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2018 DIGILAW 1160 (PAT)

Ramesh Singh v. State of Bihar

2018-07-26

MADHURESH PRASAD

body2018
JUDGMENT : MADHURESH PRASAD, J. 1. Heard learned Senior Counsel for the petitioner as well as the learned counsel for the respondent-State. 2. The petitioner has challenged the award of punishment issued under Memo No. 521 dated 29.02.2012 whereby and where under Deputy Inspector General of Police (for brevity, DIG), Tirhut Range, Muzaffarpur has awarded the petitioner the punishment of dismissal. The Appellate Authority has rejected the petitioner's appeal under order dated 14.09.2012 bearing Memo No. 1890 issued under the signature of Inspector General of Police (for brevity, IG), Muzaffarpur Region. The memorial of the petitioner has also been rejected by order dated 26.07.2013 issued by the Director General of Police (for brevity, DGP), Bihar, Patna. Petitioner has also sought quashing of these two orders. 3. The charge memo leading to the proceedings was issued to the petitioner on 14.10.2008 under Memo No. 4559. The allegations against the petitioner was that for managing a favourable final form in favour of the allegationist in Kanti Police Station (for brevity, PS) Case No. 214 of 2008, he had demanded an amount of Rs. 60,000/-. The allegationist has complained that when she was visiting the office of the Deputy Superintendent of Police (for brevity, Dy S P), Muzaffarpur to enquire about the status of investigation of the first information report (for brevity, FIR), the petitioner who, at that time, was posted as a Reader, had told her that the accused persons had assured to pay him Rs. 50,000/- for having a report prepared that the case lodged by the allegationist is not true. By saying so, he has asked the allegationist to offer an amount of Rs. 60,000/- so that a final form favourable to the allegationist may be got prepared. The charge memo records that on such allegation, a raiding team was constituted and the petitioner was caught red handed on 15.09.2008 while accepting the bribe of Rs. 10,000/- from the allegationist Birla Devi when she was visiting the office of Dy S P along with her nephew (sister's son Rajesh Thakur). 4. On the basis of such allegations, petitioner has been proceeded against and the enquiry was conducted by the Enquiry Officer who was the Dy S P. During the course of enquiry, the allegationist has given her statement before the Enquiry Officer in writing in which she has denied the allegations. 4. On the basis of such allegations, petitioner has been proceeded against and the enquiry was conducted by the Enquiry Officer who was the Dy S P. During the course of enquiry, the allegationist has given her statement before the Enquiry Officer in writing in which she has denied the allegations. The allegationist Birla Devi, in her statement submitted before the Enquiry Officer (Annexure 2), has clearly stated that when she had gone to the office of the Dy S P on the fateful day, she was informed that her case had already been finalized. It was only when she had gone out of the office that some third person had allured her into signing the application forming the basis of petitioner's implication in the vigilance case as well as in the instant departmental proceedings. 5. She has clearly stated in her statement that she had not paid any money to the petitioner. The same statement is submitted by Rajesh Thakur, the allegationist's sister's son. The said two statements have been considered by the Enquiry Officer and taken note of in the proceedings. The enquiry report, therefore, had been submitted that the allegationist had not sustained the charges in the proceedings. On the contrary, she had specifically denied the allegations altogether. The Enquiry Officer has, after concluding so, at the end of the enquiry report, while considering that the petitioner has been arrested on the same very allegation, has gone on to record a finding for which no charge has been instituted and for which no enquiry has been conducted. The Enquiry Officer has recorded as follows: D;ksafd dk;kZy; vof/k esa vkjksfir viuk dk;kZy; NksM+dj jkts'k Bkdqj ds dgus ij dk;kZy; ls ckgj pys x;s FksA 6. At this juncture, it will be relevant to take notice of the fact that in the proceedings arising out of Vigilance PS Case No. 64 of 2008 instituted against the petitioner for the same allegation, he has been acquitted. The allegationist has not supported the allegations in the vigilance case also. 7. Even though the Enquiry Officer has not found the petitioner guilty of the charges for which the charge memo has been issued against him in respect of accepting the bribe, finding has been recorded that since during office hours, the petitioner had left the office premises at the instance of allegationist Rajesh Thakur, the charges were partially proved. 7. Even though the Enquiry Officer has not found the petitioner guilty of the charges for which the charge memo has been issued against him in respect of accepting the bribe, finding has been recorded that since during office hours, the petitioner had left the office premises at the instance of allegationist Rajesh Thakur, the charges were partially proved. There is a basic fallacy in the said finding. Firstly, that there was no such charge in the charge memo that why the petitioner had left the office premises along with the allegationist Rajesh Thakur. Secondly, leaving the office premises, per se, could also by no stretch of imagination constitute a misconduct. 8. The other fallacy is that for the said allegations, no enquiry had been conducted and in respect of the same also, no evidence whatsoever has been produced before the Enquiry Officer. 9. Another procedural flaw in the enquiry was that the enquiry proceeded without appointing any Presenting Officer. The requirement of fairness from the Presenting Officer and his role as that of a quasi judicial authority has been reiterated and the importance of the same has been dealt with by the Apex Court in the case of State of Uttar Pradesh v. Saroj Kumar Sinha, (2010) 2 SCC 772 . In the instant case the Enquiry Officer assumed the role of Presenting Officer. This has been held to be wholly unfair and contrary to the principles of natural justice inasmuch as the Enquiry Officer was performing his duties as an independent quasi judicial authority and was not expected to adopt such an unfair procedure where he was presenting the case for the Department, as also deciding the same. 10. All these issues could have been redressed had the Disciplinary Authority being the DIG applied his mind to the record of the proceedings with reference to the written statement submitted by the allegationist in favour of the petitioner and other issues raised by the petitioner. The Disciplinary Authority has issued the second show cause proposing to differ with the Enquiry Officer, since the Enquiry Officer has not found the charge of bribery, which was the only charge in the charge memo, to have been proved. The Disciplinary Authority has issued the second show cause proposing to differ with the Enquiry Officer, since the Enquiry Officer has not found the charge of bribery, which was the only charge in the charge memo, to have been proved. Under his communication dated 11.02.2012, the Disciplinary Authority, i e, the DIG, Tirhut Range, Muzaffarpur under his Memo No. 367 has issued a show cause notice to the petitioner purporting to differ with the said conclusions of the Enquiry Officer. The manner in which such a notice is to be issued is specifically provided in Rule 18 (2) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (for brevity, Bihar CCA Rules). For the sake of reference, it is produced herein: "18. Action on the inquiry report. (1) ... ... ... (2) The disciplinary authority, after receipt of the enquiry report as per rule 17 (23) (ii) or as per sub-rule (1), shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidences on record is sufficient for the purpose. 11. From bare perusal of Rule 18 (2) of the Bihar CCA Rules, the disagreement with the Enquiry Officer has to be supported by reasons for such disagreement and some tentative conclusion be arrived at by the Disciplinary Authority. All that has to be done if evidence is sufficient for the purpose. 12. None of these requirements, as per Bihar CCA Rules 2005, have been fulfilled by the Disciplinary Authority while issuing second show cause notice to the petitioner. The significance of this opportunity at the stage of disagreement with the conclusions of the Enquiry Officer now stand settled with the leading judgment of the Hon'ble Apex Court in the case of Punjab National Bank and Others v. Kunj Behari Misra, reported in (1998) 7 SCC 84 . The Apex Court has very specifically dealt with the entire issue and the importance of the opportunity at this stage to the delinquent to either persuade the Disciplinary Authority to agree with or disagree with the conclusion of the Enquiry Officer. 13. The importance of this opportunity is highlighted in view of the background that in the enquiry, the findings were recorded by the Enquiry Officer favourable to the petitioner. 13. The importance of this opportunity is highlighted in view of the background that in the enquiry, the findings were recorded by the Enquiry Officer favourable to the petitioner. This is another procedural flaw striking at the root of fairness in the proceedings conducted against the petitioner. 14. The Disciplinary Authority, without complying with any of the aforesaid requirement under Rule 18 (2) of the Bihar CCA Rules only recorded in his order that since the statement of the allegationist and her nephew has been recorded three years after the allegations have been made, it cannot be ruled out that the delinquent had either intimidated the said two allegationists or otherwise influenced to record their statements favourable to the petitioner. Such a conclusion on the basis of surmises and conjectures cannot be made the basis of visiting the delinquent with severe punishment of dismissal. The said basis on which the Disciplinary Authority has proceeded to differ with the conclusion of the Enquiry Officer is also without reference to any evidence on record. This issue has never been examined. It is also a fact that even in the criminal proceedings, the allegationist has not supported the charges and, as such, the petitioner has been acquitted in the criminal proceedings. By issuing such a show cause notice in total violation of Rule 18 (2) of the Bihar CCA Rules, the Disciplinary Authority has committed a major procedural flaw striking at the root of the matter. The order of dismissal has been recorded by the DIG on 29.02.2012 without any clear and definite finding in respect of the allegations for which the charge memo has been issued. The order of punishment is without reference to any material on record and nothing but a presumptuous finding. The order of dismissal has been recorded by the DIG on 29.02.2012 without any clear and definite finding in respect of the allegations for which the charge memo has been issued. The order of punishment is without reference to any material on record and nothing but a presumptuous finding. The order of the Disciplinary Authority, which is a product of such procedure conducted in violation of Rule 18 (2) of the Bihar CCA Rules is as follows: vkjksi] Ák:i] Án'kZ] vfHk;kstu lkf{k;ksa ds c;ku ,oa lafpdkvksa esa miyC/k vU; dkxtkrksa ds vk/kkj ij vkjksfir vipkjh lŒvŒfuŒ jes'k flag ds fo:) yxk;k x;k vkjksi vR;Ur gh xEHkhj Ád`fr dk ik;k x;k gSA ,sls iqfyldehZ ds foHkkx esa cus jgus ls uSfrd v/kerk] Hkz"Vkpkj dks c<+kok feysxk rFkk nwljs iqfyl inkf/kdkjh@dfeZ;ksa ds fo:) Hkh bl Ádkj ds vkpj.k dh iqujko`fr ls bUdkj ugha fd;k tk ldrk gSA vr% lE;d fopkjksijkUr vkjksfir@vipkjh lŒvŒfuŒ jes'k flag }kjk lsok ls c[kkZLrxh ds fo:) lefiZr Li"Vhdj.k dks vlarks"ktud ikrs gq, ikfjr vUrfje vkns'k dh fujarjrk esa bUgsa rRdky ÁHkko ls lsok c[kkZLr fd;k tkrk gSA 15. Such findings are no findings in the eyes of law. The Disciplinary Authority clearly appears to have been swayed by the gravity of only the allegations made. The gravity of the allegations unless proved cannot be relied upon to issue such a grave punishment such as dismissal from service. The order dated 29.02.2012 bearing Memo No. 521 issued by the IG, Tirhut Division, Muzaffarpur is wholly unsustainable in the eyes of law as being in violation of the prescribed procedure as also without recording any clear and definite findings on the charges alleged against the petitioner. The order is hereby quashed. 16. As a result of quashing the order passed by the Disciplinary Authority, the order in appeal dated 14.09.2012 as also the order passed on the petitioner's memorial dated 26.07.2013 have no legs to stand and are hereby quashed. As a result of quashing the impugned order of punishment and the orders passed on the appeal and the memorial, the petitioner would be entitled to all consequential benefits. 17. Counsel for the State has prayed that the matter should be left to be decided afresh after submission of the enquiry report by the Enquiry Officer. 18. As a result of quashing the impugned order of punishment and the orders passed on the appeal and the memorial, the petitioner would be entitled to all consequential benefits. 17. Counsel for the State has prayed that the matter should be left to be decided afresh after submission of the enquiry report by the Enquiry Officer. 18. In view of the fact that the petitioner, during pendency of the instant proceedings, has crossed the age of superannuation in May 2018, the State and its authorities cannot claim any liberty of benefit greater than what is available to them under the law. 19. With such observation, the writ petition is allowed.