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2014 DIGILAW 705 (PAT)

Madan Kumar Gurang v. State of Bihar through the Inspector General Bihar Military Police, Bihar

2014-06-26

BIRENDRA PRASAD VERMA

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Order Heard the parties. 2. The petitioner has approached this Court under Article 226 of the Constitution of India assailing the validity and correctness of the order dated 08.05.1996 (Annexure-2), passed by the respondent no.4, the Disciplinary Authority, on the basis of findings recorded in the departmental proceeding, inflicting upon him the punishment of dismissal from service, as also the appellate order dated 25.09.1996 (Annexure-3) passed by the respondent no.2, whereby the appeal preferred on behalf of the petitioner was dismissed and the order of punishment as contained in Annexure-2 was affirmed. 3. It is not in dispute that the original order, as also the appellate order, as per Annexure-2 and 3 respectively passed in the year 1996 by the competent authorities were not challenged by the petitioner for about 11 years either before any higher authority or in any proceeding before this Court. Apparently, there has been inordinate delay of almost 11 years in approaching this Court against the orders impugned. 4. Learned counsel appearing on behalf of the petitioner submits that the petitioner was subjected to the disciplinary proceeding as also the criminal proceeding for almost same charges. It is pointed out that in the criminal case instituted against the petitioner as far back as in the year 1992, the petitioner has, now, been acquitted by learned trial Court by judgment and order dated 28.12.2006, as contained in Annexure-4 to the writ petition. According to the learned counsel, in view of the acquittal of the petitioner in the aforesaid criminal case, the petitioner is entitled to be reinstated in service. 5. However, learned counsel appearing on behalf of the petitioner has not been able to point out any relevant rules governing the service condition of the petitioner prescribing therein that in case of acquittal in a criminal case, a delinquent is entitled to be automatically reinstated in service despite the order of dismissal passed in a departmental proceeding, yet, he has placed reliance on a judgment of Hon’ble Apex Court in the case of G.M. Tank v. State of Gujarat and Others, (2006) 5 SCC 446 . 6. 6. Learned G.P.-6 appearing on behalf of the respondents has strongly opposed the prayer made on behalf of the petitioner and has submitted that the present writ petition is fit to be dismissed on various grounds, inter alia, on the ground of delay of 11 years in approaching this Court; on the ground that the petitioner has not been acquitted honorably in the criminal case and further on the ground that the order of dismissal passed against the petitioner was not only on the basis of criminal charge rather on the charge of unauthorized absence from duty also. According to him, the ratio laid down by the Hon’ble Apex Court in the case of G.M. Tank (supra) shall not be applicable in the facts and circumstances of the present case. In addition to that he has further submitted that for unauthorized absence from duty, the petitioner could have been inflicted any punishment including the punishment of dismissal from service in terms of Rule 843 of the Bihar police Manual. In support of the above contentions he has placed reliance on the judgment of the Hon’ble Apex Court in the cases of Dy. Inspector General of Police and Another v. S. Samuthiram, [ (2013) 1 SCC 598 ] and State of West Bengal and others v. Sankar Ghosh, [ (2014) 3 SCC 610 ]. 7. After having heard the parties and on consideration of the materials available on the record, it is apparent that a departmental proceeding was initiated against the petitioner for two charges, namely, for unauthorized absence from duty on 02.09.1992 and secondly, for involvement in a criminal case, in which the petitioner was arrested by the police and was remanded to judicial custody on the ground that he was found in a naked condition in a hotel room during the course of raid and he was found involved in human trafficking. The order of punishment passed by the Disciplinary Authority as per Annexure-2 was not only on the ground of his involvement in the criminal case, rather on the ground of his unauthorized absence from duty also. It is not in dispute that the petitioner was allowed to participate in the departmental proceeding, he was allowed to lead evidence in support of his case and finally the enquiry officer submitted his enquiry report holding the petitioner guilty for both the charges. It is not in dispute that the petitioner was allowed to participate in the departmental proceeding, he was allowed to lead evidence in support of his case and finally the enquiry officer submitted his enquiry report holding the petitioner guilty for both the charges. From the perusal of the judgment and order passed by the learned trial Court as per Annnexure-4, it is apparent that the petitioner has not been honorably acquitted from the criminal charge, but the judgment of acquittal was recorded on the ground that the prosecution failed to produce the material witnesses. Therefore, in view of ratio laid down by the Hon’ble Apex Court in the case of Dy. Inspector General of Police and Another v. S. Samuthiram (supra), the petitioner cannot claim his automatic reinstatement in service on the ground of his acquittal in the criminal case. Furthermore, the petitioner has not been able to furnish the reasonable explanation for such an undue delay of 11 years in approaching this Court. Even if the petitioner has been acquitted by the criminal Court, but in view of the finding recorded by the learned enquiry officer that he was unauthorisedly absent from duty on 02.09.1992, the Disciplinary Authority was fully justified in passing the impugned order of dismissal of petitioner from service in terms of Rule 843 of Bihar Police Manual. 8. For the reasons recorded above, this Court does not find any good ground to interfere with the orders impugned. 9. In the result, this application has to fail and is, accordingly, dismissed, but there shall be no order as to costs.