Ananjay Singh @ Ananjay Kumar ... vs The State Of Bihar
2021 Latest Caselaw 41 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.7906 of 2020
     ======================================================

Ananjay Singh @ Ananjay Kumar Singh S/o- Subhas Singh Resident of village and P.O.- Harpur, P.S.- Ekma, 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- Buxar.

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

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

     For the Petitioner/s   :      Mr.Y.V. Giri (Sr. Advocate) with
                            :      Mr.Sanjay Kumar Giri
     For the Respondent/s   :      Mr.P.K. Verma (AAG 3) with
                            :      Mr.Saroj Kumar Sharma
                            :      Mr.Manish Kumar (GP 4) with Mr. Ravi Verma

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 06-01-2021

Sixteen persons were reported dead because of

consumption of illicit liquor on 16.08.2016 in village Khajuria,

falling under Gopalganj (Town) Police Station in the District of

Gopalganj. The petitioner, on the said date, was posted as an

Armed Guard in the said Police Station. After receiving the said Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

information, a raid was conducted, leading to recovery of huge

quantity of semi fermented country made liquor and other

intermediate/final products intended to be used in the preparation

of country-made liquor. An F.I.R. was registered as Gopalganj P.S.

Case No. 347 of 2016.

2. Soon thereafter, the petitioner along with 29 police

personnel posted in the Police Station was placed under

suspension as a fallout of the occurrence. The petitioner was

placed under suspension vide order no. 738/16 dated 18.08.2016.

The order of suspension was subsequently revoked by an order

dated 05.01.2017 and a decision was taken to initiate departmental

proceeding against him. Charges were framed against the

petitioner by the Superintendent of Police, Gopalganj, which were

issued vide memo no. 217 dated 07.02.2017 (Annexure 1). The

charge sheet has been brought on record by way of Annexure 1 to

the writ application, in which, apart from recital of the occurrence,

which had taken place on 16.08.2016, it was mentioned that in

relation to New Excise Policy of the State Government, the

concerned police personnel were instructed to strictly follow the

orders/instructions issued by the State Government, Police

Headquarters and other Senior Officers and crime meetings were

also held by the Disciplinary Authority (Superintendent of Police) Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

from time to time for recovery of illicit liquor. The activities of

preparation and sale of illicit liquor in a village hardly at a distance

of 2 kms from the Police Station were within the knowledge of the

police officers and other personnel of the Police Station, which

was not taken seriously. This was considered to be indicative of

negligence, dereliction of duty and suspicious conduct of the

police officers/personnel. For quick reference, the misconduct

alleged against the petitioner in the charge sheet is being

reproduced hereinbelow verbatim:-

"बबहार सरकार की नयी उतपाद बनबत के सनदरर मे बबहार सरकार पु बलस मु खयालय एवं अनय वरीय पदाबधकाबरयो से प्रापत आदे श/ बनदर श सरी थाना/पु बलस बनरीकक एवं अनु मंडल पु बलस पदाबधकारी को उपलबध कराते हुए इसे पूरी दृढ़ता से अनु पालन करने हे तु बनदर बशत बकया जा रहा है I अधोहसताकरी दारा अपराध गोषठी एवं समय-समय पर शराब के बरामदगी हे तु समकालीन अबरयोजन का आयोजन बकया जाता रहा है I नगर थाना गोपालगं ज के मात्र २ बकलोमीटर की दुरी पर खजु बरया गाँ व मे इस दार शराब का बनमारण एवं बबक् री होना थाना के सरी पु बलस पदाबधकाबरयो एवं कबमरयो के जानकारी मे थी और इसे गं रीरता से नहीं बलया गया जबबक उकत गाँ व मे वृ हद् रप से महुआ दे सी शराब का बनमारण का बमनी उदोग चलाया जा रहा थाI यह सपसट ही लापरवाही एवं कतरवयहीनता एवं सं बदगध आचरण का दयोतक है I"

3. It is evident from the charge memo that the

Disciplinary Authority intended to rely on following documentary

evidences to establish the charge framed against the petitioner:-

i) Gopalganj Jiladesh Number- 738/2016 Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

ii) Gopalganj Jiladesh Number- 19/2017

iii) Copy of the F.I.R.

4. Further, the department intended to examine the

following witnesses to establish the aforesaid charge:-

I) Confidential Reader, Superintendent of Police, Gopalganj

II) Reserved Sub-Inspector, Police Line Gopalganj

III) Station House Officer, Town Police Station, Gopalganj.

5. Be it noted that the document at item no. 1

hereinabove was the order whereby the petitioner was put under

suspension and the document at item no. 2 of the charge sheet was

the order whereby the said order of suspension was revoked. The

third document was apparently the First Information Report

registered in respect of the occurrence in question. In the

departmental enquiry, the Confidential Reader proved the

documents at item no. 1 and 2, which were issued by the

Superintendent of Police, Gopalganj, after the occurrence was

reported. The Reserved Sub-Inspector of Police also proved the

said two documents. The Officer In-Charge of the Police Station

proved registration of Gopalganj Town P.S. 347 of 2016.

6. The Enquiring Authority submitted its report on

20.11.2018. He recorded in his report that the petitioner must have

been going to the nearby villages for patrolling duty and for

investigation of cases. He further recorded that the petitioner Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

should have known that there was complete prohibition imposed

by the State of Bihar and stringent provisions have been made for

implementation of prohibition laws. Despite that, illegal business

of illicit liquor at a place hardly 2 kms away from the Police

Station was going on which was suggestive of the petitioner's

negligence, dereliction of duty and his suspicious conduct. The

Disciplinary Authority, noting the materials on record and the

petitioner's conduct of not having defended himself in the

departmental proceeding, recording his agreement with the

findings of the Enquiring Authority imposed punishment of 'two

black marks', having the effect of stoppage of increment in salary

for one year with cumulative effect. The petitioner did not prefer

any appeal against the said order of punishment and thus accepted

the order of punishment dated 24.11.2011 passed by the

Superintendent of Police, Gopalganj. The Deputy Inspect General

of Police, was not in agreement with the aforesaid findings and

punishment awarded to the petitioner, as he was of the view that

the proved misconduct of the petitioner warranted harsher

punishment considering the seriousness of the matter. He,

therefore, sent the entire records to the police headquarters for

further action under Rule 853 A (a) of Bihar Police Manual

through his letter no. 264 dated 25.01.2019. The petitioner was Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

thereafter served with a notice against proposed termination of his

service in exercise of powers under Rule 853 A (a) of the Bihar

Police Manual.

7. The Rule 853 A (a) of the Bihar Police Manual

confers revisional jurisdiction on the Inspector General-cum-

Director General of Police to call for the file in any case even

when no appeal lies and pass such order as he may deem fit. Rule

853 A (a) of the Bihar Police Manual reads as under:-

"853 A. (a) Inspector-General may call for the file in any case even when no appeal lies and pass such order as he may deem fit. The Deputy Inspector- General may call for any file but he should refer it to the Inspector-General with his recommendation for his order. The above action should be taken within a reasonable time from the date of final order in departmental proceeding.

8. Exercising the aforesaid power, under Rule 853 A (a)

of the Bihar Police Manual, the Director General-cum-Inspector

General of Police has passed an order dated 12.06.2020, imposing

punishment of dismissal from service on the petitioner. This is to

be noted that the petitioner had submitted his explanation pursuant

to the notice issued to him which did not find favour with the

Inspector General-cum-Director General of Police. The said order

dated 12.06.2020 issued vide memo no. 1061 dated 15.06.2020 Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

and other consequential orders are under challenge in the present

writ application.

9. Counter affidavits have been filed on behalf of the

respondent State of Bihar and the Superintendent of Police,

Gopalganj District.

10. In response to the counter affidavit filed on behalf

of the contesting respondents, rejoinder affidavit has been filed on

behalf of the petitioner. The pleadings are there on record.

11. I have heard Mr. Y.V. Giri, learned Senior Counsel

for the petitioner with Mr. Sanjay Kumar Giri, learned Advocate.

Mr. P.K. Verma, learned AAG-3, Mr. Manish Kumar, learned GP-

4 with Mr. Saroj Kumar Sharma and Mr. Ravi Sharma have

represented the State respondents.

12. Mr. P.K. Verma, learned AAG-3 has at the outset

raised a preliminary objection over maintainability of the writ

petition on the ground that the petitioner has an alternative

statutory remedy of appeal under Rule 24 of the Bihar

Government Servants (Classification, Control & Appeal) Rules,

2005 (hereinafter referred to as ' the Bihar CCA Rules'). He has

submitted that this Court may not entertain the present writ

application under writ jurisdiction as the petitioner has approached Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

this Court without availing the said alternative statutory remedy of

appeal, which is equally efficacious.

13. Mr. Y.V. Giri, learned Senior counsel appearing on

behalf of the petitioner, on the other hand, has urged that an appeal

does not lie against the order passed by the Revisional Authority

and the appeal, as stipulated under Rule 23 and 24 of the Bihar

CCA Rules, refers to original order of suspension or punishment

and not an order passed by the Revisional Authority. He has

submitted that after coming into force of the Bihar CCA Rules, the

disciplinary proceedings against all government servants, within

the meaning of Section 2 (j) of the Rules is governed by the Bihar

CCA Rules. He has argued that the revisional power under Section

853 A (a) of the Bihar Police Manual by the Competent Authority

is exercisable in accordance with Rule 28 of the Bihar CCA Rules

and not otherwise. He has next submitted that there was no

evidence before the Enquiring Authority to prove the allegation of

misconduct against the petitioner. There is absolutely no evidence

that the petitioner in any manner failed in discharging his duty as

an Armed Guard deputed at Gopalganj Police Station. According

to him, the finding is based on conjectures and surmises only. The

Enquiring Authority has merely recorded that during the course of

patrolling duty and investigation of cases, the petitioner, must Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

have learnt about illicit trade of liquor at a location hardly 2 kms

away from the Police Station. He has submitted that on the basis

of so called suspicious conduct of the petitioner, the punishment

of dismissal from service has been imposed which is arbitrary and

irrational. He has further submitted that it would be evident from

the report of the Enquiring Authority that it is a case of no

evidence. The copies of the order of suspension, the order

whereby order of suspension was revoked and the F.I.R. of

Gopalganj P.S. Case No. 347 of 2016 were the only documentary

evidences produced during the departmental enquiry. The

witnesses merely proved these documents. There was absolutely

no material made available in the departmental enquiry to

establish petitioner's negligence or dereliction of duty on his part.

He has accordingly submitted that the finding of the Enquiring

Authority is without evidence and, therefore, perverse. He has

further submitted that the Director General-cum-Inspector General

of Police, in purported exercise of power under Rule 853 A (a) of

the Bihar Police Manual, has passed the order without

appreciating the materials available on record of the departmental

enquiry and has completely overlooked the petitioner's response to

the show cause notice issued to him by the Police Headquarters.

He has contended that the order suffers from non-application of Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

mind. Mr. Giri has further submitted that passing of the impugned

order by the Director General-cum-Inspector General of Police is

a mindless exercise as he has passed similar orders imposing

punishment of dismissal from service on all police personnel

posted in the said Police Station by identical orders without any

application of mind and without adverting to individual

misconduct of each of the police personnel.

14. Mr. P.K. Verma, learned AAG-3 appearing on

behalf of the respondent State of Bihar, while reiterating his

submission that the petitioner has the remedy of appeal under

Rules 23 and 24 of the Bihar CCA Rules, has submitted that the

impugned order has been passed after following due procedure.

He has submitted that there is no irregularity in the holding of the

departmental enquiry as alleged in the writ application and that the

petitioner cannot question the findings of the Enquiring Authority,

which remained unchallenged as he had accepted the punishment

earlier imposed on him based on the said report of the Enquiring

Authority. He has further argued that it is a well-settled principle

of judicial review that the Court, exercising power under Article

226 of the Constitution of India does not enter into the correctness

of finding rather the Court is required to examine whether the

decision making process is legally sustainable or not. He has Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

contended that because of gross negligence on the part of the

police officials and personnel posted in the Police Station, in

question, the serious mishap had taken place wherein 16 innocent

persons died because of consumption of illicit liquor. He has

argued that during the raid conducted soon after the occurrence in

the village in question, substantial quantity of illicit liquor and

other materials, used for the preparation of country made liquor

were recovered which clearly suggested that the petitioner and

other police personnel posted in the Police Station were negligent

in their duties. According to him, considering the gravity of lapse

on the part of the petitioner, the punishment imposed upon him by

the impugned order cannot be said to be excessive and; since due

process has been followed before passing of the order, the same

does not require any interference by this Court.

15. The issue of the preliminary objection raised by

Mr. P.K. Verma, learned AAG-3 needs to be addressed first, which

raises a question, as to whether, an appeal would lie under Rule 23

read with Rule 24 of the Bihar CCA Rules against an order passed

in revisional jurisdiction under Rule 28 of the Bihar CCA Rules or

Rule 853 A (a) of the Bihar Police Manual. Bihar Government

Servants (Classification, Control & Appeal) Rules, 2005 have

been framed in exercise of the powers conferred on the State Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

Government under the proviso to Article 309 of the Constitution

of India, Rule 3 thereof clearly states that these Rules shall apply

to every government servant. Government servant has been

defined in Rule 2 (k) as a member of 'service' or holds a civil post

under the State. 'Service' has been defined in Rule 2 (o) as Civil

Service of the State. There is no gainsaying that the petitioner is a

government servant and, therefore, the Rules govern the

disciplinary action against him. Part V of the Rules (Rules 14 and

15) delineates minor and major penalties which can be imposed on

a government servant and defines the Disciplinary Authorities.

Rule 17 prescribes the procedure for imposing major penalty by

holding a departmental enquiry. A detailed procedure has been

prescribed under Rule 17 of the Rules for holding a departmental

enquiry on conclusion of which the Enquiring Authority is

required to submit his enquiry report to the Disciplinary Authority.

Rule 18 lays down the procedure for taking action on the enquiry

report. Rule 18 (5) reads that if the Disciplinary Authority, having

regard to its findings on all or any of the Articles of charge, is of

the opinion that any of the penalties, specified in Clause I to V of

Rule 14 (minor penalties) should be imposed on a government

servant, it shall make an order imposing such penalty. Be it noted

that though a separate procedure has been prescribed under Rule Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

19 of the Bihar CCA Rules for the imposition of minor penalties

under Rule 18 (5), the Disciplinary Authority may impose a minor

punishment even if the proceeding was initiated for the imposition

of a major penalty. The Disciplinary Authority, having regard to

its finding on all or any Articles of charge and on the basis of

evidence adduced during the course of enquiry, may impose one

of the punishments prescribed under Clause VI to XI of Rule

(major penalties).

16. Rule 23 of the Bihar CCA Rules provides that a

government servant may prefer an appeal against an order of

suspension or order of punishment.

17. Rule 23 and 24 of the Rules read thus:-

"23. Orders against which appeal lies. - A Government Servant may prefer an appeal against order of suspension or order of punishment.

24. Appellate Authorities. - (1) A Government Servant, including a person who has ceased to be in government service, may prefer an appeal against the orders specified in Rule 23 to the authority specified in this behalf by a general or special order of the Government or, where no such authority is specified:-

(i) where such Government Servant is or was a member of Civil Service, Group-A or Group-B or holder of Civil Post, Group-A or Group-B,-

(a) to the appointing authority, where the order appealed against is made by an authority subordinate to it; or

(b) to the Government where such order is made by any other authority;

Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

(ii) where such Government servant is or was a member of a Civil Service, Group-

C or Group-D, to the authority to which the authority making the order appealed against is immediately subordinate.

(2) There shall be no appeal against the orders of the Government, however, review petitions may be filed in the form of Memorials.

(3) Where the person, who made the order appealed against becomes, by virtue of his subsequent appointment or otherwise, the appellate authority in respect of such order, an appeal against such order shall lie to the authority to which such person is immediately subordinate or to an authority specially authorised for this purpose by the Government."

18. On careful reading of the Rule 24, it can be easily

discerned that an appeal can be preferred only in respect of the

orders, which are appealable under Rule 23 of the Bihar CCA

Rules, namely, an order of suspension or order of punishment.

Sub-Rule I of Rule 24 provides that a government servant may

prefer an appeal against the orders specified in Rule 23 to the

authority specified in this behalf by general or special order of the

government. Nothing has been brought to this Court's notice that

any appellate authority has been specified by a general or special

order of the government for appeal by Group C to D employees

against an order passed by the Director General-cum-Inspector

General of Police exercising his revisional jurisdiction. Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

19. Sub-Rule 1 of Rule 24 further stipulates that in case

no such authority is specified, where such government servant is

or was a member of Civil Service Group A or Group B or holder

of Civil post, Group A or Group B, an appeal shall lie (I) to the

Appointing Authority, where the order, appealed against, is made

by an authority subordinate to it; or (II) to the government where

such order is made by any other authority. The petitioner was a

constable and not a holder of Civil post, Group A or Group B, nor

member of Civil Service, Group A or Group B, and, therefore,

Clause I of sub-Rule I of Rule 24 shall have no application. The

petitioner's classification would be falling under Group C or

Group D. Clause II of Sub-Rule 1 of Rule 24 prescribes for the

Appellate Authority in case of a member of Civil Service Group C

or Group D, which reads 'the authority to which, the authority

making the order appealed against is immediately subordinate'.

20. For the foregoing discussions, I do not have any

hesitation in reaching a definite conclusion, on careful reading of

Clause I and Clause II of Rule 1 of Rule 24, that under the Rules,

appeal against an order of punishment will lie to the State

Government, if the order of punishment has not been passed by an

authority subordinate to the Appointing Authority in case of

members of Civil Service Group A or Group B or holder of Civil Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

post, Group A or Group B. In case, such order has been passed by

an authority subordinate to the Appointing Authority, the appeal

shall lie to the Appointing Authority. In case of members of Civil

Service, Group C or Group D, the appeal shall lie to the authority

to which, the authority making the order appealed against is

immediately subordinate.

21. The inevitable conclusion which the Court arrives

at, on careful scrutiny of the provisions under Rule 23 and 24 of

the Bihar CCA Rules is that no appeal by a government servant,

who is or was a member of Civil Service, Group C or Group D

shall lie to the government against any order made under Rule 23

of the Bihar CCA Rules. This is evident from the language of the

Rule inasmuch as situations where an appeal can be preferred

before the State Government has been specifically prescribed

under Clause I of sub-Rule I of Rule 24 of the Bihar CCA Rules.

Accordingly, the plea of existence of alternative statutory remedy

of appeal against the order passed by the Director General-cum-

Inspector General of Police, exercising his revisional jurisdiction

purportedly under Rule 853 A (a) of the Bihar Police Manual, has

no merit. Situated thus, the preliminary objection taken on behalf

of the State of Bihar stands overruled.

Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

22. In any view of the matter, it is well settled legal

position that existence of an alternative remedy is no bar for the

High Court to entertain a writ petition under Article 226 of the

Constitution of India. The facts of the present case, which are

being discussed hereunder, would reveal that the impugned order

has been passed in most casual and cavalier manner, without even

referring to the materials available on the records of the

departmental enquiry to establish petitioner's misconduct. The

petitioner's reply to the show cause notice of proposed action of

his dismissal from service, exercising revisional jurisdiction, has

not at all been dealt with in the impugned order. Further, I have

noticed that the finding recorded by the Enquiring Authority,

holding the petitioner guilty of the charge, suffers from perversity,

the same having been recorded without any evidence to establish

any specific misconduct. These are also the reasons why plea of

maintainability of the application, on the ground of availability of

alternative remedy of appeal is meritless.

23. The allegation against the petitioner of misconduct

has been referred to in the forgoing paragraphs. The allegation

presumes that it was within the knowledge of all the police

personnel deputed/posted at the police station regarding

preparation and sale of the illicit liquor, which was not taken with Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

due seriousness by them. It is preposterous to notice that to prove

the charge, the order, whereby the petitioner was placed under

suspension, and subsequent order, whereby his order of

suspension was revoked, were relied on. Further, the Disciplinary

Authority relied on the F.I.R. registered in relation to the

occurrence in question. The Court is bemused, as to how, these

three documents could have established the allegation against the

petitioner about his personal knowledge in respect of preparation

and sale of illicit liquor in the concerned village, who was posted

as an Armed Guard in the Police Station. It is further baffling to

note that the witnesses, listed in the list of witnesses, were only

those, who were to prove the issuance of order of suspension,

order of revocation of suspension and registration of the F.I.R. The

finding of the Enquiring Authority, on the basis of these

documents and evidence of the witnesses, suffer from absolute

perversity wherein, on the basis of his own fanciful notion it has

recorded that the petitioner must have been going to the nearby

villages for patrolling duties and duties in relation to investigation

of cases. The Enquiring Authority has recorded in his report that

the petitioner did not participate during the course of departmental

enquiry. Mere non-participation of the petitioner in the

departmental enquiry would not have absolved the duty of the Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

department from its duty to prove the allegation of misconduct

against the petitioner in the departmental proceeding.

24. The charge against the petitioner itself was vague.

The Disciplinary Authority, i.e. Superintendent of Police,

Gopalganj, passed his order on 24.11.2018 on the basis of report

of the Enquiring Authority. The Disciplinary Authority, accepting

the finding recorded by the Enquiring Authority, imposed

punishment of two black marks, having the effect of withholding

of one increment with cumulative effect. The order of the

Disciplinary Authority was not appealed against by the petitioner.

25. There is another aspect which requires to be noted

at this stage. From the order passed by the Disciplinary Authority,

it transpires that the respondents were following the Bihar

Government Servants (Classification, Control & Appeal) Rules,

2005 for taking disciplinary action against the petitioner. The

Superintendent of Police, Gopalganj (Disciplinary Authority) was

immediately subordinate to the Deputy Inspector General, Saran

region, Chhapra, who was the Appellate Authority, before whom,

appeal could have been filed by the petitioner, in view of Clause II

of sub-Rule 1 of Rule 24 of the Bihar CCA Rules. The petitioner

did not prefer any appeal under the said Rule. Rule 28 of the Bihar

CCA Rules permits the Appellate Authority to exercise revisional Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

jurisdiction, either on his own motion or otherwise, call for the

records of any enquiry and revise any order made under the Rules.

Rule 28 of the CCA Rules reads as under:-

"28. Revision - (1) Notwithstanding anything contained in these Rules,-

(i) the Government, or

(ii) the head of a department directly under the Government, in the case of a Government servant serving in a department or office, under the control of such head of a department, or

(iii) the appellate authority, or

(iv) any other authority specified in this behalf by the Government by a general or special order, and within such time as may be prescribed in such general or special order, may at any time within six months of the date of the order proposed to be revised, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these Rules or under the Rules repealed by the Rule 32 (from which an appeal is allowed but from which no appeal has been preferred or from which no appeal is allowed), after consultation with the Commission where such consultation is necessary, and may-

(a) confirm, modify or set aside the order, or

(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed, or

(c) remit the case to the authority, making the order or to any other authority, directing such authority, to make such further inquiry as he may consider proper in the circumstances of the case, or

(d) pass such other orders as it may deem fit:

Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government Servant concerned has been Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses(vi) to (x) of Rule 14 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, no such penalty shall be imposed without an inquiry in the manner laid down in Rule 17 and after giving a reasonable opportunity to the Government Servant concerned of showing cause against the penalty proposed on the evidence adduced during the inquiry and except after consultation with the Commission where such consultation is necessary:

Provided further that rib power of revision shall be exercised by the head of department, unless-

(i) the authority which made the order in appeal, or

(ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.

(2) No proceeding for revision shall be commenced until after

(i) the expiry of the period of limitation for an appeal, or

(ii) the disposal of the appeal, where any such appeal has been preferred.

(3) An application for revision shall be dealt with in the same manner as if it were an appeal under these Rules."

(Underlined for emphasis)

26. The Deputy Inspector General of Police, who was

the Appellate Authority under the Bihar CCA Rules invoking

Rule 853 A (a) of the Bihar Police Manual referred the records of

the departmental proceeding to the Police Headquarters, as

according to him, the punishment imposed was not befitting the

gravity of allegation against the petitioner. Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

27. Apparently, because of the provision under Rule

853 A (a) of the Bihar Police Manual to the effect that the Deputy

Inspector General may call for any file but he should refer it to

the Inspector General of Police with his recommendation for an

order, the Deputy Inspector General, though the Appellate

Authority, did not pass any order rather referred the same to the

Director General-cum-Inspector General of Police, Bihar. It is

evident that the Authorities were not sure among themselves

whether disciplinary proceeding against a member of police force

is to be governed by the Bihar Government Servants

(Classification, Control & Appeal) Rules, 2005 or by the

provisions under the Bihar Police Manual. While raising a

question of maintainability of this writ application before this

Court, learned Additional Advocate General 3 has placed reliance

on Rules 23 and 24 of the Bihar CCA Rules, whereas the

impugned order has been passed by the Director General-cum-

Inspector General of Police, Bihar, invoking provision under

Rule 853 A (a). A comparison of Rule 853 A (a) of the Bihar

Police Manual with Rule 28 of the Bihar CCA Rules clearly

demonstrates that the two provisions are not identical. Under the

Bihar CCA Rules, the Appellate Authority may exercise

revisional jurisdiction under Rule 28 thereof, whereas under Rule Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

853 A (a), the Deputy Inspector General of Police, who is the

Appellate Authority, could only recommend for exercise of

revisional power to the Director General-cum-Inspector General

of Police, Bihar. It is noted here that Bihar CCA Rules have been

framed in exercise of the powers conferred by the proviso to

Article 309 of the Constitution of India, Rule 3 of which

specifically provides that it shall apply to every government

servant except any persons for whom special provision is made,

in respect of matters covered by these Rules, by or under any law

for the time being in force.

28. A question may arise whether Bihar Police Manual

has statutory character or not. As is evident from the preface of

the Bihar Police Manual, the same appears to have been issued

by and with the authority of the State Government under Section

7 and 12 of the Police Act V, 1861. The Police Act, 1861 has

been repealed, to the extent the same relates to the State of Bihar,

by the Bihar Police Act, 2007. Section 29 of the Bihar Police Act

makes provisions for punishment, subject to the provisions of

Article 311 of the Constitution of India. Nothing has been

brought to the Court's notice to show whether after enactment of

Bihar Police Act, 2007 special provisions have been made laying

down procedure or the manner of imposition of punishment by Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

way of disciplinary action. No clear stand has been taken on

behalf of the State of Bihar, as to whether, the Bihar CCA Rules

is being followed or the guidelines issued under Bihar Police

Manual, for taking disciplinary action against police personnel.

29. Considering the nature of the impugned order,

which has been passed in the present case, I need not go into the

said aspect of the matter, suffice it to say that no clear decision of

the State Government has been shown to this Court to the effect

that the procedure laid down under Bihar Police Manual apply

notwithstanding framing of Bihar CCA Rules in 2005. I,

however, consider it appropriate to direct the Chief Secretary,

Government of Bihar, to ensure that necessary clarification is

issued by the State Government in accordance with law in respect

of applicability or otherwise of Bihar Government Servants

(Classification, Control & Appeal) Rules, 2005 for the police

personnel in the State of Bihar in view of subsequent enactment

of Bihar Police Act, 2007. It goes without saying that the State of

Bihar may consider making appropriate statutory provisions so as

to overcome any ambiguity in the provisions relating to taking of

disciplinary action against police personnel in the State of Bihar.

30. Coming now to the order passed by the Director

General-cum-Inspector General of Police dated 05.06.2020, it is Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

noticed that the said order has altogether fourteen paragraphs, out

of which, only one paragraph vaguely refers to and reiterates that

all police officers/personnel posted in the police station had

knowledge about preparation and sale of illicit liquor in the

concerned village situated hardly two kms away from the police

station. Registration of three earlier criminal cases, namely,

Gopalganj P.S. Case Nos. 160/2016, 334/16 and 343/16 is the

reason, which has been assigned in the order why all the police

personnel/officers posted in the police station including the

petitioner must have been aware of the illegal activities going on.

There is absolutely no discussion in the impugned order on the

petitioner's representation in response to the show cause notice

issued to him. The impugned order does not mention, as to why,

the explanation of the petitioner was not acceptable to him.

31. On perusal of the impugned order as well as other

documents relating to the departmental proceeding, copies of

which have been brought on record in the present writ

application, the Court forms an opinion that it was in the nature

of bare formality, which was done on the part of the superior

officers in the name of taking disciplinary action possibly to

contain the public uproar arising after the occurrence, in which,

16 persons had died due to consumption of spurious liquor. No Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

effort at all was made in right earnest to take disciplinary action

against erring officials/personnel. The charges were framed on

presumption of knowledge of the police personnel regarding the

illegal activities going on in the village concerned. No attempt

was made by leading cogent evidence to establish that the

petitioner was in fact aware of the illegal activities going on in

the village, hardly 2 kms away from the Police Station and he

failed to act in a matter befitting his duties and responsibilities.

32. In such view of the matter, the impugned order

requires interference. The impugned order dated 15.06.2020, is

accordingly set aside. 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 the

full salary and other emoluments for the period during which he

remained out of service because of passing of an illegal order.

33. All orders/communications issued in consequence

of the impugned order stands quashed.

34. In the facts and circumstances of this case, it is

observed that since the petitioner did not choose to challenge the

order dated 24.11.2018, whereby punishment of two black marks

was awarded to him, he shall not be allowed to question the

correctness of the said order.

Patna High Court CWJC No.7906 of 2020 dt.06-01-2021

35. This application is accordingly allowed.

36. No order as to costs.

(Chakradhari Sharan Singh, J)

AKASH/-

AFR/NAFR
CAV DATE                06.01.2021
Uploading Date
Transmission Date