petitioner. It is admitted by the petitioner that the Officer Incharge and other personnel were in the police station. It is not disputed by the petitioner that he took no permission to pick up the arm and use it. The charge was of unauthorized use of arms. The use of arm has been admitted by the petitioner. It is admitted by the petitioner that the Officer Incharge and other personnel were in the police station. It is not disputed by the petitioner that he took no permission to pick up the arm and use it. Thus, whether in the facts and circumstances of the case non supply of enquiry report to the petitioner caused prejudice is the question that has to be answered. 10. In the facts, as noted above, the onus was on the petitioner to establish the authority to use arm, which he failed. There was nothing material in the enquiry report, which fact would prejudice the petitioner. Apart from that as I have already discussed, all these matters were within the knowledge of the petitioner. He was fully aware of the evidence that had been brought. It was for him to discharge the onus that he had lawful authority to use the arm. In this regard I may also refer to the said judgment of Managing Director, ECIL (supra). The judgment in no uncertain terms laid down that non supply of enquiry report is virtually fatal to the departmental proceeding but at the same time it says that where there is failure to provide the enquiry report and the proceedings have been concluded at that stage mere non supply of enquiry report would not be fatal to the delinquent unless it is shown that serious prejudice has been caused. If the enquiring officer has relied upon certain evidence or certain deposition, which fact is wrongly relied on and this is not known to the delinquent by reason of non supply of enquiry report, then surely delinquent is prejudiced by non supply of enquiry report. In the facts of the present case, as noted above, I am of the view that there was absolutely no prejudice caused to the petitioner. He was fully aware of the charge and the materials against him. That being so in the facts of the present case, non supply of enquiry report cannot render the departmental proceeding vitiated. He has failed to show as to what prejudice and in what manner non supply of enquiry report caused it. In my view, the jurisdiction of this Court under Article 226 of the Constitution is limited in such matters. That being so in the facts of the present case, non supply of enquiry report cannot render the departmental proceeding vitiated. He has failed to show as to what prejudice and in what manner non supply of enquiry report caused it. In my view, the jurisdiction of this Court under Article 226 of the Constitution is limited in such matters. The petitioner has asked for judicial review but this Court is not sitting in appeal over the judgment specially where all the authorities have concurrently agreed. It is not the correctness of the judgment which has to be judged by this Court in judicial review but the decision making process. 11. Thus, in my view, the writ petitions merit no consideration and are dismissed accordingly.