Shailendra Thakur @ Shailendra ... vs The State Of Bihar
2021 Latest Caselaw 921 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.25288 of 2019
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Shailendra Thakur @ Shailendra Kumar Thakur Son of Late Chhatu Thakur, resident of Village- Madhopur, P.S. Kajra, District Lakhisarai.

... ... Petitioner.

Versus

1. The State of Bihar through the Principal Secretary, Home Department, Government of Bihar, Patna.

2. The Director General of Police, Government of Bihar, Patna.

3. The Inspector General of Police, Home Department, Government of Bihar, Patna.

4. The Deputy Inspector General of Police, (Head Quarter), Home Department, Government of Bihar, Patna.

5. The Inspector General of Police, Darbhanga Division, Darbhanga.

6. The Deputy Inspector General of Police, Darbhanga Division, Darbhanga.

7. The Disciplinary Tribunal-cum-Superintendent of Police, Samastipur.

8. The Superintendent of Police, Samastipur.

9. The Conducting Officer-cum-Sub Divisional Police Officer, Roser, Samastipur.

10. The Enquiry Tribunal-cum-Sub-Divisional Police Officer, Rosera, Samastipur.

11. The Sub-Divisional Police Officer, Rosera, Samastipur.

12. The Block Education Officer, Morwa, Samastipur.

13. The S.H.O., Police Station Tajpur, Samastipur.

... ... Respondents.

====================================================== Appearance :

For the Petitioner/s : Mr. Indu Bhushan, Advocate.

Mr. Narsingh Tanti, Advocate.

     For the Respondent/s       :      Md. N.H. Khan, SC-1
                                       Md. Irshad, AC to SC-1.

====================================================== CORAM: HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN ORAL JUDGMENT Date : 18-02-2021 Heard learned counsel for the petitioner and learned

counsel for the State.

2. The petitioner has approached this Court for Patna High Court CWJC No.25288 of 2019 dt.18-02-2021

quashing the order, as contained in Memo No. 2921 dated

05.11.2017 (Annexure-1) issued under the signature of

respondent no. 8, order contained in Memo No. 1919 dated

24.07.2018 (Annexure-8), issued under the signature of

respondent no. 7 and also the order, as contained in Memo No.

522 dated 13.03.2019 (Annexure-10), issued under the signature

of respondent no. 6, his appeal has been dismissed, whereby the

petitioner has been suspended and two years of his increment

has been seized and that no salary shall be given for the period

of suspension, except subsistence allowance.

3. The facts of the present writ petition in a narrow

compass is that the petitioner, being a Hawaldar of Bihar Police,

was deputed at Tajpur Police Station in the District of

Samastipur. On the fateful day of incident i.e. on 20.11.2017, the

petitioner was on duty with the SHO of Police Station, Tajpur.

All of a sudden, a public mob attacked on the police station, on

the protest of murder of a person, by pelting stone, bricks etc.

The petitioner and others have taken their position inside the

premises with SHO and waiting for order of police officer. In

the meantime, the deputed magistrate arrived at with the police

force and went upon the roof of the police station and started

firing with a view to control the situation. Due to firing one Patna High Court CWJC No.25288 of 2019 dt.18-02-2021

person sustained injuries and died. The officer incharge of the

police station did not order to take steps against the trouble

maker rather he said to stay within the premises for his

protection and as such the petitioner along with four others were

remained there. Thereafter, respondent no. 7, vide his order

dated 05.11.2017, suspended the petitioner with effect from

02.11.2017 along with six others and directed to initiate a

departmental proceeding and to frame charges against them. The

petitioner filed his representation but without success.

Respondent no.10 submitted his detailed enquiry report finding

the petitioner guilty for the offence alleged against him.

Thereafter, the petitioner filed an appeal before the respondent

no.6 praying therein that neither the respondent no. 8 nor the

respondent no. 10 has considered his show cause explanation

and passed an ex parte order erroneously without cross-

examining him, which is not tenable in the eye of law.

4. Learned counsel for the petitioner submits that

the charges brought by respondent no.12 is misconceived and

biased one because in support thereof not even a single eye

witness has been examined who has seen the incident. He

further submits that his 35 years of service career is

unblemished and without any kind of charges/departmental Patna High Court CWJC No.25288 of 2019 dt.18-02-2021

proceedings. He also submits that for the same incident an

enquiry was conducted against the eight persons but on the same

set of charges, three persons have been exonerated and five

persons including the petitioner have been held guilty, for the

reasons best known to the respondent authorities. He further

submits that without cross examining him, the impugned ex

parte order has been passed. He lastly submits that the concept

of equality, as enshrined in Article 14 of the Constitution of

India, confers that the equals have to be treated equally. In

support of his averments, learned counsel for the petitioner also

relied on a judgment dated 10.02.2010 passed by this Court in

C.W.J.C. No. 17354 of 2009 and submitted that the entire

proceeding is vitiated in the eye of law.

5. A counter affidavit has been filed on behalf of

respondent no. 8, which is on record, justifying the actions taken

by the respondent authorities submitting that the appellate

authority has passed the order after considering all the aspects

minutely.

6. Vide order dated 04.02.2021, this Court has

called for the relevant records regarding the eight suspended

persons. Today, learned counsel for the State has produced the

records in Court and after perusing the same it has been returned Patna High Court CWJC No.25288 of 2019 dt.18-02-2021

to him.

7. From perusal of record, it appears that eight

persons were suspended for the same incident but for the same

set of charges three persons have been exonerated while five

persons including the petitioner have been held guilty. The

deputed Magistrate in his evidence has stated that he has not

ordered to resort firing, then where the question of

disobedience.

8. This Court is surprised to note here that, if the

incident was the same and for the same incident eight persons

were suspended on the same set of charges then on what

grounds three persons have been exonerated, for the reasons

best known to the respondent authorities. There cannot be two

yardsticks of punishment on common allegation. It equally

violates the provisions as enshrined under Article 14 of the

Constitution of India. The concept of equality, as enshrined in

Article 14 of the Constitution of India, embraces the entire

realm of State action. It would extend to an individual as well

not only when he is discriminated against in the matter of

exercise or right, but also in the matter of imposing liability

upon him. Equals have to be treated equally even in the matter

of executive or administrative action. As a matter of fact, the Patna High Court CWJC No.25288 of 2019 dt.18-02-2021

doctrine of equality is now turned as a synonym of fairness in

the concept of justice and stands as the most accepted

methodology of a government action. The administrative action

is to be just on the test of fair play and reasonableness. It is the

settled principle of law that any act of the repository of power

whether legislative or administrative or quasi-judicial is open to

challenge if it is so arbitrary or unreasonable that no fair minded

authority could ever have made it. The whole exercise

undertaken by the respondent authorities smacks of hostile

discrimination and foul play.

9. The order of the respondent authorities that the

petitioner shall not get anything for the period of suspension,

save and except the subsistence allowance, is also not in

accordance with law. In my considered opinion, the disciplinary

authority was required to give a separate show cause notice to

the delinquent in terms of Rule 97 (3) of the Bihar Service

Code. This part of the order, in absence of any such notice to the

delinquent employee, is also not sustainable in the eye of law.

10. Having considered the matter and for the

reasons as discussed in the foregoing paragraphs, this writ

petition is allowed and the impugned orders, as contained in

Annexure-1, Annexure-8 and Annexure-10, are quashed.

Patna High Court CWJC No.25288 of 2019 dt.18-02-2021

11. The respondent authorities are expected to take

necessary steps in accordance with law.

(Anjani Kumar Sharan, J.)

Trivedi/-

AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          23.02.2021
Transmission Date       NA