Ranjeet Kumar vs The State Of Bihar And Ors
2023 Latest Caselaw 2161 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.5554 of 2019
     ======================================================

Ranjeet Kumar S/o Kishun Das, Resident of Kalisthan Tatwa Toli, Ward No.09, Mokameh, P.S.-Mokameh,Patna, then Station House Officer Bithan Police Station Samastipur at present Sub-Inspector, Police Line under control of Senior Superintendent of Police Darbhanga, Bihar ... ... Petitioner Versus

1. The State of Bihar through the Additional Chief Secretary, Department of Home, Govt. of Bihar, Old Secretariat, Patna.

2. The Additional Chief Secretary, Department of Home, Govt. of Bihar, Old Secretariat, Patna.

3. The Principal Secretary, Department of Home, Govt. of Bihar, Old Secretariat, Patna.

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

5. The Inspector General of Police (Administration) Police Headquarters, Old Secretariat, Patna, Bihar.

6. The Inspector General of Police, Darbhanga Zone, Darbhanga, Bihar.

7. The Deputy Inspector General of Police, Darbhanga Range, Darbhanga.

8. The Superintendent of Police, Samastipur

9. The Senior Superintendent of Police, Darbhanga.

10. The Sub-Divisional Police Officer, Dalsinghsarai, Samastipur, Bihar.

11. Mr. Anwar Jawed Ansari, then Sub- Divisional Police Officer, Dalsingh Sarai-Cum-Conduction Officer of Samastipur District- Departmental Proceeding No. 80/2016.

... ... Respondents ====================================================== with Civil Writ Jurisdiction Case No. 5584 of 2019 ====================================================== Ranjeet Kumar, Son of Kishun Das, Resident of Kalisthan Tatwa Toli, Ward No. 09, Mokameh, P.S. Mokameh, Patna, then Station House Officer Bithan Police Station Samastipur, at Present Sub-Inspector, Police Line Under Control of Senior Superintendent of Police, Darbhanga, Bihar.

... ... Petitioner Versus

1. The State of Bihar through the Additional Chief Secretary, Department of Home, Government of Bihar, Old Secretariat, Patna

2. The Additional Chief Secretary, Department of Home, Government of Bihar, Old Home, Government of Bihar, Old Secretariat, Patna

3. The Principal Secretary, Department of Home, Government of Bihar, Old Secretariat, Patna Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

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

5. The Inspector General of Police (Administration) Police Headquarters, Old Secretariat, Patna, Bihar.

6. The Inspector General of Police, Darbhanga Zone, Darbhanga, Bihar

7. The Deputy Inspector General of Police, Darbhanga Range, Darbhanga.

8. The Superintendent of Police , Samastipur.

9. The Senior Superintendent of Police, Darbhanga.

10. The Sub-Divisional Police Officer, Dalsinghsarai, Samsatipur, Bihar.

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

(In Civil Writ Jurisdiction Case No. 5554 of 2019) For the Petitioner/s : Mr. Manish Kumar No 13, Advocate For the Respondent/s : Mr. Md. N.H. Khan, SC-1 (In Civil Writ Jurisdiction Case No. 5584 of 2019) For the Petitioner/s : Mr. Manish Kumar No 13, Advocate For the Respondent/s : Mr. Sheo Shankar Prasad, SC-8 Mr. Ruchikar Jha, AC to SC-8 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 08-05-2023

Heard learned counsel for the petitioner and learned

counsel for the State in both the writ applications.

2. The petitioner in the present case is praying:-

(i) To issue a writ in the nature of certiorari or any other

appropriate writ for setting aside of Samastipur District Order No.

1102 of 2016 dated 29.06.2016 issued under signature of

Superintendent of Police, Samastipur contained in Annexure '1'

whereby and whereunder the petitioner has been called upon to

show cause as to why a disciplinary proceeding be not initiated

against him and he has been placed under suspension. Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

(ii) Further prayer is to issue a writ in the nature of

certiorari or any other appropriate writ for setting aside of charge

memo vide Letter No. 3990/GO dated 20.07.2016 under signature

of the Superintendent of Police, Samastipur contained in Annexure

'2'.

(iii) Petitioner also prays for issuance of writ in the

nature of certiorari or any other appropriate writ for quashing of

the final order of punishment in departmental proceeding no.

80/2016 vide letter No. 1358/र 0 का0 dated 02.06.2017 under

signature of the Superintendent of Police, Samastipur contained in

Annexure '6' by which the petitioner has been subjected to the

punishment of withholding of increment of pay with cumulative

effect of one year which is equal to two Black marks and for

quashing of the appellate order contained in Annexure '11' vide

Darbhanga Range Order No. 46/2018 corresponding 395/ सस0 शा0

dated 18.04.2018 issued under signature of Deputy Inspector

General of Police, Darbhanga Range, Darbhanga by which the

appeal of petitioner against the Final Order of punishment has

been dismissed.

(iv) A writ in the nature of mandamus or any other

appropriate writ has been prayed for directing the respondents to

get seniority with all consequential benefits. Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

C.W.J.C. No. 5584 of 2019

3. In this writ application, the petitioner prays:-

(i) To issue a writ in the nature of certiorari or any other

appropriate writ for setting aside of Samastipur District Force

Order No. 660/2017 corresponding Memo No. 1084/jk0dk0 dated

16.05.2017 issued under the signature of the Superintendent of

Police, Samastipur as contained in Annexure '8' whereby and

whereunder the petitioner was barred from holding the post of

Station House Officer in any police station as well as Officer-In-

Charge of out police station.

(ii) Further prays to issue a writ in the nature of

certiorari for setting aside of Standing Order No. 02/2016 dated

27.04.2016 issued under the signature of Director General of

Police as contained in Annexure '9' whereby and whereunder it

was ordered that if a Station House officer / Out Post Incharge is

found guilty of his involvement in illegal transaction of liquor, he

would be barred from holding the post of Station House Officer in

any police station as well as Officer-In-Charge of out post for next

ten years.

(iii) The petitioner also prays to issue a writ of

mandamus commanding the respondents concerned to revisit and Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

reconsider the Standing Order No. 02/2016 dated 27.04.2016

(Annexure '9') in the light of Principles of Natural Justice.

Brief Facts of the Case

4. In both the writ applications, the petitioner is the same

and one person. It is the case of the petitioner that he entered in the

Bihar Police Force as Sub-Inspector. While he was posted at

Bithan Police Station situated under the District of Samastipur, on

27.06.2016, a secret information was received by the

Superintendent of Police, Samastipur that one person is illegally

selling illicit liquor. A raid was conducted in the house of one

Kamla Kant Yadav from where 111 litres of foreign liquor were

seized. A first information report giving rise to Bithan Bazar P.S.

Case No. 53 of 2016 was registered by the petitioner.

5. The petitioner was posted as Station House Officer.

He was placed under suspension vide District Order No. 1102 of

2016 corresponding to the Letter No. 3590/GO dated 29.06.2016.

He was called upon to explain as to how 111 liters of foreign

liquor were recovered from jurisdiction of Bithan Police Station

where he was posted. It is the stand of the petitioner that he did not

receive the Order No. 1102 of 2016 as contained in Annexure '1'

to the writ application. It is stated that on perusal of charge as

contained in Annexure '2' to the writ application, it would appear Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

that the petitioner was charged of dereliction of duty for reason

that the recovery was made from the house of Kamla Kant Yadav.

6. It is the further case of the petitioner that in course of

departmental proceeding, the petitioner requested the Conducting

Officer in writing to supply a copy of the charge memo, FIR and

other relating papers which were supplied to the petitioner on

22.05.2017. In paragraph '8' of the writ application, it is stated that

on the same date i.e. 22.05.2017, altogether four witnesses were

examined on behalf of the Department. The petitioner submitted

his explanation to the Conducting Officer vide his explanation

dated 26.05.2017 as contained in Annexure '5' to the writ

application which was never considered.

7. It is the specific case of the petitioner that final order

of punishment in the Departmental Proceeding No. 80/2016 as

contained in Memo No. 1358 dated 02.06.2017 was passed

whereby and whereunder the petitioner has been subjected to the

punishment of withholdment of increment of pay of one year with

cumulative effect which is equal to two black marks.

8. It is further submitted that the petitioner has been

further debarred from holding of post of Station House Officer in

any police station as well as Incharge of Out Police Post. In this

regard, Samastipur District Post Order No. 660 of 2017 Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

corresponding to Memo No. 1804 dated 16.05.2017 (Annexure '8'

to the writ application) has been issued.

Submissions of the Petitioner

9. Learned counsel for the petitioner has drawn the

attention of this Court towards the Standing Order No. 02 of 2016

dated 27.04.2016 issued under the signature of the Director

General of Police, Bihar, it is an internal communication whereby

and whereunder all the Senior Superintendent of

Police/Superintendent of Police have been directed to give top-

most priority to the implementation of the Prohibition Laws and in

case involvement of any Station House Officer/O.P. Incharge is

found in the matter of manufacturing/transportation or

consumption of liquor in the area under his command, he should

be placed under suspension and a departmental proceeding be

initiated against him. The order further states that in case, the

allegations against him are found to be correct, he would not be

posted as Officer Incharge/Out Post Incharge for a period of 10

years. A copy of the Standing Order No. 02/2016 is Annexure '9'

to the writ application.

10. It is submitted that on the face of the aforementioned

direction coming from the top-most officer of the department, Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

issuance of the Letter No. 1102 dated 29.06.2016 (Annexure '1')

calling upon the petitioner to show cause was a mere formality.

11. Learned counsel for the petitioner submits that even

before completion of the departmental proceeding against the

petitioner, he was debarred on 16.05.2017 (Annexure '8') from

posting as Incharge of the Police Station or Out Police Post.

12. The petitioner filed an appeal vide Annexure '10' to

the writ application for setting aside the order vide Memo No.

1358 dated 02.06.2017 passed by the disciplinary authority but the

same was rejected by the Deputy Inspector General of Police,

Darbhanga Range, Darbhanga vide Annexure '11' to the writ

application. It is submitted that on bare perusal of the appellate

order, it would appear that the appellate authority has not at all

considered the grounds raised by the petitioner in his appeal. The

appellate authority has reached to a conclusion without analyzing

the evidences available on the record.

13. Learned counsel further submits that on a bare

perusal of the charge memo, it would appear that the charges are

completely vague and are based on assumptions of fact that the

petitioner had failed to gather information with regard to the

storage of illicit liquor in his area and the recovery of 111 liters of

foreign made liquor from the house of Kamal Kant Yadav has been Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

taken as a proof of the fact that the petitioner was guilty of

dereliction of duty and negligence in performing his duties.

14. Learned counsel further submits that the Department

did not appoint any Presenting Officer and the role of the

Presenting Officer was assumed by the Inquiry Officer who acted

in haste and did not allow a single day to the petitioner to prepare

himself with the documents/charge memo which were supplied to

him only on 22.05.2017. Learned counsel has relied upon the

judgment of the Hon'ble Apex Court in the case of State of Uttar

Pradesh and Others versus Saroj Kumar Sinha reported in

(2010) 2 SCC 772 (paragraph '28') to submit that an inquiry

officer is a quasi-judicial authority, he is an independent

adjudicator and is not supposed to be a representative of the

Department/Disciplinary Authority of the Government. Reliance

has also been placed on the judgment of the Hon'ble Supreme

Court in the case of Panchanan Kumar versus the Bihar State

Electricity Board reported in 1996 (1) PLJR 401 to submit that

the inquiry has vitiated inasmuch as the Inquiry Officer in this case

has himself acted as the Presenting Officer.

15. Learned counsel further submits that the Memo of

Charge in this case has not been issued by the Disciplinary

Authority who is also the appointing authority of the petitioner. He Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

is the Deputy Inspector General. The charge is said to have been

issued by the Subordinate Officer who is not competent to issue

the memo of charge.

16. Learned counsel submits that Rule 834 (a) of the

Bihar Police Manual, 1978 says that not more than one black mark

shall be awarded for any one offence except when moral turpitude

can reasonably be inferred. In this case, it is submitted that the

petitioner has been awarded a punishment which is equal to two

black marks.

17. Further relying upon the judgment of the Hon'ble

Supreme Court in the case of Roop Singh Negi versus Punjab

National Bank and Others reported in (2009) 2 SCC 570,

learned counsel submits that the ratio of the said judgment would

equally apply in the present case. It is submitted that the

delinquent employee/petitioner requested the Conducting Officer

to fix dates to examine the defence witnesses but the Conducting

Officer has not provided any opportunity to the petitioner to

examine defence witnesses. It is further submitted that the orders

passed by the Disciplinary Authority and the Appellate Authority

both are liable to be set aside.

Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

Submission of the Respondents

18. A counter affidavit has been filed on behalf of

respondent nos. 8, 10 and 11. In response to the statements made

in paragraph '7' of the writ application, the deponent of the

counter affidavit accepts that the required documents were

received by the petitioners on 22.05.2017. The statements made in

paragraphs '8' and '9' of the writ application have not been denied.

It means the statement of the petitioner that all the four witnesses

were examined on the same day and that the explanation submitted

by the petitioner before the Conducting Officer was not considered

are the admitted facts. This Court further finds that the statement

of the petitioner that no Presenting Officer was appointed in this

case have not been denied. In this connection, the statement of the

petitioner in paragraph '21' of the writ application has been

answered in paragraph '26' of the counter affidavit without any

specific denial. The submission of learned counsel for the

petitioner that the copy of the inquiry report was not made

available to the petitioner has also not been denied.

Consideration

19. Having heard learned counsel for the petitioner and

the State and on perusal of the pleadings of the parties, at first Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

instance, this Court has no hesitation in agreeing with the

submission of learned counsel for the petitioner that on the face of

an order called Standing Order No. 02 of 2016 issued by the

D.G.P., issuance of the show-cause notice dated 29.06.2016 was a

mere empty formality. The tone and tenor of the Standing order

leave no room for the disciplinary authority prescribed under the

Bihar Police Manual (refer Rule 825 and Appendix 84) to apply

his independent mind in the matter of forming an opinion as to

whether in a particular case situation the concerned S.H.O. or

Chowkidar be proceeded against or not. Nothing has been left to

the wisdom of the Disciplinary Authority. This has resulted in

initiation of Disciplinary proceeding without application of an

independent judicious mind after consideration of the show

cause/reply of the petitioner.

20. This Court further finds that there are some

undisputed facts of this case. The charge of dereliction of duty and

negligence on the part of the petitioner has been framed for the

reason that there was a recovery of 111 liters of illicit liquor from

the house of a person situated within the jurisdictional area of the

Bithan Police Station. To this Court, it appears that to bring home

the charge levelled against the petitioner, the Department was

required to adduce plausible and credible evidences but it appears Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

on perusal of the evidences of the departmental witnesses that they

have not at all spoken a single line against this petitioner. The

witnesses are the most formal kind of witnesses who had been a

member of the raiding team and have proved the seizure of illicit

liquor. This Court, therefore, finds that the charge against the

petitioner has been taken as proved on assumptions and

presumptions that he has acted negligently and committed

dereliction of duty.

21. It is an admitted fact in this case that no Presenting

Officer was appointed by the department, on the same day i.e.

22.05.2017 when the documents were supplied to the petitioner,

the Inquiry Officer examined four witnesses on his own. This

Court, therefore, finds that the conduct of the Inquiry Officer was

like a representative of the Department and not that of an

independent quasi-judicial authority. The impugned order of

punishment is, therefore, liable to be quashed and cancelled for all

these reasons.

22. This Court has referred the Standing Order No. 02 of

2016 in the preceding paragraph. It is required to be discussed at

some length. The Standing Order has been issued vide Memo No.

2363 dated 28.04.2016 (Annexure '9') under the signature of the Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

Director General of Police, Bihar. The said order is being

reproduced hereunder for a ready reference:-

"LFkk;h vkns"k la[;k [email protected]

fcgkj ljdkj }kjk fnukad & 01-04-2016 ls iwjs jkT; esa fcgkj mRikn ¼la"kks/ku½ vf/kfu;e 2016 dks ykxw fd;k x;k gSa ftlds rgr jkT; esa iw.kZ "kjkc canh ykxw gks pqdh gSA mDr vf/kfu;e dh /kkjk&68 esa mYys[k gS fd **bl vf/kfu;e dh mica/kksa ds mYya?ku esa fd;k x;k dksbZ vijk/k bl vf/kfu;e ds v/khu v"keuh; ¼Non- compundable½ gksxkA** lkFk gh vf/kfu;e dh /kkjk&47 ls ysdj /kkjk&67 rd esa e|fu'ks/k dks izHkkoh cukus gsrq "kkfLr ds fooj.k fn;s x;s gSA ftlesa "kjkc ds fuekZ.k] miHkksx rFkk fcØh vkfn ds fy, fu/kkZfjr naM dk mYys[k gSA KkrO; gSa fd iqfyl eq[;ky; ds i=kad [email protected],Dl0,y0] fnukad & 01- 04-2016 ls iwoZ esa gh bl vf/kfu;e ds iw.kZr% vuqikyu djkus gsrq funsZ"k fn;s tk pqds gSA blds lkFk gh i=kad [email protected],Dl0,y0] fnukad & 11-03-16 }kjk lHkh Fkkuk/;{kksa ls bl vk"k; dk izek.k nsus dk funsZ"k fn;k x;k Fkk fd muds {ks=kUrxZr voS/k "kjkc dk mRiknu] "kjkc HkV~Bh dk lapkyu rFkk voS/k "kjkc dh fcØh ugha gks jgh gSa ,oa iqfyl dfeZ;ksa @inkf/kdkfj;ksa }kjk vkthou "kjkc lsou ugha djus laca/kh "kiFk&i= izkIr fd;k x;k gSA iqu% lHkh ojh; iqfyl v/kh{[email protected] LkHkh iqfyl v/kh{kd dks funsZ"k fn;k tkrk gSA fd iwjs fcgkj esa "kjkc canh ykxw djokus dks lokZSPp izkFkfedrk nsaxsA ;fn fdlh Fkkuk/;{[email protected] vks0ih0 izHkkjh ds {ks=kUrxZr "kjkc fuekZ.k] fcØh] ifjpkyu vFkok miHkksx esa mudh lafyIrrk dh ckr izdk"k esa vkrh gS ;k {ks=kUrxZ e|fu'ks/k esa muds Lrjh ls dÙkZO;ghurk cjrh tkrh gS rks mUgs fuyafcr @ foHkkxh; dkjZokbZ izkaHkj dh tk;sxhA ;fn Fkkuk/;{k @vks0ih0 izHkkjh ds fo:) mDr vkjksi tkap ds Øe esa lgh ik;s tkrs gS rks mDr iqfyl inkf/kdkjh dks vxys 10 ¼nl½ o'kksZ ds fy, Fkkuk/;{k @vks0ih0 izHkkjh ds in ij inLFkkfir ugha fd;k tk;sxkA

[email protected]& iwfyl egkfuns"kd fcgkj] iVukA"

23. This Court further finds that not only the letter as

contained in Annexure '1' refers the various order issued by the

police headquarters, even during pendency of the Inquiry, the

Superintendent of Police, Samastipur issued Samastipur District

Order No. 660 of 2017 dated 16.05.2017 (Annexure '8') wherein

after taking note of the aforesaid Standing Order No. 02 of 2016,

he passed an order in the following terms:-

"mDr vkns"k ds vkyksd esa iq0v0fu0 jathr dqekj rRdkyhu Fkkuk/;{k foFkku dks vxys nl o'kksZ ds fy, fdlh Hkh [email protected] izHkkjh ds :i esa inLFkkfir ugh fd;k tk,xkA"

Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

24. This Court finds that the order of punishment is

contained in Memo No. 1358 dated 02.06.2017 whereas the

Superintendent of Police, Samastipur passed an order on

16.05.2017 as contained in Annexure '8' even before conclusion of

the disciplinary proceeding holding the petitioner guilty. This is

nothing but a case of complete non-application of judicious mind

by an authority who has been vested with power to pass a drastic

order against the officers working under him.

25. To this Court there is no iota of doubt that in a zeal

to implement the prohibition law, the police headquarter failed to

take note of the principle of fair play in action in administrative

matters. The Rules governing the disciplinary matters have been

tweaked albeit without adhering to the established procedure of

law. This is another area which has given rise to huge number of

litigations and burdened this Court. Recently, in C.W.J.C. No. 737

of 2023 (Ajay Kumar versus the State of Bihar and Ors.), this

Court has noticed how disciplinary proceedings have been initiated

and a concept of 'deemed guilty' has been introduced through an

order issued by D.G.P., Bihar, Patna.

26. In course of argument, learned counsel for the State

could not demonstrate the legal sanctity of the Standing Order No.

02 of 2016 (Annexure '9'). On the face of the fact that Rule 824 of Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

the Bihar Police Manual, 1978 specifically prescribes the kind of

punishments which may be imposed in a disciplinary proceeding

against an officer in the rank of this petitioner, it is beyond

imagination that even before culmination of a disciplinary

proceeding against an officer such as the petitioner the

Superintendent of Police shall pass an order as contained in

Annexure '8' which has a huge civil consequence. It deprives an

officer not only from his status/position but also affects his

reputation.

27. To this Court, therefore, it appears that the direction

contained in permanent Standing Order No. 02 of 2016 amounts to

prescribe an additional punishment of debarring a police officer

from his posting for 10 years as Station House Officer/Incharge

O.P. of a police station. The legal status of such order has not been

established before this Court.

28. Since in this case, this Court has noticed that not

only the charges were framed on the basis of assumptions and

presumptions of the facts, in course of departmental inquiry, no

Presenting Officer was appointed, no witness could be brought to

prove those charges and several other illegalities have been

committed in conduct of the disciplinary proceeding, this Court is

of the considered opinion that the impugned order and the entire Patna High Court CWJC No.5554 of 2019 dt.08-05-2023

disciplinary proceeding against the petitioner are liable to be

quashed and cancelled. Accordingly, this Court quashes the entire

disciplinary proceeding, the memo of Charge (Annexure '2') and

the impugned orders as contained in Memo No. 1358 dated

02.06.2017 (Annexure '6'), the Memo No. 1084 dated 16.05.2017

(Annexure '8') and the appellate order as contained in Darbhanga

Range Order No. 46 of 2018 dated 18.04.2018 (Annexure '11') in

CWJC No. 5584 of 2019 and Annexures '1' and '2' in CWJC No.

5554 of 2019.

29. These writ applications are allowed. The petitioner

shall be entitled for the consequential benefits.

(Rajeev Ranjan Prasad, J) SUSHMA2/-

AFR/NAFR
CAV DATE
Uploading Date            12.05.2023
Transmission Date