Birwal Singh vs The State Of Bihar And Ors
2023 Latest Caselaw 716 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.11568 of 2013
     ======================================================

Birwal Singh Son Of Late Ram Naresh Singh, Resident Of Village- Karara, P.S.- Muffasil Dhobha O.P, District- Bhojpur, Ara

... ... Petitioner/s Versus

1. The State Of Bihar and Ors Null Null

2. The Director General Of Police, Bihar, Patna. The Authorized

3. The Inspector General Of Police, Darbhanga Zone, Darbhanga

4. The Deputy Inspector General Of Police, Darbhanga Range, Darbhanga

5. The Superintendent Of Police, Samastipur.

6. The Sr. Superintendent Of Police, Patna

7. The Conducting Officer -Cum- Sub-Divisional Police Officer, Patori

8. The Conducting Officer -Cum- Sub-Divisional Police Officer, Sadar, Samastipur

9. The Conducting Officer- Cum- Deputy Superintendent Of Police, Headquarter, Samastipur

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

For the Petitioner/s : Mr. Vinay Ranjan, Adv.

For the Respondent/s : Mr. Ajay, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA

ORAL JUDGMENT

Date : 10-02-2023

1. The petitioner by way of this writ petition has

challenged the order dated 28th February 2011, whereby

the appeal preferred by the petitioner against the order

dated 24th June 2008 was rejected. He has also

challenged the order dated 24.06.2008, passed by the

Deputy Inspector General of Police, Darbhanga Range, Patna High Court CWJC No.11568 of 2013 dt. 10-02-2023

whereby the order dated 14.09.2006 passed by

Superintendent of Police, Samastipur dismissing the

petitioner from service was converted to punishment of

reversion from the post of Havildar to the post of

Constable equivalent to three black marks and forfeiting

the salary for the intervening period during which he has

remained out of service.

2. In order to appreciate the controversy, the facts of the

case need to be noticed :

On 31st August 2001, the petitioner was served with a

charge sheet wherein allegations were leveled against the

petitioner of indiscipline and misbehavior and being

reckless and careless in performing duty which is in

reference to an allegation of an incident which occured on

24.08.2001. It was alleged that the petitioner went to the

residence of the Deputy Superintendent of Police and

hurled abuses and threats in front of several other

Constables and witnesses. On the basis of the charge

sheet, an enquiry was conducted by a Deputy

Superintendent of Police who held the petitioner guilty of

the charges and submitted his report to the Superintendent

of Police who passed an order on 14th September 2006 of Patna High Court CWJC No.11568 of 2013 dt. 10-02-2023

removal from service.

3. The petitioner had submitted a representation with

reference to departmental proceedings and pointed out that he

was not given any opportunity before the departmental enquiry

nor he was informed about the date on which the departmental

enquiry was being conducted. It was pointed out that he has

been working for several months at Samastipur District since

2003 but was not informed of the departmental enquiry. He also

prayed that the enquiry be conducted by different enquiry

officer and he may be given an opportunity to defend himself.

4. The removal order passed by the Superintendent of Police

was examined by the D.I.G. at his own level and on the appeal

preferred by the petitioner vide order dated 03.01.2007, he

remanded it to the Superintendent of Police for conducting a

fresh enquiry after providing a copy of the enquiry report to the

petitioner and after following the provisions of law relating to

conducting of departmental enquiry. The order of removal was

however not set aside by the D.I.G.

5. The Circle Officer, Sadar was appointed to conduct the

enquiry who examined the witnesses, submitted his enquiry

report, and found that none of the witnesses supported the

allegations and exonerated the petitioner. The enquiry report Patna High Court CWJC No.11568 of 2013 dt. 10-02-2023

was considered by the S.P. Samastipur who agreed with the

report and sent the same to the D.I.G Police, Darbhanga vide his

order dated 31st July 2007.

6. D.I.G., however, rejected the enquiry report as well as the

order of the S.P. and again directed the S.P. Samastipur to

conduct a de novo enquiry vide his order dated 31st August

2007. At the same time, the concerned witnesses who had not

supported the charges were also put to notice and departmental

enquiry was initiated against them. One of the witnesses was

directed to be removed from service by him.

7. The new enquiry officer, held enquiry at Ranchi. A copy of

the statement made by the enforcement officer was taken on

record by the enquiry officer and sent to the petitioner on

08.01.2008 mentioning that the enquiry was completed and he

may give his defense within ten days. The petitioner submitted

his reply on 17.01.2008 and the enquiry officer submitted his

report on 17.02.2008 without giving his opinion.

8. The D.G. after examining the enquiry report held the

petitioner guilty of misbehaving with the Dy.S.P. but also

observed that the allegations levelled by the Dy.S.P. appeared to

be based on prejudice and bias and with over-implication. It was

noted that the petitioner had made a representation against his Patna High Court CWJC No.11568 of 2013 dt. 10-02-2023

transfer to a far-off Police Station. At the same time, he had

reported at his new place of posting. In view thereof, the D.I.G.

set aside the order of removal from service and directed to

revert him for two years on the lower post of Constable which

would amount to three black ink entries in the service record.

He was directed to be reinstated and the period of removal was

to be treated as extraordinary leave for which nothing was to be

paid for the period for which no remuneration was to be paid.

9. The petitioner preferred writ petition bearing C.W.J.C.

No. 7761/2009 before this Court which was disposed of with

liberty to avail remedy of memorial. The memorial preferred by

the petitioner was rejected by the D.G. vide order dated 28th

February 2011, whereafter the present writ petition was filed.

10. Learned counsel for the petitioner submits that the order

passed by the D.G. was erroneous and based on an enquiry

report which was conducted in contravention of the provisions

contained under Rule 17 of the C.C.A. Rules 2005. The

petitioner had been exonerated earlier in the enquiry and there

was no reason to conduct a fresh enquiry. The petitioner was not

given any notice before initiating a fresh enquiry. The enquiry

officer had not given any finding of guilt against the petitioner

and if the D.I.G. did not agree with the enquiry officer, he Patna High Court CWJC No.11568 of 2013 dt. 10-02-2023

should have given an opportunity to the petitioner before

holding him guilty. Once the D.I.G. himself has found the report

made by Dy.S.P. to be prejudiced and biased, the same could not

have been relied upon to hold that the petitioner had committed

any misconduct or misbehavior with the Dy.S.P. The

observations of D.I.G. while punishing the petitioner are

therefore self-contradictory.

11. Learned counsel appearing for the State has supported the

orders and submitted that the D.I.G. has fairly considered all the

aspects and passed a just and fair order. The D.G. has also taken

into consideration the fact that discipline is required to be

maintained in the Police services and a subordinate Head

Constable ought not misbehave with a senior officer of the rank

of Dy.S.P. The punishment awarded earlier has been reduced

sufficiently and this Court while sitting in writ jurisdiction ought

not interfere with the order.

12. I have considered the submission. It is noticed that the

order of removal was based on wrongful proceedings which was

set aside by the D.I.G. vide his order dated 03.01.2007. The

second enquiry report was agreed to by the S.P. who did not find

the charges to be proved. The D.I.G. did not agree with the

findings but did not give any opportunity of hearing to the Patna High Court CWJC No.11568 of 2013 dt. 10-02-2023

petitioner, nor he gave disagreement notice to the delinquent as

required in law. In terms of the Judgment passed by the Apex

Court in Punjab National Bank & Ors. Vs. Kunj Behari

Misra as reported in 1998 (7) SCC 84 which is held as under:-

"17. These observations are clearly in tune with the

observations in Bimal Kumar Pandit case [AIR 1963 SC

1612 : (1964) 2 SCR 1 : (1963) 1 LLJ 295] quoted earlier

and would be applicable at the first stage itself. The

aforesaid passages clearly bring out the necessity of the

authority which is to finally record an adverse finding to

give a hearing to the delinquent officer. If the enquiry

officer had given an adverse finding, as per Karunakar

case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993)

25 ATC 704] the first stage required an opportunity to be

given to the employee to represent to the disciplinary

authority, even when an earlier opportunity had been

granted to them by the enquiry officer. It will not stand to

reason that when the finding in favour of the delinquent

officers is proposed to be overturned by the disciplinary

authority then no opportunity should be granted. The first

stage of the enquiry is not completed till the disciplinary

authority has recorded its findings. The principles of

natural justice would demand that the authority which

proposes to decide against the delinquent officer must give

him a hearing. When the enquiring officer holds the charges

to be proved, then that report has to be given to the Patna High Court CWJC No.11568 of 2013 dt. 10-02-2023

delinquent officer who can make a representation before the

disciplinary authority takes further action which may be

prejudicial to the delinquent officer. When, like in the

present case, the enquiry report is in favour of the

delinquent officer but the disciplinary authority proposes to

differ with such conclusions, then that authority which is

deciding against the delinquent officer must give him an

opportunity of being heard for otherwise he would be

condemned unheard. In departmental proceedings, what is

of ultimate importance is the finding of the disciplinary

authority."

In S.P. Malhotra Vs. Punjab National Bank & Ors. 2013 (7)

SCC 251 which is held as under:-

"7. The appellant challenged the said orders of punishment

by filing Writ Petition No. 1201 of 1988 before the High

Court of Punjab and Haryana at Chandigarh. The said writ

petition was contested by the respondent Bank. The learned

Single Judge allowed the said writ petition vide judgment

and order dated 20-5-2011 [S.P. Malhotra v. Punjab

National Bank, Civil Writ Petition No. 1201 of 1988,

decided on 20-5-2011 (P&H)] , holding that in case the

disciplinary authority disagrees with the findings recorded

by the enquiry officer, he must record reasons for the

disagreement and communicate the same to the delinquent

seeking his explanation and after considering the same, the

punishment could be passed. In the instant case, as such a Patna High Court CWJC No.11568 of 2013 dt. 10-02-2023

course had not been resorted to, the punishment order stood

vitiated.

17. In Canara Bank v. Debasis Das [(2003) 4 SCC 557 :

2003 SCC (L&S) 507 : AIR 2003 SC 2041] this Court

explained the ratio of the judgment in Kunj Behari

Misra [Punjab National Bank v. Kunj Behari Misra, (1998)

7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] ,

observing that it was a case where the disciplinary

authority differed from the view of the inquiry officer.

"26. ... In that context it was held that denial of opportunity of hearing was per se violative of the principles of natural justice." (Debasis Das case [(2003) 4 SCC 557 : 2003 SCC (L&S) 507 : AIR 2003 SC 2041] , SCC p. 578, para 26)

18. In fact, not furnishing the copy of the recorded reasons

for disagreement from the enquiry report itself causes

prejudice to the delinquent and therefore, it has to be

understood in an entirely different context than that of the

issue involved in ECIL [ECIL v. B. Karunakar, (1993) 4

SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 :

AIR 1994 SC 1074] ."

However, in Anant R. Kulkarni Vs. Y.P. Education Society &

Ors. 2013 (6) SCC 515, the Apex Court has cautioned and

observed as under:-

"The facts and circumstances of the case in question must

be carefully examined taking into consideration the

gravity/magnitude of the charges involved therein. The

court has to consider the seriousness and magnitude of the Patna High Court CWJC No.11568 of 2013 dt. 10-02-2023

charges and while doing so the court must weigh all the

facts, both for and against the delinquent officers and come

to the conclusion which is just and proper considering the

circumstances involved. The essence of the matter is that

the court must take into consideration all relevant facts, and

balance and weigh the same, so as to determine, if it is in

fact in the interest of clean and honest administration that

the said proceedings are allowed to be terminated only on

the ground of delay in their conclusion."

13. Having noticed above, further proceedings conducted by

the respondent are found to be irregular but this Court finds that

the D.I.G. has not accepted the version of the complainant

Dy.S.P. as it is while holding that the petitioner has committed

as misconduct by entering into an altercation with his superior

officer. The possibility of over implication and prejudice and

bias of the superior officer has also been examined. It is a

balanced order and this Court would not Act as an appellant

body. The petitioner has been given a fair opportunity of hearing

and even the D.G. has given him a hearing by way of memorial.

This Court would therefore refrain from interfering with the

order of punishment and more so as discipline is required to be

maintained in the Police forces. The reversion was for a period

of two years which means that after two years the petitioner

would retain back on his original post and will also draw regular Patna High Court CWJC No.11568 of 2013 dt. 10-02-2023

salary. The period from removal till the date of reinstatement

has to be counted for all purposes including fixation of salary

from time to time. However, the same has rightly been treated to

be notional by the disciplinary authority and it does not warrant

any interference.

14. Accordingly, the writ petition fails and is dismissed. No cost.

(Sanjeev Prakash Sharma, J) sachin/-

AFR/NAFR
CAV DATE                   03.01.2023
Uploading Date
Transmission Date