Mithileshwar Singh vs The State Of Bihar
2021 Latest Caselaw 623 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.7864 of 2020
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Mithileshwar Singh, S/o- Satyanarayan Singh, Resident of village and P.O.- Bharpura, P.S.- Sonepur, District- Saran at Chapra.

... ... Petitioner/s Versus

1. The State of Bihar through the Additional Chief Secretary, Home (Police) Department, Government of Bihar, Patna.

2. The Additional Chief Secretary, Home (Police) Department, Government of Bihar, Patna.

3. The Director General of Police, Bihar, Patna.

4. The Inspector General of Police, Muzaffarpur Zone, District- Muzaffarpur.

5. The Deputy Inspector General of Police, Saran Range, District- Chapra.

6. The Deputy Inspector General of Police (Personnel), Bihar, Patna.

7. The Superintendent of Police, District- Gopalganj.

8. The Superintendent of Police, District- Siwan.

9. The Police Inspector-cum- OSD- cum- Conducting Officer, Police Office, District- Gopalganj.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Y.V. Giri, Sr. Advocate Mr. Sanjay Kumar Giri, Advocate For the Respondent/s : Mr. Lalit Kishore ( AG ) ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR ORAL JUDGMENT Date : 04-02-2021 Heard Mr. Y.V. Giri, learned Senior Advocate for

the petitioner and Mr. Lalit Kishore, learned Advocate

General for the respondents.

2. The petitioner has challenged the order dated

10.06.2020 passed by the Director General of Police,

Bihar Patna whereby he has been terminated from service Patna High Court CWJC No.7864 of 2020 dt.04-02-2021

from the post of A.S.I. of Police as well as the consequent

D.O. letters by the concerned Superintendent of Police and

has prayed for his reinstatement on the post of A.S.I. with

effect from 20.06.2020 with all consequential benefits

including back wages which has accrued during the period

of termination till his reinstatement.

3. Consumption of illicit liquor had led to the

death of 16 persons on 16.08.2016 in village Khajurbani,

falling in the territorial jurisdiction of Gopalganj district.

When this news got disseminated, a raid was conducted in

the village, in which half-brewed liquor in huge quantity

and the wherewithals for brewing were recovered. Six

persons were arrested along with the illicit liquor. An FIR

was lodged vide Gopalganj P.S. Case No. 347 of 2016 on

18.08.2016.

4. The petitioner, at the relevant time, was posted

as A.S.I. in Gopalganj Town Police Station. He was

suspended immediately. Twenty nine (29) other police

personnel were also suspended along with the petitioner. Patna High Court CWJC No.7864 of 2020 dt.04-02-2021

The ground for suspension was that the police personnel

were in know of the illegal brewing and selling of liquor but

no care was taken by them regarding such unauthorized

production/manufacture and sale of liquor.

5. The suspension of the petitioner was

subsequently revoked and a decision was taken to initiate

departmental proceeding against him and others.

6. The charges were framed against the

petitioner. In the inquiry, the petitioner was found

negligent and that he had derelicted his duty.

7. The disciplinary authority consequently

imposed punishment of two black marks with stoppage of

increment of salary for one year with cumulative effect.

8. No appeal was preferred against the said order

of punishment.

9. However, the Deputy Inspector General of

Police differed with the aforesaid findings and the quantum

of punishment and referred the matter to the police Patna High Court CWJC No.7864 of 2020 dt.04-02-2021

headquarters for further action under Rule 853 (A) of the

Bihar Police Manual.

10. The Director General-cum-Inspector General

of Police has imposed the punishment of dismissal from

service by invoking the powers under Rule 853(A) of the

Bihar Police Manual.

11. Almost all the police personnel who were

posted in the concerned police station in different

capacities were subjected to the same punishment.

12. In case of one of the dismissed employee viz.

Ananjay Singh @ Ananjay Kumar Singh, who was posted

as one of the armed guards in the police station, a Bench

of this Court in C.W.J.C. No. 7906 of 2020 found that the

dismissal order necessitated interference. The order of

dismissal was set aside but it was observed that since the

petitioner therein had chosen not to challenge the order of

punishment of two black marks awarded to him initially, he

would not be allowed to question the correctness of that

order.

Patna High Court CWJC No.7864 of 2020 dt.04-02-2021

13. The Bench repelled the preliminary objection

of the State regarding maintainability of the writ petition in

view of the petitioner therein having an alternative

statutory remedy of appeal under Rule 24 of Bihar

Government Servants (Classification and Control and

Appeal) Rules, 2005.

14. The Court was of the view that the impugned

order was passed in most casual and cavalier manner and,

therefore, it was not appropriate to relegate the petitioner

therein to the authority which could have heard the appeal.

The Court also found the charge against the petitioner

therein to be absolutely vague. The correctness of the

order of dismissal was seriously doubted and consequently

the order of dismissal was set aside. The petitioner therein

was directed to be reinstated forthwith. He was declared to

be entitled to full salary and other emoluments for the

period during which he had remained out of service

because of the order of dismissal.

Patna High Court CWJC No.7864 of 2020 dt.04-02-2021

15. Learned counsel for the petitioner has

submitted that the case of the petitioner is on identical set

of facts and once a decision has been taken by a co-

ordinate Bench of this Court, the same fate should befall

the petitioner herein also.

16. Mr. Lalit Kishore, learned Advocate General,

however, submitted that the judgment by the co-ordinate

Bench, referred to above, has been challenged in appeal

and, therefore, it would only be appropriate that this case

be posted after the disposal of such appeal.

17. This submission is not acceptable to this

Court.

18. If on same set of facts, an employee has

been given relief by a co-ordinate Bench, all other

identically situated persons also are required to be treated

alike by extending that benefit to them. Not doing so

would result in discrimination and would offend Article 14

of the Constitution of India.

Patna High Court CWJC No.7864 of 2020 dt.04-02-2021

19. In State of Uttar Pradesh and Others vs.

Arvind Kr. Srivastava and others 2015 (1) SCC 347, the

Supreme Court was determining a question whether the

courts need to extend the benefit of earlier judgments

which has attained finality. After referring to several cases

viz. Inder Pal Yadav v. Union of India, (1985) 2 SCC 648;

K.C. Sharma v. Union of India, (1997) 6 SCC 721; State

of Karnataka v. C. Lalitha, (2006) 2 SCC 747; N.T. Devin

Katti v. Karnataka Public Service Commission , (1990) 3

SCC 157; Krishan Bhatt v. State of J & K , (2008) 9 SCC

24; Rup Diamonds v. Union of India, (1989) 2 SCC 356;

State of Karnataka v. S.M. Kotrayya, (1996) 6 SCC 267;

U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464;

Jagdish Lal v. State of Haryana, (1997) 6 SCC 538; Union

of India v. C.K. Dharagupta (1997) 3 SCC 395; Govt. of

W.B. v. Tarun K. Roy, (2004) 1 SCC 347 held as follows:

22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit.

Patna High Court CWJC No.7864 of 2020 dt.04-02-2021

Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, Patna High Court CWJC No.7864 of 2020 dt.04-02-2021

would be a valid ground to dismiss their claim.

22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the police matters, like scheme of regularisation and the like (see K.C. Sharma v.

Union of India). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.

Patna High Court CWJC No.7864 of 2020 dt.04-02-2021

20. The issues involved in the present writ

petition are exactly the same and therefore it would only

be fair to accord the same treatment to the petitioner as

has been done to another similarly placed employee.

21. Judicial discipline and decorum requires that

only when an earlier judgment is per-incurium in as much

as the earlier judgment omits to consider a binding

precedent of the same Court or of the Superior Court

rendered on the same issue or where a Court omits to

consider any statue while deciding the issue, a different

conclusion can be arrived at. There should normally be no

departure from the said decision otherwise and such

judgment ought to be followed. [Refer to State of Bihar v.

Kalika Kuer @ Kalika Singh & Ors., (2003) 5 SCC 448].

22. If the judgment of the coordinate Bench is

reversed, it would have same impact on the case of the

petitioner as well.

Patna High Court CWJC No.7864 of 2020 dt.04-02-2021

23. There would, therefore, in the opinion of this

Court, no justification for postponing this case to a later

date for the appeal referred to above to be disposed of.

24. For the reasons discussed in Ananjay Singh

@ Ananjay Kumar Singh (C.W.J.C. No. 7906 of 2020),

the order of dismissal of the petitioner dated 10.06.2020

is set aside.

25. The petitioner is directed to be reinstated

forthwith. The consequences of quashing of the impugned

order shall follow and accordingly the petitioner shall be

entitled to full salary and other emoluments for the period

during which he remained out of service because of

passing of the order impugned.

26. The petition stands allowed.

(Ashutosh Kumar, J)

krishna/-

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Uploading Date          08.02.2021
Transmission Date