Ajay Kumar vs The State Of Bihar
2023 Latest Caselaw 2125 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.737 of 2023
     ======================================================

Ajay Kumar Son of Nageshwar Paswan resident of Village- Sakra- Faridpur, Police Station- Sakra, District- Muzaffarpur.

... ... Petitioner Versus

1. The State of Bihar through the Chief Secretary, Patna, Bihar.

2. The Addl. Chief Secretary, Department of Home, Government of Bihar, Patna.

3. The Under Secretary to the Government, Department of Home (Police Branch), Government of Bihar, Patna.

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

5. The Addl. Director General of Police, (Budget/Appeal/Welfare), Bihar, Patna.

6. The Inspector General of Police (Central Range), Bihar Patna.

7. The Senior Superintendent of Police, Patna.

8. The Superintendent of Police, Town (West) -cum- Inquiry Officer.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Ms. Nivedita Nirvikar, Sr. Advocate Mr.Ranjit Kumar Yadav, Advocate For the Respondent/s : Mr.Ajay Kumar, AC to GP-4 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 05-05-2023

Heard Ms. Nivedita Nirvikar, learned senior counsel

assisted by Mr. Ranjit Kumar Yadav, learned Advocate for the

petitioner and Mr. Ajay Kumar, learned AC to GP-4 for the State.

2. Petitioner, in the present case, is seeking quashing of

the order as contained in Memo no. 8716 dated 30.08.2022 issued

by respondent no. 2 by which the review against the order vide

memo no. 63 dated 27.01.2022 issued by the Director General of

Police has been rejected. The Director General of Police has suo- Patna High Court CWJC No.737 of 2023 dt.05-05-2023

moto reviewed the order no. 207/2021 dated 30.07.2021 passed in

the departmental proceeding no. 08/2021, set-aside the same and

imposed a punishment of reverting the petitioner to the post of

sub-Inspector for five years in the basic pay and that the petitioner

would not be entitled for anything more than subsistence

allowance for the period of suspension, the petitioner further

prays for setting aside the order dated 05.01.2023 passed by

Additional Director General of Police (Budget/Appeal/Kalyan)

who rejected the appeal of the petitioner against the order no.

207/2021 dated 30.07.2021.

Brief facts of the case

3. The petitioner was posted as Police Inspector-cum-

Station House Officer in Kankarbagh Police Station between the

period 17.04.2020 to 30.11.2020. During his period, special drive

was conducted by a joint central team of Bihar Police

Headquarter (Prohibition and Excise cell) for recovery of illegal

liquor.

4. It is stated that on 25.11.2020, a raid was conducted in

the house no. 14/124 of Ajay Roy @ Lulha in Road No. 14,

Ashok Nagar, Patna, in the said raid 25 liters of country liquor

(Mahua) was recovered. A case being Kankarbagh P.S. Case No. Patna High Court CWJC No.737 of 2023 dt.05-05-2023

911/2020 was registered under Section 30(a) of the Bihar

Prohibition and Excise Act, 2016.

Suspension of the petitioner and initiation of

departmental proceeding

5. By letter no. 1325 dated 29.11.2022 issued by the

Director General of Police, Bihar, Patna the petitioner was placed

under suspension and a direction was issued to initiate a

departmental proceeding against him. It was alleged that the

petitioner failed in collection of information and implementation

of the Prohibition under Excise Act which shows his in-activeness

and carelessness and he has been found incompetent in putting

control over the liquor traders.

6. Vide Patna District Order No. 4818/2020, the Senior

Superintendent of Police, Patna directed to initiate a departmental

proceeding against the petitioner. Accordingly, he was placed

under suspension and charges were framed against him vide

memo no. 379 dated 10.12.2020 (Annexure '3').

7. In course of enquiry, two witnesses namely, Gautam

Kumar and Dinesh Kumar Mishra who were ASI and SI

respectively were examined, they proved the letter as contained in

Memo No. 34 dated 03.02.2021 and letter vide Memo No. 3506

dated 30.11.2020. It is stated that letter no. 34 of 03.02.2021 was Patna High Court CWJC No.737 of 2023 dt.05-05-2023

not mentioned in the list of documents enclosed with the memo of

charge and the same was not given to the petitioner.

8. It is stated that the enquiry officer submitted his

enquiry report vide memo no. 1165 dated 14.06.2021. Thereafter,

vide Central Zonal Order No. 207/2021 dated 30.07.2021 a

punishment of stoppage of one increment with non-cumulative

effect which would be equivalent to two black mark was imposed

upon the petitioner. It was further ordered that the petitioner

would not be entitled for any payment for the period of

suspension except his subsistence allowance.

9. An appeal preferred by the petitioner before the

Additional Director General of Police (Budget/Appeal/Kalyan)

Bihar, Patna against the order of punishment was rejected. During

pendency of the appeal, the petitioner was served with a show

cause notice vide Annexure '9' to the writ application issued by

the Deputy Director General of Police (Personnel), Bihar, Patna

under the direction of the Director General of Police whereby it

was communicated to the petitioner that a decision has been taken

to review the punishment order dated 30.07.2021, under Rule

853A of the Police Manual. Petitioner was directed to submit his

show cause within 15 days. Petitioner, accordingly submitted his

show cause whereafter vide memo no. 63 dated 27.01.2022 Patna High Court CWJC No.737 of 2023 dt.05-05-2023

(Annexure '10'), the Director General of Police set-aside the

punishment order dated 30.07.2021 and enhanced the punishment

of the petitioner. The petitioner was reverted to the post of Sub-

Inspector for five years at the basic pay and further it has been

directed that the petitioner would not be entitled to get anything

except his subsistence allowance.

Submissions on behalf of the petitioner

10. Learned senior counsel for the petitioner submits that

apart from the fact that one of the documents being memo no. 34

dated 03.02.2021 was not made available to the petitioner either

with the charge-sheet or in course of enquiry, the fact remains that

in course of enquiry the department did not produce a single

witness to prove the charge that due to inactiveness and

carelessness, the petitioner failed to collect information and could

not implement the prohibition.

11. Learned senior counsel submits that on the basis of a

single case of recovery of 25 liters of country made liquor, the

opinion formed by the authority cannot be said to have been

substantiated.

12. It is further submitted that in course of enquiry the

petitioner had submitted a petition before the enquiry officer to

allow him to give an opportunity the cross-examine the witnesses. Patna High Court CWJC No.737 of 2023 dt.05-05-2023

Copy of petition has been placed on the record as Annexure '6' to

the writ application. It is submitted that no opportunity to cross-

examine the witnesses was given.

13. Learned senior counsel further submits that the Rule

853A of the Police Manual authorizes the Inspector General to

call for the file in any case and take action within a reasonable

time but the said rule does not authorize the Director General of

Police to enhance the punishment. It is submitted that the decision

to review the punishment has been taken during pendency of the

appeal before the appellate authority that too without any

recommendation made by the appellate authority.

14. It is submitted that in the light of the order of Director

General of Police, the disciplinary authority i.e. Inspector General

of Police, Central Zone, Patna issued Central Zonal Order No.

49/2022 dated 11.02.2022 (Annexure '11') rejecting the appeal of

the petitioner without going into the merit of the appeal.

15. The petitioner filed a revision before the Additional

Chief Secretary, Department of Home (Police Branch) but the

same has been dismissed vide order dated 30.08.2022 as

contained in Annexure '13' to the writ application. A review

application has also been filed but the same has not been

considered.

Patna High Court CWJC No.737 of 2023 dt.05-05-2023

16. By filing a supplementary affidavit the petitioner has

brought on record a complete copy of appeal and copy of the

revision application which are Annexures '8' and '12'

respectively. It is stated that the appeal preferred by the petitioner

against the order of punishment dated 30.07.2021 has been

rejected by the Additional Director General of Police by order

dated 05.01.2023 and the same has been communicated vide

memo no. 206 dated 24.01.2023 of the Superintendent of Police

(C) Criminal Investigation Department, Patna. The appeal of the

petitioner has been rejected on the sole ground that the Director

General of Police has already set-aside the order of punishment

and has passed a fresh order.

Concept of 'deemed guilty' introduced in the cases of

recovery of illicit liquor.

17. In course of submissions, learned senior counsel has

brought to the notice of this Court a letter bearing no. 63 (01

fdz;kU;o;u) 2019-20-1296/ e|fu'ks/k dated 24.11.2020 written by the

Director General of Police to all the Senior Superintendent of

Police and Superintendent of Police (Rail), Bihar. It is stated that

on a bare perusal of this letter it would appear that in paragraph

'3' it is stated that in case of recovery of illicit liquor, the

concerned Station House officer and Chowkidar will be deemed Patna High Court CWJC No.737 of 2023 dt.05-05-2023

guilty for not collecting the information and taking necessary

action and they will be proceeded against for their failure and in-

activeness.

18. Learned senior counsel submits that the paragraph '3'

of this letter issued by the Director General of Police leaves no

room for the disciplinary authority to form any other opinion and

in any case of recovery of liquor, the guilt is to be presumed

against the concerned Station House Officer and the Chowkidar

which is against the principles of natural justice and it amounts to

putting an embargo on free and independent exercise of mind by

the disciplinary authority.

Stand of the State

19. A counter affidavit has been filed on behalf of the

State. Learned counsel for the State submits that the order of

punishment has been passed against the petitioner after following

the established procedure of law. The charges against the

petitioner were proved, hence, no fault may be found with the

decision of the disciplinary authority as well as in the exercise of

power by the Director General of Police under Rule 853A of the

Bihar Police Manual.

Consideration Patna High Court CWJC No.737 of 2023 dt.05-05-2023

20. Having heard learned counsel for the petitioner and

the State, this Court would first of all take note of the charges

leveled against the petitioner as under:

"¼2½ f}rh; Hkkx& vopkj ,oa dnkpkj ds ykaNuksa dk lkj

1- Jh vt; dqekj] tc dadM+ckx Fkkuk esa Fkkuk/;{k ds in ij inLFkkfir Fks rks fnukad & 25-11-2020 dks fcgkj iqfyl eq[;ky; ¼e|fu'ks/k izHkkx½] fcgkj] iVuk ds la;qDr dsUnzh; Vhe ds usr`Ro esa voS/k "kjkc dh cjkenxh gsrq fo"ks'k vfHk;ku pyk;k x;k FkkA bl vfHk;ku ds nkSjku iVuk ftyk ds dadM+ckx Fkkuk {ks= esa vt; j; mQZ ywYgk firk Lo0 fcUnk jk;] Lk0&v"kksd uxj] jksM ua0& 14] edku ua0& [email protected] Fkkuk& dadM+ckx] ftyk& iVuk ds ?kj ij Nkikekjh dj dqy 25 yhVj la0 & [email protected] fnukad & 25-11-2020 /kkjk &30¼d½ fcgkj e| fu'ks/k ,oa mRikn vf/k0] 2016 ntZ fd;k x;k gSA

2- fcgkj esa iw.kZ "kjkccanh ykxw gksus ds ckotwn dadM+ckx Fkkuk {ks= esa "kjkc [email protected]ªh dk [email protected]/k :i ls "kjkc dh fcØh gksuk] Fkkuk {ks= ds ,d gh LFkku ¼v"kksd uxj½ ls ckj&ckj eq[;ky; Vhe ds }kjk voS/k "kjkc dh cjkenxh djuk] budk vklwpuk ladyu esa iw.kZ;i ls foQyrk dk ifjpk;d gSA

3- iqfyl egkfuns"kd] fcgkj] iVuk dk i= la0& [email protected] fo"ks'k la;qDr vfHk0½ 2020 [email protected]|fu'ks/k ¼xks0½ fnukad 29-11- 2020 }kjk iq0fu0 vt; dqekj] Fkkuk/;{k dadM+ckx] iVuk dks e|fu'ks/k dkuwu ds fØ;kUo;u ,oa vklwpuk ladyu esa cjrh x;h mnklhurk] ?kksj ykijokgh ds fy, rRdky izHkko ls lkekU; thou&;kiu HkRrk ij fuyafcr djrs gq, foHkkxh; dk;Zokgh pykus dk vksn"k fn;k x;k gSA

4- mDr ls Li'V gS fd Jh vt; dqekj }kjk drZO; ds nkSjku e|fu'ks/k dkuwu ds fØ;kUo;u ,oa vklwpuk ladyu esa ? kksjykijokgh cjrrs gq, ljdkjh lsod vkpkj fu;ekoyh] 1976 ds dafMdk&3¼1½ dk mYya?ku fd;k x;k gSA

[email protected]& ¼lat; flag½ iqfyl egkfujh{kd] dsUnzh; {ks=] iVuk"

21. It appears from the enquiry report as contained in

Annexure '5' to the writ application that in course of enquiry two

witnesses were produced on behalf of the Department. The first

witness is Gautam Kumar, Assistant Sub-Inspector who has

proved the signature of the Inspector General of Police, Central

Range, Patna on memo no. 34 dated 03.02.2021. Except

identification of the signature of the Inspector General of Police, Patna High Court CWJC No.737 of 2023 dt.05-05-2023

Central Range, nothing more is stated in the enquiry report about

this witness. Similarly Dinesh Kumar Mishra, Sub-Inspector of

Police has proved the signature of Sri Kantesh Kumar Mishra

I.P.S. and Superintendent of Police, Rural, Patna on memo no.

13506 dated 30.11.2020.

22. In paragraph '17' of the writ application, a specific

statement has been made by the petitioner that he submitted a

petition requesting the enquiry officer to give him an opportunity

to cross-examine the witnesses but he was not given that

opportunity. In response, there is no denial of the said statements.

23. This Court further finds that the solitary case cited

against the petitioner is Kankarbagh P.S. Case No. 911/2020. No

evidence has been led at all on the point that how the petitioner

had failed to collect information with regard to illegal sale of

liquor in Kankarbagh police station area. No piece of evidence

has been brought before the disciplinary authority to prove that

from the same and one place (Ashok Nagar) repeated recovery of

illicit liquor has been made. The enquiry officer has taken note of

the statement of defence of the petitioner that during his period of

posting from 17.04.2020 to 30.11.2020, he had seized illicit liquor

and had arrested the accused in several cases. It is stated that the

petitioner was posted in the said area during the relevant period Patna High Court CWJC No.737 of 2023 dt.05-05-2023

which was only 7½ months. A bare perusal of the enquiry report

would show that the enquiry officer found himself in a very

difficult position on the face of the direction of the police

headquarter as contained in it's letter no. 63 (01 fdz;kU;o;u) 2019-

20-1296/ e|fu'ks/k dated 24.11.2020 which clearly orders that in

case of recovery of illicit liquor from any police station area, the

concerned station house officer would be held guilty. The relevant

paragraph of the enquiry report reads as under:-

"fcgkj iqfyl eq[;kyk; ¼ e|fu'ks/k izHkkx½] fcgkj] iVuk dk i= la0& 63¼fØ;kUo;u½ 2019&20&[email protected]|fu'ks/k] fnukad 24-11-2020 esa ;g Li'V vkns"k fn;k x;k gS fd ;fn fdlh Fkkuk {ks= esa jkT;@ftyk Lrj ls izfrfu;qDr Nkkikekjh ny ds }kjk voS/k "kjkc dh cjkenxh dh tkrh gS rks ,sls ekeyksa esa lacaf/kr Fkkuk/;{k ,oa pkSdhnkj ij vlwpuk ladyu ugha djus rFkk vko";d dkjZokbZ ugha djus ds fy, nks'kh ekurs gq, muds foQyrk ,oa fu'Ø;rk ds fy, dBksj dkuwuh ,oa vuq"kklfud dkjZokbZ dh tk;sxhA mDr fuxZr vkns"k ds ckotqn dadM+ckx Fkkuk {ks= ls e| fu'ks/k esa xfBr la;qDr Vhe }kjk Nkikekjh dj "kjkc dh cjkenxh dh x;hA"

24. This Court further finds on record is Annexure '6' to

the writ application by which the petitioner has brought to the

notice of the Inspector General of Police, Central Range, Patna

that in course of enquiry the statement of departmental witnesses

have been recorded in his absence and he was not given any

opportunity to cross-examine the witnesses. He has made specific

statement in this regard in paragraph '17' of the writ application

but the respondents have not brought on record any documentary

evidence with the counter affidavit in form of the order-sheet of

the enquiry officer to show that the witnesses were examined in Patna High Court CWJC No.737 of 2023 dt.05-05-2023

presence of the petitioner. In fact, the response of the respondents

are completely vague and the same be taken as denial of the stand

of the petitioner.

25. This Court further finds that in paragraph '19' of the

writ application there is a specific statement that no second show

cause notice was given to the petitioner before passing order of

punishment dated 30.07.2021 (Annexure '7').

26. This Court has perused Annexure '7' to the writ

application. It appears on perusal of Annexure '7' that it does not

mention anywhere that a second show cause notice was issued to

the petitioner. The operative part of the order dated 30.07.2021

(Annexure '7') reads as under:

"mi;ZqDr ifjizs{; esa laxr vfHkys[kksa ,oa lapkyu inkf/kdkjh ds tk¡p fu'd'kZ izfrosnu ds v/;;uksijkUr lapkyu inkf/kdkjh ds fu'd'kZ ls lger gksus dk i;kZIr vk/kkj gSa pw¡fd vipkjh ds fo:) izfrosfnr vkjksi lapkfyr foHkkxh; dk;Zokgh esa izekf.kr gqvk gS] vr% vipkjh iq0fu0 vt; dqekj dks nks'kh ifr gq, mlds fo:) vlap;h izHkko ls ,d o'kZ ds fy, okf'kZd osru&o`f) leigj.k dk n.M vf/kjksfir fd;k tkrk gSA ftldk eku nks dykad ¼02½ ds lerqY; gksxkA "

27. A bare reading of the order contained in Annexure '7'

would show that the disciplinary authority has simply gone by the

opinion of enquiry officer without giving any opportunity to show

cause to the petitioner. In the opinion of this Court, this action of

the disciplinary authority is in complete violation of principles of

natural justice and it has seriously prejudiced the case of the

petitioner.

Patna High Court CWJC No.737 of 2023 dt.05-05-2023

28. This Court further finds that the Director General of

Police took a suo motu decision to review the order of the

disciplinary authority, a show cause notice was issued to the

petitioner in exercise of power under Rule 853A of the Bihar

Police Manual. On perusal of the order passed by the Director

General of Police as contained in Annexure '10' to the writ

application, this Court finds that in the name of the issuance of

show cause notice he has done a mere empty formality. The said

order though takes note of the fact that the petitioner has

submitted his explanation to the show cause notice on 21.10.2021

but no consideration at all has been given to the explanation of

the petitioner. In the opinion of this Court, the Director General of

Police while passing the order as contained in Annexure '10'

should have considered each and every ground raised by the

petitioner in his explanation, non-consideration of the explanation

of the petitioner would render his order bad in law. Rule 853A of

the Bihar Police Manual is being extracted hereunder for a ready

reference:

"853A. (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.

(b) Notwithstanding anything contained in these rules the State Government may call for the proceedings in any Patna High Court CWJC No.737 of 2023 dt.05-05-2023

disciplinary case even when no appeal or memorial lies, and pass such order as it may deem fit.

(c) When an appeal has been filed and the Inspector General on applying his mind thinks that he should enhance the punishment, he can dismiss the appeal but must simultaneously mention in that order that as per powers given in the rule 853A(a), he has decided to review it for enhancement and take action for obtaining a show cause, etc., where necessary."

29. A bare reading of the aforesaid rule would show that

it is the Inspector General who has been authorized under this rule

to call for the file in any case and when an appeal has been filed

and the Inspector General on applying his mind thinks that he

should enhance the punishment, he can dismiss the appeal but

simultaneously he has to record an order that as per powers given

under Rule 853A(a) he had decided to review it for enhancement

and take action for obtaining a show cause. It is well settled in

law that when a statute prescribes something to be done in a

particular manner, it must be done in that manner or not at all.

Reference in this regard may be made to the judgment of the

Hon'ble Supreme Court in the case of Ramchandra Keshav

Adke (Dead) by Lrs. vs. Govind Joti Chavare and others

reported in AIR 1975 SC 915. Paragraph '25' of the same is

being extracted hereunder for a ready reference:-

"25. A century ago, in Taylor v. Taylor, (1875) 1 Ch D 426 Jassel, M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It Patna High Court CWJC No.737 of 2023 dt.05-05-2023

was applied by the Privy Council, in Nazir Ahmed v. Emperor 63 Ind App 372 = AIR 1936 PC253 (2) and later by this Court in several cases, Shiv Bahadur Singh v. State of U.P., AIR (1954) SC 1098 =(AIR 1954 SC 322 = 1954 SCR 1098 = 1954 Cri LJ 910; Deep Chand v. State of Rajasthan, (1962) 1 SCR 662 =(AIR 1961 SC 1527) = (1961) 2 Cri LJ 705) to a Magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other. Maxwell's Interpretation of Statutes,11th Edn., pp. 362- 63". The rule will be attracted with full force in the present case, because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it nonest for the purpose of Section 5(3)(b)."

30. In this case, an appeal preferred by the petitioner

was pending consideration before the Inspector General of

Police but during pendency of the appeal, the Director

General of Police assumed upon himself the power of

Inspector General and proceeded to pass the order as

contained in Annexure '10' to the writ application which

cannot be said to have been passed by an authority prescribed

under the Bihar Police Manual. This Court in the case of

Kashi Nath Singh Vs. State of Bihar & Ors. reported in 2019

(2) PLJR 293 (Full Bench), has held that the provisions of the

Bihar Police Manual are required to be obeyed but in this case the

Director General of Police seems to have acted in haste and Patna High Court CWJC No.737 of 2023 dt.05-05-2023

thereafter the Inspector General of Police before whom the appeal

was pending simply rejected the appeal vide Annexure '16'

(attached to the supplementary affidavit of the petitioner). Taking

note of the fact that an order has been passed by the Director

General of Police under Rule 853A of the Bihar Police Manual,

the appeal has been rejected. This is how the power exercised by

the Director General of Police without authority of law has

rendered the appeal of the petitioner infructuous.

31. At this stage, this Court would reproduce paragraph

'3' of the letter no 63 (01 fdz;kU;o;u) 2019-20-1296/ e|fu'ks/k dated

24.11.2020 as under:-

"3- ;fn fdlh Fkkuk {ks= esa jkT; [email protected] Lrj ij izkIr vklwpukvksa ds vk/kkj ij jkT;@ftyk Lrj ls izfrfu;qDr Nkkikekjh ny ds } kjk voS/k "kjkc dh cjkenxh dh tkrh gSa rks ,sls ekeyksa ls lacaf/kr Fkkuk/; {k ,oa pkSdhnkjh ij vklwpuk ladyu ugha djus rFkk vko";d dkjZokbZ ugha djus ds fy, nks'kh ekus tk;saxs rFkk muds bl foQyrk ,oa fuf'Ø;rk ds fy;s dBksj dkuwuh ,oa vuq"kklfud dkjZokbZ dh tk;A"

32. In fact, the enquiry officer has referred the aforesaid

paragraph in his enquiry report to conclude the guilt against the

petitioner.

The Concept of deemed guilty

33. Advanced Law Laxicon, 3rd Edition, Volume 2 D-I

Reprint 2009 the word 'Deemed' has been described as under:-

"Deems means 'is of opinion' or 'considers' or 'decides' and there is no implication of steps to be taken before the opinion is Patna High Court CWJC No.737 of 2023 dt.05-05-2023

formed or the decision is taken." (R.v. Brixion Prison Governor ex p. Soblen, 1963 2QB 243 : (1962) 3 All ER 641. The true synonym for the word 'deemed' is 'judged' and the other shades of meaning came later. Whenever the word 'deemed' is used in statute in relation to a person or thing, it implies that the legislature after due consideration exercised its judgment in conferring that status or attribute toa person or thing. M.R. Mehhotra v. State, AIR 1958 All 492, 498."

34. Upon going through the entire materials as discussed

hereinabove, this Court has no iota of doubt that there was an

inherent defect in the framing of charge itself inasmuch as a bare

perusal of it would show that it has been framed on the direction

of the Director General of Police, Bihar vide his letter no. 48

dated 29.11.2020 addressed to the Senior Superintendent of

Police (Annexure '1' to the writ application). In this letter the

Director General of Police has referred his own direction

contained in letter no. 63 dated 24.11.2022, paragraph '3' whereof

pre-judges the guilt of the S.H.O. and the Chowkidar in case of

recovery of illicit liquor from the area of the police station. This

has no statutory sanction. Once the Director General of Police

issued this direction to the S.S.P., the S.S.P./S.P. had no

opportunity to apply his own independent mind as to whether the

petitioner is liable to be proceeded against or of the kind of

charges may be framed against him. The direction was coming

from the top of the police echelon as if on mere recovery of illicit Patna High Court CWJC No.737 of 2023 dt.05-05-2023

liquor of 25 liters from the Kankarbagh Police Station area, the

Officer-in-Charge of the said police station is liable to be held

guilty.

35. In the opinion of this Court, paragraph '3' of the letter

no. 63 (01 fdz;kU;o;u) 2019-20-1296/ e|fu'ks/k dated 24.11.2020

which has influenced the entire proceeding right from the

beginning, paragraph '3' raises a presumption of guilt even before

framing of charge, therefore, this Court has no iota of doubt in

saying that the guilt of the employee has been assumed and

presumed even before giving him an opportunity of hearing. Such

presumption of guilt has no sanction of law and the same is

violative of Article 21 of the Constitution of India. It is contrary

to the principles of fair play in action.

36. This Court has already noticed that in course of

enquiry only two departmental witnesses came and they proved

only the signature of the concerned authorities on the order. There

is not a single witness to say as to how the petitioner may be said

to have acted negligently and because of his failure to collect

information and implementation of the prohibition laws in

Kankarbagh area, illegal operation of Bhatti or factory or illegal

sale of liquor has taken place. Not a single example has been cited

in course of enquiry to demonstrate that during the period of Patna High Court CWJC No.737 of 2023 dt.05-05-2023

service of the petitioner, repeated recoveries were made from the

same area.

37. This Court also finds that the departmental witnesses

were not examined in presence of the petitioner and he was not

given any opportunity to cross-examine them. This fact has been

specifically pleaded by the petitioner but not denied by the

respondents.

38. The disciplinary authority has passed the impugned

order without giving any opportunity to show cause and further

during pendency of the appeal the Director General of Police

passed an order of enhancement of punishment without

considering the explanation of the petitioner.

39. This Court, therefore, comes to a conclusion that the

entire disciplinary proceeding (right from the stage of framing of

charge) has vitiated and the same is liable to be set-aside.

40. This Court, accordingly, sets-aside the impugned

orders and allow this Writ Application.

41. The petitioner shall be entitled for all the

consequential reliefs. The Director General of Police, Bihar, Patna

(respondent no. 4) shall issue necessary consequential order

within a period of 30 days from the date of receipt/production of a

copy of this order.

Patna High Court CWJC No.737 of 2023 dt.05-05-2023

42. Before this Court parts with this order, in view of the

discussions made hereinabove, this court directs the Director

General of Police, Bihar, Patna (respondent No. 4) to revisit

paragraph '3' of the letter no. 63 (01 fdz;kU;o;u) 2019-20-1296/ e|

fu'ks/k dated 24.11.2020 which assumes and pre-judges the guilt

against the Station House Officer and Chowkidar even before

framing of charge and conduct of an independent enquiry. This

has no sanction of law. Because of this stipulation in this case the

whole proceeding right from framing of charge has been

influenced and a serious prejudice has been caused to the

petitioner.

43. This Writ Application is allowed.

(Rajeev Ranjan Prasad, J.) Rajeev/Tusharika-

AFR/NAFR                    AFR
CAV DATE
Uploading Date              10.05.2023
Transmission Date